The chasm between regret and remorse

An employee may regret having committed an act of misconduct, but they may not be remorseful for having done so.  This distinction is important when considering both in the context of mitigating circumstances, after an employee has pleaded guilty, or been found guilty.

Item 3(5) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) reads that “When contemplating whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”.  ‘Mitigating circumstances’ if you will.

The same considerations would apply in the selection of a sanction in less offences.

‘Regret’ and ‘remorse’ are also factors to be considered when establishing mitigating circumstances, prior to selecting an appropriate sanction to be imposed.  But they are quite different concepts, which should not be confused.

This was highlighted in the Supreme Court of appeal judgment involving The State v Phakamani A Nkunkuma & 2 others (SCA: 101/2013), which held that “
‘[13] . . . There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions”.

In The Foschini Group (Pty) Ltd v Marie Fynn (Labour Appeal Court: DA1/04), it was held that “It would in my view be difficult for an employer to re-employ an employee who has shown no remorse.  Remorse is much, much more than regret.  You can regret committing the act of misconduct, but not be remorseful.

As was put in the Labour Court in Toyota SA Motors (Pty) Ltd v the CCMA & 3 others  (Case No: D600/11) “remorse is a complex emotion, a mixture of shame and regret for the apparent victim. But supposed remorse may as well be linked to the perpetrator’s own sense of regret that it happened at all and that he got caught”.

The notion of remorse was also dealt with in the Labour Court judgment in Blitz Printers v CCMA & 1 other (JR 1782/2012), where it was held that “The fact that an employee shows remorse for his or her actions and takes responsibility for his or her actions may militate, depending on the circumstances, against imposing the sanction of dismissal. The converse also applies, dismissal may be an appropriate sanction where the employee commits an act of dishonesty, falsely denies having done so and then shows no remorse whatsoever for having done so. It is also important to point out that the respondent had persisted with her lying not only in the course of the investigations but also at her disciplinary hearing and in her sworn testimony before the arbitrator”.

Remorse can be likened to contrition.  A lack of remorse will typically confirm that the trust relationship is broken beyond repair, thereby justifying a sanction of dismissal.  It should also be borne in mind that an admission of guilt does not, in and of itself, amount to an expression of remorse.

As noted in the Labour Court judgment in Bongani Wellcome Rakhivhani v South African Police services & 2 others (Case number: JR1158 /13) “Genuine remorse contemplates an unconditional acknowledgement of the wrongdoing, a plea for forgiveness, and an undertaking that the misconduct will not be repeated if the employee is permitted to remain in the fold of the employment relationship”.

Hearsay evidence is admissible at times

Hearsay evidence is admissible at times

Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his/her own eyes or senses, but heard from someone else.

Hearsay evidence is considered to be unreliable, problematic as the source of the evidence is not available for cross-examination, and often faulty as the witness may have mistakenly made an error in the interpretation of that communicated to him/her by the source of the information.

It is typically weak evidence, to be handled with caution, and includes statements of 3rd parties & documents.

The Law of Evidence Amendment Act (45 of 1988) tells us that hearsay evidence is “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”.  It follows that hearsay evidence is generally inadmissible, but not always.

Schwikkard & van de Merwe, in Principles of Evidence (Second Edition; page 255) highlight that the fears associated with admission of hearsay, include “distrust of oral evidence reflected in the requirement that evidence is also problematic because the court is unable to observe the demeanour of the person who made the original statement.  Another reason given for the exclusion of hearsay evidence is that it is secondary evidence and consequently not the best evidence.

The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (LAC: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence, in the context of disciplinary and arbitration hearings.

Section 3 of the Law of Evidence Amendment Act, says the judgment, “essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission”.

Importantly, the judgment notes that “Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.  This Court held ‘Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion–orientated and rigid rule–and–exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted’. This section still retains the ‘caution’ concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not”.

So, what does this mean for us in disciplinary and arbitration hearings? Well, for starters, it confirms that hearsay evidence is indeed admissible ‘if the interests of justice require it to be admitted’.  Put differently, it is wholly incorrect to submit that hearsay evidence is always inadmissible.  However, caution must always be applied.

The judgment also tells us that “The provisions of section 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence”.

The judgment went on to quote S v Ndhlovu and Other which “referred to safeguards to ensure respect for an accused’s fundamental right to a fair trial. Cameron JA pointed out that safeguards, including the following, were important: “First, a presiding judicial officer is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. More specifically under the Act, ‘it is the duty of a trial judge to keep inadmissible evidence out, [and] not to listen passively as the record is turned into a papery sump of “evidence”.’ Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained… Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court’s judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.”

In the final analysis, professional advice should be sought when evaluating whether hearsay evidence is, or isn’t, admissible in a given set of circumstances.

The days of Recognition Agreements are pretty much over

Those old enough to remember the labour relations environment in the 1980’s will remember the emergence of Recognition Agreements. The then Labour Relations Act had no codification of trade union rights, or what we today refer to as ‘organisational rights’.  Way back then, emerging trade unions had to attempt to strong arm employers into ‘recognising’ them, and in so doing, grant the trade union stop-order, access, and shop steward rights.

And if union representation grew to majority representation, collective bargaining rights would be included in the Recognition Agreement.

It’s not far off the mark to say that prior to our current 1995 Labour Relations Act, trade unions entered into Recognition Agreements with employers, on the back of their significant membership numbers, and negotiating prowess.

Cue the introduction of the 1995 Labour Relations Act which simplified, and more importantly codified, the granting of trade union (organisational) rights, in obligating employers to extend such rights to trade unions, if they reached certain membership thresholds.

So, the notion of employers ‘recognising’ trade unions, at least for the purposes of trade union rights, fell away.  The threshold of ‘sufficient representation’ was born, and any trade union which now acquires ‘sufficient representation’ in a workplace, is automatically entitled to the trade union organisational rights associated with sufficient representation, namely (1) access to the employer’s workplace (section 12 of the LRA) and (2) the obligation of employers to deduct and pay over union membership subscriptions monthly (section 13 of the LRA).

Trade unions were no longer required to be recognised by employers for these rights, as they were an automatic consequence of the union having membership which met, or exceeded, the sufficient representation threshold.  However, the ‘sufficient representation threshold’ was not defined, at least not in percentage terms.  What initially became apparent, for various reasons, was that sufficient representation was in the region of 30% of all eligible union members, with eligible union members being all employees, excluding senior management.

Since 1995, statutory amendments to the Labour Relations Act, pre-empted by evolving case law, has, in certain circumstances, lowered the sufficient representation to less than 30%.

The second union membership threshold dealt with in the Labour Relations Act, for purposes relating to trade union, organisational rights, is majority union representation, often described to be 50% plus one member within the ranks of eligible union members.

Once a trade union acquires majority representation, two further trade union, organisational rights, kick in, namely the right to appoint shop stewards (referred to as trade union representatives in the LRA) in terms of sections 14 and 15 of the Labour Relations Act, and the right to information disclosure, in terms of section 16 of the Labour Relations Act.

In practice, there are occasionally squabbles between employers and trade unions over the verification of actual trade union membership with the ranks of eligible union members, although disputes of this nature are typically short-lived.

So how does collective bargaining fit into this scenario.  Well, it could be argued that there is still some degree of ‘recognition’ of trade unions, when it comes to collective (wage) bargaining.  It has become, wisely, a norm for employers to agree to enter into collective bargaining arrangements with unions which acquire majority representation, even though there is no duty to bargaining in our law, per se.

Over time, collective recognition agreements are being phased out, as trade unions no longer require employers to recognise them for trade union, organisational rights, as these rights have been codified in the Labour Relations Act, once sufficient and/or majority representation has been achieved and verified.

The trend nowadays, is to conclude separate organisational rights and collective bargaining agreements.  This makes sense on many levels.  To begin with, organisational rights and collective bargaining rights, are fundamentally different, and unrelated.  There is no logical reason why they should stand together in the same collective agreement.

Secondly, in the separate agreements scenario, an organisational rights agreement can persist in the event that a trade union loses majority representation.  If both organisational and collective bargaining rights were both contained in a single collective agreement, a new collective agreement would need to be concluded, even though the union may none the less retain a level of sufficient representation.

Our anecdotal observations of organisational rights and collective bargaining agreements is that they are not regularly reviewed to reflect renewed best practice over time.  Indeed, this is perhaps even more pertinent to disciplinary procedures and codes.