EVIDENCE: MISCONDUCT PROCEEDINGS

1. EVIDENCE: MISCONDUCT PROCEEDINGS Presented by BENITA WHITCHER EE = Employee; ER = Employer; CP = chairperson; DH = disciplinary hearing; He/She

2. CONDUCT OF PROCEEDINGS Strict rules of procedure & evidence applicable in courts not appropriate. DH - an opportunity afforded to the EE to state a case in response to the allegations levelled against him. The leading, and cross-examination, of witnesses by the parties relevant where there are material disputes of fact which can only be decided by determining the credibility of witnesses. Avril Elizabeth Home(2006) 27 ILJ 1644 (LC); Kapesi[2010] 9 BLLR 903 (LC)]; Naraindath

3. SCENARIO John charged with SH of Mary. Allegations: During March to June he made comments, tele-calls and physical contact which she experienced as degrading and humiliating. Investigation carried out: documents collected, statements taken, John polygraphed and interviewed, John’s emails for the last year intercepted. At the hearing John denies the allegations. His defence: Mary’s claim is revenge for a poor performance rating he gave her in April, she is flirtatious and had an affair with X, a married fellow EE.

4. ITEMS OF EVIDENCE • Testimony of Mary; her complaint statement, medical certificate from X stating Mary consulted him in May stating she is depressed and that he gave Mary a prescription; copy of prescription. • Testimony of investigator; his interview notes with John [claims John asked if matter could be resolved with an apology]; place on record the intercepted emails showing John’s sexually explicit emails to various females, the affidavit from X, a former PA who claims similar conduct by John [now works in CT & does not want to take off work], a letter from John’s former ER stating John got FWW for SH 3 years ago, John’s phone records obtained from MTN reflecting telephone numbers dialled during March to June and their duration, the results of the polygraph test showing John ‘failed the test’.

5. ONUS AND STANDARD OF PROOF • ER need only show that, on all the evidence, its version is more probable [more likely]. • The need to counter evidence may rest on the EE. • Eg video capturing an EE concealing merchandise on her person while working in a retail store constitutes a prima facie case of dishonesty against the EE. • In the absence of a credible and probable explanation from the EE, it would be reasonable to infer that the EE had acted dishonestly and the ER has proved its case. • Woolworths(2011) 32 ILJ 2455 (LAC).

6. ONUS AND STANDARD OF PROOF (CONT.) • ER need not adduce evidence to positively disprove a defense, especially if such is within the unique knowledge of the EE . Pillay v Krishna1946 AD 946] • An ER must prove its own case. • Evidence is not automatic proof. • It is a mean to attempt to prove or disprove an allegation . • At the end of the case the CP must evaluate all the evidence together and decide which evidence [witness] is credible, reliable and probable.

7. PURPOSE OF QUESTIONING PROCESS To showcase your version and its probabilities [by skilful questions to your witnesses] and by putting it to the opposing witness]. To show, through questions and propositions put to the opposing witness, that: • He is mistaken about a contested pointed; • He is being untruthful on a contested point; • His version is inherentlyimprobable = does not accord with the way we expect people to behave or things to happen given the context.

8. ADMISSIBILITY OF EVIDENCE Whether a particular item of evidence may be introduced at the hearing or taken into account by the CP. The fact that evidence is admitted does not mean that it is automatically true or persuasive. During the evaluation of evidence stage, the CP may find that certain evidence which he admitted is untrue, unreliable or improbable and is to be rejected. Flexible admissibility rules – not a court case

9. EVIDENCE ADMISSIBLE IF • It appears to be logically relevant; • may assist in deciding the case - has potential to shine light on what actually happened where there is a dispute of fact

10. HEARSAY EVIDENCE • Rule against admission applies less strictly. • H.E. not strictly relevant [helpful] because its dependability depends on the credibility of a person other than the person communicating the evidence in the hearing . • Eg: the testimony of Jane is relevant it relates directly to the facts of the case and because the veracity of her version can be tested. • The investigator’s testimony [his communication of the contents of the affidavit and letter] lacks probative value because the investigator cannot be cross-examined to test the truth of her allegations contained in the affidavit and letter. He is not in a position to confirm the correctness and truthfulness of the allegations made in the affidavit and letter

11. HEARSAY ADMISSIBLE IF • Contents relevant to the facts/issues in dispute. • There is good reason for not bringing the author of the allegations to testify. • It is demonstrated that the authors did make such allegations [investigator can testify to this]. • Used to corroborate a version. CP can accept the H.E. as reliable and give it weight when it fits into the overall jigsaw of hard facts that has been presented and is corroborated in some way. Distinguish objectively provable allegations from highly subjective allegations which rely on perception or opinion and thus require to be tested by cross-examination . Eg an arbitrator attached weight to a letter of complaint made by a motorist to show that the EE was on an unauthorised route but gave no weight to it to prove bad driving.

12. MEDICAL CERTIFICATES AND REPORTS Ordinarily admissible because the EE, as the patient and recipient of the certificate, can testify to its authenticity and correctness i.e. the circumstances under which it was produced. The EE’s own credibility will determine the reliability of the certificate and its contents. Where the contents derive from specialist knowledge and is disputed, it is hearsay in the absence of the doctor’s testimony. Mary able to testify to, and can be cross-examined on, the authenticity and the correctness of the contents of the certificate. Medical certificate can be used to corroborate her story

13. Exchange between John and investigator Informal admission [not hearsay] The reason for the investigator’s testimony is to show that John admitted something to him. The investigator’s own credibility will determine whether the CP accepts that John made the admission. Alternatively– without prejudice communication and thus inadmissible because the aim of the discussion was to settle matter Where an EE voluntarily confesses to misconduct, the admission may be admitted and the EE may be found guilty of the misconduct if he has admitted to all the elements of the misconduct. The ER does not have to confirm in a material respect the confession or adduce evidence, other than such confession, to prove the misconduct.

14. Device/electronic evidence: Business reports Computer printouts of information created by a device [computer] without human intervention may be treated as real evidence. Eg the MTN cell phone records . No need for witness to confirm the correctness of the contents. Just need witness place contents on record & explain relevance to case.

15. S15 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT Computer printouts of business records made in the ordinary course of business are admissible against any person without the testimony of the one who made the entry & constitute rebuttable proof of the facts contained therein if accompanied by a certificate from a manager stating that the contents are correct and accurate.

16. SIMILAR FACT EVIDENCE [SFE] Generally an EE should be held liable for reasons and on evidence directly connected to the event in dispute; not on what he did or may have done in the past. A warning for assault cannot serve as evidence that he is guilty of assault in a subsequent and different case. SFE may be used to identify a culprit: if the modus operandi is ‘strikingly similar’ to that alleged in the present case. Fair notice of an intention to rely on SFE should be given to the EE so he is prepared to deal with it because it introduces a collateral inquiry. Gaga(2012) 33 ILJ 329 (LAC)

17. SIMILAR FACT EVIDENCE [SFE] (CONT.) EE charged with SH. ER wanted to lead evidence that he had SH other EEs and had been previously charged with SH. Held: SFE will not constitute a time wasting collateral inquiry where it is led to establish a pattern of behaviour or serial misconduct [eg a pattern of serial harassment] and would assist the CP to resolve which of the two conflicting version to accept. Relevant to the corroboration and thus probabilities Also bore relevance to the extent of the EE’s knowledge of the rule against SH.

18. SIMILAR FACT EVIDENCE [SFE] (CONT.) Evidence showing the same modus operandi in the harassment of another EE admissible. Not unfair or oppressive to have allowed the evidence because the EE had adequate notice and was in a position to deal with it. Gokool1965 (3) SA 461 (N) The evidence of a number of complainants each deposing to different acts of extortion by a policeman were treated as capable of confirming [corroborating] the other complainants.

19. PRIOR CONSISTENT STATEMENTS Corroboration must come from a source independent of the witness to be corroborated. A witness’s own previous statements are inadmissible & cannot be used to corroborate him. However in a sexual case, the complainant’s compliant [statement] can be handed in to show consistency. Consistency strengthens credibility.

20. POLYGRAPHS No consensus on scientific reliability & that polygraphers are expert witness. At most, indicates that EE was evasive or had a strong emotional response to a certain question. Not proof that the EE lied in respect of the question or event in question. Irrelevant opinion evidence – CP has the ability and it’s his job to determine credibility of a witness – whether a witness was untruthful or evasive re a particular issue while being questioned. Generally accepted as corroborative evidence by arbitrators

21. HACKING OF EMAILS RICA Prohibits, with exceptions, the intentional interception of direct or indirect communications. “Direct communications” - face to face conversations & meetings . “Indirect communications” - electronic and telecommunications - emails, phone conversations, social networking etc. “Intercept” - monitoring, viewing, examination of the contents of any indirect communication. Prohibition applies only to 3rd party interception; not participant interception, i.e. when one of the parties to the communication records or divulges it to a 3rd party.

22. HACKING OF EMAILS (CONT.) A 3rd party may intercept a communications with the consent of one of the parties to the communication or access communications that are in the public domain [facebook case]. Prohibited interception must be intentional. An accidental or chance discovery of a message is not covered by the prohibition. Section 6 of the Act permits ERs to intercept the indirect communications of their EEs without the EEs consent in the following circumstances: The communications must have been made via the electronic and telecommunications systems provided for use wholly or partly in connection with the ER’s business.

23. HACKING OF EMAILS (CONT.) The EEs must have been notified in advance that indirect communications made via the ERs system may be intercepted. The ER may not intercept communications at random and without a proper reason. The consent of the systems controller must be obtained in each case. The systems controller- CEO or equivalent The purpose of the interception must be to ‘establish the existence of facts” relevant to the business and/or to “secure” the system.

24. ADMISSIBILITY LC refused to admit evidence obtained in contravention of legislation that regulates entrapment and held that the onus is on the ER to prove its conduct was fair. Fairness - balancing of the EE’s right to dignity and privacy and the ER’s right to protect its business and the rule that ER’s decisions should be substantively and procedurally fair.

25. TEST: WHETHER The evidence could have been obtained lawfully. The ER knowingly and deliberately contravened any law that regulates the gathering of the evidence. There was a pre-existing suspicion that the EEE was committing misconduct. There were reasonable grounds for believing that evidence relating to that offence may be found in the communications of the EE . Eg charge of absenteeism - no reason to intercept his email box because evidence from the EE’s attendance record and eye-witness testimony can ‘establish the existence of [these] facts’.

26. EVALUATION OF EVIDENCE CP, like judges, does not ascertain the truth in any real sense. The assessment is of the probabilities. Criminal case – accused can secure a non-guilty verdict even on an improbable version – provided the version is not so improbable that it cannot possible be true. Labour law does not deal with remote possibilities – but with reasonably probable, plausible

27. EVALUATION OF EVIDENCE (CONT.) Where there are conflicting versions the CP must decide: • who, on a contested point, he believes: is the evidence & other probative material sufficiently believable, reliable, probable in its essential features; • whether the proven facts taken together is sufficient to prove a party’s theory of the case [claim/defence]; and • ultimately, whether the ER’s theory of the case [version] is more probable [more likely].

28. EVALUATION OF WITNESSES Conflicting versions - assess the credibility of witnesses, the inherent probability or improbability of their versions and the reliability of their evidence. Evaluate the evidence of each witness in the context of the evidence in the case as a whole. Is the witness’ account exaggerated by unconscious bias Did the witness give his evidence confidently? Was the witness evasive or unresponsive: did he answer the question put to him; give long explanations not asked for; take a long time to answer? Or was the questioning just confusing?

29. EVALUATION OF WITNESSES (CONT.) Does the witness’ account differ from previous statements; with incontrovertible facts; with what was pleaded or put on his behalf; with the overall theory of the case put forward by the party he is testifying for; with other witnesses found to be good witnesses? Are there reasonable explanations for material contradictions? Is the witness’ version inherently probable, i.e. way we expect things to happen or ordinary people to behave under the circumstances prevailing at the time of the incident in question based on common sense?

30. EVALUATION OF WITNESSES (CONT.) Is the witness’ version corroborated? The absence of corroboration is not a ground for rejecting the evidence of a good witness. Corroborating evidence merely adds weight. The fact that a witness may have lied on one point does not mean all his evidence must be automatically rejected. The question is not whether a witness is wholly truthful in all that he says, but whether the CP can be satisfied, on a balance of probabilities, that the story which the witness tells is a true one in its essential features. An accused EE should not be expected to provide an explanation as to why a complainant may lay a charge. This view is consistent with the burden of proof.

31. AVOID A PIECEMEAL PROCESS OF REASONING Do not decide a contested issue or version in light of inferences which arise only from selected facts, and not all proven facts. Q - what inference can be drawn from the sum of all the evidence considered together. Evaluate the evidence of each witness in the context of the evidence in the case as a whole. Inferences can be drawn only from primary proven facts.

32. OPINION EVIDENCE An ordinary witness may express an opinion based on general human experience and knowledge. Eg on whether a person was intoxicated; the handwriting of someone he knows. S v Edley: The more gross and manifest the physical manifestations of intoxication noted by credible and reliable lay witnesses are, the more readily technical evidence may be dispensed with, and that the more [uncertain] the physical manifestations or indications of intoxication may be, the greater would be the need for technical evidence.

33. OPINION EVIDENCE (CONT.) Exactics-Pet (Pty) Ltd v Patelia NO & Others: An arbitrator was incorrect to hold that only technical and medical evidence of intoxication is admissible and the results can only be admitted under strict conditions appropriate in a criminal trial. Where a lay witness testifies that the accused EE had slurred speech, smelt of alcohol, had an unsteady walk, red eyes etc, and the EE does not satisfactorily explain his behaviour, the ER has offered a more probable version.

34. THE RIGHT TO REMAIN SILENT EE not entitled to a stay of the disciplinary or arbitration proceedings until the completion of the criminal trial. EE not immune from the evidentiary burden to rebut a case made against him Evidence of an irretrievable breach of the employment relationship ( trust relationship) Edcon (SCA)

35. THE RIGHT TO REMAIN SILENT (CONT.) An evidentiary burden rests on the ER not only to produce evidence of guilt and that the code recommends dismissal but also to bring a relevant witness to testify that the EE’s conduct has caused an irretrievable breach of the trust relationship. Depends on the circumstances - evidence of admission, remorse, long service [prima facie evidence of prior reliability] weighed against objective grounds for distrust No need for testimony in every case - irretrievable breakdown can be automatically inferred by the gross nature of the misconduct. Mutual Construction(2010) 5 BLLR 513 (LAC)

36. CIRCUMSTANTIAL EVIDENCE Someret Wines [2009] 10 BALR 1069 (CCMA) Dismissed for doctoring an invoice to give the impression that stolen goods had been legitimately dispatched. Although case based solely on circumstantial evidence, including failing a polygraph test, the evidence pointed ineluctably to the employee’s guilt. A bare denial was insufficient to displace the inference arising from the circumstantial evidence.

37. Are you awake now?Hope you enjoyed this!