by Tony Healy | Nov 2, 2018 | Discipline & dismissal
Unfortunately, but not unsurprisingly, employee postings on social media platforms which put the good name of their employer into disrepute, are becoming increasingly common.
More often than not, the social media postings are of such a nature that the dismissal of the employee is warranted.
In the Labour Court judgment in Juda Phonynogo Dagane v SSBC and Others (Case number: JR2219/14) delivered on 16 March 2018, the employee sought to review a CCMA arbitration hearing finding that his dismissal for having made racist remarks about his employer, SAPS, on Facebook, was unfair.
As was stated in the judgment “the facts are fairly straightforward”. The allegations levelled against the employee at the disciplinary hearing comprised of him “prejudicing the discipline and efficiency of the SAPS and contravened the SAPS regulations, code of conduct and code of ethics by unfairly and openly discriminating against others (whites) on the basis; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The Facebook postings were described as “vitriolic racist comments” in the judgment and contained profanities threatening genocide and hatred of a racial grouping”.
The employee submitted that the Commissioner in the arbitration hearing had not applied her mind to the evidence before her, and had come to a conclusion that another reasonable arbitrator could not have arrived at. In addressing this, the court noted that it had perused a transcript of the Commissioners findings and when considering whether the dismissal was for a fair reason, the court concluded that the Commissioner had applied her mind reasonably in concluding that the remarks made by the employee on Facebook were contrary to the Constitution of the Republic of South Africa, the SAPS code of ethics and the SAPS code of conduct “all of which prohibit discrimination and exhort the citizens of our democracy to treat everyone with equal respect and to create a safe and secure environment for all South Africans”.
The employer also argued that the employer had no policy regarding social media within the workplace.
The court noted that the arbitrator had “noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. The court held that “this too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee also submitted that someone had created a Facebook account using his details, or that “someone had hacked into his account and made these postings”.
This submission was held to be improbable as access to the employee’s Facebook account “would need his password and that he had not given anyone his password”.
Notably, the court also held that if indeed someone had hacked into his account “the applicant would have distanced himself from making the remarks, which he did not do”.
The court further held that the arbitrator had reasonably concluded, in relation to the totality of evidence that was before her, that “on a balance of probabilities the employee was the author of the offensive and racists remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech”.
Turning to the question of the severity of the sanction of dismissal, the court held that the dismissal of the employee was an appropriate sanction, as the arbitrator had “considered that the applicant was employed as a police officer with a mandate to protect its citizens irrespective of the race, colour and creed of such citizens. She considered that to threaten the safety of another sector of the community was wrong and that the conduct of the applicant did have the effect of bringing the SAPS into disrepute”.
More recently, in Hotz v UCT (SCA:2016) racial slurs were denounced in the judgment which held that “The issue of the content of the slogans, whether painted on the War Memorial and the bus stop or worn on a T-shirt, as well as statements, such as those made by the third appellant in the confrontation with a student, is a delicate one. Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard. It was rightly said in Mamabolo that ‘freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections 15 – 19 of the Bill of Rights.’ But in guaranteeing freedom of speech the Constitution also places limits upon its exercise. Where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constituting incitement to cause harm, it oversteps those limits and loses its constitutional protection.”
by Tony Healy | Nov 1, 2018 | Discipline & dismissal
From time to time, disciplinary cases evolve in which there is only one employer witness, whose evidence is, invariably, contested by the employee. It’s the “one person’s word against another case”. In more legal parlance, the chairperson, or Commissioner, is faced with two so-called mutually destructive versions. The question is, can one be preferred over another, and if so, in what circumstances?
One guiding principle is that the demeanour of witnesses should closely monitored when determining witness credibility.
As one would expect, there are legal principles which address this conundrum. The arbitration hearing in Bheki Innocent Ngobese v Water Weights Natal CC (Case number MEKN7225) presented the Commissioner with one such conundrum. In analyzing the evidence, the Commissioner lent on various prior judgments which give guidance on how to treat cases with mutually destructive evidence.
To begin with, the Commissioner referred to the case of S v Kelly 1980 (3) SA, in which the court said “there can be little profit in comparing the demeanor only of one witness with that of another when seeking the truth. In any event, demeanour is, at best, a tricky horse to ride”. Demeanour, as a factor determining witness credibility, should not approached with caution, and not be exaggerated as a key factor in determining witness credibility. This was alluded to in S v Mgengwana 1964 (2) SA in which the court noted the challenge faced with assessing the demanour of a witness who wear masks.
The Labour Court, in Masilela v Leonard Dingler (Pty) Ltd [2004] 25 ILJ stated that when faced with two mutually destructive versions, or one person’s word against another case, “This court is faced with two mutually destructive versions, only one of which is correct. I deciding which version to accept and which one to reject, I am obliged to consider inter alia, the issue on a balance of probabilities. The onus is on the respondent (the employer) to prove that its version is the truth. The onus is discharged if the respondent can show by credible evidence that its version is te more probable version”.
A further tool utilised to determine witness credibility, is how the witnesses perform under cross-examination.
The critical factors to be considered when seeking to make a credibility judgment when confronted with to irreconcilable versions, were outlined in the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others [2003 (1) SA 11 (SCA)] – “To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’
This emphasises the point that it is not the quantity of the evidence presented by the employer and the employee, but rather the probabilities which flow from all the evidence, which in certain circumstances, may be one, single witness. Relying on a sole witness will always, none the less, place a greater burden on an employer.
by Tony Healy | Oct 10, 2018 | Discipline & dismissal
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.
by Tony Healy | Oct 8, 2018 | Case Law
There are times when employers seek to prove that an employee is guilty of misconduct. When in fact, there were no eye witnesses. Such cases, rather than relying on direct evidence, rely upon circumstantial evidence.
Section 192(2) of the Labour Relations Act provides that “if the existence of the dismissal (at arbitration) is established, the employer must prove that the dismissal was fair”. As such, in arbitration hearings, it is rebuttably presumed that a dismissal was unfair until the employer proves that it was fair. The burden of proof is that of proof on a balance of probabilities, rather than the greater burden of proof in criminal proceedings, which is proof beyond reasonable doubt.
The arbitration award in SASBO obo Richard Thabelo Sera & 1 other v SBV Services (Pty) Ltd [Case number NWRB536-15], reference was made to the judgment in Govan v Skidmore 1952 (1) SA 732in which the court held “that it was trite that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be a more natural, or plausible conclusion from amongst severable conceivable ones, even though that may not be the only reasonable one”.
More recently, in the CCMA Arbitration Case in L. Naidoo v Lever Ponds, [Case number KN22081], it was noted 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”.
Circumstantial evidence is the opposite of ‘direct evidence’ (ie: the kind of evidence which comes from witnesses) and can therefore be described as ‘indirect evidence’ in that certain ‘assumptions’ are made. It is admissible under certain circumstances. Can only be used to support a substantial fact. The Chairperson of an enquiry should listen to circumstantial evidence first and then decide how much weight they are going to give it (in other words, how fair it would be to admit it either entirely or in part).”
When seeking to prove guilt utilising circumstantial evidence alone, the complainant relies upon proving facts which, when taken as a whole, lead to only one, reasonable, inference, namely that the employee is probably guilty.
The SASBO arbitration award further discussed the use and application of circumstantial evidence, when quoting Duncan Manufacturing v MEIBC & others (2010) ZALC “where the court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her in assessing the inference to be drawn from the facts. The commissioner should look at the totality of evidence and weigh it on a balance of probabilities”.
The Labour Court judgment in Distell Ltd V CCMA 7 others (Case number C343/2012), interestingly, and quite correctly, noted that “The use of circumstantial evidence is a powerful tool in proving the existence of an issue in dispute. Hoffmann & Zeffert note the distinction between direct evidence and circumstantial evidence. Direct evidence is provided by a witness who testifies directly on the issue in dispute. So, for instance, in a murder trial, a witness who testifies that he saw the accused stab the deceased with a knife, provides direct evidence as to the stabbing. On the other hand, a witness who testifies that he saw the accused emerge from a room in which the deceased was subsequently discovered, bearing a knife dripping with blood, provides only indirect or circumstantial evidence to support the fact that the accused had stabbed the deceased”, and continued that “circumstantial evidence is thus evidence of a fact from which an inference can be drawn as to the existence of a fact in dispute”. This of course relates to criminal matters.
The court in Smith v Arthurs 1976 (3) SA 378, when dealing with circumstantial evidence the court held, “All the relevant facts must necessary go into the melting pot and the essence must finally be extracted there from”.
Perhaps the final word should go to a landmark English case in which Lord Wright in Caswell v Powell Duffy Collieries Ltd [1939] 3 All ER 722 (HL) said “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had actually been observed. In other, cases the inference does not go beyond reasonable probability. But is there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjuncture.”
by Tony Healy | Oct 7, 2018 | Case Law
Collective guilt arises when an employer deems it appropriate/necessary to hold one or more individuals liable for the acts of others within a group. The doctrine of common purpose was originally sourced from the field of criminal law the essence of which, as defined in SACCAWU obo Madika & 4 others v Pep Stores [Case No.NP1848-01] is “that each member of the group is held individually liable for his or her own actions as a member of the group acting in furtherance of a common purpose”.
Grogan (2002) submits that in the event that employees “are found to have actively associated themselves with the result and shared the perpetrators ….. frame of mind …. the guilt of the perpetrator extends to them”.
A number of collective guilt cases were referred to the Industrial Court in the past, and similar cases have been adjudicated by both the CCMA and the Labour Court.
One such Industrial Court matter which drew much attention at the time, was NUM vs Amcoal Collieries Ltd t/a New Denmark Collieries (1989) 10 ILJ 733. In this matter, the court took a particularly dim view of the concept of collective guilt. The court disapproved of collective guilt in the strongest terms by stating in the judgement that:
“In passing, the court wishes to observe that the concept of collective guilt is wholly repugnant to our law. Any policy in terms of which all the employees of any group or persons must bear collective punishment for the wrongdoings of some of the members is unacceptable to this court.”
“It runs counter to the tenets of natural justice and is a violation of the well-known principle that the person is presumed to be innocent until proven guilty.” “There is a failure of justice even if a single innocent person is presumed to be guilty and made to suffer with the rest.”
Subsequent cases have however indicated that collective guilt is indeed a concept which cannot be rejected outright.
One such case was Saccawu and Pep Stores (CCMA Arbitration: Case No.EC3035) in which the employer dismissed the entire staff complement of it’s Lady Frere branch (which amounted to five employees) for poor work performance arising from stock losses.
In this case however, the stock losses experienced at the branch were, according to the commission “so glaring that it could not possibly have escaped the attention and knowledge of every member of the staff”.
The commissioner referred to the above Industrial Court case (NUM vs Amcoal), but nonetheless found the dismissal of the entire staff complement to have been fair in the circumstances. There is little doubt that all employees who omit to bring an act of misconduct, of which they are aware, to the attention of an employer, may themselves be liable for dismissal.
As noted in NUMSA obo Reginald Chuene & 5 others v Irene Village Fuel Station t/a BP Irene (MIPT16735), “in NSGAWU v Coin Security (1997) 1 BLLR 85 (IC), the court warned that the doctrine of common purpose is not to be used as an excuse for imposing collective punishment, or to be confused with the concept of collective guilt. Common purpose must still be proved. There must be evidence to show that all the applicants associated themselves with the conduct of the principal offenders.”
In SACCAWU obo 93 others v Massmart T/a Jumbo Cash & Carry (Pty) Ltd (GAJB29113-14), it was noted that “In Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of SA on behalf of Khanyile and Others, Gush J dealt with an instance where the bulk of the striking employees simply remained silent, with a defence being presented by individual employees who in turn simply denied and misconduct, breach of picketing rules or an interdict. The learned Judge held It is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on the industrial action. This is particularly so in circumstances where the employer has not only entered into a picketing rules agreement with the representative trade union regulating the conduct of striking employees but has as a result of the conduct of the employees been forced to obtain an interdict restraining the striking employees from committing misconduct. That strikes are often visited with violence and misconduct does not justify such acts. Despite the fact that tension often runs high during industrial action the level of misconduct and violence and the duration thereof in this matter reinforces the necessity for employers to be able on to rely on the duty of good faith towards the employer and that the employee breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. This duty must extend to the opportunity to exonerate oneself.”
