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Davies Ndumiso Sibanda, Labour Matters
MANY employers, due to ignorance of the law of evidence, find employees guilty using information that does not qualify as evidence resulting in cases being lost on appeal at a huge cost to the employer.

The major enemy of fair gathering and management of evidence in labour cases is pre-judgment of cases by managers who promise their bosses a dismissal before hearing the other side and without looking at the evidence tendered in order to make an objective decision.

They then go to adulterate the evidence to please their bosses and only to have come backs later at a huge cost in damages or reinstatement costs.

While the area of the law of evidence is very wide, in this article, I shall focus on some of the key aspects of the law of evidence that leads to collapse of labour cases in higher courts. In disciplinary hearings, the golden rule is that one cannot rely on evidence that has not been proved through a witness(es) or documents or has been agreed by the other side. It is the duty of the parties to make sure that whatever evidence is tendered proves or disapprove the allegations.

At law, in labour cases proof must be on balance of probabilities, however, there is an exception to the rule which was set out in ASTRA INDUSTRIES LIMITED VS PETER CHIMBURUKA JUDGEMENT NO. SC27/12 where it was held that in criminal cases the employer has to prove allegations beyond reasonable doubt.

The court said, “The position now appears settled in this jurisdiction that where a person is charged in a disciplinary hearing with an offence of a criminal nature, such an allegation should be proved beyond a reasonable doubt and that it would be unfair to condemn a man and punish him for an offence of a criminal nature on a balance of probabilities rather than evidence which established the commission of the offence beyond a reasonable doubt”.

This judgement clearly puts pressure on employers when charging employees with offences of a criminal nature such as theft or assault to prove beyond reasonable doubt.

Since this judgement became law, employers have avoided charging employees with offences that are of a criminal nature but would charge employees with offences such as failure to observe procedure or rules which can be proved on balance of probability.

Unless the employer has solid proof of a criminal offence which is capable of being ventilated in a criminal court, charges that are of a criminal nature need to be avoided.

The basics in conducting a hearing require that the complainant must demonstrate that the rule existed either as an express or implied rule.

It must be noted that implied rules should clearly relate to the employee’s work. Further, the rule must be legitimate, known to the employee or reasonably expected to have been known to the employee and the assumption must be appropriate.

Above all, fair procedure must be followed as set out in the Code of Conduct and also in the eyes of a reasonable person as guided by section 65 (1) of the Constitution which makes fairness in hearings compulsory. An prejudicial act by the employer extinguishes fairness in the process.

Many cases fall because employers rely on hearsay evidence. This is evidence of witnesses who did not see it happen and documents where the author of the document is not availed for cross examination.

At law, any document or report which is used in a disciplinary hearing in the absence of the author who has to buttress what he or she has written, is treated with circumspection and courts will apply cautionary rules and will in most instances be reluctant to admit the evidence moreso if its probative value depends on the credibility of a person who is not before the court and cannot be subjected to cross examination.

Documents by lawyers and auditors who present opinions but do not present themselves for cross examination when documents are challenged, fail the test of acceptable evidence.

Any part of the report that is tendered without the author availing himself for cross examination and is challenged by the defendant is deemed as inaccurate. The word of the party present is therefore taken as accurate.

That is why many cases involving guests in the hotel industry become problematic because when guests complain against an employee, they will not wait or avail themselves to buttress the allegations when the employee is taken for a hearing.

Hearsay evidence must not be admitted in hearings unless the witness or the author of the document present themselves for cross examination.

The reason is that, hearsay evidence may mislead the disciplinary authority if the recollection of the witness is faulty or witness deliberately tells a lie or evidence is fabricated. At times, witnesses can have challenges with powers of observation or memory.

Cross examination is therefore needed to bring to surface possible weaknesses with the evidence but if the witness or the author of the document is not present, safeguards are lost.

On rare occasions, witnesses and authors of documents may be summoned by higher courts especially the Labour Court if it feels such evidence is important. The witness in such cases therefore gives evidence under oath and nobody wants to give false evidence under oath as doing so one risks going to jail.

There are many other complex rules that relate to evidence such as use of documents, use of contemporaneous notes, photographs and video and audio recordings.

These are not a big issue in internal hearings; however, these must be got right from the onset because when the matter is escalated to higher courts, the success or collapse of a case may depend on how these were handled.

Other areas where managers have to be trained in handling evidence relates to how to handle real evidence, inspections in loco, opinion evidence, breathalysers, expert evidence and circumstantial evidence. All these are guided by set principles and rules where guidance of a trained human resources practitioner is needed.

It is good practice for employers to make sure that all heads of department, managers and supervisors who handle discipline are trained in gathering and processing of evidence in disciplinary hearings.

Where a case is hopeless, they have to be able to tell the employer that despite what the employer thought, there is no case, there are few prospects of success. The employers have also to respect the disciplinary authority’s findings based on tendered evidence.

Another tricky area is gathering evidence relating to performance as the foundation of all performance disputes is a performance agreement signed by both parties and evidence must be tendered that the supervisor availed all the tools and created environment for employee to perform and the employee did not just perform.

Further, there must be evidence that parties periodically met to review their performance throughout the period in question so as to comply with the principle of fairness set out in section 65(1) of the Constitution.

In conclusion, while discipline handling is managed by ordinary employers and managers, there is a need to have them formally trained in gathering and processing of evidence.

Davies Ndumiso Sibanda can be contacted on: Email  [email protected]