When an employee raises a possible defence during a disciplinary hearing, such as ill-health, how does this affect the onus of proof and the ultimate findings? The Labour Court considered this recently and confirmed the established rules of evidence in this regard.
It is trite that the employer bears the onus to prove allegations of misconduct against an employee on a balance of probabilities during disciplinary proceedings. Different from the standard applied in criminal cases, namely proof beyond a reasonable doubt, this does not mean that if any reasonable doubt or possibility of another explanation exists as to the employee’s guilt/blameworthiness, s/he cannot be found guilty.
This is sometimes difficult for employees or their representatives to understand, as is often demonstrated by defences aimed at merely ‘poking holes’ in the employer's version to create doubt or the possibility of another explanation. This is a particular complication if the employee raises the possibility of a valid defence, which the employer would be obliged to consider, but does not provide substantiating evidence.
The question is: to what extent is there a duty on the employer to probe and investigate the employee’s assertions in order to ascertain the truth (or not) of the defence offered?
The legal principles
The established law is that, in weighing up the probabilities in misconduct proceedings, the chairperson is not required to exclude every possible doubt and eliminate all possible explanations in order to conclude the employee’s guilt - but to consider the versions before him/her and select the more probable one.
The version presented by the employer to substantiate the allegations of misconduct must therefore 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.’
The onus to prove the allegations against the employee on a balance of probabilities is on the initiator/employer. This answers the question why the employer should be the one to start in misconduct proceedings – the employer must present a sufficient case against the employee which would oblige him/her to provide an explanation.
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 s/he offers, then lies with the employee. In practice, this means that the employee must take responsibility to substantiate his/her defence or explanation. It is not enough to simply raise the possibility of an explanation and then expect the employer to find the evidence to either prove or disprove this.
This particular issue may become a bit more difficult when the employee raises issues around ill-health as a possible defence. Think about charges relating to intoxication at work, just to have the employee offer addiction as a defence at the hearing. Sick notes often present difficulties when an employee is charged with absenteeism and the employer is not satisfied with the validity or veracity of the sick note presented by the employee. To what extent is the employer required to launch its own investigation, chase after doctors and try to find medical evidence either way?
If one considers the rules of evidence as set out above, then it should be clear that the employee needs to do more than to simply make an assertion of a possible defence – the onus is on him/her to substantiate and prove this in answer to the employer’s prima facie case. The complication in the employment environment is that there are always other factors at play and it is often difficult to know if taking a narrow view based on litigation rules will discharge the broader obligations of the employer.
The Labour Court recently addressed such a situation in BS Pahlanga v Petro Oil Gas (C564/2019) .
In this case, the employee was charged with misconduct for being absent for four or more days without a valid reason and had previous transgressions relating to punctuality, unauthorised absence, fraud and negligence on his disciplinary record.
The employee pleaded guilty to the absenteeism, but at the same time said that he had absented himself from work to avoid psychological breakdown or brain paralysis, as he felt trapped and that bad relationships at work impacted on him psychologically. He did not provide any other reason for his absence.
The chairperson granted the employee an opportunity to obtain a report from a clinical psychologist, which he did – however, this report did not address if (or to what degree) any psychological issues were directly affecting the employee's behaviour.
Without proof of any nexus between the psychological issues the employee complained about and his misconduct (absenteeism), he was found guilty and based on his record and position in this company, dismissed for misconduct.
At the Bargaining Council, the arbitrator found that the dismissal was substantively fair, as the employee had failed to render his services and did not provide a valid and acceptable reason for doing so.
On review at the Labour Court, the employee argued that the employer should have investigated his possible incapacity where there was a view that his conduct might be due to a psychological problem; that the employer had to prove that incapacity was not the reason for his misconduct and had an obligation to explore all alternatives prior to dismissal.
The Labour Court however disagreed: Since the employer in this case dismissed the employee for misconduct (not incapacity), the requirements of Schedule 8 of the LRA as it relates to misconduct dismissals applied – not those relating to incapacity. There was no obligation on the employer to conduct a full-scale investigation into what might underlie the employee’s misconduct. If the employee wished to make a case for incapacity to explain his conduct, then it is up to him to provide evidence that he is not at fault. Such an opportunity had been granted to the employee in this case, yet he could not provide sufficient proof to excuse or explain his absenteeism. The misconduct dismissal was held to have been substantively fair.
Guidance for employers
Issues of ill health should be taken seriously in the workplace – including mental health. There is however a notable difference between incapacity and misconduct processes and although the lines may sometimes be blurred, employers should where possible determine, up front, which process is appropriate in the particular circumstances.
If the employer has reason to believe that incapacity is indicated based on long-term or persistent absenteeism of an employee, then there is an obligation to investigate this and to implement the corresponding guidelines as set out in Schedule 8, including considering all alternatives short of dismissal to address the situation.
However, the mere possibility of an ill-health issue raised by an employee during misconduct proceedings, does not place such an obligation on the employer. The onus of proof is on the employee to substantiate his/her defence to misconduct charges. As in the case above, employers may provide reasonable time or assistance to an employee who wishes to obtain the necessary proof before concluding the disciplinary process. If the employee can indeed provide sufficient proof of an incapacity issue related/linked to the misconduct, then of course the employer will need to consider the new information and may decide to stand down the misconduct proceedings or convert it into an incapacity process.
The distinction between misconduct and incapacity is equally important when it concerns the poor performance of an employee. Similarly, under-performance may be due to misconduct (negligence, laziness) or incapacity (incompetence, lack of skills, inability to perform as required). The same principles in respect of the rules of evidence would apply - however in my experience, employees are less likely to raise their own incompetence as a defence. Rather they would blame the workload, victimisation by management, lack of resources, or the like. Employers should be able to counter such allegations (typically via cross-examination) if they had done a proper investigation into the reasons for an employee’s under-performance, prior to charging the employee for misconduct. Such an investigation may well cause the employer to rather institute an incapacity poor performance process where this may be more appropriate, than following the disciplinary route.
The bottom line is that an employer should prepare properly for disciplinary hearings and be able to present a solid prima facie case against an employee who is charged with misconduct. If there are indications of possible incapacity prior to charging the employee, this should be reasonably considered before the appropriate process is selected and embarked upon. Especially in recent times, when mental health issues are becoming more prevalent in the workplace, employers need to be cautious and cognisant of the various factors at play. [See also our article “Ill health and the workplace – rights and obligations”, September 2021.]
However, if an employee raises a possible incapacity defence for the first time during disciplinary proceedings and is unable to provide proof of such that would sufficiently explain his/her misconduct, the employer may proceed to make a finding on the balance of probabilities in accordance with the established rules of evidence.
© Judith Griessel