Employers, chairpersons or arbitrators are often confronted with situations where the evidence around alleged misconduct of an employee comes down to the word of one person against that of another; or where there are several possible explanations or versions around alleged misconduct. How should such a matter be decided in terms of the rules of evidence?
It is trite that in disciplinary proceedings, the employer bears the onus to prove its allegations against an employee on a balance of probabilities. This standard must be distinguished from the standard applied in criminal cases, namely proof beyond a reasonable doubt. An employer is not required to prove the commission of misconduct by an employee beyond a reasonable doubt — i.e. that if any reasonable doubt or possibility of another explanation exists as to the employee’s guilt, he cannot be found guilty. Confusion as to the standard of proof often leads to a defendant thinking it sufficient to ‘poke holes’ in the version of the employer’s witnesses to create doubt or offer any number of other possibilities, but then fails to present an alternative probable version of his own. In weighing up the probabilities, the chairperson is not required to exclude every possible doubt in order to conclude the employee’s guilt.
It is also important to note that all of the evidence together must be evaluated to determine the matter - the credibility of individual witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s or the employee’s version. The version presented by the employer to substantiate the allegations of misconduct, must be found on the whole to be more probable or likely than that of the employee. In Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport (2000) 21 ILJ 2585 (SCA), it was held that the inference drawn from the evidence just has to be ‘the most natural or acceptable inference’, and not the only inference. In Bates and Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co (1985) 3 SA 916 (A) it was held as follows: ‘The process of reasoning by inference frequently includes consideration of various hypotheses which are open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be the most natural and plausible (in the sense of acceptable, credible or suitable).’
According to the Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999), it is merely required of the employer to show that circumstantial evidence that an employee is guilty of the misconduct, is more plausible than the possibility that he/she did not commit the misconduct. Should the employer be able to demonstrate a sufficient evidentiary basis to implicate the employee on a balance of probabilities, a mere and persistent denial by an employee without offering an actual version in answer to the evidence of the employer, is not a sufficient defence. As pointed out by the court, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the employer. Should the employer demonstrate a sufficient evidentiary basis to prima facie implicate the employee on a balance of probabilities, the onus to prove whatever defence / explanation he offers, then lies with the employee. It is not sufficient for an employee to make a mere statement of a possible defence, and then expecting the employer to disprove this - proof to substantiate this defence must be provided by the employee, in order to influence the probabilities in his favour.
A finding on a balance of probabilities is also not merely a mechanical balancing of evidence – or for that matter, the number of witnesses on each side. In Selamolele v Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the question whether the onus has been discharged was dealt with as follows: “Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”
In the case of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC) the Labour Court has considered what it means to discharge an onus on a balance of probabilities. It stated that it is not enough for the chairperson to simply find that the evidence seems to be evenly balanced (or that neither side’s evidence had been discredited) and that therefore the employer had not discharged its onus - especially if the evidence on both sides are diametrically opposed and mutually destructive. The conflicting versions must be weighed up against the inherent or general probabilities of the matter and a finding must be made. Both versions cannot be allowed to stand and a finding made on onus alone. The court stated that the enquiry is two-fold: there has to be balancing of the probabilities; and there has to be a finding on credibility of the witnesses.
In this regard the court referred to the matter of Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA) where the Supreme Court of Appeals has laid out the accepted test applicable to both a trial court and an arbitrator when faced with a factual dispute, in particular when faced with two irreconcilable versions. According to this judgment (at para 5) the court had to come to a conclusion on the disputed issues by making findings on (1) the credibility of the various factual witnesses; (2) their reliability; and (3) the probabilities:
The court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as -
the witness’ candour and demeanour in the witness-box;
his or her bias, latent and blatant;
internal contradictions in his or her evidence;
external contradictions with what was pleaded or put on his or her behalf, or with established fact or with his or her own extra-curial statements or actions;
the probability or improbability of particular aspects of his or her version; and
the calibre and cogency of his or her performance compared to that of other witnesses testifying about the same incident or events.
[In ABSA Investment Management Services (Pty) Ltd v Crowhurst [2006] 2 BLLR 107 (LAC) the Labour Appeal Court held that although our courts have on many occasions cautioned against attaching undue weight to witnesses' demeanour, an assessment of credibility goes much further. It involves an assessment of how witnesses fared especially under cross-examination and in light of the probabilities pertaining to the particular dispute.]
2. A witness’ reliability will depend, apart from some of the factors above, on -
the opportunities he or she had to experience or observe the event in question; and
the quality, integrity and independence of his or her recall thereof.
3. Finally, an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues are necessary components in coming to a conclusion. Factors to consider include whether the actions testified about were physically possible, logical, true to human nature, and so on.
In this regard, another important evidentiary rule pointed out by the Labour Appeal Court in ABSA Brokers (Pty) Ltd v CCMA & others (JA45/03 of 26 May 2005) was that “It is an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness (see Van Tonder v Killian NO en Ander (1992) 1 SA 67 (T) at 721). He has not only a right to cross-examination, but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. The witness’ attention must first be drawn to a particular point on the basis of which it is intended to suggest that he is not speaking the truth and thereafter be afforded an opportunity of providing an explanation (see Zwart and Mansell v Snobberie (Cape) (Pty) Ltd 1984 (1) PH F19 (A)). A failure to cross-examine may, in general, imply an acceptance of the witness’ testimony...”
In the light of its assessment of all of the above factors the presiding officer will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. As said the court in the Stellenbosch Winery case - the hard case would occur when the credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.
© Judith Griessel