by Tony Healy | May 23, 2018 | Law of Evidence
Circumstantial evidence is indeed admissible in disciplinary and arbitration hearings; that much we already know. However, certain important factors relating to the introduction of circumstantial evidence, and the manner in which it is to be dealt with, must be borne in mind.
So what is circumstantial evidence?
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, and may 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).
Case law abounds with guidelines for the use of circumstantial evidence.
The leading case authority is R v Blom (1939 AD) wherein it was held that “The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn”.
This judgment continues that “The true facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct”.
More recent landmark case law has also addressed circumstantial evidence.
In Atherstone v Lewis stores (Pty) Ltd [CCMA KNDB13032-11) it was noted that “The textbooks on evidence say that circumstantial evidence is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible inference. It need not be the only inference”.
In practice, circumstantial evidence is used by way of proving certain facts, and thereafter seeking to persuade the chairperson/arbitrator, that the guilt of the employee is the most plausible inference that can be drawn from the proven facts.
In Komape v Spoornet (Pty) Ltd & others (labour Court: 2008) the Court held that in assessing circumstantial evidence, an arbitrator must always consider the cumulative effect of all the items of evidence before him or her, and that the onus in civil cases is discharged if the inference advanced is the mist readily apparent and acceptable from a number of other possible inferences.
The somewhat dated, but none the less still pertinent English case of Caswell v Powell Duffy Collieries Ltd [1939] held that “There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish … but if 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 conjecture.
In short, circumstantial evidence must be based on proven facts which themselves lead to guilt being the most reasonable inference or assumption.
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by Tony Healy | May 23, 2018 | Discipline & dismissal
Case law has, for some time now, established laid down procedures and requirements which must be followed when an employee absconds and the employer knows the whereabouts of the absent employee.
In circumstances where an employee absconds, deserts or sis simply absent without leave, employers frequently erroneously conclude that the missing employee has dismissed him or herself; nothing could be further from the truth. It is not possible for an employee to dismiss themselves; only employers can initiate dismissal.
To begin with, it is precisely for these kinds of cases, amongst many other good reasons, why an employer should know and maintain an employee’s personal information including their residential and/or postal address. There are times of course when employees move residence and do not inform their employer of this fact, but it is the employee not the employer who is negatively affected by this, as the employer is only ever expected to communicate with an employee at the address given to them by the employee.
So, if the employer corresponds with the employee at an outdated address, the employer cannot be held liable.
The primary case relied upon in directing employers as to how to address a scenario wherein an employee absconds is South African Broadcasting Authority v CCMA (2002), quoted recently in a Labour Court judgment addressing the question of, inter alai, dismissal on grounds of absence – Jammin Retail (Pty) Ltd v Mokwane & others (JR 2784/09).
The Jammin Retail Labour Court judgment unsurprisingly made reference to the SABC case in outlining the obligations employers have when contemplating the dismissal of deserters. This judgment quoted the SABC which held that “Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the Audi alteram partem rule (always afford the other party an opportunity to defend themselves) before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty”.
Put simply, this means that when an employee goes absent, and especially when the employee fails to communicate with the employer, the employer must attempt to find the employee. This is normally undertaken by corresponding with them at the address they have provided the employer; there is a presumption that this is the correct address and that registered mail to this address will be received by the employee.
A written notice to attend a disciplinary inquiry for the absence ion question should be posted registered mail to the employee inviting them to the inquiry.
If they do not attend, the inquiry may ordinarily be held in the employee’s absence as the employer has afforded the employee to state his or her case, but they have waived their right to do so by not attending.
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by Tony Healy | May 23, 2018 | Discipline & dismissal
I was posed a genuinely interesting question by a colleague last week. The scenario was as follows; if in a disciplinary hearing chairperson X, after delivering a verdict, becomes incapacitated, or even dies, prior to hearing mitigating and aggravating factors and selecting a sanction, can a new chairman (chairman Y) take over and address the question of sanction selection?
To begin with, it may not be too problematic to hear the case afresh if it is a relatively short matter with few complexities. But what if the verdict was the culmination of many days of evidence wherein the merits of the case are somewhat complex?
In such circumstances, the complete rehearing of the case could be unpalatable for either or both parties. This may be complicated by the challenge in recalling witnesses, especially if they are not employed by the employer. In addition, in the event of an external chairman, it is quite possible that chairman X was paid a handsome fee for his/her services, prior to their incapacitation. The notion of incurring a duplication of fees for an external chair may challenge the most liberal of employers.
So what does one do in these circumstances? At face value, there appears to be two distinct options. Either rehear the case afresh, or appoint a new chairman Y to complete the hearing from mitigation to sanction selection.
Rehearing the case has additional risks. What if chairman Y arrives at a different verdict to chairman X? Yes, the labour dispute resolution channels (CCMA etc) are available to bring the case to a head, but differing verdicts would none the less throw a spanner in the works in all likelihood, especially if chairman X found the employee not guilty and chairman Y found the employee guilty.
Would that entitle the employee to one more hearing (with chairman Z) to make it the best of three?(!)
After pontificating over this for some time, including mulling over it with two chums, a Senior CCMA Commissioner and a respected member of the Bar, we three wise men concluded that in the case of a chairman being required to abandon a lengthy case post guilty verdict and pre-sanction, there is no reason why a new chair cannot be appointed, with certain provisos.
To begin with, the new chairman (Y) should review the disciplinary hearing transcript to assess the merits of the original verdict. If s/he concludes that the guilty verdict seems unjust, the case should be reheard afresh.
If however the newly appointed chairman (Y) concurs with the original guilty verdict of chairman X, the original guilty verdict should be confirmed, and the new chairman (Y) should proceed to hear mitigating and aggravating factors as per normal and select an appropriate sanction in accordance with the normal sanction selection guidelines and principles.
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by Tony Healy | May 23, 2018 | Case Law
The Labour Relations Act (LRA) makes it perfectly clear in section 187(1)(f) that a dismissal is automatically unfair if the reason for the dismissal is “that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including but not limited to … gender, sex (and) sexual orientation”.
Automatically unfair dismissals are the workplace equivalent of a heinous crime; very unfair dismissals if you like. Automatically unfair dismissals are considered to be so deplorable that they have a maximum compensation threshold of twenty four months remuneration versus 12 months compensation for ordinary unfair dismissals.
In Quinton Atkins v Datacentrix (Pty) Ltd [JS02/07], the Labour Court was called upon to review a dismissal by an employer of an employee who had informed the employer that he wanted to undergo a gender re-assignment process (sex change).
After an offer of employment had been made to the employee, which he accepted, he informed his new employer of his sex change plans. The employer was less than pleased with this news, and deemed the employee to have committed an act of gross misconduct in advising the employer of his sex change intentions during his employment interview. The employee was dismissed 24 hours prior to commencing his employment with the Respondent.
More precisely, the employer decided that the employee’s non-disclosure amounted to a repudiation of the employment contract, which it accepted as they no longer required his services.
Fortunately for the employee, he had not resigned from his previous place of work at the time, and therefore continued his employment with that employer.
However, he did refer his dismissal on grounds of his planned sex change to the CCMA and ultimately the Labour Court on grounds that, inter alia, his dismissal was automatically unfair and amounted to unfair discrimination as provided for in the Employment Equity Act.
The Respondent argued that the employee did not divulge that he intended undergoing a gender re-classification process, when he had an opportunity to do so during his interview, and that this omission constituted a serious case of misrepresentation which amounted to dishonesty.
The Court held that the employer had not defended the case on the basis that it had discriminated against the employee fairly, but rather, that the employee had a duty to disclose his intentions to undergo a gender-reclassification process during his interview.
The Court concluded that the only inference that can be drawn from the facts is that the employer would not have employed the employee if he had disclosed his true intentions during the interview process. Continuing, the court held that “There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process.”
The employee was awarded compensation equivalent to five months remuneration as he had seamlessly continued employment with his previous employer.
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by Tony Healy | Apr 23, 2018 | Miscellaneous
Almost a month ago, it was announced that Anglo American Platinum was taking the unprecedented step of suing a trade union (AMCU) for a minimum of R591 million damages for costs associated with protection services overtime, lost production due to non-strikers being prevented from going to work, and damage to property. The case was filed in the Pretoria High Court.
Much has been said and written about this initiative.
Firstly, Amplats is clearly not suing AMCU for the initiation of a protected strike; it is roundly understood that AMCU has met the pre-requisite provisions of the Labour Relations Act, entitling AMCU to proceed on such a protected strike in support of its wage demands.
On the contrary, Amplats has deemed it necessary, and indeed prudent, to seek damages from AMCU for the costs incurred associated with protection services overtime expenses, lost production due to non-strikers being prevented from going to work, and damage to property.
Amplats is perfectly entitled in law to lodge such a claim.
In so doing, it has been surmised in certain quarters, this is merely a bargaining tactic being adopted by Amplats; I think not. An initiative of this nature is of such significance that it is unlikely to have been adopted as a simple negotiating ploy. Besides, Amplats in all likelihood, does not need to resort to a measure of this nature to gain an advantage in the bargaining arena.
Amplats need only continue to reject AMCU wage demands and make compromises as it deems fit, to meet its own bargaining objectives.
My sense is that this initiative on the part of Amplats is a simple, and entirely justified, move to seek legitimate damages for offences allegedly committed by AMCU members, which infringe on the rights of employers, and indeed citizens in general, to the extent that genuine losses are incurred in the course of offences being committed.
Trade unions have, for too long, been immune to the damages inflicted by their members during industrial action.
To draw a comparison, if a passer-by damages one’s motor vehicle or throws a brick through our front window, we may turn a blind eye on the first, or even second, occasion, but when it occurs day in and day out, one has every right to say enough is enough.
Will damages incurred be difficult to prove? Probably. But that doesn’t, and shouldn’t, mean that one need simply “suck it up”.
It’s high time that trade unions fall in line with civilized norms, and ensure that members behave within the bounds of the law.
Picketing rules are frequently ignored, strike marshals are frequently absent or incompetent, strikers committing acts of strike-related misconduct are seldom, if ever, disciplined by unions.
In fact, by and large, striking workers are very often a lawless and thuggish mob.
History tells us that union officials cannot always be relied upon to exercise control over their members during strike activity, and resort to brazen denial of any wrongdoing on cue.
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