Disciplinary hearing verdicts depend on whether the employer can prove, on a balance of probabilities, that the employee is guilty of the misconduct alleged. Put differently, the probabilities that the employee is guilty must be greater than the probabilities that the employee is not guilty.
The CCMA arbitration award in L. Naidoo v Lever Ponds [Case number KN22081], the Commissioner cautioned that “When deciding on a balance of probabilities, the ultimate question remains whether contentions of the party bearing the onus are more probable than not ……….. what is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case ………… if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
Proving probable guilt becomes more difficult when the employer only has one witness, and gives rise to the “one person’s word against another” conundrum. Other types of evidence such as documentary evidence may help to tilt the scales in favour of the employer, but a case which pits one version of an employer against a conflicting version from an employee, will always present the employer with a challenge which differs from a case in which there are two, or more, witnesses.
Traditionally, the evidence of a single witness was required to be treated with caution. The practical problem faced by a disciplinary hearing chairperson in such circumstances is to know which of the two opposing versions should be preferred, and why? For example, there is no reason why the employer’s version should always be preferred over that of the employee, or vice versa.
It was confirmed in Northam Platinum Mines v Shai NO & Others (2012) 33 ILJ 942 (LC) that whilst one should not reject the applicability of the cautionary rule when faced with a single witness, the current approach to single witness evidence is less stringent than has been the case in the past. Put differently, one need not simply conclude that the evidence of a single witness in a disciplinary hearing will always be insufficient to prove guilt on a balance of probabilities.
On the contrary, the probabilities of the respective versions should be evaluated the credibility of the respective witnesses should be assessed.
Important authority on single witness evidence is found in the S v Carolus 2008 (2) SACR 207 SCA Supreme court of Appeal judgment, in which it was held that “There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court (disciplinary hearing chairperson) should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence”.
Also of importance is the unreported case of Minister of Correctional Services v A M Baloyi & others [JR46/09] which held that the single witness cautionary rule is not applicable to civil or arbitration proceedings.
In the final analysis, an employer may rely on the evidence of a single witness to prove misconduct, but should do so with caution, ensuring that there are justifiable grounds on which to prefer the evidence of the employer witness over that of the employee.
There are times when employers seek to prove that an employee is guilty of misconduct. When in fact, there were no eye witnesses. Such cases, rather than relying on direct evidence, rely upon circumstantial evidence.
Section 192(2) of the Labour Relations Act provides that “if the existence of the dismissal (at arbitration) is established, the employer must prove that the dismissal was fair”. As such, in arbitration hearings, it is rebuttably presumed that a dismissal was unfair until the employer proves that it was fair. The burden of proof is that of proof on a balance of probabilities, rather than the greater burden of proof in criminal proceedings, which is proof beyond reasonable doubt.
The arbitration award in SASBO obo Richard Thabelo Sera & 1 other v SBV Services (Pty) Ltd [Case number NWRB536-15], reference was made to the judgment in Govan v Skidmore 1952 (1) SA 732in which the court held “that it was trite that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be a more natural, or plausible conclusion from amongst severable conceivable ones, even though that may not be the only reasonable one”.
More recently, in the CCMA Arbitration Case in L. Naidoo v Lever Ponds, [Case number KN22081], it was noted that “When deciding on a balance of probabilities, the ultimate question remains whether contentions of the party bearing the onus are more probable than not ……….. what is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case ………… if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
Circumstantial evidence is the opposite of ‘direct evidence’ (ie: the kind of evidence which comes from witnesses) and can therefore be described as ‘indirect evidence’ in that certain ‘assumptions’ are made. It is admissible under certain circumstances. Can only be used to support a substantial fact. The Chairperson of an enquiry should listen to circumstantial evidence first and then decide how much weight they are going to give it (in other words, how fair it would be to admit it either entirely or in part).”
When seeking to prove guilt utilising circumstantial evidence alone, the complainant relies upon proving facts which, when taken as a whole, lead to only one, reasonable, inference, namely that the employee is probably guilty.
The SASBO arbitration award further discussed the use and application of circumstantial evidence, when quoting Duncan Manufacturing v MEIBC & others (2010) ZALC “where the court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her in assessing the inference to be drawn from the facts. The commissioner should look at the totality of evidence and weigh it on a balance of probabilities”.
The Labour Court judgment in Distell Ltd V CCMA 7 others (Case number C343/2012), interestingly, and quite correctly, noted that “The use of circumstantial evidence is a powerful tool in proving the existence of an issue in dispute. Hoffmann & Zeffert note the distinction between direct evidence and circumstantial evidence. Direct evidence is provided by a witness who testifies directly on the issue in dispute. So, for instance, in a murder trial, a witness who testifies that he saw the accused stab the deceased with a knife, provides direct evidence as to the stabbing. On the other hand, a witness who testifies that he saw the accused emerge from a room in which the deceased was subsequently discovered, bearing a knife dripping with blood, provides only indirect or circumstantial evidence to support the fact that the accused had stabbed the deceased”, and continued that “circumstantial evidence is thus evidence of a fact from which an inference can be drawn as to the existence of a fact in dispute”. This of course relates to criminal matters.
The court in Smith v Arthurs 1976 (3) SA 378, when dealing with circumstantial evidence the court held, “All the relevant facts must necessary go into the melting pot and the essence must finally be extracted there from”.
Perhaps the final word should go to a landmark English case in which Lord Wright in Caswell v Powell Duffy Collieries Ltd  3 All ER 722 (HL) said “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had actually been observed. In other, cases the inference does not go beyond reasonable probability. But is there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjuncture.”
Collective guilt arises when an employer deems it appropriate/necessary to hold one or more individuals liable for the acts of others within a group. The doctrine of common purpose was originally sourced from the field of criminal law the essence of which, as defined in SACCAWU obo Madika & 4 others v Pep Stores [Case No.NP1848-01] is “that each member of the group is held individually liable for his or her own actions as a member of the group acting in furtherance of a common purpose”.
Grogan (2002) submits that in the event that employees “are found to have actively associated themselves with the result and shared the perpetrators ….. frame of mind …. the guilt of the perpetrator extends to them”.
A number of collective guilt cases were referred to the Industrial Court in the past, and similar cases have been adjudicated by both the CCMA and the Labour Court.
One such Industrial Court matter which drew much attention at the time, was NUM vs Amcoal Collieries Ltd t/a New Denmark Collieries (1989) 10 ILJ 733. In this matter, the court took a particularly dim view of the concept of collective guilt. The court disapproved of collective guilt in the strongest terms by stating in the judgement that:
“In passing, the court wishes to observe that the concept of collective guilt is wholly repugnant to our law. Any policy in terms of which all the employees of any group or persons must bear collective punishment for the wrongdoings of some of the members is unacceptable to this court.”
“It runs counter to the tenets of natural justice and is a violation of the well-known principle that the person is presumed to be innocent until proven guilty.” “There is a failure of justice even if a single innocent person is presumed to be guilty and made to suffer with the rest.”
Subsequent cases have however indicated that collective guilt is indeed a concept which cannot be rejected outright.
One such case was Saccawu and Pep Stores (CCMA Arbitration: Case No.EC3035) in which the employer dismissed the entire staff complement of it’s Lady Frere branch (which amounted to five employees) for poor work performance arising from stock losses.
In this case however, the stock losses experienced at the branch were, according to the commission “so glaring that it could not possibly have escaped the attention and knowledge of every member of the staff”.
The commissioner referred to the above Industrial Court case (NUM vs Amcoal), but nonetheless found the dismissal of the entire staff complement to have been fair in the circumstances. There is little doubt that all employees who omit to bring an act of misconduct, of which they are aware, to the attention of an employer, may themselves be liable for dismissal.
As noted in NUMSA obo Reginald Chuene & 5 others v Irene Village Fuel Station t/a BP Irene (MIPT16735), “in NSGAWU v Coin Security (1997) 1 BLLR 85 (IC), the court warned that the doctrine of common purpose is not to be used as an excuse for imposing collective punishment, or to be confused with the concept of collective guilt. Common purpose must still be proved. There must be evidence to show that all the applicants associated themselves with the conduct of the principal offenders.”
In SACCAWU obo 93 othersv Massmart T/a Jumbo Cash & Carry (Pty) Ltd (GAJB29113-14), it was noted that “In Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of SA on behalf of Khanyile and Others, Gush J dealt with an instance where the bulk of the striking employees simply remained silent, with a defence being presented by individual employees who in turn simply denied and misconduct, breach of picketing rules or an interdict. The learned Judge held It is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on the industrial action. This is particularly so in circumstances where the employer has not only entered into a picketing rules agreement with the representative trade union regulating the conduct of striking employees but has as a result of the conduct of the employees been forced to obtain an interdict restraining the striking employees from committing misconduct. That strikes are often visited with violence and misconduct does not justify such acts. Despite the fact that tension often runs high during industrial action the level of misconduct and violence and the duration thereof in this matter reinforces the necessity for employers to be able on to rely on the duty of good faith towards the employer and that the employee breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. This duty must extend to the opportunity to exonerate oneself.”
On 26 July 2018, the Constitutional Court handed down a landmark judgment in the application against a judgment of the Labour Appeal Court, to determine the correct interpretation of section 198A(3)(b) of the Labour Relations Act. This Concourt judgment has caused quite an uproar, and spawned a raft of written opinions on its implications, especially from, unsurprisingly, and predictably, the TES (temporary employment service) industry and its promoters.
The lack of flexibility in our labour law regime is, in our view, a significant deterrent to economic growth and unemployment. Our firm overwhelmingly supports the overhauling, and reduced regulation, of labour legislation to enhance economic growth and to promote growth in employment, in tandem with other initiatives. However, one must be realistic and accept that regardless of these world views, role players are obliged to do business in accordance with prevailing legislation. Understanding the interpretation of Statutes, and authoritative case law, must be undertaken dispassionately, without blinkered, self-interest motivated, glasses.
The TES, colloquially known as labour broker, industry, has been given a severe bloody nose in this Concourt judgment. That it has swiftly engineered a widespread avalanche of communication is unsurprising. After all, TES profits are heavily bolstered by permanently, rather than temporarily placed, employees with clients.
So what are we to make of the judgment?
The judgment must be understood in the context of the introduction of section 198A of the Labour Relations Act, which came into operation on 1 January 2015, and regulates ‘temporary employment service’ employment to a period not exceeding three months. It’s worth highlighting that this amendment to the LRA therefore, quite clearly, sought to reverse a growing trend of TES employee usage on a permanent basis. Put differently, temporary employment service usage was intended to be temporary, not permanent.
In the Assign Concourt case, the Concourt was required to answer the question – does section 198A(3)(b) of the LRA give rise to the client becoming the sole employer for the purposes of the LRA after three months, in respect of employees earning below the BCEA threshold (R17 000.00 per month), or are the client and the TES dual employers thereafter?
The Concourt held that, to begin with, for the first three months of the placement of a TES employee with a client, it’s business as usual. In terms of section 198(2) of the LRA, the TES is the designated employer of the placed employee, although the client is jointly and severally liable for, inter alia, BCEA and sectoral determination breaches.
However, the Concourt importantly held that after three months, the TES client becomes the sole employer of the placed employee, for the purposes of the LRA, and let’s not forget, the LRA is the dominant employment statute. The judgment held, at paragraph 54, that “A plain reading of section 198(3)(b) [of the LRA] clearly distinguished between employees employed by the TES for temporary work and those deemed to be employed by the TES’s client where work is not temporary”. This is important, and focuses on the growing reliance on the permanent usage of ‘temporary’ employment service employees for labour flexibility purposes.
In addition to becoming the sole employer of the placed employee after three months, for the purposes of the LRA, the TES client is required to furthermore ensure that the placed worker is also, per section 198A (5) of the LRA, “treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is justifiable reason for different treatment”. This implies that the erstwhile TES employees must be remunerated at a level similar to that of their new permanent colleagues, after three months of having been placed with the client, and be granted any other permanent employment benefits, such as a provident fund and medical aid membership.
Fixed term contracts of employment are also transferred after three months, but only remain in force for the duration of the remainder of the fixed-term period.
Much has been made of paragraph seventy-five of the judgment by labour brokers and their promoters which provides, inter alia, that after three months “the triangular relationship then continues for as long as the commercial contract between the TES and the client remains in force and requires the TES to remunerate the workers”.
After three months, assuming an ongoing client/TES commercial relationship, the TES does have, for example, BCEA responsibility, but why would a client need, or even want, to maintain this relationship, especially when wages and conditions of service must now be placed on par, with the invariably huge contingent liabilities with which clients will be burdened? The cost-savings and flexibility historically associated with TES usage vanished I any event, even before this Concourt judgment.
The judgment addresses this in holding that, at paragraph sixty-four “A TES’s liability only lasts as long as its relationship with the client and while it (rather than the client) continues to remunerate the worker. Nothing in law prevents the client and the TES from terminating their contractual relationship upon the triggering of section 198A(3)(b), with the client opting to remunerate the placed employees directly …. if this happens … the TES will then fall out of the relationship entirely”. This is precisely why the TES community is currently pressing their clients to sign new SLA’s.
The TES industry undoubtedly provides a valuable service, but this has all but been curtailed to include genuine ‘temporary’ employment services. It’s a TES after all, not a PES (permanent employment service).
Many employers will, in our view, rightly conclude that this judgment renders TES usage beyond three months, uneconomical. Going forward, in the main, the premium paid to a TES will be for the limited benefits of payroll administration and a finders fee for placed workers.
Finally, this judgment has effect from 1 January 2015, namely the implementation date of the LRA amendments the Concourt was called upon to interpret.
This judgment does unfortunately yet further curtail labour flexibility. It cannot however be wished away; it is what it is.
On occasion, employers are faced with circumstances in which an employee resigns to avoid disciplinary action. In fact, some collective agreements in the Public sector, specifically allow for employees to resign at any time prior to a finding being made, after which the disciplinary hearing is stopped.
The dilemma has been that it has been arguable that an employee can, in fact, summarily resign, meaning that the employment relationship terminates immediately. The upshot of this is that the employer faced a conundrum, namely, is it possible to discipline an employee if the employment relationship has already been terminated by the employee’s summary resignation?
The recent Labour Court case of Mark Michael Coetzee v The Zeitz Museum of Contemporary Art Africa Foundation Trust & others (Case number C517/2018), handed down on 14 June 2018, dealt with this precise issue.
The employee “was handed (an) invitation to make written representations and given a document entitled ‘precautionary suspension from employment’. The following day, the employee informed the employer that “he wanted to tender his immediate resignation since (he didn’t) want to hurt anyone or (the employer)”. A statement was released to the press that “an enquiry into (the employee’s) professional conduct has been initiated by the trustees … (the employee) has tendered his resignation.
In correspondence to the employee’s attorneys, the employer’s attorneys recorded that “As matters presently stand … our client regards your client as having resigned with effect from 16 May 2018, subject to four week’s notice as provided for in terms of the law”. The employer argued that it had never agreed with the employer that his resignation would have immediate effect, or waive the employee’s notice period.
The Labour Court judgment noted that the employer argued that “The material issue in dispute in this application is whether the (employer) in fact accepted the immediate resignation of the (employee) ..”.
The Labour Court held that “the Court is bound to find that the tender of notice was not accepted as an immediate resignation”. The upshot of this is that employer’s are entitled to elect whether, or not, to accept an employee’s resignation, and to hold an employee to their statutory and, or, contractual notice period, and to continue with any disciplinary process it wishes to initiate against an employee. It follows that any disciplinary hearing would need to be concluded before the end of the applicable notice period.
This principle was confirmed in Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ (LC), in which it was stated that an employee breaches the employment contract when they leave their employment without giving the required period of notice. Employees have a contractual obligation to render their services for the duration of their contractually binding notice period. As such, the employment relationship terminates at the end of the notice period, not on date of resignation. There is however nothing prohibiting the employer from agreeing to waive the whole, or part of, a notice period, but a n employee has no right to unilaterally do so.
In circumstances where an employer conducts a disciplinary hearing prior to the end of a notice period, any subsequent dismissal would be the true nature of the termination of employment, not the employee’s resignation.
In similar, but different, circumstances, employees may be offered an opportunity to resign, as an alternative to facing disciplinary action. It would however be deemed unfair for an employee to be offered an option to resign to avoid dismissal; this would amount to constructive dismissal.
Many employers take no action against employees who resign in the face of disciplinary action, as they are quite willing to resolve the matter at hand in that fashion. Other employers are not quite so flexible, and are of the view that, in principle, it is important to pursue all employees for misconduct, regardless of whether the employee has resigned, or not.