HR Pulse




Menu Style


What is a ‘cross-examination’?

Ivan Israelstam

The Labour Relations Act (LRA) doesn't deal with the employee's right to cross-examine. In addition, it doesn't prescribe the extent to which the employee can move away from the subject matter of the hearing. However, the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitrators, as well as Labour Court judges, insist that employees are given the right to cross-examine the complainant's witnesses. This is because such cross-examination is the democratic right of anyone accused in any formal process. Interfering with this right - without sound reason - is likely to land the employer in serious trouble.

At a disciplinary hearing, the parties present are normally:

  • The accused employee,
  • The accused's representative,
  • The complainant, who is the person assigned by the employer to present the case against the employee
  • The presiding officer (chairperson) who:
    - Acts as the 'judge',
    - Controls the hearing,
    - Arrives at a verdict, and
    -Decides on the appropriate corrective measures where there is a guilty verdict.
  • The witnesses of both parties.

Should the accused employee bring witnesses – to his or her hearing - as part of his or her defence, it is important for the complainant to cross-examine those witnesses to:

  • Deny those things said by the witnesses that the complainant believes to be untrue,
  • Expose the weaknesses in the witnesses' testimonies,
  • Highlight the lack of credibility of the witness, and
  • Ask the employee's witnesses any questions that shed light on the employee's guilt.

It is essential that, once the complainant's witnesses have testified, the accused employee is given the opportunity to cross-examine them. That is, the employee must be allowed to question the evidence brought against him or her to show the presiding officer the employee's side of the story.

Presiding officers must be properly skilled in labour law

It often happens that the employee - while cross examining a witness - asks questions that seem irrelevant to the case. The chairperson is entitled to ask the employee how the line of questioning is relevant to the charges. However, the presiding officer is not entitled to interfere unduly with the employee's cross-examination of the complainant's witnesses. There is, therefore, a very fine line between what the chairperson is and isn't allowed to do.

In the case of Aranes vs Budget Rent a Car (1999, 6 BALR 657):

  • The arbitrator found that the disciplinary hearing chairperson had been wrong in intervening in the proceedings before the accused employee had been given a chance to cross examine the complainant's witnesses.
  • This was unfair because it would have been likely to have intimidated the accused employee and to have given him the impression that the chairperson had already made up her mind that he was guilty.

In the case of Labuschagne vs Anncron Clinic (2005, 1 BALR 40 CCMA):

  • The employee had been the administrative manager at a clinic. She had been dismissed for putting laxatives in a cup of yoghurt that had been eaten by the hospital manager before he had embarked on an air trip.
  • The employee admitted putting the laxative into the yoghurt but claimed that it had not been intended for the hospital manager.
  • The arbitrator found that chairperson of the disciplinary hearing had continually interrupted the accused employee while she was trying to question the complainant's witnesses at her disciplinary hearing.
  • The arbitrator found this to be unfair and ordered the employer to pay the employee six months' remuneration in compensation.

Presiding officers don't have unlimited power

The law restricts the rights and powers of the presiding officer and the CCMA is there to act as a regulatory body should the presiding officer exceed his or her powers.

If the presiding officer steps out of line, knowingly or unintentionally, it makes no difference. If such an error on the presiding officer's part potentially interferes with the rights of the accused employee, the employer is likely to lose its case at the CCMA. This is the reason that employers are now, more than ever, tending to have their managers properly trained in labour law and in the management of discipline.