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Can Employers be Compelled to Disclose Pre-Hearing Investigation Reports in Arbitration Proceedings? 

by Siphamandla Dube

Published: April, 2021

Submission: April, 2021

 



Employers who suspect that employees are guilty of misconduct often appoint forensic investigators or legal practitioners to investigate whether such misconduct exists. They then prepare a report with recommendations on how to proceed, including whether disciplinary actions can be taken against the employees concerned.


In cases where disciplinary steps are taken based on the facts and recommendations set out in the report, it is not uncommon for employees facing these charges to request that the employer disclose the investigation report. But is the employer obliged to do so?


In South African Sports Confederation and Olympic Committee (“SASCOC”) v CCMA and Others, the South African Labour Court had to consider the circumstances in which the discovery of an investigation report may be compelled during arbitration proceedings.


Background


In this case, SASCOC’s board appointed its attorneys to conduct a preliminary investigation into the conduct of three of its employees. SASCOC’s attorneys then provided it with two investigation reports dealing with allegations of misconduct committed by the employees.


This prompted the employer to institute disciplinary proceedings against the three employees. This resulted in their dismissal. The employees challenged the fairness of their dismissals and, during the subsequent arbitration proceedings, the employees’ legal representative requested that SASCOC disclose certain documents, including the reports. SASCOC refused to do so because the documents, including the reports, were not relevant.


The employees then made a formal application to the arbitrating commissioner for disclosure of the reports. The application was opposed by SASCOC because the reports were irrelevant and, in any event, protected by legal professional privilege in circumstances where its attorneys had been instructed to prepare them.


In determining the application, the arbitrating commissioner considered rule 29 of the Commission for Conciliation, Mediation and Arbitration (“CCMA”) rules, which deals with the disclosure of any documents or material relevant to the dispute.


The arbitrating commissioner concluded that the reports were not protected by legal professional privilege because they had not been obtained for the purposes of pending or contemplated litigation, nor for the purpose of giving or receiving legal advice. Insofar as relevance is concerned, the commissioner concluded that the reports related to the substantive fairness of the employee’s dismissal in that they were charged based on information found in the reports. He further found that the employees may have wished to use the reports to challenge SASCOC’s witnesses’ credibility during the arbitration. Therefore, it would also be relevant to the proceedings for this purpose.


The Labour Court decision


SASCOC took the commissioner’s ruling on review to the Labour Court. As a starting point, the Labour Court noted that the reports were not used as evidence in the employees’ disciplinary hearing. Instead, the reports formed part of the factual basis for SASCOC’s decision to pursue disciplinary charges against the employees, based on documentary evidence uncovered during the investigation, which was discovered to the employees. Furthermore, as summarised in the reports, the witnesses who provided information to investigators would, where relevant, testify at the arbitration, as had been the case in the disciplinary hearing.


In coming to its decision, the Labour Court considered the wording of rule 29 of the CCMA rules. It held that rule 29 ought to be interpreted in the context of the fact that the CCMA is a statutory dispute resolution agency and that a commissioner is required, in terms of section 138(1) of the Labour Relations Act, 1995 to determine a dispute fairly and quickly and with the minimum of legal formalities. It further held that the only criterion for the disclosure of documents that rule 29 sets out is relevance. Relevance, it was held, must be assessed in relation to the nature of the proceedings before a commissioner, which involved whether certain dismissals were allegedly substantively and procedurally unfair.


The Labour Court pointed out that an arbitration is a new hearing, and it found that the commissioner appeared to have ignored this fact. In other words, in proving that the employees’ dismissals were procedurally and substantively fair, it was incumbent on SASCOC to establish, on the evidence that it elected to lead in the arbitration, that:


  • there was a fair reason for the dismissals;
  • dismissal was an appropriate sanction; and
  • the employees were afforded an opportunity to state their cases before being dismissed.

Regarding this, what a commissioner must determine is whether a dismissal is fair in light of the evidence admitted at the arbitration. This does not mean that the commissioner must merely review the evidence considered by the employer when it decided to dismiss an employee.


The Labour Court found that the employees had no right to the discovery or disclosure of the reports when the disciplinary hearing was convened. Therefore, the commissioner was incorrect in holding that the reports contained information relating to the substantive fairness of the employees’ dismissals merely because they gave rise to the charges against the employees. Instead, the disciplinary chairperson provided the substantive reasons for the employees’ dismissals in his findings, which reasons were discovered and provided to the employees. The Labour Court, therefore, found that the reports were entirely irrelevant to the fairness of the employees’ dismissals, particularly given that they were not used in the disciplinary hearing and would not be relied on by SASCOC in the arbitration.


Given its finding that the reports were not relevant, the Labour Court held that it was unnecessary to deal with the application of legal professional privilege concerning the reports. Ultimately, the Labour Court set aside the arbitrator’s ruling and held that reports were not subject to disclosure in terms of rule 29 of the CCMA rules.


Thoughts on the judgment


The basis for the Labour Court’s finding was that the employer’s investigation report had not been relevant to the arbitration. The employer had not relied on the investigation report itself to justify the dismissal of the employees. Rather, it had utilised the documentary and other evidence set out in the report to justify the dismissal. This evidence had been disclosed to the employees.


This means that, should employers wish to ensure that such a report should not be disclosed, they ought to extract the documentary evidence obtained during an investigation and rely on such evidence, together with witnesses’ oral testimony, during a disciplinary hearing. This is to avoid creating a situation where an investigation report becomes relevant to the issues in dispute and must, therefore, be disclosed to employees.


This article was reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.


 


 

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