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.
Follow Tony on Twitter at @tony_healy