- The Labour Court ruled that commissioners cannot refuse relevant expert evidence just because arbitration has already started.
- The judge found that excluding evidence which could affect the outcome may result in an unfair hearing.
- The alcohol dismissal dispute will return to the CCMA after the employee was prevented from challenging the breathalyser evidence.
The Labour Court has reinforced employees’ right to present expert evidence during CCMA proceedings. The court ruled that commissioners cannot exclude relevant testimony simply because arbitration is already underway.
In a judgment clarifying how expert evidence should be handled during labour disputes, Judge T Gandidze reviewed and set aside a CCMA arbitration award. The judge found that an employee had not been given a fair opportunity to challenge the evidence used to justify her dismissal.
The case concerned the dismissal of Lizelle Lehmann by Sylvania Metals (Pty) Ltd after she tested positive during mandatory workplace alcohol screening. While the employer relied on its zero-tolerance alcohol policy, the Labour Court ruled that the real issue was whether the arbitration itself was conducted fairly.
Fair hearing comes before procedural technicalities
A central issue was the commissioner’s decision to refuse Lehmann permission to call an expert witness to challenge the breathalyser results. The employer argued that the expert notices were served after arbitration had already begun and should not be allowed.
Judge Gandidze rejected that argument. The judge said Sylvania’s claim that CCMA Rule 37A requires expert notice before arbitration begins is an attempt to rewrite the rule and is rejected.
The court held that CCMA Rules require notice before the relevant hearing date, not before arbitration starts. If more time is needed, the right response is a postponement, not excluding the evidence.
Expert evidence can change the outcome
The judgment emphasises that commissioners must consider whether expert evidence could materially affect the outcome of a dispute.
In Lehmann’s case, the proposed expert would have examined the reliability of the breathalyser tests and the equipment's calibration. These issues were central to the employer’s case.
Judge Gandidze found that the exclusion of this evidence deprived the employee of the opportunity to properly challenge the employer’s allegations.
The commissioner’s decision also denied the applicant the opportunity to challenge the breathalyser test results, which were her main defence against the claim of misconduct. As a result, she was denied a fair trial, the judge said.
The court added that technical questions about the calibration certificate and breathalyser equipment needed expert evidence, which the employer’s own witness could not provide.
Zero-tolerance policies remain lawful
The judgment does not weaken employers’ ability to enforce zero-tolerance alcohol policies, especially in safety-sensitive industries. Instead, it makes clear that even if workplace rules are valid and important, disciplinary decisions must be tested through a procedurally fair process.
Judge Gandidze stressed that excluding relevant expert evidence just because proceedings have started is inconsistent with this requirement.
The judgment states that the commissioner misunderstood the nature of the inquiry by disallowing the applicant’s expert notices for the reasons he gave.
Fresh hearing ordered
Because the refusal to admit the expert evidence undermined the fairness of the arbitration, the Labour Court set aside both the commissioner’s ruling and the arbitration award.
The matter has been sent back to the CCMA for a fresh hearing before a different commissioner. Both parties will have the chance to fully present their evidence.
The court made no order regarding costs.
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