ARBITRATION
GUIDELINES:
ASSESSING EVIDENCE
THE PURPOSE OF THE WORKSHOP
The purpose of the workshop is to
• reinforce the importance of the
Guidelines to Commissioners when
arbitrating misconduct matters
• in order to ensure that Commissioners
properly apply the Guidelines in the
actual hearing and then
• demonstrate this application when
drafting arbitration awards.
• The presentation should focus on clause
49.3 which covers Assessing Evidence.
CCMA PRACTICE AND PROCEDURE
MANUAL : BALANCE OF PROBABILITY
The Practice and Procedure Manual : Item 13
Determination of the dispute on a balance of probability
means
that ‘the arbitrator must weigh up all of the evidence as a
whole and determine what version is more probable. It
involves
findings of facts based on an assessment of credibility
and the probabilities, and an assessment of the applicable
rules in the light of those findings in order to come to a
conclusion.
CCMA PRACTICE AND PROCEDURE
MANUAL: CREDIBILITY
(i) the witness’ candour and demeanour in the
witness box,
(ii) the witness’ bias, latent and blatant,
(iii) internal contradictions in the evidence of
the witness,
(iv) external contradictions with what was
pleaded or put on behalf of the witness,
(v) the probability or improbability of particular
aspects of his version, and
(vi) the calibre and cogency of his performance
compared to that of other witnesses
testifying about the same incident or events
CCMA PRACTICE AND PROCEDURE
MANUAL : RELIABILITY
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the witness’ bias, latent and blatant,
external contradictions with what was
pleaded or put on behalf of the witness,
the probability or improbability of
particular aspects of his version,
the opportunities he had to experience or
observe the event in question;
the quality, integrity and independence of
his recall thereof; and
corroboration by other witnesses
Sasol Mining (Pty) Ltd v Ngqeleni NO & others
(2011) 32 ILJ 723 (LC)
Regrettably, the commissioner’s logic (or, more
accurately, the lack of it) permeates many of the
awards that are the subject of review proceedings in
this court. Some commissioners appear wholly
incapable of dealing with disputes of fact – their
awards comprise an often detailed summary of the
evidence, followed by an ‘analysis’ that is little more
than a truncated regurgitation of that summary
accompanied by a few gratuitous remarks on the
evidence, followed by a conclusion that bears no
logical or legal relationship to what precedes it.
Sasol Mining (Pty) Ltd v Ngqeleni NO &
others (2011) 32 ILJ 723 (LC)
What is missing from these awards (the award under
review in these proceedings is one of them) are the
essential ingredients of an assessment of the
credibility of the witnesses, a consideration of the
inherent probability or improbability of the version that
is proffered by the witnesses, and an assessment of
the probabilities of the irreconcilable versions before
the commissioner.
Sasol Mining (Pty) Ltd v Ngqeleni NO &
others (2011) 32 ILJ 723 (LC)
One of the commissioner’s prime functions was to
ascertain the truth as to the conflicting versions before
him. As I have noted, this much the commissioner
appears to have appreciated. What he manifestly
lacked was any sense of how to accomplish this task,
or which tools were at his disposal to do so.
ARBITRATION GUIDELINES
1. Section 138(6) – a commissioner conducting an arbitration
must take into account any code of good practice that has
been issued by NEDLAC and any guidelines published by
the CCMA which is relevant to the matter being considered.
2. The Guidelines have been developed in accordance with
judgments binding on the CCMA.
3. The Guidelines also advance an interpretation of the law in
terms of the policy of the CCMA.
4. An arbitrator deviating from the Guideline must have a
good reason for this eg where an interpretation is reversed
by a binding decision of a court
The purpose of the Guidelines
1. The purpose of the Guidelines is to
• separate out the different factual enquiries normally
found in a misconduct case and to order them so that
they provide a checklist for the narrowing of the issues
before a hearing,
• the receipt of evidence in a hearing, and
• a template for organizing and assessing the evidence
in an award.
2. Ultimately, it is about consistent decision making.
EFFECT OF THE GUIDELINES
Whilst the Guidelines are intended for consistent decisionmaking, they are obviously also there to assist parties in
preparing their cases, and assessing whether an arbitrator
• took cognizance of all of the relevant evidence,
• compared and weighed up the contending versions which
were presented in order to determine the most probable
version, and
• whether the arbitrator identified and justified the specific
factors which led to the final decision.
BASIC PRE-ARB MINUTE
1. The onus is on the employer to prove the fairness of the
dismissal ; Employer to begin
2. What was the reason for the dismissal.
3. What are the employee’s challenges to the dismissal?
4. Witnesses to be called by each party: Employer, Employee
5. Documents to be used by each party: Employer, Employee
6. Basic common cause facts relating to date of
commencement, position in the company, salary, date of
dismissal
NARROWING THE ISSUES
1. Procedural issues: Whether there was a workplace
disciplinary procedure in place, or whether Item 4 of the
CGP is used, detail the specific challenges being raised by
the employee
2. Substantive issues: detail whether any of the following
issues are agreed
• Whether there was a rule in place
• Whether the employee was aware of the rule
• Did the employee contravene the rule
• Whether the rule was valid or reasonable
• Whether dismissal is an appropriate sanction if the rule
was contravened
ASSESSING EVIDENCE ITO THE
ARBITRATION GUIDELINES
Assessment of evidence in misconduct
dismissals involves findings of fact in relation
to the substantive and procedural issues
based on an assessment of
• the probabilities,
• the credibility and reliability of the
witnesses, and
• the applicable rules.
PROBABILITIES
Item 56.1 : 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.
RELIABILITY OF THE WITNESSES
• The extent of the witness’s first hand knowledge
of the events;
• Any interest of bias the witness may have;
• Any contradictions and inconsistencies;
• Corroboration but other witness;
• The credibility of the witnesses, including
demeanour
Masilela v Leonard Dingler (Pty) Ltd
(2004) 25 ILJ 544 (LC)
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, an investigation where questions of demeanour and
impressions are measured against the contents of a witness'
evidence, where the importance of any discrepancies or
contradictions is assessed and where a particular story is tested
against facts that cannot be disputed and against the inherent
probabilities, so that at the end of the day one can say with
conviction that one version is more probable and should be
accepted, and that therefore the other version is false and may be
rejected with safety. In this regard see Mabona & another v
Minister of Law & Order & Others 1988 (2) SA 654 (SE).
EVIDENCE
Arbitrators should also examine the evidence presented
to see whether they should be handling certain
evidence in a particular way. For example,
• hearsay evidence,
• opinion evidence,
• character evidence,
• similar fact evidence, or
• evidence of video recordings,
• photographs,
• breathalysers,
• polygraph tests,
• facebook,
• linkedin and perhaps even twitter.
PROCEDURAL FAIRNESS
The Arbitration Guidelines require arbitrators to identify whether
or not there is a workplace disciplinary procedure in existence.
If there is no workplace procedure, Item 4 of the Code of Good
Practice must be followed.
If there is a workplace disciplinary procedure, its legal status will
affect the arbitrator’s approach when assessing procedural
fairness.
There are 3 categories of workplace disciplinary procedures –
• Those contained in a collective agreement
• Those that are contractually binding
• Those that are unilaterally established by the employer
ITEM 4 - CODE OF GOOD PRACTCE
4. Fair procedure
(1) Normally, the employer should conduct an investigation
to determine whether there are grounds for dismissal. This
does not need to be a formal enquiry. The employer should
notify the employee of the allegations using a form and
language that the employee can reasonably understand. The
employee should be allowed the opportunity to state a case
in response to the allegations. The employee should be
entitled to a reasonable time to prepare the response and to
the assistance of a trade union representative or fellow
employee. After the enquiry, the employer should
communicate the decision taken, and preferably furnish the
employee with written notification of that decision.
WORKPLACE DISCIPLINARY
PROCEDURES
Where there is a workplace procedure, the
arbitrator should identify whether it is contained in
a collective agreement, or in a contract, or is an
employer imposed procedure, and test the
fairness of the procedure followed against that
procedure. Wherever, these procedures are silent
on any issue, Item 4 of the Code of Good Practice
will prevail.
SUBSTANTIVE FAIRNESS
The guidelines describe in detail the following factual
enquiries that flow from the provisions of Item 7 of the code:
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Is there a rule?
Was the employee aware of the rule?
Did the employee contravene the rule?
Is the rule or standard valid or reasonable?
Was the dismissal an appropriate sanction?
If there is a dispute about any of these issues, the arbitrator
is required to analyse the evidence, and decide the issue on
the credibility of the opposing witnesses, or on the
probabilities.
DID THE EMPLOYEE CONTRAVENE
THE RULE?
• There may be more than 1 factual enquiry, and each needs to
be treated separately .
• Helpful to break down the incident into its various components.
• We can use the usual example of a contravention of the rule
that an employee is required to carry out the lawful and
reasonable instructions of the employer.
• Where the employee can justify the contravention, this fact is
relevant to the question whether the rule was in fact
contravened, or to the question whether the rule was valid and
reasonable, or to the question whether dismissal was an
appropriate sanction for the contravention of the rule.
WAS DISMISSAL AN APPROPRIATE
SANCTION?
• The test is whether the employer could fairly have imposed the
sanction of dismissal in the circumstances , either because the
misconduct rendered the employment relationship intolerable,
or because of the cumulative effect of the misconduct when
taken together with other misconduct.
• The arbitrator must make a value judgement as to the fairness
of the employer’s decision taking account of all relevant factors.
• This must be a balanced and equitable assessment taking into
account the interests of both the employer and the employee.
• The arbitrator must give consideration to, and seek to understand the rationale for, the employer’s rules and standards.
GRAVITY OF THE MISCONDUCT
1. Enquiry into the sanction as a response to the offence/
contravention.
2. If there is a prescribed sanction, and it accords with what is
generally considered as serious conduct, then the sanction
should be considered as appropriate.
3. If the code is more severe than generally accepted norms, the
employer must explain the reason for prescribing the
sanction.
4. The Code of Good Practice identifies serious offences that
may justify dismissal.
5. Aggravating factors
CONSISTENCY
There are two kinds of consistency, ie
• consistency over time, and
• consistency as between employees.
If an employee leads evidence that another employee
similarly placed was not dismissed, the employer must justify
the difference of treatment.
It is not inconsistent to treat employees charged with the
same misconduct differently if there is a fair and objective
basis for doing so. This may include mitigating factors,
aggravating factors, or relevant aspects of the employee’s
disciplinary record.
FACTORS THAT MAY JUSTIFY A DIFFERENT
SANCTION
• The risk of further instances of misconduct in the future, and the
risk of harm to the enterprise, and regard must be had to the nature
of the job.
• The employee’s circumstances must be taken into account. This
includes length of service, previous disciplinary record and personal
circumstances.
• However, personal circumstances should be work related such as
the effect of dismissal on an employee who is close to retirement.
• Circumstances of the contravention : remorse, provocation,
coercion, use of racist or insulting language, and the absence of
dishonesty. This is not a closed list.