Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

C: Assessing Evidence and Drafting an Award

Analysing evidence
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(55)This involves a determination of the relevant facts for the purpose of coming to a decision on the procedural and substantive fairness of the decision to dismiss. It involves findings of fact based on an assessment of credibility and the probabilities and an assessment of the applicable rules in the light of those findings.

 

(56)An arbitrator must weigh the evidence as a whole taking account of the following factors:
(56.1)The probabilities. 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. 14
(56.2)The reliability of the witnesses. This involves an assessment of the following:
(56.2.1)the extent of the witness's first-hand knowledge of the events;
(56.2.2)any interest or bias the witness may have;
(56.2.3)any contradictions and inconsistencies;
(56.2.4)corroboration by other witnesses;
(56.2.5)the credibility of the witness, including demeanour. 15

 

(57)The organisation of this part of the factual enquiry should follow broadly—
(57.1)in the case of a decision about the procedural fairness of a dismissal, item 4 of the Code of Good Practice: Dismissal as elaborated upon in Part D of these guidelines;
(57.2)in the case of a decision about the substantive fairness of a dismissal, item 7 of the Code of Good Practice: Dismissal as elaborated upon in Part E of these guidelines;
(57.3)in the case of a decision about the remedy, sections 193 to 195 of the LRA and Part F of these guidelines.

 

 

14The standard of proof that an employee committed misconduct is that of a 'balance of probabilities, as stated by the Labour Court in Avril Elizabeth Home v CCMA & Others (LC). As in Clarence v National Commissioner of the South African Police Service (LAC), where a disciplinary code provides that an employee who commits a criminal offence will be guilty of misconduct, the burden of proof remains on a balance of probabilities.
15For example, in Network Field Marketing (Pty) Ltd v Mngezana NO & Others (LC) it was pointed out that in resolving a dispute of fact, a commissioner should undertake a balanced assessment of the credibility, reliability and probability of the different versions given. Credibility should not be relied upon as the sole means of determining the probative value of evidence.