The employees made a formal application for disclosure of the investigation report which formed the basis of the charges against them. They submitted that the employer was only entitled to claim privilege in respect of communications which took place in preparation for the arbitration hearing, and in relation to the arbitration hearing itself. The employees further submitted that the nature of the investigation was such that it constituted an internal procedure, and that the subsequent disciplinary hearing did not constitute legal proceedings. The employees contended that disciplinary action could not be equated with litigation and that it would be contrary to public policy should the employer be permitted not to disclose the report.

The employer submitted that the investigation report was concluded after a fact-finding exercise but expressed a view between attorney and client on the findings of the investigation and was accordingly legally privileged. In any event, the report was not relevant, since evidence would be given at the arbitration by relevant witnesses independent of the investigation report.

The Labour Court found that Rule 29 of the CCMA rules was the starting point of the enquiry. The rule discloses only relevance as a criterion for the disclosure of documents. Since an arbitration is a new hearing, meaning that the evidence concerning the reason for dismissal is heard afresh before the arbitrator, the arbitrator had to determine whether the dismissal is fair in the light of the evidence admitted at the arbitration and does not merely review the evidence considered by the employer when it decided to dismiss. The employees had no right to discovery or disclosure of the investigation report when the disciplinary enquiry was convened. Independent witness evidence was led to substantiate the charges against them.

To the extent that the arbitrator held that the investigation report contains information related to the substantive fairness of the dismissals as it was the investigation report that gave rise to the charges, this was found by the Labour Court to be incorrect. The chairperson of the disciplinary hearing provided the substantive reasons for the employees’ dismissals in his findings, which have been discovered and provided to the employees. The investigation report was thus entirely irrelevant to the issue of the fairness of the employee’s dismissals, particularly given that it was not used in the disciplinary enquiry and would not be relied on by the employer in the arbitration proceedings. It follows that the arbitrator committed a material error of law when he found that the report should have been disclosed on the basis that it was relevant.

Based on the court’s decision, employees will not be entitled to disclosure of an investigation report where such report was not used in the disciplinary enquiry and will not be relied upon by the employer during arbitration proceedings. The key issue, therefore, is whether the investigation report is relevant to the issue of the fairness of the employee’s dismissal. As long as an employer can establish the procedural and substantive fairness for an employee’s dismissal by leading the necessary evidence at the disciplinary hearing / arbitration by relevant witnesses (as opposed to placing direct reliance on the investigation report) the investigation report itself is irrelevant and on that basis, not subject to disclosure.

Written by Kirsten Caddy (Legal Consultant) and Thabo Mkhize (Legal Consultant)