CCMA and Bargaining Council Commissioners must conduct arbitration impartially, and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct.
This is precisely what occurred in the recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others [Case no: JR135/16]. As noted in the judgment, “The main grounds for this review is that it is contended that the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
It was further contended by the applicant that “the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
In supporting these assertions, it was further argued that “In support of these grounds, (the applicant contended) that the Commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the Commissioner’s interventions were such that he failed to afford the parties a fair hearing, and that his conduct gave rise to a reasonable apprehension of bias.”
Apprehensions of bias occur frequently at the CCMA and bargaining Councils. Let’s face it, in every arbitration hearing there is a winner and a loser; the losers can be prone to blaming a one-eyed Commissioner for the loss, rather than facing up to the fact that they may have simply lost on the merits, or demerits, of their case.
The judgment noted that “in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and others as follows, ‘What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity. …” [2014 (35) ILJ 1528 (LC).
So, had the Commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”? Not so held the Court.
On the contrary, it was held that “The Commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.”
“(The applicant) had the onus to show that the Commissioner acted mala fide and in breach of his duties so as to afford City of JHB an unfair advantage. She failed to do.”
The judgment continued that “I believe that the Commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.
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.
All employees have a common-law obligation to their employers to promote and protect the interests of the employer, at all times. This includes informing management of any planned or actual acts of misconduct they have knowledge of. It could, for example, include knowledge of theft, pilferage and fraud.
That said, it’s widely known that employees are often ‘in the know’ when it comes to acts of misconduct committed by other employees, yet they don’t bring it to management’s attention. The reasons for not doing so are varied. An employee may consciously choose not to inform management of misconduct they are aware of, for fear of reprisals from the instigators. It is also quite possible that an employee will not divulge misconduct they are aware of, as they themselves have an axe to grind with the employer.
Regardless, employees have a positive duty to inform management of misconduct of which the employer may be unware; failure to do so is a material breach of such employee’s duty of good faith to their employer.
The CCMA and labour courts have dealt with derivative misconduct on numerous occasions. Earlier this year, the CCMA in Thabiso Ngakane v Wilmar (Pty) Ltd [GAJB9538-18] noted that “While a dismissal on the grounds of derivative misconduct has been sanctioned by the Labour Courts, the onus remains with the employer to prove that the employee was guilty of such misconduct. In that regard the employer would need to produce evidence that there was a reasonable probability that the employee had information that would assist the employer in identifying those guilty of misconduct, and had withheld such information”.
In yet another example, in NUMSA v Commissioner Leon Pillay & others [D02-17], the Labour Court described derivative misconduct as being “a case in which the employer wants to rely on misconduct that is not directly related to the employee’s own wrongdoing, but is based on the employee not providing information that is needed to identify other wrongdoers in circumstances where speaking up is required to maintain the trust relationship, that constitutes a quite distinct ground of misconduct, applicable in a context where not speaking up can destroy an employment relationship”.
The notion of derivative misconduct most recently came to a head in at the Constitutional Court which last month, on 28 June 2019, delivered judgment in the long-standing dispute involving NUMSA obo Khanyile Nkanezi & others v Dunlop & others [CCT202/18].
In short, a violent, protected strike commenced on 22 August 2019. Some perpetrators of violence could be positively identified, others could not. The CCMA Commissioner in the arbitration award noted that “The situation that prevailed in Induna Mills Road during the course of the strike was highly relevant to the derivative misconduct issue. If any of the applicants were present in the group of strikers who . . . [committed the acts of violence] they would either have been perpetrators of principal misconduct or be liable for derivative misconduct on the basis that they knew who the perpetrators of the misconduct were and failed to disclose that information to the respondent”.
In the final analysis, the existence, or otherwise, of derivative misconduct on the part of strikers who participated in the protected strike, but who could not be identified as perpetrators of violence, became the subject matter of a CCMA arbitration hearing, subsequent Labour Court and Labour Appeal Court cases, and ultimately a Constitutional Court matter.
The Concourt identified the source of the concept of derivative misconduct in highlighting that “ Although not mentioned by name as derivative misconduct, the roots of the doctrine lie in an obiter dictum (non-binding statement) by Nugent J in FAWU – In the field of the industrial relations, it may be that policy considerations require more of an employee than that he merely remained passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action” [Food & Allied Workers Union v Amalgamated Beverage Industries Ltd  ZALAC 1].
When all is said, and done, the ‘takeaway’ from the Concourt judgment is that whilst a derivative duty to disclose exists “As we have seen, this duty was sourced in the contractual duty of good faith without any reference to an employer’s reciprocal good faith obligations. In accordance with the conclusion employees’ safety should have been guaranteed before expecting them to come forward and disclose information or exonerate themselves. That was not sufficiently done”.
In short, this means that derivative misconduct, in strike scenarios, and probably all others, requires employers to ensure that employees who disclose knowledge of misconduct on their colleagues, are safeguarded from harm. This is perplexing for employers, as it now suggests that employees have a valid defence to derivative misconduct allegations, which relies solely on fear of intimidation or harm, regardless of the circumstances.
Over time, there has, to some degree, been conflicting law regarding the extent of the admissibility of polygraph test results in disciplinary hearings. More especially, this has related to whether an employer can rely solely on a failed polygraph test to prove the guilt of an employee on the balance of probabilities.
Employers are all too frequently of the mistaken impression that a failed polygraph test is quite enough to prove guilt; not so say our courts.
The recent Labour Court matter of Mustek v Tsabadi and others (case no. JR 2732/2010: Judgment day 2 March 2013) reiterates and reconfirms the extent to which polygraph test results may be utilised to prove guilt in disciplinary hearings.
In this case, eight laptop computers went missing from the employer’s premises. The employer elected to administer polygraph tests in regards all employees who had access to the area from which the laptop computers had gone missing. Four of the sixty-seven employees tested failed for the polygraph test, and were dismissed based on this evidence alone.
Judgment in this case emphasised certain important factors to be taken into consideration regarding the admissibility and extent to which polygraph test results may be utilised in disciplinary hearings. The Court held that “our Courts have approached the use of polygraph tests with much circumspection, and it is now accepted that the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities”.
It became apparent that in a separate arbitration hearing at the CCMA, another commissioner had in fact condoned the admissibility of the polygraph tests alone, and admitted this as sufficient evidence to prove guilt on the balance of probabilities. In the Labour Court judgment, the judge however noted that commissioners are not bound to follow awards of fellow commissioners, even if two separate arbitration hearings are faced with the same facts.
More especially, it was held that “it is factious to suggest that one commissioner should complacently endorse the finding of another commissioner were the two matters have their origins in the same incident. The rationale for the first commissioner’s decision has to be analysed. There can be any number of reasons why that commissioner arrived at the conclusion he did. To argue that a commissioner is bound by the findings of another commissioner is repugnant to the rules of precedent”.
The judgment continued that in essence, polygraph test results are indeed admissible, in disciplinary hearings, only insofar as they corroborate or support more direct evidence. It is quite clear that our law has established a now well established precedent that if the only evidence leveled against an employee is a failed polygraph test, it will never be sufficient proof in its own right to prove that the employee is guilty on the balance of probability. That is not to say of course that polygraph test results are inadmissible. On the contrary, they are. However, insofar as polygraph tests ought to be admitted in a disciplinary hearing, and indeed an arbitration hearing, such failed polygraph test results are only of value to the extent that, and insofar as they do, support more direct evidence introduced during the disciplinary or arbitration hearing.
When all is said, and done, polygraph test results have value as corroborating evidence only, and will never be sufficient as free standing evidence, to prove a case on a balance of probabilities.
Circumstantial evidence is used to prove guilt when there were no eye witnesses. No-one observed the misconduct, yet there are facts regarding the circumstances in which the misconduct occurred, which points to a most probable guilty person.
If you like, circumstantial evidence is indirect evidence, which can be distinguished from direct, eye witness evidence. In Principles of Evidence (Schwikkard and van der Merwe: 2005), circumstantial evidence is said to furnish “indirect proof”, with the court, which in disciplinary hearings would include chairpersons, being “required to draw inferences” which “must comply with certain rules of logic. Schwikkard and van der Merwe also tell us that “In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts”.
Circumstantial evidence can, and often is, used fairly in disciplinary hearings, to prove guilt on a balance of probabilities, as is required. It follows that circumstantial evidence is also entirely admissible in arbitration hearings. This is typically, amongst other things, premised on section 138(1) of the Labour Relations Act, which states that “The commissioner may 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”.
That’s not to say that circumstantial evidence is unquestionably admissible. Our case law provides ample evidence of the manner in which circumstantial evidence will be admitted, and considered to be compelling in proving an employee’s guilt on grounds of misconduct.
Quite how circumstantial evidence is to be assessed in cases, was summarised in S v Reddy and Others 1996 (2) SACR, which held that ““In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft quoted dictum in R v Blom 1939 AD 188 at 202-203, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such “that they exclude every reasonable inference from them save the one sought to be drawn”.
The approach to be adopted when an inference is sought to be drawn from other facts was summarised in Cooper and Another NNO v Merchant Trade Finance Ltd [2000 (3) SA 1009 (SCA)]. Zulman JA observed that “It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the “two cardinal rules of logic” referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct. This rule is not applicable in a civil case. If the facts permit of more than one inference, the Court must select the most “plausible” or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”
Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) reminds us that “The danger with circumstantial evidence on the other hand, is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation …….. thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it”.
Chairpersons in disciplinary hearings are frequently faced with conflicting evidence or testimonies from two witnesses describing the same event. For example, an employee may testify that they were not sleeping on duty, whilst a manager may testify that they were. Both witnesses testify with zeal and conviction, but one is telling the truth, and the other isn’t. But how can this be determined?
This conundrum is faced by chairpersons in workplace disciplinary and appeal hearing, by Commissioners in CCMA and Bargaining Council arbitrations, and by judges in the labour courts.
Case law has much to say about resolving this dilemma in arbitration awards and labour courts judgments, invariably being referred to as the challenge faced by adjudicators of hearings, when faced with conflicting versions.
The point of departure is the understanding that, in disciplinary hearings, the employer has the burden of proof, which simply means that the employer has the obligation to prove, on a balance of probabilities, that the employee is guilty of the allegation in question. It can also be described as the employer’s duty to prove that the employee is “probably’ guilty. This principle is also important when faced with conflicting versions, or evidence.
The bottom line is that the adjudicator, or chairperson, must decide which of the two conflicting versions of the same event or observation, is most probable.
Our courts have addressed how one is to deal with cases in which there are two irreconcilable versions. In Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the test is formulated as one in which “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candor and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.”
In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) it was stated that: “The credibility of the witnesses and the probability and 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 respondent’s version”.
Yet further guidance was provided in Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC), in which it was held that “The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses, nor did he have regard to the inherent probabilities of the competing versions before him. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings”
To put it plainly, when a disciplinary hearing chairperson is faced with two conflicting versions, it is important to weigh the evidence that is tendered, with a view to arriving at a version that is most probable.
So there you have it. When it’s one person’s word against another, one version can be preferred over the other, when there are sound reasons to do so.