Strong suspicion that an employee has committed misconduct, is a persuasive thing.  So persuasive, in fact, that employers are frequently lulled into concluding that the suspicion is so compelling, that it proves employee guilt, of misconduct.  Nothing could be further from the truth.

The fact of the matter is that alleged misconduct must be provable, with evidence, which proves that the employee is guilty /on a balance of probabilities’.  In simple terms, this means that the employer must lead enough evidence to prove that the probabilities that the employee is guilty, are greater than the probabilities that the employee is not guilty.  Put differently, proving guilt in disciplinary hearings requires employers to have proof that the employee probably committed a blameworthy act, or on occasion, omitted to act in circumstances where the omission to act can be held to be blameworthy.

Proof of suspicion fails to meet this requirement, and our courts have been quick to confirm this, as was the case as far back as 1988 when, in Moahlodi v East Rand Gold & Uranium Co Ltd (Industrial Court: 1988), it was held that “mere suspicion does not satisfy the test of proof on a balance of probabilities”.

The landmark, and most often quoted case law on this subject is the Labour Appeal Court judgment in Mbanjwaand Senzeni v Shoprite Checkers (Pty) Ltd & 2 others (Case number DA4/11).  The case involved an allegation that the employee had attempted to under-ring items being purchased by a customer who appeared to be an accomplice of the employee”.

To begin with, a key employer witness acknowledged, under dross-examination, that “the whole case against the appellant was based on her suspicion in relation to what she had seen the appellant doing”, continuing that “Without the contravention of any rule and without any reprehensible conduct by Senzeni on 27 April and 28 April 2006, we are left with Vino’s substance of her suspicion on which she subjectively concluded that Senzeni attempted to under-ring the items brought to her till by Lindiwe”.

The judgment critically further noted that “It is my opinion that whereas, there might have been grounds to suspect Lindiwe’s conduct on 28 April 2006, but to suspect that Senzeni was implicated in the attempt to under-ring the respondent’s items was based on Vino’s figment of imagination”

In analysing and evaluating the evidence led, the Labour Appeal Court held that “It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. 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 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”.

The Labour Appeal court judgment in Dion Discount Centres v Rantlo (LAC: 1995) was quoted as having held that “It was argued by appellant’s counsel with reference to Moletsane v Ascot Diamonds (Pty) Ltd (1993) 6 LLC 15 (IC) and EATWCSA v The Productions Casting Co (Pty) Ltd (1988) 9 ILJ 702 (IC) that the termination of respondent’s employment was fair as there was a strong suspicion that respondent had participated in the 4 transactions. The presiding officer in the Moletsane matter relied on the judgment in EATWCSA v The Production Casting Co (Pty) Ltd as authority for the finding that ‘it was not unfair for the respondent to dismiss the applicant in the particular circumstances of this case on a strong suspicion of diamond swopping’. I do not find support for this view in the latter judgment. The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship”.

Perhaps the most damning crushing remark made by the judge in the Shoprite Checkers case was that “The high-water mark in this case is nothing but mere suspicion on the part of Pillay that the appellant committed the misconduct charged. There was simply no shred of evidence to buttress or lend any credence to the allegation of the misconduct. It is beyond my comprehension why the appellant was charged for misconduct at all”.

So, there you have it.  Employers rely in suspicion alone, to prove guilt in misconduct cases, at their peril.