In any disciplinary proceedings that you must hold with your employees, it is vital to interpret the evidence presented to you correctly. If you don’t do this, it’s very likely that the matter will be dismissed.
Some Key Terms that you’ll come across in the Law of Evidence
Burden of proof
In civil proceedings, which includes disciplinary enquiries or disciplinary proceedings, the burden of proof is on a balance of probabilities. This does not mean that a chairperson in such a matter must be 100% certain that the employee, who is the subject of the enquiry, is guilty of the offence he or she is being charged with. What the balance of probabilities means is that given the evidence which was put before the chairperson, and properly analysed, he or she must be very sure that the employee is guilty of the conduct he is being charged with.
Onus of proof
This term must not be confused with burden of proof. The onus of proof refers to which party has the responsibility of proving a fact. Section 192(2) of the Labour Relations Act states that the onus of proof in a disciplinary procedure rests with the employer. The case of National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and others (PA6/15) [2017] ZALAC 14; [2017] 5 BLLR 483 (LAC) (3 February 2017) shows what happens when evidence is incorrectly assessed.
Facts of the case
- An employee, a shop steward, confronted a manager regarding a misinterpretation that other employees had regarding a collective agreement.
- The female manager alleged that the shop steward had verbally and physically assaulted her, among others. He was consequently dismissed.
- The case when to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA Commissioner awarded the employee 12 months’ compensation as it was felt that reinstating him would be impractical as the employee and the manager had to work closely together.
- The matter went to the Labour Court (LC)who found that the Commissioner had disregarded vital evidence of physical assault of the manager by the shop steward. This evidence was delivered by two eye witnesses. The shop steward’s dismissal was declared to be fair.
- The Labour Appeal Court upheld the decision of the LC.
So, when you assess your evidence in your disciplinary proceedings make sure that it has been thoroughly assessed. Otherwise you could risk having it go the way of the case above. To learn more about how to assess evidence in disciplinary enquiries, follow this link.