Exxaro Coal (Pty) Ltd v Chipana and Others

Mr Gabriel Chipana, an employee of Exxaro Coal (Pty) Ltd and a shop steward, was dismissed for alleged dishonesty and misuse of his position after accusations that he solicited and received money from members of the public in return for securing employment at Exxaro. At the disciplinary hearing and subsequent CCMA arbitration, Exxaro relied largely on hearsay evidence, including affidavits from complainants who did not testify, and evidence from investigators with no first-hand knowledge. The commissioner excluded the hearsay evidence on the basis that it was not admitted with Mr Chipana’s consent and found the dismissal substantively unfair, ordering reinstatement. Exxaro’s review application to the Labour Court failed, leading to this appeal to the Labour Appeal Court.

The appeal was upheld. The Labour Court’s order was set aside and the matter was remitted to the CCMA for a fresh arbitration before a different commissioner.

The case provides authoritative guidance on the proper treatment of hearsay evidence in CCMA arbitration proceedings. It clarifies that commissioners must correctly apply section 3 of the Law of Evidence Amendment Act, rule timeously on admissibility, and actively manage the admission of hearsay to ensure procedural fairness. The judgment underscores that late rulings on admissibility constitute a reviewable irregularity.