Transcript Evidence at the CCMA: emerging trends

EVIDENCE AT THE CCMA:
Emerging Trends
Avinash Govindjee
OVERVIEW
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Introduction
Probative material
– Admissions
Admissibility
– Similar fact evidence
– Hearsay
– Expert evidence
– Entrapment
Criteria of proof
– Failure to testify
– Single witnesses
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Introduction
Evidence at the CCMA
Practice and Procedure Manual
– Arbitrator must weigh up all of the evidence as a whole
– Determine which version is more probable
– Involves findings of facts based on an assessment of
credibility, reliability and the probabilities
Arbitration guidelines in misconduct cases
Sasol Mining (Pty) Ltd v Ngqeleni NO (2011) 32 ILJ 723
(LC)
• The law of evidence applies mainly in the same
manner in labour dispute tribunals as in courts of law
• The CCMA is not a court of law…
– But commissioners criticised for being too expedient at times
• S 138(1) interpreted to mean (PPWAWU):
– A commissioner cannot exceed his / her powers or base
awards on inadmissible facts or facts not adduced in
evidence
– Witnesses’ testimonies must be properly evaluated (with
caution where necessary)
– A commissioner must be satisfied that a witness is reliable
Admissions
• Satekge and SABC (2013) 34 ILJ 1335 (CCMA)
– Default award had been rescinded
– Employer argued: Employee had previously made an admission of
guilt (raising only inconsistency as an issue)
– Employee denied this – even if he had, what about the rescission?
– No mechanical recording by first commissioner / handwritten notes
consistent with the default award
– Employer called the commissioner as a witness
– Formal admission had been made – no need for further evidence
on those issues (even silence can amount to an admission)
Similar fact evidence
Gaga v Anglo Platinum (2012) 33 ILJ 329 (LAC)
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Group HR Manager
Dismissed for sexual harassment of PA (Ms M)
Emerged during exit interview
Ms M resigning to relocate to CT
Only became aware of the employer’s sexual harassment
policy during exit interview
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Had always been uncomfortable with advances
Repeated rejection of advances
Appellant denied all allegations
Commissioner held that the employer had failed to
prove guilt
• Ms M had not considered the remarks and
propositions unwelcome / offensive (according to the
Commissioner)
• She had admitted that he was a “model
gentleman” and they had a good working
relationship
• Ms M’s evidence of being offended was rejected
• She had not lodged a grievance
• Commissioner ordered reinstatement
• Overturned by LC – Ms M’s version was the most
probable
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LAC
Commissioner’s rejection of the case (“no sexual
harassment because no offence”) premised upon too
narrow an enquiry
Ignored the material evidence that the remarks and
conduct were unwelcome and caused discomfort
No consideration that appellant was a senior manager
with responsibility for people development
Employer’s policy and Code of Good Practice did not
require “offence” – repeated unwelcome remarks of a
sexual nature are sufficient
• Failure to take formal steps (by Ms M) had to be
considered in light of personal / power dynamic
• Unfair to employer if appellant could avoid liability for
sexual harassment because of Ms M’s ignorance and
hesitation
• Commissioner erred in not performing a full assessment of
Ms M’s credibility, with reference to her almost guileless
candour, forthright demeanour, lack of bias and
consistency of evidence (about the remarks made and their
unwelcome nature), supported by inherent probabilities
• Commissioner ignored relevant considerations and
failed to apply his mind properly to the material
evidence
• and the requirements of sexual harassment in the
employer’s policy and the code
• No rational basis justifying conclusion that there was no
sexual harassment (on the limited ground that the
remarks and behaviour caused no offence or
discomfort)
• The evidence established that the remarks and
behaviour were unwelcome / inappropriately repeated
• Demonstrated lack of respect
• Demeaning of the relationship between superior and
subordinate
• Commissioner ignored material facts
• Focused too narrowly on issue whether Ms M had
taken offence
• Therefore commissioner failed to properly determine
the case – decision tainted by process related
unreasonableness
• Employer had wanted to lead similar fact evidence
• Commissioner’s ruling excluding this was a reviewable
irregularity
• Similar fact evidence of a pattern of behaviour or serial
misconduct often relevant (in dismissal cases) to both the
probabilities of the conduct having been committed and
the appropriateness of dismissal as a sanction
• Appellant could have dealt with this easily
• Sometimes, evidence irregularly held to be
inadmissible leads to the matter being remitted to
CCMA
• Here, there was sufficient other evidence to enable
court to deal with the dispute – substituted its
decision for that of the commissioner:
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Serious misconduct
Unequivocal message
Harshest penalty
Dismissal substantively fair
Hearsay: Mosima v SAPS (2012) 33 ILJ 1225 (LC)
• S 3 of the Law of Evidence Amendment Act – exceptions to the
inadmissibility of hearsay evidence repeated
– Nature of the proceedings (NB – Maseko v Correctional
Services)
– Nature of the evidence
– Purpose for which the evidence is tendered
– Probative value of the evidence
– Reason why the evidence not given in person
– Prejudice or any other factor
• These factors linked to s 138(1)
• Arbitrators need not approach proceedings in the same
way as courts – this could make the system unworkable
• Although hearsay not admissible in civil / criminal
proceedings, s 3 shows that the legislature was
conscious of the various difficulties associated with
hearsay evidence (Southern Sun Hotels LAC)
– The test is whether the court considers the admissibility of
the evidence to be in the interests of justice
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Expert evidence: Transnet Rail Engineering Ltd
Employee found in possession of copper items belonging
to company
Alleged at the time that he had been set up
Later averred that he was a kleptomaniac
Report of psychologist used by arbitrator in finding
dismissal unfair
The employee had a case to answer
Defence of being a kleptomaniac only raised in crossexamination
Was there admissible evidence to sustain this?
• Arbitrator, in admitting the medical reports, should have
applied the principles regarding expert opinion
• No expert witness (or any witness) had been called in this
regard (shifted burden)
• Report drafters had never been called to testify about their
qualifications / experience and how they came to this
conclusion
• Arbitrator regarded these reports as binding without
evaluating the conclusions
• Arbitrator abdicated the responsibility to scrutinise the
evidence to see if the conclusion was logically supported and
reasonable
• The arbitrator should have determined the question of
whether the employee suffered from kleptomania, on the
basis of the evidence before him
• Should have examined the reports, evaluated them and
made conclusions
• Only way in which this could have been done was to have
the experts who developed the reports come to the
arbitration hearing and explain their conclusions
• The defence was, in fact, an afterthought
NUM v CCMA
• Commissioner correct in taking into account all evidence,
including that of the expert witness on handwriting (issue
related to “8” hours overtime claimed)
• Had not abrogated his duty to assess the evidence by
simply accepting what the expert had led without applying
his mind to it and making the necessary findings
• [Court rejected the submission that the commissioner
should have warned the employee to call his own expert
– He had been represented by a reputable union]
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Entrapment: D-G Department of Public Works
Arbitrator failed to consider totality of evidence –
piecemeal approach adopted
Employer was in fact guilty of corruption
Arbitrator gave the employee the benefit of a defence
which had not been pleaded (entrapment)
Employer had in any event not been part of the
entrapment process (the SAPS had done this)
Employer only acted against the employee after the event
Entrapment might have even be acceptable in this case –
arbitrator had not considered this
Failure to lead evidence
Petzakis Africa (2012) 33 ILJ 876 (LC)
• Harding alleged an AUD
• No evidence led by Petzakis at the LC to indicate a legitimate
reason for dismissal
– Employer tried to extract a legitimate explanation for the
dismissal through its cross-examination of Harding
– Did not expose its own reasoning to scrutiny, despite
being best placed to tender direct evidence on it
• One of the directors who were privy to Harding’s
performance should have testified (but did not)
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Adverse inference?
Mere fact that a party does not lead evidence in its
defence does not entitle a court to draw an adverse
inference
But here the applicant had established a prima facie
case of an AUD
Respondent best placed to rebut this by giving direct
evidence of what led to its decision to dismiss
Adverse inference drawn from its failure to lead that
evidence in rebuttal
• La Grange J cited the AD case of Galante (1950 –
accident case) in holding that if there are two
plausible alternative explanations of the reasons for
the dismissal, the respondent’s failure to adduce
evidence resulted in the version favouring the
applicant to be preferred
Urban Africa Security (Pty) Ltd (2012) 33 ILJ 2201 (LC)
• Failure to produce an available witness in certain
circumstances may lead to an adverse inference being
drawn
– Leads to the inference that the party fears that such evidence will
expose facts unfavourable to him / her or damage his / her case
• Failure is reasonable in certain circumstances (e.g. when
a prima facie case has not been made out)
Bargaining Council for the Furniture Manufacturing Industry v UKD
Marketing (2013) 34 ILJ 96 (LAC)
• The Galante principle has a pre-requisite
• Appellant’s evidence must be of such a nature that, when it
closed its case, there was sufficient evidence for the court to say
that the appellant’s version was more probable than not
– IE consider the strength or weakness of the case which
faces the party who refrains from calling the witness before
drawing an adverse inference
– In this case, the evidence was, at best, equivocal (as to
whether the corporate veil should be pierced / whether it was
a sham)
Single witnesses
Northam Plat. Mines v Shai NO (2012) 33 ILJ 942 (LC)
• Two witnesses testified that they had seen the employee
performing acts (decanting liquid) that constituted dismissible
offences on separate occasions
• Employee denied both incidents
• Employer’s witnesses treated as single witnesses (one for each
incident) – and each witness’s testimony compared to the
employee’s
• This approach led to the finding that probabilities equally
balanced, leading to the employer losing the case (it bearing the
onus)
• Current interpretation of the cautionary rule (re single
witness in criminal matters) differs from the previous more
stringent standard requiring evidence to be “clear and
satisfactory in every respect”
• Now, there is no formula to apply: the court should weigh
up the evidence of the single witness and consider its
merits and demerits
• Having done so, it should decide if the truth has been told
(despite any shortcomings, defects or contradictions)
• The commissioner had, in applying the cautionary rule,
treated the evidence of the two employer witnesses,
compared with that of the employee, in “nominal and
monolithic terms”
• Ought to have weighted the probabilities of the respective
versions and, if necessary, made credibility findings to
arrive at an outcome
• The commissioner took the absence of independent
corroboration of the employer’s witnesses’ versions to
have been fatal
• Should have been a more nuanced evaluation of evidence
• La Grange J went on to conduct a proper analysis of the
evidence (in holding the dismissal to have been fair):
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The applicant’s version had changed
Evidence had not been put to the employer’s key witness
No contradictions in that witness’ testimony
That version more internally coherent than the employee’s
internally contradictory version
– Considered the relative credibility of the employer’s main witness
and the employee – employee’s incoherent and constantly
changing version counted against him, rendering his evidence less
credible
Conclusion
• Credibility issues difficult to determine in motion proceedings:
• “Sitting as I do as a review judge, I fail to understand, in this
case, how I could decide to set aside an award given by an
arbitrator who sat at the hearing, observed the witnesses, their
demeanour and the manner in which they came across…I
should be extremely reluctant to upset the findings of the
arbitrator (on credibility) unless I am persuaded that her
approach to the evidence is glaringly out of kilter with her
functions as arbitrator”
Moodley v Illovo (2004) 25 ILJ 1462 (LC)
• Bare denials
– Obligations on arbitrator to tell employee to testify?
• When has a prima facie case been made out?
– Woolworths: video footage sufficient to establish this
– SITA case: evidentiary burden to prove a protected
disclosure as reason for dismissal is on the employee
• Deciding whether employees have committed
offences requires a factual investigation (evaluation
of evidence and drawing of conclusions) – deciding if
dismissal is fair requires a value judgment