Die toelaatbaarheid en nie-toelaatbaarheid van getuienis in dissiplinêre verhore
All employers should have a set of rules that employees are expected to follow, and these rules should be expressed to every employee. Should the employees brake any of these rules, a disciplinary hearing should be held. Disciplinary hearings does not need to adhere to the strict standards of normal court procedures. The employer should investgate the matter to determine whether there are grounds for dismissal. There are a number of procedures that needs to be followed for the procedure to be regarded as fair. These procedures can be found in the Code of Good Practice: Dismissals. It is obvious that it does not have to be a formal procedure. The question arises which rules should be followed when evidence are gathered for a disciplinary hearing. The rules of evidence does apply to the labour law, but the way in which it applies differs according to the circumstances. Evidence which would normally be inadmissable, may be admissable during disciplinary procedures. Such evidence includes hearsay, poligraph tests and searches. In many of these cases, the individuals right to privacy are threatened by the gathering of evidence. Article 14 of the Constitution gives every person the right to privacy. Article 32 on the other hand, gives every person the right of access to information. Therefore the employee has the right to privacy and the employer has the right to access of information. When these rights are in conflict, the interests of both parties should be weighed up against each other. The general principle is that evidence has to be relevant to be admissable. Cross-examination forms an integral part of any hearing. There are authority to suggest that cross-examination is not always necessary during disciplinary hearings. In special circumstances cross-examination will be abandoned. Normally, hearsay evidence will not be admissable since it cannot be tested and tend to be seen as unreliable. There exists some circumstances where hearsay evidence will be admissable during disciplinary procedures. Certain factors will determine when hearsay evidence are admissable. In our law there still remains a lot of uncertainty in this area. A similarly uncertain situation exits in the case of poligraph testing. It has been argued that these tests are not as trustworthy as most people believe them to be. There are cases where poliiraph evidence have been found to be admissable, but there have also been cases where it has been found to be inadmissable. I believe that legislation should be laid down to clarify these questions. The South African law system are largely based on that of the English law. Therefore a study was made of the position of in the English law. The positions in both law systems are very similar. A less formal procedure for disciplinary hearings is found in both the English and South African systems of law.
- ETD@PUK