Simmers v Campbell Scientific Africa sets the record straight.
Mr Simmers was called to attend a disciplinary hearing by his employer, CSA, on allegations of sexual harassment, unprofessional conduct and bringing the name and image of the company into disrepute. He was dismissed and subsequently referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Ms Markides, the victim of the alleged sexual harassment and CSA's witness in the arbitration proceedings, was resident in Australia at the time of the arbitration and did not testify in person.
The arbitrator allowed her to testify via Skype. However, a video link could not be established and Markides thus testified and was cross-examined telephonically by Skype link.
Simmers was unhappy and complained that he was prejudiced that Markides did not testify in person at the arbitration. He alleged that the arbitrator committed a reviewable irregularity by allowing Markides to testify by long-distance telephone link.
Specifically, Simmers argued that Markides had the benefit of delays, pauses, broken connections, time to compose herself, to think of her answers, to reconsider the questions, and that she did not have to face the man that she accused.
Furthermore, the arbitrator could not test her demeanour (an important factor in sexual harassment cases).
It is trite law that arbitration proceedings are designed to be informal and conducted with the minimum of legal formalities. The Judge held that the arbitrator allowed Markides' evidence in a manner that reflected this.
The arbitrator was held to have conducted the arbitration in a manner that he considered appropriate to determine the dispute fairly and quickly. The Judge noted that Markides was in Australia and that it would have been unacceptably costly and time-consuming for her to be flown back to South Africa to give evidence.
Judge Steenkamp held that while it was not an ideal situation to allow a witness to testify via Skype or a long-distance telephone link, it was nevertheless a scenario envisaged by the Labour Relations Act, No. 66 of 1995.
The fact that Markides testified in the manner that she did did not prevent Simmers from having a fair hearing and it did not constitute a reviewable irregularity.
This is good news for both employers and employees. By allowing evidence to be led via Skype or long- distance telephone link, there are likely to be fewer postponements during arbitration proceedings due to the unavailability of witnesses.
In addition, costs associated with transporting and accommodating witnesses in order for them to testify at arbitration proceedings can be kept to a minimum in instances where witnesses are abroad or live far away.