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The assessing of the admissibility of illegally obtained evidence is not limited to phone taps and the covert videotaping of employees.
The CCMA has also been required to assess the admissibility of evidence obtained by way of a search of an employee’s private residence which, however, leads to evidence which proves that the employee, for example, is in unauthorised possession of company property and/or theft.
In Mhlongo versus AECI (CCMA arbitration case No KN19395), the employer had escorted an employee to his home where a search was conducted, in the presence of the police, without his consent.
The search revealed a large quantity of chemicals to the value of R20 000.
The employee submitted that the chemicals had been bought by him from legitimate outlets.
The employee was then dismissed for unauthorised possession of company property.
The commissioner was satisfied that the chemicals in question belonged to the employer and ought not to have been in the possession of the employee at his home. He said: “Clearly the search of the employee’s house was a prima facie infringement of his right to privacy”, a right enshrined in section 14 of the constitution.
In the context of the Criminal Court, such evidence would probably be inadmissible as there was no evidence of there having been “extraordinary excusable circumstances” in the present case.
However, the CCMA is not a criminal court but rather a quasi-judicial employment tribunal with different considerations.
The commissioner held that “the contract of employment is a consensual contract between an employer and an employee which is based on trust. In this case before me the employer is in possession of evidence that destroys any semblance of trust that it might have had in the employee”.
“I must find that the evidence of the search was properly admitted at the employee’s disciplinary hearing and that the chairperson of that hearing was entitled to rely on that evidence in deciding on the employee’s guilt.”
This decision was arrived at by the commissioner in the light of his finding that the evidence, albeit illegally obtained, was “directly relevant to the question of the continuation of the employment relationship given the nature of the employment relationship, where an employer is entitled to expect honesty from its employees”.
This award is in line with evolving case law which supports the admission of illegally obtained evidence in circumstances pertaining to the employment relationship.
Subsequent to this, the admissibility of evidence illegally obtained via the searching of an employee’s home without a warrant was upheld in Necawu obo Moodley & Nhlapo versus Highveld Steel (CCMA arbitration case No MP17005).
Employers should be cautious, however. Forced entry into the house of an accused employee would in all likelihood have serious consequences for employers with evidence so obtained not being admissible.
l Tony Healy is the Senior Partner at Tony Healy Labour Law Consultants. Visit www.tonyhealy.co.za or e-mail email@example.com. Follow him on on Twitter @tony_ healy.