Disciplinary hearing verdicts depend on whether the employer can prove, on a balance of probabilities, that the employee is guilty of the misconduct alleged. Put differently, the probabilities that the employee is guilty must be greater than the probabilities that the employee is not guilty.
The CCMA arbitration award in L. Naidoo v Lever Ponds [Case number KN22081], the Commissioner cautioned 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”.
Proving probable guilt becomes more difficult when the employer only has one witness, and gives rise to the “one person’s word against another” conundrum. Other types of evidence such as documentary evidence may help to tilt the scales in favour of the employer, but a case which pits one version of an employer against a conflicting version from an employee, will always present the employer with a challenge which differs from a case in which there are two, or more, witnesses.
Traditionally, the evidence of a single witness was required to be treated with caution. The practical problem faced by a disciplinary hearing chairperson in such circumstances is to know which of the two opposing versions should be preferred, and why? For example, there is no reason why the employer’s version should always be preferred over that of the employee, or vice versa.
It was confirmed in Northam Platinum Mines v Shai NO & Others (2012) 33 ILJ 942 (LC) that whilst one should not reject the applicability of the cautionary rule when faced with a single witness, the current approach to single witness evidence is less stringent than has been the case in the past. Put differently, one need not simply conclude that the evidence of a single witness in a disciplinary hearing will always be insufficient to prove guilt on a balance of probabilities.
On the contrary, the probabilities of the respective versions should be evaluated the credibility of the respective witnesses should be assessed.
Important authority on single witness evidence is found in the S v Carolus 2008 (2) SACR 207 SCA Supreme court of Appeal judgment, in which it was held that “There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court (disciplinary hearing chairperson) should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence”.
Also of importance is the unreported case of Minister of Correctional Services v A M Baloyi & others [JR46/09] which held that the single witness cautionary rule is not applicable to civil or arbitration proceedings.
In the final analysis, an employer may rely on the evidence of a single witness to prove misconduct, but should do so with caution, ensuring that there are justifiable grounds on which to prefer the evidence of the employer witness over that of the employee.