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 [1939] 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.”