CARELESS SLIPS CAN COST ARBITRATION TRIALS

Oh dear! Sometimes it just pays to open your mouth and say your say!

Careless slips can cost arbitration trials

Employees cannot afford to leave adverse evidence unanswered
Tony Healy

02 August 2007 at 06h00

All too often, parties to disciplinary hearings fail to dispute or challenge evidence led against them. Evidence implicating, for example, an employee is ordinarily led during evidence in chief. Should testimony led during evidence in chief include averments which are disputed, such averments should be challenged during cross-examination. For if no challenge is forthcoming, the adjudicator may well assume that no dispute in fact exists with regard to such evidence. A similar issue was addressed in the Labour Court (LC) matter of Ocelli Francke Aubouinn Klaasen v CCMA & 2 others (Case No C260/2003). In this case, the employee, to his detriment, failed to give evidence under oath in the arbitration process.

In this matter, the employee claiming unfair dismissal declined to give evidence under oath believing, mistakenly, that he need not give evidence in the arbitration hearing as he had put his version to the commission in his opening statement and during cross-examination of company witnesses. Having lost the arbitration, the employee took the case on review to the LC claiming, inter alia, that the commissioner had committed an irregularity by failing to properly apprise him of the implications of not giving oral evidence.

The employee continued that he would have given evidence had he known that in not doing so he would prejudice his case. The employee, not legally trained, elected to represent himself in the arbitration hearing. In the LC judgment, the judge stated that employees cannot afford to leave opposing adverse evidence unanswered, as such evidence is unlikely to be rejected if the employee has chosen not to deny or contradict it. Importantly, the judge continued that an adverse inference ought only be drawn if an unrepresented employee has been cautioned that his failure to testify may lead to an adverse inference being drawn.

Failure by the commissioner, in this case, to forewarn the employee of the perilous results of his failure to testify was deemed to have been a "reviewable irregularity" in the LC judgment and that the commissioner "misconducted himself" by not doing so. The judgment continued that the commissioner was in fact "under a duty to inform the applicant of the rules of evidence and his intention to rely upon them to accept an uncontradicted version or to draw an adverse inference".

The arbitration award was thus set aside. Chairpersons of disciplinary hearings, and indeed arbitrators, would do well to heed the lessons emanating from this judgment. Parties should be properly briefed on the prejudice they may suffer in the event that they elect not to testify or elect not to challenge disputed evidence led in evidence in chief, during cross-examination.