Most disciplinary cases arise out of an employer suspecting an employee of being guilty of one or more acts of misconduct. This typically spawns an investigation to establish whether, or not, there is sufficient proof to prove guilt on the balance of probabilities.
However, on occasion, disciplinary hearings are occasionally initiated with little more than a suspicion, which may indeed be compelling, that the employee is guilty of the alleged misconduct. Indeed, the suspicions may even be correct and entirely warranted.
None the less, no matter how legitimate a suspicion of misconduct may be, it is insufficient to prove guilt on the balance of probabilities. Put differently, it’s not good enough to simply, even rightfully, suspect an employee of misconduct; the fairness of any adverse finding against an employee is a function of the existence of proof of probable guilt, not the existence of legitimate suspicion of guilt.
The Labour Court judgment in Mondi Ltd v CEPPWAWU & others (Case no. D622/2002, it was held that “It is not enough to say that there is a reasonable suspicion that an offence may have been committed.”
In a similar case it was held in yet another Labour Court judgment Freshmark v SACCAWU & others (Case no. D550/2006) that “Despite the lingering suspicion there is no proof that the employee acted dishonestly”.
In the Labour Appeal court judgment in Senzeni Mbanjwa v Shoprite Checkers & others (Case no. DA4/11), it was further held that “The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship.”
This Labour Appeal Court judgment provides important guidelines when dealing with suspicion in disciplinary cases.
In this case, a till operator had been accused, and found guilty, of attempting to under-ring items to the value of R27.97.
This judgment held further that “Where the employer is suspicious that the employee, through the latter’s’ movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that’s suspicion as a ground to dismiss the employee for misconduct because suspicion, however strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question”.
It continued that “Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship.
This implies that cases of alleged, or suspected, dishonesty for example, can only be proved on the required balance of probabilities, with relevant and admissible eye witness and/or circumstantial evidence.
It will simply not be sufficient to lead evidence of strong or reasonable suspicion. This is in spite of the fact that such reasonable suspicion may indeed be justified.
In the final analysis, it should be borne in mind that what an employer knows to be true, or may justifiable suspect is true, is irrelevant in a disciplinary hearing. All that matters is what can, or cannot, be proved on the balance of probabilities.
Hearsay evidence is, in the main, inadmissible, and is best described as evidence tendered by an individual who relays evidence which s/he did not personally witness with his/her own eyes or senses, but heard from someone else.
It is with good reason that hearsay evidence is treated in this way, as hearsay evidence cannot be tested by way of cross examination, and is furthermore typically unreliable as the witness tendering the hearsay evidence may have mistakenly made an error in the interpretation of that communicated to him or her by the source of the evidence.
Hence the need to handle hearsay evidence with extreme caution.
However, that’s not to say that there are not exceptions to this rule; on the contrary, there are.
Section 3 of the Evidence Amendment Act provides that hearsay evidence may in fact be admissible if it is in the interest of justice to do so and certain conditions are met. The Labour Court addressed this tricky area of law in the matter of Goitsimang David Mosima v SAPS & 3 others (Case Number J1031/09).
The applicant, at a prior CCMA arbitration hearing, had been found guilty of soliciting and receiving a R700.00 bribe from two members of the public who happened also to be illegal immigrants, with the outcome being that his dismissal was upheld by the arbitrator. He now sought to have this decision reviewed on grounds that the arbitrator had erred in accepting the hearsay evidence, primarily on the basis that the two members of the public did not testify at the arbitration hearing.
The Commissioner relied heavily on the provisions of the Evidence Amendment Act relating to the exceptions to the hearsay rule, and especially noted that the applicant’s review application required the court to consider the reasonableness of the arbitrator’s decision, and not the correctness of that decision, as would be the case in appeal proceedings.
It was held that “in the first instance the criticism that the arbitrator erred in basing his decision on hearsay evidence bears no merit”.
The provisions of Section 3 of the Evidence Amendment Act were deemed to have justified as the two members of the public whose evidence was admitted in their absence, was justified as they could not be found to testify at the arbitration hearing because they probably had been deported back to their countries of origin.
The applicant’s own version had also in fact corroborated the heresy evidence in that he had acknowledged receiving R700.00, in an envelope, from the two members of the public in question.
The admission of hearsay evidence should none the less be handled with caution, given that in doing so, unreliable evidence could be admitted that does not withstand scrutiny at the CCMA, Bargaining Councils or the Labour Courts.
Circumstantial evidence is indeed admissible in disciplinary and arbitration hearings; that much we already know. However, certain important factors relating to the introduction of circumstantial evidence, and the manner in which it is to be dealt with, must be borne in mind.
So what is circumstantial evidence?
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, and may 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).
Case law abounds with guidelines for the use of circumstantial evidence.
The leading case authority is R v Blom (1939 AD) wherein it was held that “The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn”.
This judgment continues that “The true facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct”.
More recent landmark case law has also addressed circumstantial evidence.
In Atherstone v Lewis stores (Pty) Ltd [CCMA KNDB13032-11) it was noted that “The textbooks on evidence say that circumstantial evidence is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible inference. It need not be the only inference”.
In practice, circumstantial evidence is used by way of proving certain facts, and thereafter seeking to persuade the chairperson/arbitrator, that the guilt of the employee is the most plausible inference that can be drawn from the proven facts.
In Komape v Spoornet (Pty) Ltd & others (labour Court: 2008) the Court held that in assessing circumstantial evidence, an arbitrator must always consider the cumulative effect of all the items of evidence before him or her, and that the onus in civil cases is discharged if the inference advanced is the mist readily apparent and acceptable from a number of other possible inferences.
The somewhat dated, but none the less still pertinent English case of Caswell v Powell Duffy Collieries Ltd  held that “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish … but if 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 conjecture.
In short, circumstantial evidence must be based on proven facts which themselves lead to guilt being the most reasonable inference or assumption.
Our firm is frequently asked by clients, whether it is permissible to ‘lay a trap’ for staff suspected of, for example, dishonesty.
Let’s for example, use the example of an employer suspecting that a receiving clerk is a member of a syndicate, which includes the driver of a supplier. In this case, as is indeed unfortunately, quite a common practice, the driver of the supplier and the receiving clerk of the customer, agree that the clerk will sign receipt of a quantity of goods which is higher than the quantity actually delivered; the driver then sells the undelivered goods, and shares the proceeds with the clerk.
This is but one of the many scams performed by syndicates every day, which include willing participant employees in companies across the country.
The crisp question is this; when does a trap placed by an employer become unlawful entrapment?
Entrapment is a somewhat controversial subject, with most decided cases being found in the sphere of criminal law. Key labour judgments do however exist which cast light on the manner in which entrapment cases are to be dealt with in the realm of dismissal law.
The distinction between the approach to entrapment adopted in criminal (lawfulness) and labour (fairness) cases is important.
The Labour Court Judgment in Cape Town City Council v SAMWU & 2 others [C367/98] is considered to have been a landmark Judgment in workplace entrapment cases.
The Judgment refers to the Oxford Dictionary of Law (4th Edition, 1997) as defining ‘entrapment’ to mean “deliberately trapping a person into committing a crime in order to secure their prosecution”. Perhaps most significantly, this points to, in employment terms, an employee being lured into committing an act of misconduct, thereby introducing the concept of ‘inducement’.
Section 252A of the Criminal Procedure Act specifically addresses “traps and undercover operations and the admissibility of evidence so obtained”. The principle factors, paraphrased, are (1) entrapment evidence is admissible if it does not go beyond providing an opportunity to commit misconduct, (2) when considering whether the employer’ conduct goes beyond providing an opportunity to commit misconduct, the prevalence of the misconduct and its seriousness, the availability of other techniques of detection, the degree of persistence and degree of deceit or trickery, will be factors considered.
Further factors which will be assessed are whether, or not, the employer’s conduct included threats, implied or expressed, during the ‘entrapment’ process, and whether there were grounds for reasonable suspicion prior to the trap being set.
In this Judgment, the Court held that “guidelines and parameters no less rigid or strict than those set out in section 252A of the CPA should be applied in the context of the employment relationship”.
This is a rare comparison being drawn between disciplinary procedures and the CPA.
It’s telling that the Judgment does open the door for traps to be set by employers, in specific instances; the Judgment continues “I would be reluctant if not unlikely to hold that a system of trapping (obviously properly constrained) may never be fair in the employment context”.
Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his or her own eyes or senses, but heard from someone else. Hearsay evidence is, ordinarily, considered to be unreliable and problematic as the source of the evidence is not available for cross-examination.
Further concerns regarding hearsay evidence are that it is 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 therefore evidence which under normal circumstances, is to be handled with caution. That’s not to say however that hearsay evidence should be discarded at all times.
Section 3 of the Law of Evidence Act (Act 45 of 1988) prescribes the manner in which hearsay evidence should be dealt with, and provides the exceptions to the normal rule that hearsay evidence is ordinarily inadmissible.
The Labour Appeal Court in Naraindath v CCMA & others (2000) reiterated that CCMA arbitrators should not be required “to resolve unfair dismissal disputes … in slavish imitation of the procedures which are adopted in a court of law and subject to the technical rules of evidence which apply in those courts”.
In the Labour Court case of POPCRU obo Maseko v Dept. Of Correctional Services (JR2134/08, handed down on 30 August 2010) the admissibility of hearsay evidence in arbitration hearings was comprehensively addressed.
Amongst other things, the Judge held that case law objecting to a slavish imitation of court of law hearsay admissibility principles, “does not amount to an open invitation to ignore those principles”. The Judge continues that “Rather, it suggests that deviations from those principles must be justified by the particular circumstances of the arbitration in question”.
When all is said and done, the admissibility of hearsay evidence at arbitration hearings will be assessed on whether, or not, the arbitrator applied the provisions of section 3 of the Law of Evidence Act, in the knowledge that “arbitration proceedings are not the same as civil or criminal proceedings”.
In POPCRU obo Maseko v Dept. Of Correctional Services, it was submitted that the arbitrator had erred in admitting hearsay evidence on grounds that reliance had been placed on witness statements when the deponent of the statements were not available to be cross examined. What’s more, it was common cause that the statements in question were the only direct evidence of the misconduct which had led to the applicant’s dismissal.
The Court held that “the cumulative consideration of the factors set out in section 3 of the Law of Evidence Act by the arbitrator which resulted in her admitting the (hearsay) evidence was not unreasonable”. This was due to a number of factors including the fact that the witnesses had been released from custody and provide false addresses, the applicant’s “the bald denial of all the relevant facts”, the reliability of the evidence, the nature of the surrounding evidence and the fact that the statements were cross-examined at the original disciplinary hearing.