ARE ACCUSED EMPLOYEES AUTOMATICALLY ENTITLED TO CROSS EXAMINE THEIR ACCUSERS?
Item 4(1) of the LRA’s Code of Good Practice: Dismissal says that an accused employee should, as part of a misconduct enquiry, be allowed the opportunity to state a case in response to the allegations. The Code does not specify in detail as to what this right of response should entail. The Code does not deal with the issue of cross examination but indicates that the employee should be allowed to present his side of the story and that such a process does not need to be formal. As a result of this some employers argue that the employee is not entitled to cross examine the evidence presented by the employer. Are such employers correct?
Our labour laws are all subservient to our constitution. Our constitution calls for fairness in all respects.
Our courts have been absolutely adamant that the concept of “audi uletram partem” should be respected at all stages. The reality is that every employee has a right, and in fact a duty, to test all allegations and to put his/her version to the accuser. The right to cross examine is a golden thread throughout our entire legal system.”
Yes – they certainly are entitled to cross-examine their accusers. Cross-examination lies at the heart of ensuring fair and due process. It’s first purpose is to test the truth or veracity of allegations made against an accused. It’s second purpose is to test the accuser’s version versus the accused’s version. This happens when the accused “puts his or version” to the accuser’s witnesses. Without this technique of “cross” testing conflicting versions in search of the truth, the adjudicator would be left to choose between two mutually exclusive and untested versions standing starkly alongside each other. This makes it impossible to plausibly assess which of the two untested versions is more or less probable than the other.