S DISCIPLINARY SKILLS WORKSHOP

Transcription

1 31 S DISCIPLINARY SKILLS WORKSHOP DELEGATES MANUAL MODULE 2: OBTAINING AND ASSESSING EVIDENCE 1. INTRODUCTION 2. APPLICABILITY OF RULES OF EVIDENCE 3. WHAT CONSTITUTES EVIDENCE? 4. ADMISSIBILITY OF EVIDENCE 5. CREDIBILITY OF EVIDENCE 6. TESTING THE EVIDENCE NOTE: This is one of 4 Modules comprising Worklaw s Disciplinary Skills Workshop. An outline of all 4 Modules is contained at the front of Module 1. IMPORTANT COPYRIGHT NOTICE: This training material is owned by Worklaw and may only be used by current subscribers to Worklaw within their organisations. Any unauthorised use of this material, including its use in training provided on a commercial basis, will constitute an infringement of copyright. Go to to subscribe to Worklaw.

2 32 NATIONAL QUALIFICATIONS FRAMEWORK The material for the 4 modules consisting the Disciplinary Skills workshop has been developed by Worklaw with the purpose of fulfilling the requirements of the following unit standards: To institute Disciplinary Action (No ) which constitutes 8 credits towards- (a) (b) the National Diploma in Human Resources Management and Practices at NQF level 5, and the National Degree in Human Resources Management and Practices at NQF level 6. To Conduct a Disciplinary Hearing (No ) which constitutes 5 credits towards the National Degree in Human Resources Management and Practices at NQF level 6.

3 33 1. INTRODUCTION 1.1 EXPLAINING THE MODULES DISCIPLINARY SKILLS WORKSHOP MODULE 1 MODULE 2 MODULE 3 MODULE 4 FAIR DISCIPLINARY ACTION OBTAINING AND ASSESSING EVIDENCE PREPARING FOR A DISCIPLINARY ENQUIRY CONDUCTING A DISCIPLINARY ENQUIRY (ROLEPLAY) YOU ARE HERE

4 34 1. INTRODUCTION 1.2 GROUNDRULES Discussion - times for starting, finishing and breaks - control of cellphones - smoking rules - other applicable groundrules? Understanding and Applying the Training Methodology - Every delegate will be encouraged to participate. - Delegates will learn as much from each other as from the trainer, through sharing their experience and knowledge. - The workshop makes extensive use of interactive training methods (roleplays, exercises, case studies etc) to maximise participation. - We believe this is the best way and the most enjoyable way to ensure that learning takes place. Course Material - Delegates will be given handouts during the workshop to supplement the material in their files. The handouts must be filed in numerical order. - The handouts are not model answers, and merely serve as a top up after an issue has been discussed during the workshop. - The course material is a source of reference for delegates after the workshop. The workshop may not cover every aspect of the written material.

5 35 EXERCISE 1. INTRODUCTION 1.3 SETTING OBJECTIVES Set out below what you hope to achieve during this module:

6 36 1. INTRODUCTION 1.3 SETTING OBJECTIVES The primary objectives of this module are as follows:- To understand the law of evidence as it applies to disciplinary enquiries; To decide what evidence is admissible; To assess evidence in order to decide whether a particular version is true or not

7 37 EXERCISE 2. APPLICABILITY OF RULES OF EVIDENCE 2.1 Describe what is meant by the rules of evidence 2.2 Consider whether the rules of evidence must be applied at- - disciplinary hearings? - Arbitrations? - the Labour Court? In considering these issues, take into account the following: Section 138(1) of the LRA which states - the Commissioner must conduct the arbitration in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities And Item 4(1) of Schedule 8 (Code of Good Practice: Dismissal) of the LRA which states normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations.

8 38 2. APPLICABILITY OF RULES OF EVIDENCE 2.1 Describe what is meant by the rules of evidence Stratford C.J. (in Tregear vs Goart 1939 AD at page 31 stated the following: Substantive law laid down what has to be proved in any given issue and by whom, and the rules of evidence relate to the manner of its proof By this we see that substantive law stipulates what has to be proved (eg the fairness of a dismissal) and the rules of evidence relate to how you prove this. These rules govern what evidence is accepted by a Court (admissibility) and how to assess whether the evidence is reliable (credibility) In other words, these rules govern what information is taken into account and what persuasive value it has. 2.2 Consider whether the rules of evidence must be applied at- - disciplinary hearings? - arbitrations? - the Labour Court? Clearly the Labour Court has to apply the rules of evidence. A more complex question is the extent to which these rules must be applied at disciplinary hearings and arbitrations. Arbitration is a more formal process than a disciplinary hearing and there would be a greater need to apply rules of evidence at arbitrations than at disciplinary hearings. The extent to which the rules are to be applied at each more formal stage of the process, requires careful consideration. Disciplinary hearings: Item 4 of Schedule 8 to the LRA, the Code of Code Practice: Dismissal highlights that there is no need for a formal enquiry, although the employee should be allowed the opportunity to state a case in response to allegations made. This suggests a relatively informal process, in which the strict rules of evidence do not have to be applied. This means that affidavits or written statements are more likely to be accepted as evidence at these hearings, than would be the case in arbitrations or at the Labour Court. A more relaxed approach may accordingly be adopted regarding admissibility of evidence. If however a chairperson of an enquiry comes to conclusions which are not substantiated by the evidence presented, this is likely to be overturned by an arbitrator or by the Labour Court.

9 39 2. APPLICABILITY OF RULES OF EVIDENCE (Cont.) Arbitration: Section 138(1) of the LRA suggests the possibility of a relatively informal approach. The problem however is that the Labour Court and Labour Appeal Court in considering review applications, have often adopted a more legalistic approach. Arbitrators are increasingly conscious of the need to conduct the process and make decisions in a manner that is review proof. Whilst there will be different approaches adopted by arbitrators to the extent to which the strict rules of evidence need to be applied, arbitrators are increasingly likely to adopt the same approach to the rules of evidence that may be applied by the Labour Court. CONCLUSION A more formal approach is adopted as one moves through each stages of the dispute process, beginning with the disciplinary hearing, through arbitration to the Labour Court. A chairperson or arbitrator however runs the risk of being scrutinized by a more senior body that may adopt a more legalistic approach in deciding whether fairness was applied. For these reasons, it is recommended that chairpersons of disciplinary hearings as far as possible follow the basic rules of evidence as are applied in arbitrations and the Labour Court. It is also important to note that an arbitration constitutes a hearing de novo (i.e. a new hearing ). This means that it does not constitute a reconsideration of the decision taken by the chairperson of the disciplinary enquiry, but constitutes a totally new hearing at which the arbitrator assesses afresh the evidence led and decides for himself/herself on the fairness of a dismissal. We believe that if the evidence is not going to stand up to scrutiny at the arbitration stage, it would be better to apply a similar approach to the evidence at the internal disciplinary hearing. This is preferable to having the chairperson s decision overturned at arbitration at a later stage.

10 40 3. WHAT CONSTITUTES EVIDENCE? There are many different forms of evidence, each of which may be used to prove/disprove something. Oral Evidence This is the most frequently used form of evidence, and consists of a witness giving evidence, describing what he/she saw, heard, observed etc. Admissions If something is admitted, the chairperson or arbitrator may accept that it has been proved. For these reasons, admissions are a form of evidence. Something may be admitted at any stage of proceedings e.g. during the opening or closing arguments in an arbitration, at a pre-trail conference before a Labour Court hearing or at any stage during a disciplinary hearing. Admissions are often recorded in writing to prove their existence. Documentary evidence This includes documents, photographs, videos and other exhibits. If admitted, they may be accepted as evidence. Alternatively they may have to be proved through a witness (e.g. a person who took the photograph, drafted the document etc). Inspections in loco This involves the disciplinary hearing or the arbitration convening at the scene at which something occurred, and certain observations being made which may have a bearing on the case e.g. the height of a wall or the distance between certain objects. At this inspection, the parties should point out issues they wish to have recorded as evidence (e.g. the fact that you cannot see something from a particular window, when this has been claimed by one of the witnesses). This is then taken into account as evidence.

11 41 3. WHAT CONSTITUTES EVIDENCE? (Cont.) Presumptions Certain presumptions exist in law and effectively constitute evidence that should be taken into account. For example, in criminal law it is an irrebuttable presumption that no child under 7 is capable of performing a crime. No evidence can be led to suggest otherwise. It is a rebuttable presumption that a child between 7 and 14 cannot commit a crime. This means that evidence may be led to overturn this presumption. A similar rebuttable presumption exists in terms of section 200A of the LRA, as to who is an employee. Until the contrary is proved, a person is presumed to be an employee in terms of this section if certain circumstances exist. Judicial notice We all constantly accept or reject proof of things, based on our own world view, without being given actual evidence to substantiate those conclusions e.g. we should all accept that it is impossible to run from Durban to Pietermaritzburg in 4 ½ hours (this would break the comrades marathon record by almost an hour), without evidence being necessary to substantiate this. A chairperson, an arbitrator or a judge may accept the truth of certain facts through judicial notice, even though no evidence may have been led to prove those facts. These are generally facts that are so well known as to be obvious, e.g there are seven days in the week, it is dark in Durban by 6p.m. in mid winter, consuming alcohol will at some stage affect a person s state of mind. Chairpersons of enquiries should however be careful not to take judicial notice of something based on their perceptions or background, if it does not fit this category. For example, it may be inappropriate for a chairperson to reject the evidence of a witness who says he visited a bank at 8.15 a.m., because it is generally known that banks in South Africa do not open until 9 a.m. The bank may have been providing a particular service to its customers. Also don t forget that generally regarded presumptions may change over time e.g. we all now accept (hopefully) that the earth is round, whereas this has not always been the case.

12 42 EXERCISE 4. ADMISSIBILITY OF EVIDENCE So far we have considered various forms of evidence. We now need to consider whether evidence led should be admitted by the chairperson of the disciplinary hearing. This is the first stage in the process and we are not yet concerned with whether the evidence is believed or not. That comes at the next stage. At this stage, we are concerned with whether the evidence should be taken into account by the chairperson i.e. the admissibility of the evidence. Consider the examples listed below and decide whether you think the chairperson of a disciplinary hearing should admit the evidence or not. Give brief reasons in the column indicated. NO. FACTS OF THE CASE ADMIT (YES/NO) 1. A witness gives evidence at the hearing and is cross examined 2. An affidavit from the factory manager is handed in, saying he saw the employee commit theft but he is too busy to give evidence at the hearing. The employee disputes that he committed the theft. 3. In closing argument, the management representative refers to a final written warning as an aggravating factor. The employee disputes having been given a final warning. 4. Mr A is called as a witness to prove the employee committed theft. He gives evidence that Mrs B told him that she had seen the employee commit theft. 5. An affidavit is produced to prove certain facts which are in dispute. The person who signed the affidavit has since emigrated to Australia. 6. The employee s shop steward, in an opening statement, admits that the employee assaulted the manager but claims provocation. BRIEF REASONS

13 43 EXERCISE 4. ADMISSIBILITY OF EVIDENCE (Cont.) NO. FACTS OF THE CASE ADMIT (YES/NO) 7. The chairperson, in coming to a finding, takes into consideration that if someone was travelling within the speed limit, it will be impossible to drive from Durban to Pietermaritzburg in less than 30 minutes. 8. A dispute exists over what was said at a meeting. The secretary who attended the meeting and wrote the minutes, is called to substantiate the version contained in the minutes. 9. A witness who was present at the time, is called to prove that a wall fell over. The witness gives an opinion about what caused the wall to collapse. 10. An employee is charged with being drunk, which he disputes. To support the allegation, management leads evidence that it has been established he was drunk on three previous occasions in the past year 11. A hidden camera at work records the employee committing theft. The employee disputes the evidence, claiming invasion of privacy 12. The only evidence of theft is the outcome of a polygraph test testifying that the employee lied in denying he committed theft. BRIEF REASONS

14 44 4. ADMISSIBILITY OF EVIDENCE So far we have considered various forms of evidence. We now need to consider whether evidence led should be admitted by the chairperson of the disciplinary hearing. This is the first stage in the process and we are not yet concerned with whether the evidence is believed or not. That comes at the next stage. At this stage, we are concerned with whether the evidence should be taken into account by the chairperson i.e. the admissibility of the evidence. Consider the examples listed below and decide whether you think the chairperson of a disciplinary hearing should admit the evidence or not. Give brief reasons in the column indicated. NO. FACTS OF THE CASE ADMIT (YES/NO) 1. A witness gives evidence at the hearing Yes and is cross examined 2. An affidavit from the factory manager is No handed in, saying he saw the employee commit theft but he is too busy to give evidence at the hearing. The employee disputes that he committed the theft. 3. In closing argument, the management No representative refers to a final written warning as an aggravating factor. The employee disputes having been given a final warning. 4. Mr A is called as a witness to prove the employee committed theft. He gives evidence that Mrs B told him that she had seen the employee commit theft. Yes BRIEF REASONS Oral evidence No oral evidence produced when it was available. No oral evidence. The final warning is not admitted. What is said in closing argument doesn t constitute evidence. Hearsay evidence is general admitted and then a decision is taken as to how much weight to attach to it. See below for a more comprehensive explanation of how to treat hearsay evidence.

15 45 4. ADMISSIBILITY OF EVIDENCE (Cont.) NO. FACTS OF THE CASE ADMIT (YES/NO) 5. An affidavit is produced to prove Yes certain facts which are in dispute. The person who signed the affidavit has since emigrated to Australia. 6. The employee s shop steward, in an opening statement, admits that the employee assaulted the manager but claims provocation. 7. The chairperson, in coming to a finding, takes into consideration that if someone was travelling within the speed limit, it will be impossible to drive from Durban to Pietermaritzburg in less than 30 minutes. 8. A dispute exists over what was said at a meeting. The secretary who attended the meeting and wrote the minutes, is called to substantiate the version contained in the minutes. 9. A witness who was present at the time, is called to prove that a wall fell over. The witness gives an opinion about what caused the wall to collapse. 10. An employee is charged with being drunk, which he disputes. To support the allegation, management leads evidence that it has been established he was drunk on three previous occasions in the past year 11. A hidden camera at work records the employee committing theft. The employee disputes the evidence, claiming invasion of privacy 12. The only evidence of theft is the outcome of a polygraph test testifying that the employee lied in denying he committed theft. Yes (in respect of the assault) Yes Yes No (in respect of the opinion) BRIEF REASONS In terms of the best evidence rule, this is all that is available to substantiate the allegation. The chairperson will have to decide how much weight to attach to this evidence. The assault is admitted. Judicial notice. Oral evidence in support of the documentary evidence. Opinion evidence is not admissible, unless given by an expert No Similar fact evidence is generally inadmissible. The facts of this case would have to be proved on their own. Yes No invasion of privacy in these circumstances. The work environment is a public place. No Polygraphs are generally inadmissible as evidence, particularly when they are the sole evidence of guilt.

16 46 4. ADMISSIBILITY OF EVIDENCE (Cont.) In amplification of some of the suggested answers above, please read the following: Opinion Evidence As a general rule, a witness is entitled to give evidence about what he/she saw, heard, observed etc but his/her opinion (e.g. who was at fault etc) is considered irrelevant. The issues in respect of which a witness may wish to express an opinion, are often the issues to be determined by the court, arbitrator or the chairperson of the disciplinary hearing. For these reasons, opinions are generally inadmissible. There are however exceptions to this general rule. Expert evidence is in effect an opinion based on the person s expertise in question (e.g. handwriting experts). Opinions of experts are admissible due to their expertise in that area. In calling an expert witness, one should then firstly lead evidence about the person s expertise and then having established that he/she is an expert, to then obtain the expert evidence in question. It must also be recognized that witnesses do express opinions based on their observation on certain events, many of which go unchallenged. For example, if a witness were to say he saw an Indian man assault the manager, the witness would in effect be expressing an opinion based on the looks of the person he observed. Similarly, to say that someone was angry is again an opinion, based on the person s behaviour which demonstrated anger (eg raised voices etc.). These opinions are admitted because they do not require particular expertise on behalf of the observer to express them. Similar fact evidence As a general rule, evidence of previous similar offences may not be admissible to establish a further offence, and that offence has to be proved on its own merit. In some cases however similar fact evidence has been admitted if the circumstances of the previous offences were strikingly similar to the facts of the current offence. The similarities of the evidence leads to the overwhelming probability that the offences were committed by the same person e.g. the employee on 2 previous occasions shouted that s one for the working class whilst committing theft, and this is led to prove the theft on this occasion. (A similar utterance was heard during this theft).

17 47 4. ADMISSIBILITY OF EVIDENCE (Cont.) Evidence infringing privacy rights Section 35(5) of the S A Constitution effectively provides for the right of privacy in relation to the admissibility of evidence. What this means in practice is that evidence which has been obtained in a manner that is deemed to invade the right to privacy, would be inadmissible. For example, a secret camera installed in a person s home or in a toilet at work would constitute an infringement of that right, whereas a secret camera installed in a place where people generally have access (e.g. on the factory floor) would probably not constitute an infringement of that right. It is interesting to note that the recently promulgated Regulation of Interception of Communications Act 2002 has provoked a debate about whether an employer is permitted to monitor employees use of and internet facilities. Until this Act it was not seriously contested that an employer had the right to monitor the use of the employer s facilities by employees. This Act effectively requires the consent of employees in order for the employer to be able to monitor the use of its facilities. Hearsay Hearsay can be described as evidence, either oral or in writing, that depends on the credibility of a person other than the person giving the evidence. In other words, you would not be able to cross examine the person giving the hearsay evidence to test the truth of that evidence. There is a general misperception that hearsay evidence is excluded. Hearsay evidence is governed by the Law of Evidence Amendment Act 45 of This Act states that hearsay evidence shall not be admitted as evidence unless (a) (b) (c) each party agrees to its admission, or the person from whom the hearsay originated gives evidence, or it is in the interests of justice that the evidence be admitted, having regard to- (i) the nature of the proceedings; (ii) the nature of the evidence; (iii) the purpose for which the evidence is tendered; (iv) the probative value of the evidence; (v) the reason why the person from whom the hearsay evidence originated, is not giving evidence; (vi) any prejudice caused by admitting the evidence and (vii) any other factor to be taken into account.

18 48 4. ADMISSIBILITY OF EVIDENCE (Cont.) What all this means in practice is that arbitrators, in applying these guidelines, normally decide to allow the evidence to be led and then decide how much weight to attach to it. This will depend on the facts of each case and will take into consideration other evidence that supports or disproves the reliability of the hearsay evidence. So, hearsay evidence normally gets by the first hurdle of admissibility, but often falls down at the second hurdle of credibility. This will particularly be the case is there is no other evidence other than the hearsay to prove the point in question. We recommend that chairpersons of disciplinary hearings adopt this approach in dealing with hearsay. Polygraph evidence A survey of CCMA cases indicates that there is no clear approach by arbitrators regarding polygraph evidence, although great caution has been expressed about its reliability, particularly if it is the only evidence relied upon by the employer to prove guilt. We suggest that in the absence of other evidence, employers should not rely on polygraph evidence. Employers should institute systems that aim to obtain evidence from more than one source. A dismissal based solely on polygraph evidence is likely to be found to be unfair.

19 49 EXERCISE 5. CREDIBILITY OF EVIDENCE You will note from the previous section of the course that we dealt only with the issue of admissibility of evidence. That was the first stage. The next stage, having decided what evidence to consider, is to decide whether the evidence is believable. This is called assessing the credibility of evidence. Consider the facts of the case study below and then complete the following tasks set out below: Facts of the case Mr Petersen is charged with assaulting his manager Mr Ndlovu. Mr Ndlovu claims that Mr Petersen punched him in the face at work without any provocation. Mr Petersen denies assaulting Mr Ndlovu. He claims that they argued over a work related issue and both waved their fingers at each other. Mr Ndlovu disputes Mr Petersen s version. At the disciplinary enquiry Mr Ndlovu gave evidence. He appeared agitated, sweating and very nervous. He looked down when giving his evidence, and would not look anybody in the eye. He gave different versions on certain factors such as the time Mr Petersen came on shift and whether Mr Petersen hit him with his left or his right fist. Mr Petersen, who also gave evidence, appeared clear and consistent in his version. He appeared to have a good memory and was clear on the facts. He did not deviate at all in the version he gave. Ms Naidoo, a member of the public, also gave evidence. She was buying products from the Company at the time and was in the immediate vicinity of Mr Ndlovu and Mr Petersen when they had their altercation. She said that she saw Mr Petersen punch Mr Ndlovu in the face. It is not disputed that she has no involvement or link with either Mr Petersen or Mr Ndlovu. It is not disputed that Mr Ndlovu saw a doctor the day after this incident and that the doctor gave him a medical report confirming that his cheek was swollen. It emerged during the hearing (and it is not disputed) that Mr Ndlovu is going out with an ex-girlfriend of Mr Petersen. Mr Petersen admits that he is still attracted to her and has made repeated attempts to reconcile with her. Several employees gave evidence that they have overheard Mr Petersen saying that he will do anything to get Mr Ndlovu out of the way. QUESTIONS: 1. Drawing from the facts of this case, list the key elements that would pursuade you whether a witness is or is not telling the truth. 2. Decide whether you believe the version given by Mr Ndlovu or Mr Petersen.

20 50 5. CREDIBILITY OF EVIDENCE You will note from the previous section of the course that we dealt only with the issue of admissibility of evidence. That was the first stage. The next stage, having decided what evidence to consider, is to decide whether the evidence is believable. This is called assessing the credibility of evidence. Consider the facts of the case study and then complete the following tasks: 1. Drawing from the facts of this case, list the key elements that would pursuade you whether a witness is or is not telling the truth. EXAMPLES OF BEHAVIOUR Shifty; Appears nervous; Looks to representative for help all the time; Body language; Does not change his/her story; Says the same thing under crossexamination as in evidence in chief; Does not deviate from previous statement; Same story; Another person tells you the same thing Is backed up by documents; Witness has a good memory; Witness is clear on the facts; Has no interest in the case; Does not know the accused; No reason to lie; Unlikely story; Not common sense; Far fetched; FACTOR TO CONSIDER Demeanour Consistency Corroboration Reliability Independent witness Probability It is important to recognise that we all use the above criteria in our everyday lives in filtering information we receive into one of only three possible categories:- - Is the person telling the truth? - Is the person not telling the truth? - Is the person telling the truth but making a mistake (eg a person may genuinely believe what he/she is saying, but it may not necessarily be true)?

21 51 5. CREDIBILITY OF EVIDENCE (Cont.) It is important to recognize the three options and to use the above criteria to decide which category fits in a particular case. There is no set way of applying these basket of factors. Justice H C Nicholas in an article credibility of witnesses (extracted from Hoffman The South African Law of Evidence) states the following:- For the assessment for the credibility of witnesses there are no formulae, no rules of thumb the evaluation is essentially a subjective judgment and is the result of factors whose varying weight depends on the circumstances. In Marapula & Others v Consteen (Pty) Ltd (1999) 20 ILJ 1837 (LC) 1845F the judge put it like this: " In my opinion, the onus is discharged if the employer can show by credible evidence that its version is the more probable and acceptable version. The credibility of 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 version, an investigation where questions of demeanor and impression are measured against the content of the witnesses' evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety." What can we learn from this? Chairpersons of enquiries should use these basket of factors to decide on the credibility of the evidence before them. They should be very wary of using demeanour type factors on their own, as it can be a very unsafe guide in assessing credibility. Hoffmann in South African Law of Evidence (2 nd Edition) at page 435 states that demeanor should be allowed only to re-enforce a conclusion reached by an objective assessment of probabilities, or possibly to turn the scale when the probabilities are evenly balanced. Many cases will turn on the probabilities i.e. which is the more probable version of events, taking all factors into consideration.

22 52 5. CREDIBILITY OF EVIDENCE (Cont.) 2. Decide whether you believe the version given by Mr Ndlovu or Mr Petersen. Turning to the facts of this case, it is suggested that Mr Ndlovu s version is the more probable. Whilst Mr Ndlovu does not appear to have been a particularly convincing witness, his version is corroborated by an independent witness who appears to have no reason to fabricate the version given. The circumstantial medical version also adds to the probability that Mr Ndlovu s version is correct. Mr Petersen also has a motive for assaulting Mr Ndlovu.

23 53 EXERCISE 6. TESTING THE EVIDENCE 6.1 Burden of Proof The civil test to be applied in all employment related hearings (e.g. by chairpersons of disciplinary hearings, arbitrators and the Labour Courts) is on a balance of probabilities. This is different to the criminal test which is beyond reasonable doubt. What is the difference between these? Try to use other words to describe what these tests mean. 6.2 Onus Section 192 of the LRA states as follows:- (1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. (2) If the existence of the dismissal s established, the employer must prove that the dismissal is fair. What does Section 192 mean in practice? What would you do as chairperson of a disciplinary hearing, if you could not make up your mind about which version to accept, after having heard of the evidence?

24 54 6. TESTING THE EVIDENCE 6.1 Burden of Proof The civil test to be applied in all employment related hearings (e.g. by chairpersons of disciplinary hearings, arbitrators and the Labour Courts) is on a balance of probabilities. This is different to the criminal test which is beyond reasonable doubt. What is the difference between these? Try to use other words to describe what these tests mean. The criminal test is clearly a more difficult test to discharge and requires greater proof. This test could be summarized by referring to the quote from Greenberg J in R vs Difford 1937 AD 370 at page 373: If there is a reasonable possibility of the accused s explanation being true, then he is entitled to an acquittal. A quote from Lord Denning in an English case, Miller vs Minister of Pensions (1947) 2 or E. R. 372 at page 373 is also helpful. He states the following in respect of the criminal standard: It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt If the evidence is so strong against a man as to leave only a remote possibility in his favour.the case is proved beyond reasonable doubt. Turning to the civil test on a balance of probabilities, this requires a reasonable degree of probability but not so high as is required in the criminal case. In West Rand Estate LTD vs New Zealand Insurance Company Ltd 1925 AD 245 at page 263, Kotze JA said: It is not a mere conjecture or slight probability that would suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. Some legal commentators have described the balance of probabilities test by asking if there is clear and convincing evidence of what has been alleged.

25 55 6. TESTING THE EVIDENCE (Cont.) 6.2 Onus Section 192 of the LRA states as follows:- (1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. (2) If the existence of the dismissal s established, the employer must prove that the dismissal is fair. What does Section 192 mean in practice? What would you do as chairperson of a disciplinary hearing, if you could not make up your mind about which version to accept, after having heard of the evidence? Section 192(1) of the LRA places the burden of proof on the employee to establish that he/she was dismissed. This would normally not be difficult to do, as it will be admitted in most unfair dismissal disputes that the employee has been dismissed, the issue in dispute being whether or not the dismissal was fair. The one exception to this is in the case of constructive dismissal, the employee seeking to allege that he/she was dismissed, in that the circumstances forced him/her to resign. This complies with the legal principle of if you allege something, you must prove it. Similarly, a dismissal normally arises because the employer alleges that the employee has committed misconduct or incapacity. It is then up to the employer to prove that. This is confirmed by Section 192(2) of the LRA. If a chairperson of a disciplinary hearing is unable to make up his/her mind about which version to accept, it will normally result in the employer having failed to discharge the burden of proof resulting from Section 192(2). Section 188(1) also makes it clear that a dismissal would be unfair if the employer fails to prove that it is fair. The employee would then get the benefit of the doubt.