Afrox Ltd v BCCI & others (2006)27 ILJ 1111 (LC)

Cross-examination is a fundamental part of a disciplinary hearing, the denial of which will invariably lead to procedural unfairness.

Facts:

In an internal disciplinary enquiry the employee was not given the opportunity to cross-examine two other employees directly involved in the act of misconduct. The employer contended that the cross-examination would have served no purpose as their evidence would simply have weakened the employee’s case. The Labour Court found that cross-examination is fundamental. The employer had overlooked the undisputed fact that the employee had been provoked and the two other employees had acted out of revenge for being reported for a breach of safety standards. Cross-examination could have led to establishing serious mitigating factors which could have prevented dismissal.

Extract from the judgment:

[At 1113G]   Cross examination is fundamental… Cross examination could have led to establishing serious mitigating factors, which could have prevented the dismissal. On the other hand, it is quite probable that their evidence could have bolstered the type of facts which would render the sanction of dismissal appropriate. The fact that the latter was a possibility does not mean cross examination should be disallowed. Such reasoning is irrational.