Proper preparation is essential when presenting a case to an arbitrator
Proof is evidence soundly supported by other relevant evidence. Regardless of the seriousness of an employee’s misconduct, his or her dismissal will be found to be unfair if the employer is unable to provide at arbitration sound and relevant evidence that the employee was guilty of the offence for which he or she was dismissed.
Proof of guilt is a factual and skillful exercise requiring: • Testimony that is not contradictory. • Evidence that has been tested and cross-examined by the accused employee and, despite such a test, still holds water. • Documents that are validated and that clearly show up the employee’s misconduct. • Evidence that is corroborated by other evidence. • Testimony from credible witnesses. • Evidence derived from thorough and honest investigation.
Proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine. Parties should not delude themselves that the presiding officer of a disciplinary hearing or a CCMA arbitrator will believe their evidence merely because the witness testifying is a powerful, well-known, or highly regarded person or comes from a prestigious organization.
The bringing of persuasive evidence does not depend on the status of the person bringing it but rather on the skill of the investigator and prosecutor in gathering, preparing, and presenting convincing, relevant, and material evidence in a legal and effective manner. In labor law, winning is not about power: it is about legal, strategic, and investigatory expertise.
However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case. For example, if an employer wishes to convince an arbitrator that an employee stole petty cash, it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.
Relevance is required
At the same time, it is infuriating for parties who have gone to the trouble of collecting genuine, solid, relevant evidence only to see the arbitrator ignore this evidence. Fortunately, the parties do have recourse to the Labor Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his or her award.
For example, in the case of Jafta vs CCMA & others (2007, 3 BLLR 209) the employee was a goods returned clerk dismissed for failing to follow company stock-handling procedures. The arbitrator found the dismissal to be fair, but the employee took the arbitrator on review to the Labor Court. The court found that the arbitrator’s decision was defective largely because he had ignored relevant evidence relating to the stock losses and to the effect that the employee did not have a full understanding of the operation of the employer’s stock system. The court ordered the employer to reinstate the employee with full retrospective effect.
However, it is not always easy to decide if evidence is relevant or not. This difficulty applies to chairpersons of disciplinary hearings and to CCMA arbitrators. There is more than one reason for this difficulty: • The presiding officer may not be properly trained to be able to understand what is and is not relevant. • Lack of clarity of the evidence itself. For example, the witness giving the evidence may waffle so badly that it is difficult for even a trained presiding officer to recognize the relevance of the testimony. • The evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his or her work. However, the employee might tell the arbitrator that the employer has been victimizing him or her for weeks on end. While this seems, on the surface, to be irrelevant to a charge of poor performance, it might not be irrelevant. That is, the employee may be able to show that it was the victimization that caused the poor performance or that the poor performance allegations are false and are part of the victimization campaign.
It is crucial that parties ensure that they bring their evidence in such a comprehensive, clear, and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.
Text | Ivan Israelstam Photography | sirtravelalot
Ivan Israelstam is Chief Executive of Labour Law Management Consulting. Contact him on 011 888 7944 or 082 852 2973, or at ivan@labourlawadvice.co.za. For more information, go to labourlawadvice.co.za
