Are employers required to disclose investigation reports in the CCMA?
28 April 2021
In a recent unreported judgment between South African Sports Confederation and Olympic Committee v CCMA and Others, the Labour Court considered whether an employer is required to disclose a forensic investigation report prepared by its attorneys in the local employment tribunal, the Commission for Conciliation, Mediation and Arbitration (CCMA).
The background is briefly as follows: The South African Sports Confederation and Olympic Committee (SASCOC), as employer, instructed a law firm to undertake a forensic investigation into allegations of employee misconduct. Following receipt of the investigation reports, SASCOC charged the employees in terms of its disciplinary code and procedure, convened disciplinary hearings, and dismissed the employees. The employees referred unfair dismissal disputes to the CCMA and, as part of the CCMA proceedings, sought disclosure of the investigation reports. SASCOC refused on the basis that the investigation reports were protected by legal privilege, and in any event, were not relevant. The CCMA ordered SASCOC to disclose the investigation reports. This ruling was taken on review to the Labour Court.
Rule 29 of the CCMA Rules provides for the disclosure of documents or material relevant to the dispute. Unlike more formalistic procedures applicable in the High Court, the only criterion for disclosure of documents in the CCMA is relevance to the proceedings before the CCMA. Notably, CCMA arbitration proceedings are proceedings de novo (i.e. a new hearing) therefore SASCOC’s evidence concerning the dismissals was to be heard afresh before the CCMA arbitrator, who would determine whether the dismissals were fair in the light of such evidence.
The Labour Court confirmed that the employees had no right to discovery or disclosure of the investigation report when the disciplinary enquiry was convened. Furthermore, it held that the investigation reports were entirely irrelevant to the issue of the fairness of the employees’ dismissals, particularly given that they were not used as evidence in the disciplinary hearings and were not to be relied on by SASCOC in the CCMA proceedings. In amplification of such view, the Labour Court noted that:
- the reports simply formed part of the factual basis for the decision to pursue disciplinary charges;
- documentary evidence recovered during the investigation had been discovered to the employees; and
- witnesses who provided information to investigators would give oral evidence at the arbitration hearing, as was done in the disciplinary proceedings.
As such, the Labour Court held that the investigation reports were not subject to disclosure in terms of Rule 29.
Employers often commission external service providers to conduct investigations into allegations of employee wrongdoing. Whilst the reports usually inform further action taken by the employer, employers are understandably reluctant to disclose copies of the reports.
To ensure that the document remains irrelevant to any subsequent CCMA proceedings (and therefore not subject to disclosure in the CCMA), investigation reports should not be referred to or used as evidence in disciplinary hearings or relied on in any subsequent CCMA proceedings. Rather, the employer should discover and rely directly on documentary evidence recovered during the investigation, and call any witnesses who provided information during the investigation to give oral evidence at the disciplinary hearings/CCMA proceedings.
Furthermore, because the Labour Court’s decision turned on the question of relevance – not legal privilege – the principles apply equally to investigation reports compiled by professional service providers other than law firms.