CHAIRPERSONS in disciplinary hearings are frequently faced with conflicting evidence or testimonies from two witnesses describing the same event. For example, an employee may testify that they were not sleeping on duty, while their manager may testify that they were. Both witnesses testify with zeal and conviction, but one is telling the truth, while the other isn’t. But how can this be determined? This conundrum is faced by chairpersons in workplace disciplinary and appeal hearings, commissioners in Commission for Conciliation, Mediation and Arbitration and Bargaining Council arbitrations and by judges in the labour courts. Case law has much to say about resolving this dilemma in arbitration awards and labour court judgments, invariably being referred to as the challenge faced by adjudicators of hearings when faced with conflicting versions.

The point of departure is the understanding that in disciplinary hearings the employer has the burden of proof, which simply means that the employer has the obligation to prove, on a balance of probabilities, that the employee is guilty of the allegation in question. It can also be described as the employer’s duty to prove that the employee is probably guilty. This principle is important when faced with conflicting versions or evidence. The bottom line is that the adjudicator must decide which of the two conflicting versions of the same event or observation is most probable. Our courts have addressed how one has to deal with cases in which there are two irreconcilable versions.

In Stellenbosch Farmers’ Winery Group and Another v Martell Et Cie and Others 2003 (1) SA 11 (Supreme Court of Appeal) at page 13 paragraph 5, the test is formulated as one in which: “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows: To come to a conclusion on the dispute issues a court must make findings on

  1. the credibility of the various factual witnesses;
  2. their reliability and
  3. the probabilities.

“As to 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:

  1. the witness’s candour and demeanour in the witness box,
  2. his bias, latent and blatant,
  3. internal contradictions in his evidence,
  4. external contradictions with what was pleaded or put on his behalf or with established fact or with his own extra curial statements or actions,
  5. the probability or improbability of particular aspects on his version,
  6. the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.”

In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), it was stated that: “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.” Yet further guidance was provided in Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (Labour Court).

It was held that: “The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. “He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. “He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses nor did he have regard to the inherent probabilities of the competing versions before him.

That failure and the fact that the award clearly may have been different had the commissioner properly acquitted himself renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings.” To put it simply, when a disciplinary hearing chairperson is faced with two conflicting versions, it is important to weigh the evidence tendered, with a view to arriving at a version that is most probable. When it is one person’s word against another, one version can be preferred over the other when there are sound reasons to do so.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za. Call 0861 115 375 or email i[email protected]

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