EVIDENCE AT THE CCMA: Emerging Trends Avinash Govindjee

1. EVIDENCE AT THE CCMA: Emerging Trends Avinash Govindjee

2. OVERVIEW • Introduction • Probative material • Admissions • Admissibility • Similar fact evidence • Hearsay • Expert evidence • Entrapment • Criteria of proof • Failure to testify • Single witnesses

3. Introduction • Evidence at the CCMA • Practice and Procedure Manual • Arbitrator must weigh up all of the evidence as a whole • Determine which version is more probable • Involves findings of facts based on an assessment of credibility, reliability and the probabilities • Arbitration guidelines in misconduct cases • Sasol Mining (Pty) Ltd v Ngqeleni NO (2011) 32 ILJ 723 (LC)

4. The law of evidence applies mainly in the same manner in labour dispute tribunals as in courts of law • The CCMA is not a court of law… • But commissioners criticised for being too expedient at times • S 138(1) interpreted to mean (PPWAWU): • A commissioner cannot exceed his / her powers or base awards on inadmissible facts or facts not adduced in evidence • Witnesses’ testimonies must be properly evaluated (with caution where necessary) • A commissioner must be satisfied that a witness is reliable

5. Admissions • Satekge and SABC (2013) 34 ILJ 1335 (CCMA) • Default award had been rescinded • Employer argued: Employee had previously made an admission of guilt (raising only inconsistency as an issue) • Employee denied this – even if he had, what about the rescission? • No mechanical recording by first commissioner / handwritten notes consistent with the default award • Employer called the commissioner as a witness • Formal admission had been made – no need for further evidence on those issues (even silence can amount to an admission)

6. Similar fact evidence Gaga v Anglo Platinum (2012) 33 ILJ 329 (LAC) • Group HR Manager • Dismissed for sexual harassment of PA (Ms M) • Emerged during exit interview • Ms M resigning to relocate to CT • Only became aware of the employer’s sexual harassment policy during exit interview

7. Had always been uncomfortable with advances • Repeated rejection of advances • Appellant denied all allegations • Commissioner held that the employer had failed to prove guilt • Ms M had not considered the remarks and propositions unwelcome / offensive (according to the Commissioner)

8. She had admitted that he was a “model gentleman” and they had a good working relationship • Ms M’s evidence of being offended was rejected • She had not lodged a grievance • Commissioner ordered reinstatement • Overturned by LC – Ms M’s version was the most probable

9. LAC • Commissioner’s rejection of the case (“no sexual harassment because no offence”) premised upon too narrow an enquiry • Ignored the material evidence that the remarks and conduct were unwelcome and caused discomfort • No consideration that appellant was a senior manager with responsibility for people development • Employer’s policy and Code of Good Practice did not require “offence” – repeated unwelcome remarks of a sexual nature are sufficient

10. Failure to take formal steps (by Ms M) had to be considered in light of personal / power dynamic • Unfair to employer if appellant could avoid liability for sexual harassment because of Ms M’s ignorance and hesitation • Commissioner erred in not performing a full assessment of Ms M’s credibility, with reference to her almost guileless candour, forthright demeanour, lack of bias and consistency of evidence (about the remarks made and their unwelcome nature), supported by inherent probabilities

11. Commissioner ignored relevant considerations and failed to apply his mind properly to the material evidence • and the requirements of sexual harassment in the employer’s policy and the code • No rational basis justifying conclusion that there was no sexual harassment (on the limited ground that the remarks and behaviour caused no offence or discomfort) • The evidence established that the remarks and behaviour were unwelcome / inappropriately repeated

12. Demonstrated lack of respect • Demeaning of the relationship between superior and subordinate • Commissioner ignored material facts • Focused too narrowly on issue whether Ms M had taken offence • Therefore commissioner failed to properly determine the case – decision tainted by process related unreasonableness

13. Employer had wanted to lead similar fact evidence • Commissioner’s ruling excluding this was a reviewable irregularity • Similar fact evidence of a pattern of behaviour or serial misconduct often relevant (in dismissal cases) to both the probabilities of the conduct having been committed and the appropriateness of dismissal as a sanction • Appellant could have dealt with this easily

14. Sometimes, evidence irregularly held to be inadmissible leads to the matter being remitted to CCMA • Here, there was sufficient other evidence to enable court to deal with the dispute – substituted its decision for that of the commissioner: • Serious misconduct • Unequivocal message • Harshest penalty • Dismissal substantively fair

15. Hearsay: Mosima v SAPS (2012) 33 ILJ 1225 (LC) • S 3 of the Law of Evidence Amendment Act – exceptions to the inadmissibility of hearsay evidence repeated • Nature of the proceedings (NB – Maseko v Correctional Services) • Nature of the evidence • Purpose for which the evidence is tendered • Probative value of the evidence • Reason why the evidence not given in person • Prejudice or any other factor

16. These factors linked to s 138(1) • Arbitrators need not approach proceedings in the same way as courts – this could make the system unworkable • Although hearsay not admissible in civil / criminal proceedings, s 3 shows that the legislature was conscious of the various difficulties associated with hearsay evidence (Southern Sun Hotels LAC) • The test is whether the court considers the admissibility of the evidence to be in the interests of justice

17. Expert evidence: Transnet Rail Engineering Ltd • Employee found in possession of copper items belonging to company • Alleged at the time that he had been set up • Later averred that he was a kleptomaniac • Report of psychologist used by arbitrator in finding dismissal unfair • The employee had a case to answer • Defence of being a kleptomaniac only raised in cross-examination • Was there admissible evidence to sustain this?

18. Arbitrator, in admitting the medical reports, should have applied the principles regarding expert opinion • No expert witness (or any witness) had been called in this regard (shifted burden) • Report drafters had never been called to testify about their qualifications / experience and how they came to this conclusion • Arbitrator regarded these reports as binding without evaluating the conclusions • Arbitrator abdicated the responsibility to scrutinise the evidence to see if the conclusion was logically supported and reasonable

19. The arbitrator should have determined the question of whether the employee suffered from kleptomania, on the basis of the evidence before him • Should have examined the reports, evaluated them and made conclusions • Only way in which this could have been done was to have the experts who developed the reports come to the arbitration hearing and explain their conclusions • The defence was, in fact, an afterthought

20. NUM v CCMA • Commissioner correct in taking into account all evidence, including that of the expert witness on handwriting (issue related to “8” hours overtime claimed) • Had not abrogated his duty to assess the evidence by simply accepting what the expert had led without applying his mind to it and making the necessary findings • [Court rejected the submission that the commissioner should have warned the employee to call his own expert • He had been represented by a reputable union]

21. Entrapment: D-G Department of Public Works • Arbitrator failed to consider totality of evidence – piecemeal approach adopted • Employer was in fact guilty of corruption • Arbitrator gave the employee the benefit of a defence which had not been pleaded (entrapment) • Employer had in any event not been part of the entrapment process (the SAPS had done this) • Employer only acted against the employee after the event • Entrapment might have even be acceptable in this case – arbitrator had not considered this

22. Failure to lead evidence Petzakis Africa (2012) 33 ILJ 876 (LC) • Harding alleged an AUD • No evidence led by Petzakis at the LC to indicate a legitimate reason for dismissal • Employer tried to extract a legitimate explanation for the dismissal through its cross-examination of Harding • Did not expose its own reasoning to scrutiny, despite being best placed to tender direct evidence on it • One of the directors who were privy to Harding’s performance should have testified (but did not)

23. Adverse inference? • Mere fact that a party does not lead evidence in its defence does not entitle a court to draw an adverse inference • But here the applicant had established a prima facie case of an AUD • Respondent best placed to rebut this by giving direct evidence of what led to its decision to dismiss • Adverse inference drawn from its failure to lead that evidence in rebuttal

24. La Grange J cited the AD case of Galante (1950 – accident case) in holding that if there are two plausible alternative explanations of the reasons for the dismissal, the respondent’s failure to adduce evidence resulted in the version favouring the applicant to be preferred

25. Urban Africa Security (Pty) Ltd (2012) 33 ILJ 2201 (LC) • Failure to produce an available witness in certain circumstances may lead to an adverse inference being drawn • Leads to the inference that the party fears that such evidence will expose facts unfavourable to him / her or damage his / her case • Failure is reasonable in certain circumstances (e.g. when a prima facie case has not been made out)

26. Bargaining Council for the Furniture Manufacturing Industry v UKD Marketing (2013) 34 ILJ 96 (LAC) • The Galanteprinciple has a pre-requisite • Appellant’s evidence must be of such a nature that, when it closed its case, there was sufficient evidence for the court to say that the appellant’s version was more probable than not • IE consider the strength or weakness of the case which faces the party who refrains from calling the witness before drawing an adverse inference • In this case, the evidence was, at best, equivocal (as to whether the corporate veil should be pierced / whether it was a sham)

27. Single witnesses Northam Plat. Mines v Shai NO (2012) 33 ILJ 942 (LC) • Two witnesses testified that they had seen the employee performing acts (decanting liquid) that constituted dismissible offences on separate occasions • Employee denied both incidents • Employer’s witnesses treated as single witnesses (one for each incident) – and each witness’s testimony compared to the employee’s • This approach led to the finding that probabilities equally balanced, leading to the employer losing the case (it bearing the onus)

28. Current interpretation of the cautionary rule (re single witness in criminal matters) differs from the previous more stringent standard requiring evidence to be “clear and satisfactory in every respect” • Now, there is no formula to apply: the court should weigh up the evidence of the single witness and consider its merits and demerits • Having done so, it should decide if the truth has been told (despite any shortcomings, defects or contradictions)

29. The commissioner had, in applying the cautionary rule, treated the evidence of the two employer witnesses, compared with that of the employee, in “nominal and monolithic terms” • Ought to have weighted the probabilities of the respective versions and, if necessary, made credibility findings to arrive at an outcome • The commissioner took the absence of independent corroboration of the employer’s witnesses’ versions to have been fatal • Should have been a more nuanced evaluation of evidence

30. La Grange J went on to conduct a proper analysis of the evidence (in holding the dismissal to have been fair): • The applicant’s version had changed • Evidence had not been put to the employer’s key witness • No contradictions in that witness’ testimony • That version more internally coherent than the employee’s internally contradictory version • Considered the relative credibility of the employer’s main witness and the employee – employee’s incoherent and constantly changing version counted against him, rendering his evidence less credible

31. Conclusion • Credibility issues difficult to determine in motion proceedings: • “Sitting as I do as a review judge, I fail to understand, in this case, how I could decide to set aside an award given by an arbitrator who sat at the hearing, observed the witnesses, their demeanour and the manner in which they came across…I should be extremely reluctant to upset the findings of the arbitrator (on credibility) unless I am persuaded that her approach to the evidence is glaringly out of kilter with her functions as arbitrator” Moodley v Illovo (2004) 25 ILJ 1462 (LC)

32. Bare denials • Obligations on arbitrator to tell employee to testify? • When has a prima facie case been made out? • Woolworths: video footage sufficient to establish this • SITA case: evidentiary burden to prove a protected disclosure as reason for dismissal is on the employee • Deciding whether employees have committed offences requires a factual investigation (evaluation of evidence and drawing of conclusions) – deciding if dismissal is fair requires a value judgment