16 August 2024
Section 192(2) of the Labour Relations Act states that the employer is responsible for proof in a disciplinary procedure. This principle aligns with the adage, "they who allege must prove." Thus, the employer, also known as the initiator, is required to present evidence first.
Section 188 of the Labour Relations Act outlines the fundamental criteria for fair dismissals due to misconduct, incapacity, or operational needs. The procedural fairness requirement focuses on how employers handle decisions affecting employees' rights, especially in cases of dismissal or disciplinary measures. It's, therefore, crucial for employers to provide employees with a fair and unbiased hearing or disciplinary process.
Setting the Standard
The standard of proof in a disciplinary inquiry is on a balance of probabilities. In Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation and Arbitration and Others (2015), it was explained that a balance of probabilities entails "establishing facts by a preponderance of probability," indicating that the standard of proof is lower than the criminal threshold of "beyond reasonable doubt."
Employers must thoroughly prepare for disciplinary inquiries to meet this burden of proof. In Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport (2000) 21 ILJ 2585 (SCA), it was held that the inference drawn from the evidence only needs to be "the most natural or acceptable inference," not the sole inference.
Similarly, in Bates and Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co (1985) 3 SA 916 (A), it was held that reasoning by inference often involves considering multiple hypotheses and selecting the most natural and plausible one based on the balance of probabilities.
According to the Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999), an employer only needs to show that the circumstantial evidence pointing to an employee's guilt is more plausible than the possibility of their innocence.
In Selamolele v Makhado 1988 (2) SA 372 (V), the court held that a finding on a balance of probabilities involves a qualitative assessment of the truth and inherent probabilities of the evidence rather than simply weighing the quantity of proof or number of witnesses. The court must, therefore, determine which version of events is more probable based on this assessment.
Preparing for a Disciplinary Hearing
Before initiating a disciplinary hearing, the employer must thoroughly investigate the alleged misconduct. Gathering all relevant evidence, including witness statements, documents, and other supporting material, ensures a strong foundation for the disciplinary hearing.
The types of evidence an employer should prepare include:
Documentary Evidence: typically includes written records such as the company's code of conduct, contracts, policies, emails, and letters. These documents must be accurate, relevant, and related to the case. The company's disciplinary code of conduct is crucial, as it outlines the expected behaviours and standards employees must adhere to, providing a clear benchmark against which their actions can be measured. This code is a critical reference point, ensuring the inquiry is grounded in established rules and expectations.
Real Evidence: Tangible items like surveillance footage, damaged property, or any physical proof connected to the incident. These items should be preserved and presented in their original form to maintain their integrity.
Testimonial Evidence: Statements from witnesses or those involved in the incident can provide critical insights. However, witnesses must be credible and consistent.
Case Study - Woolworths (Pty) Ltd v CCMA & Others
In the case of Woolworths (Pty) Ltd v CCMA & Others (2011) 32 ILJ 2455 (LAC), the court stated that the “evidentiary burden starts with the employer, but once the employer provides prima facie proof of the misconduct as alleged, the ‘evidentiary burden’ shifts to the employee to prove his defence.
If the employee fails to put up a defence or prove his defence, the employer's [sic] prima facie proof of misconduct becomes conclusive proof, and the employer has then discharged the ‘overall onus’ that always rested with it.” This case emphasises that while the initial burden is on the employer, establishing a prima facie case can shift the evidentiary burden to the employee. This ensures a balanced approach where both parties have responsibilities to present their cases.
By gathering comprehensive evidence and preparing diligently, employers can successfully navigate disciplinary hearings, meet the burden of proof, and ensure that disciplinary actions are fair and justifiable. This thorough approach not only strengthens the employer’s case but also upholds the principles of justice and fairness in the workplace.
Involving professionals such as the Invictus Group can be invaluable in navigating these challenges. Please contact our offices at 0861 737 263 if you have any queries or require assistance regarding such matters and implementing the necessary disciplinary actions.
