Assessing evidence

ARBITRATION GUIDELINES: ASSESSING EVIDENCE

THE PURPOSE OF THE WORKSHOP The purpose of the workshop is to • reinforce the importance of the Guidelines to Commissioners when arbitrating misconduct matters • in order to ensure that Commissioners properly apply the Guidelines in the actual hearing and then • demonstrate this application when drafting arbitration awards. • The presentation should focus on clause 49.3 which covers Assessing Evidence.

CCMA PRACTICE AND PROCEDURE MANUAL : BALANCE OF PROBABILITY The Practice and Procedure Manual : Item 13 Determination of the dispute on a balance of probability means that ‘the arbitrator must weigh up all of the evidence as a whole and determine what version is more probable. It involves findings of facts based on an assessment of credibility and the probabilities, and an assessment of the applicable rules in the light of those findings in order to come to a conclusion.

CCMA PRACTICE AND PROCEDURE MANUAL: CREDIBILITY (i) the witness’ candour and demeanour in the witness box, (ii) the witness’ bias, latent and blatant, (iii) internal contradictions in the evidence of the witness, (iv) external contradictions with what was pleaded or put on behalf of the witness, (v) the probability or improbability of particular aspects of his version, and (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events

CCMA PRACTICE AND PROCEDURE MANUAL : RELIABILITY • • • • • •

the witness’ bias, latent and blatant, external contradictions with what was pleaded or put on behalf of the witness, the probability or improbability of particular aspects of his version, the opportunities he had to experience or observe the event in question; the quality, integrity and independence of his recall thereof; and corroboration by other witnesses

Sasol Mining (Pty) Ltd v Ngqeleni NO & others (2011) 32 ILJ 723 (LC) Regrettably, the commissioner’s logic (or, more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact – their awards comprise an often detailed summary of the evidence, followed by an ‘analysis’ that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it.

Sasol Mining (Pty) Ltd v Ngqeleni NO & others (2011) 32 ILJ 723 (LC) What is missing from these awards (the award under review in these proceedings is one of them) are the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner.

Sasol Mining (Pty) Ltd v Ngqeleni NO & others (2011) 32 ILJ 723 (LC) One of the commissioner’s prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so.

ARBITRATION GUIDELINES 1. Section 138(6) – a commissioner conducting an arbitration must take into account any code of good practice that has been issued by NEDLAC and any guidelines published by the CCMA which is relevant to the matter being considered. 2. The Guidelines have been developed in accordance with judgments binding on the CCMA.

3. The Guidelines also advance an interpretation of the law in terms of the policy of the CCMA. 4. An arbitrator deviating from the Guideline must have a good reason for this eg where an interpretation is reversed by a binding decision of a court

The purpose of the Guidelines 1. The purpose of the Guidelines is to • separate out the different factual enquiries normally found in a misconduct case and to order them so that they provide a checklist for the narrowing of the issues before a hearing, • the receipt of evidence in a hearing, and • a template for organizing and assessing the evidence in an award. 2. Ultimately, it is about consistent decision making.

EFFECT OF THE GUIDELINES Whilst the Guidelines are intended for consistent decisionmaking, they are obviously also there to assist parties in preparing their cases, and assessing whether an arbitrator • took cognizance of all of the relevant evidence, • compared and weighed up the contending versions which were presented in order to determine the most probable version, and • whether the arbitrator identified and justified the specific factors which led to the final decision.

BASIC PRE-ARB MINUTE 1. The onus is on the employer to prove the fairness of the dismissal ; Employer to begin 2. What was the reason for the dismissal. 3. What are the employee’s challenges to the dismissal? 4. Witnesses to be called by each party: Employer, Employee 5. Documents to be used by each party: Employer, Employee 6. Basic common cause facts relating to date of commencement, position in the company, salary, date of dismissal

NARROWING THE ISSUES 1. Procedural issues: Whether there was a workplace disciplinary procedure in place, or whether Item 4 of the CGP is used, detail the specific challenges being raised by the employee

2. Substantive issues: detail whether any of the following issues are agreed • Whether there was a rule in place • Whether the employee was aware of the rule • Did the employee contravene the rule • Whether the rule was valid or reasonable • Whether dismissal is an appropriate sanction if the rule was contravened

ASSESSING EVIDENCE ITO THE ARBITRATION GUIDELINES Assessment of evidence in misconduct dismissals involves findings of fact in relation to the substantive and procedural issues based on an assessment of • the probabilities, • the credibility and reliability of the witnesses, and • the applicable rules.

PROBABILITIES Item 56.1 : This requires a formulation of the contending versions and a weighing up of those versions to determine which is the more probable. The factors for that determination have to be identified and justified.

RELIABILITY OF THE WITNESSES • The extent of the witness’s first hand knowledge of the events; • Any interest of bias the witness may have; • Any contradictions and inconsistencies; • Corroboration but other witness;

• The credibility of the witnesses, including demeanour

Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent's version, an investigation where questions of demeanour and impressions are measured against the contents of a witness' evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety. In this regard see Mabona & another v Minister of Law & Order & Others 1988 (2) SA 654 (SE).

EVIDENCE Arbitrators should also examine the evidence presented to see whether they should be handling certain evidence in a particular way. For example, • hearsay evidence, • opinion evidence, • character evidence, • similar fact evidence, or • evidence of video recordings, • photographs, • breathalysers, • polygraph tests, • facebook, • linkedin and perhaps even twitter.

PROCEDURAL FAIRNESS The Arbitration Guidelines require arbitrators to identify whether or not there is a workplace disciplinary procedure in existence. If there is no workplace procedure, Item 4 of the Code of Good Practice must be followed. If there is a workplace disciplinary procedure, its legal status will affect the arbitrator’s approach when assessing procedural fairness. There are 3 categories of workplace disciplinary procedures – • Those contained in a collective agreement • Those that are contractually binding • Those that are unilaterally established by the employer

ITEM 4 - CODE OF GOOD PRACTCE 4. Fair procedure (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

WORKPLACE DISCIPLINARY PROCEDURES Where there is a workplace procedure, the arbitrator should identify whether it is contained in a collective agreement, or in a contract, or is an employer imposed procedure, and test the fairness of the procedure followed against that procedure. Wherever, these procedures are silent on any issue, Item 4 of the Code of Good Practice will prevail.

SUBSTANTIVE FAIRNESS The guidelines describe in detail the following factual enquiries that flow from the provisions of Item 7 of the code: • • • • •

Is there a rule? Was the employee aware of the rule? Did the employee contravene the rule? Is the rule or standard valid or reasonable? Was the dismissal an appropriate sanction?

If there is a dispute about any of these issues, the arbitrator is required to analyse the evidence, and decide the issue on the credibility of the opposing witnesses, or on the probabilities.

DID THE EMPLOYEE CONTRAVENE THE RULE? • There may be more than 1 factual enquiry, and each needs to be treated separately . • Helpful to break down the incident into its various components. • We can use the usual example of a contravention of the rule that an employee is required to carry out the lawful and reasonable instructions of the employer. • Where the employee can justify the contravention, this fact is relevant to the question whether the rule was in fact contravened, or to the question whether the rule was valid and reasonable, or to the question whether dismissal was an appropriate sanction for the contravention of the rule.

WAS DISMISSAL AN APPROPRIATE SANCTION? • The test is whether the employer could fairly have imposed the sanction of dismissal in the circumstances , either because the misconduct rendered the employment relationship intolerable, or because of the cumulative effect of the misconduct when taken together with other misconduct. • The arbitrator must make a value judgement as to the fairness of the employer’s decision taking account of all relevant factors. • This must be a balanced and equitable assessment taking into account the interests of both the employer and the employee. • The arbitrator must give consideration to, and seek to understand the rationale for, the employer’s rules and standards.

GRAVITY OF THE MISCONDUCT 1. Enquiry into the sanction as a response to the offence/ contravention. 2. If there is a prescribed sanction, and it accords with what is generally considered as serious conduct, then the sanction should be considered as appropriate. 3. If the code is more severe than generally accepted norms, the employer must explain the reason for prescribing the sanction. 4. The Code of Good Practice identifies serious offences that may justify dismissal. 5. Aggravating factors

CONSISTENCY There are two kinds of consistency, ie • consistency over time, and • consistency as between employees.

If an employee leads evidence that another employee similarly placed was not dismissed, the employer must justify the difference of treatment. It is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for doing so. This may include mitigating factors, aggravating factors, or relevant aspects of the employee’s disciplinary record.

FACTORS THAT MAY JUSTIFY A DIFFERENT SANCTION • The risk of further instances of misconduct in the future, and the risk of harm to the enterprise, and regard must be had to the nature of the job. • The employee’s circumstances must be taken into account. This includes length of service, previous disciplinary record and personal circumstances. • However, personal circumstances should be work related such as the effect of dismissal on an employee who is close to retirement. • Circumstances of the contravention : remorse, provocation, coercion, use of racist or insulting language, and the absence of dishonesty. This is not a closed list.