Transcript EVIDENCE: MISCONDUCT PROCEEDINGS

Presented by BENITA WHITCHER
EE
ER
CP
DH
He/She
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Employee;
Employer;
chairperson;
disciplinary hearing;
Strict rules of procedure & evidence applicable in courts not
appropriate.
DH - an opportunity afforded to the EE to state a case in
response to the allegations levelled against him.
The leading, and cross-examination, of witnesses by the
parties relevant where there are material disputes of fact
which can only be decided by determining the credibility of
witnesses.
Avril Elizabeth Home (2006) 27 ILJ 1644 (LC);
Kapesi [2010] 9 BLLR 903 (LC)];
Naraindath
John charged with SH of Mary. Allegations: During
March to June he made comments, tele-calls and
physical contact which she experienced as degrading
and humiliating. Investigation carried out: documents
collected, statements taken, John polygraphed and
interviewed, John’s emails for the last year intercepted.
At the hearing John denies the allegations. His
defence: Mary’s claim is revenge for a poor
performance rating he gave her in April, she is
flirtatious and had an affair with X, a married fellow EE.
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Testimony of Mary; her complaint statement, medical
certificate from X stating Mary consulted him in May stating
she is depressed and that he gave Mary a prescription; copy
of prescription.
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Testimony of investigator; his interview notes with John
[claims John asked if matter could be resolved with an
apology]; place on record the intercepted emails showing
John’s sexually explicit emails to various females, the
affidavit from X, a former PA who claims similar conduct by
John [now works in CT & does not want to take off work], a
letter from John’s former ER stating John got FWW for SH 3
years ago, John’s phone records obtained from MTN
reflecting telephone numbers dialled during March to June
and their duration, the results of the polygraph test showing
John ‘failed the test’.
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ER need only show that, on all the evidence, its version
is more probable [more likely].
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The need to counter evidence may rest on the EE.
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Eg video capturing an EE concealing merchandise on
her person while working in a retail store constitutes a
prima facie case of dishonesty against the EE.
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In the absence of a credible and probable explanation
from the EE, it would be reasonable to infer that the EE
had acted dishonestly and the ER has proved its case.
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Woolworths (2011) 32 ILJ 2455 (LAC).
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ER need not adduce evidence to positively disprove a defense,
especially if such is within the unique knowledge of the EE .
Pillay v Krishna 1946 AD 946]
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An ER must prove its own case.
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Evidence is not automatic proof.
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It is a mean to attempt to prove or disprove an allegation .
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At the end of the case the CP must evaluate all the evidence
together and decide which evidence [witness] is credible, reliable
and probable.
To showcase your version and its probabilities [by skilful
questions to your witnesses] and by putting it to the
opposing witness].
To show, through questions and propositions put to the
opposing witness, that:
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He is mistaken about a contested pointed;
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He is being untruthful on a contested point;
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His version is inherently improbable = does not accord
with the way we expect people to behave or things to
happen given the context.
Whether a particular item of evidence may be
introduced at the hearing or taken into account by
the CP.
The fact that evidence is admitted does not mean
that it is automatically true or persuasive.
During the evaluation of evidence stage, the CP
may find that certain evidence which he admitted
is untrue, unreliable or improbable and is to be
rejected.
Flexible admissibility rules – not a court case
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It appears to be logically relevant;
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may assist in deciding the case - has potential
to shine light on what actually happened where
there is a dispute of fact
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Rule against admission applies less strictly.
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H.E. not strictly relevant [helpful] because its dependability
depends on the credibility of a person other than the person
communicating the evidence in the hearing .
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Eg: the testimony of Jane is relevant it relates directly to the
facts of the case and because the veracity of her version can
be tested.
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The investigator’s testimony [his communication of the
contents of the affidavit and letter] lacks probative value
because the investigator cannot be cross-examined to test
the truth of her allegations contained in the affidavit and
letter. He is not in a position to confirm the correctness and
truthfulness of the allegations made in the affidavit and letter
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Contents relevant to the facts/issues in dispute.
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There is good reason for not bringing the author of the allegations to testify.
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It is demonstrated that the authors did make such allegations [investigator can
testify to this].
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Used to corroborate a version.
CP can accept the H.E. as reliable and give it weight when it fits into the overall jigsaw of
hard facts that has been presented and is corroborated in some way.
Distinguish objectively provable allegations from highly subjective allegations which
rely on perception or opinion and thus require to be tested by cross-examination .
Eg an arbitrator attached weight to a letter of complaint made by a motorist to show that
the EE was on an unauthorised route but gave no weight to it to prove bad driving.
Ordinarily admissible because the EE, as the patient and recipient
of the certificate, can testify to its authenticity and correctness i.e.
the circumstances under which it was produced.
The EE’s own credibility will determine the reliability of the
certificate and its contents.
Where the contents derive from specialist knowledge and is
disputed, it is hearsay in the absence of the doctor’s testimony.
Mary able to testify to, and can be cross-examined on, the
authenticity and the correctness of the contents of the certificate.
Medical certificate can be used to corroborate her story
Informal admission [not hearsay]
The reason for the investigator’s testimony is to show that John
admitted something to him. The investigator’s own credibility will
determine whether the CP accepts that John made the admission.
Alternatively – without prejudice communication and thus
inadmissible because the aim of the discussion was to settle
matter
Where an EE voluntarily confesses to misconduct, the admission
may be admitted and the EE may be found guilty of the
misconduct if he has admitted to all the elements of the
misconduct. The ER does not have to confirm in a material
respect the confession or adduce evidence, other than such
confession, to prove the misconduct.
Computer printouts of information created by a
device [computer] without human intervention
may be treated as real evidence.
Eg the MTN cell phone records .
No need for witness to confirm the correctness
of the contents. Just need witness place
contents on record & explain relevance to
case.
Computer printouts of business records made
in the ordinary course of business are
admissible against any person without the
testimony of the one who made the entry &
constitute rebuttable proof of the facts
contained therein if accompanied by a
certificate from a manager stating that the
contents are correct and accurate.
Generally an EE should be held liable for reasons and on
evidence directly connected to the event in dispute; not on
what he did or may have done in the past.
A warning for assault cannot serve as evidence that he is
guilty of assault in a subsequent and different case.
SFE may be used to identify a culprit: if the modus operandi
is ‘strikingly similar’ to that alleged in the present case.
Fair notice of an intention to rely on SFE should be given to
the EE so he is prepared to deal with it because it
introduces a collateral inquiry.
Gaga (2012) 33 ILJ 329 (LAC)
EE charged with SH. ER wanted to lead evidence that
he had SH other EEs and had been previously charged
with SH.
Held: SFE will not constitute a time wasting collateral
inquiry where it is led to establish a pattern of
behaviour or serial misconduct [eg a pattern of serial
harassment] and would assist the CP to resolve which
of the two conflicting version to accept.
Relevant to the corroboration and thus probabilities
Also bore relevance to the extent of the EE’s
knowledge of the rule against SH.
Evidence showing the same modus operandi in the
harassment of another EE admissible.
Not unfair or oppressive to have allowed the evidence
because the EE had adequate notice and was in a
position to deal with it.
Gokool 1965 (3) SA 461 (N)
The evidence of a number of complainants each
deposing to different acts of extortion by a policeman
were treated as capable of confirming [corroborating]
the other complainants.
Corroboration must come from a source
independent of the witness to be corroborated.
A witness’s own previous statements are
inadmissible & cannot be used to corroborate
him.
However in a sexual case, the complainant’s
compliant [statement] can be handed in to
show consistency. Consistency strengthens
credibility.
No consensus on scientific reliability & that polygraphers
are expert witness.
At most, indicates that EE was evasive or had a strong
emotional response to a certain question.
Not proof that the EE lied in respect of the question or event
in question.
Irrelevant opinion evidence – CP has the ability and it’s his
job to determine credibility of a witness – whether a witness
was untruthful or evasive re a particular issue while being
questioned.
Generally accepted as corroborative evidence by arbitrators
RICA
Prohibits, with exceptions, the intentional interception of direct or
indirect communications.
“Direct communications” - face to face conversations & meetings .
“Indirect communications” - electronic and telecommunications emails, phone conversations, social networking etc.
“Intercept” - monitoring, viewing, examination of the contents of
any indirect communication.
Prohibition applies only to 3rd party interception; not participant
interception, i.e. when one of the parties to the communication
records or divulges it to a 3rd party.
A 3rd party may intercept a communications with the consent of
one of the parties to the communication or access
communications that are in the public domain [facebook case].
Prohibited interception must be intentional. An accidental or
chance discovery of a message is not covered by the prohibition.
Section 6 of the Act permits ERs to intercept the indirect
communications of their EEs without the EEs consent in the
following circumstances:
The communications must have been made via the electronic and
telecommunications systems provided for use wholly or partly in
connection with the ER’s business.
The EEs must have been notified in advance that indirect
communications made via the ERs system may be
intercepted.
The ER may not intercept communications at random and
without a proper reason.
The consent of the systems controller must be obtained in
each case.
The systems controller- CEO or equivalent
The purpose of the interception must be to ‘establish the
existence of facts” relevant to the business and/or to
“secure” the system.
LC refused to admit evidence obtained in
contravention of legislation that regulates
entrapment and held that the onus is on the ER
to prove its conduct was fair.
Fairness - balancing of the EE’s right to dignity
and privacy and the ER’s right to protect its
business and the rule that ER’s decisions
should be substantively and procedurally fair.
The evidence could have been obtained lawfully.
The ER knowingly and deliberately contravened any law that
regulates the gathering of the evidence.
There was a pre-existing suspicion that the EEE was committing
misconduct.
There were reasonable grounds for believing that evidence
relating to that offence may be found in the communications of
the EE .
Eg charge of absenteeism - no reason to intercept his email box
because evidence from the EE’s attendance record and eyewitness testimony can ‘establish the existence of [these] facts’.
CP, like judges, does not ascertain the truth in any
real sense. The assessment is of the probabilities.
Criminal case – accused can secure a non-guilty
verdict even on an improbable version – provided
the version is not so improbable that it cannot
possible be true.
Labour law does not deal with remote possibilities
– but with reasonably probable, plausible
Where there are conflicting versions the CP must
decide:

who, on a contested point, he believes: is the
evidence & other probative material sufficiently
believable, reliable, probable in its essential
features;

whether the proven facts taken together is
sufficient to prove a party’s theory of the case
[claim/defence]; and
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ultimately, whether the ER’s theory of the case
[version] is more probable [more likely].
Conflicting versions - assess the credibility of witnesses,
the inherent probability or improbability of their versions
and the reliability of their evidence.
Evaluate the evidence of each witness in the context of the
evidence in the case as a whole.
Is the witness’ account exaggerated by unconscious bias
Did the witness give his evidence confidently?
Was the witness evasive or unresponsive: did he answer
the question put to him; give long explanations not asked
for; take a long time to answer? Or was the questioning just
confusing?
Does the witness’ account differ from previous
statements; with incontrovertible facts; with what was
pleaded or put on his behalf; with the overall theory of
the case put forward by the party he is testifying for;
with other witnesses found to be good witnesses?
Are there reasonable
contradictions?
explanations
for
material
Is the witness’ version inherently probable, i.e. way we
expect things to happen or ordinary people to behave
under the circumstances prevailing at the time of the
incident in question based on common sense?
Is the witness’ version corroborated? The absence of
corroboration is not a ground for rejecting the evidence of a
good witness. Corroborating evidence merely adds weight.
The fact that a witness may have lied on one point does not
mean all his evidence must be automatically rejected. The
question is not whether a witness is wholly truthful in all
that he says, but whether the CP can be satisfied, on a
balance of probabilities, that the story which the witness
tells is a true one in its essential features.
An accused EE should not be expected to provide an
explanation as to why a complainant may lay a charge. This
view is consistent with the burden of proof.
Do not decide a contested issue or version in light
of inferences which arise only from selected facts,
and not all proven facts.
Q - what inference can be drawn from the sum of
all the evidence considered together.
Evaluate the evidence of each witness in the
context of the evidence in the case as a whole.
Inferences can be drawn only from primary proven
facts.
An ordinary witness may express an opinion based on
general human experience and knowledge.
Eg on whether a person was
handwriting of someone he knows.
intoxicated;
the
S v Edley: The more gross and manifest the physical
manifestations of intoxication noted by credible and
reliable lay witnesses are, the more readily technical
evidence may be dispensed with, and that the more
[uncertain] the physical manifestations or indications
of intoxication may be, the greater would be the need
for technical evidence.
Exactics-Pet (Pty) Ltd v Patelia NO & Others: An
arbitrator was incorrect to hold that only technical
and medical evidence of intoxication is admissible
and the results can only be admitted under strict
conditions appropriate in a criminal trial.
Where a lay witness testifies that the accused EE
had slurred speech, smelt of alcohol, had an
unsteady walk, red eyes etc, and the EE does not
satisfactorily explain his behaviour, the ER has
offered a more probable version.
EE not entitled to a stay of the disciplinary or
arbitration proceedings until the completion of the
criminal trial.
EE not immune from the evidentiary burden to
rebut a case made against him
Evidence of an irretrievable breach of
employment relationship ( trust relationship)
Edcon (SCA)
the
An evidentiary burden rests on the ER not only to produce
evidence of guilt and that the code recommends dismissal
but also to bring a relevant witness to testify that the EE’s
conduct has caused an irretrievable breach of the trust
relationship.
Depends on the circumstances - evidence of admission,
remorse, long service [prima facie evidence of prior
reliability] weighed against objective grounds for distrust
No need for testimony in every case irretrievable
breakdown can be automatically inferred by the gross
nature of the misconduct.
Mutual Construction (2010) 5 BLLR 513 (LAC)
Someret Wines [2009] 10 BALR 1069 (CCMA)
Dismissed for doctoring an invoice to give the
impression that stolen goods had been
legitimately dispatched.
Although case based solely on circumstantial
evidence, including failing a polygraph test, the
evidence pointed ineluctably to the employee’s
guilt.
A bare denial was insufficient to displace the
inference arising from the circumstantial evidence.