adminTaurai Musakaruka People Issues
When an employee has been dismissed for misconduct of a criminal nature, the dismissal will not necessarily be harsh, unjust or unreasonable simply because the charges against the former employee were not proven in a hearing.
This is because in termination of employment proceedings the hearing authority is only required to determine whether on the balance of probabilities that the conduct in question did in fact occur.
Usually the role of an investigator is to determine whether alleged events occurred. To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove the allegations.
The amount of evidence required is known as the “standard of proof”. The standard of proof differs between civil and criminal matters.
Case law has established that in civil matters, the standard is the “balance of probabilities”. This is a lesser standard than the proof required in relation to criminal matters. Criminal allegations must be proven “beyond reasonable doubt”.
While the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules including these concepts.
Civil rules of evidence have been adopted because workplace investigation findings usually form the basis of subsequent employer decisions concerning the employee(s) under investigation such as terminating his or her employment contract or issuing a reprimand or warning.
If the employee disputes this decision, he or she may seek to legally challenge it. This type of challenge is a civil action (as opposed to a criminal one) and will ultimately be determined according to the rules of evidence that apply to civil matters.
Balance of probabilities
Balance of probabilities is the standard of proof required in all civil cases, disciplinary cases included.
It basically means that to win you need to convince the hearing authority that your case is 51 percent likely to be true.
In one case (Re B [2008] UKHL 35), Lord Hoffman answered that question using a mathematical analogy: “If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1.
“The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.
“If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”
In the criminal court, the matter has to be proven beyond reasonable doubt, but the standard of proof at workplace is on “the balance of probabilities”.
The employer should not hesitate to go ahead independently with his own enquiries leading to a disciplinary hearing, after which a decision can be made, even if one has been acquitted by criminal courts.
One may steal tyres at work and may be acquitted by criminal courts but the employer can still dismiss the employee based on balance of probabilities and there is nothing contemptuous regarding this decision.
This is a real case that happened in one of our local companies whereby a driver was suspected to have stolen tyres on a weekend. The driver in question was taken to police, arraigned before the criminal courts and was found not guilty due to lack of evidence. However, the employer based on balance of probability successfully dismissed the employee.
The most common criminal cases at workplace are theft and or fraud. This may involve embezzlement or fraudulent activities that result in serious prejudice to the employer. However, employers are reminded to religiously follow proper procedures even if it is theft or fraud as everyone is innocent until proven guilty.
The Labour Act (Chapter 28:01) sought to codify common law. It requires employers to respect the “audi rule”. If a small company fails to bring in an independent person to hear the worker’s side of the story, the court will not necessarily hold the employer liable.
Instead it will try and establish whether the worker(s) had a chance to state their case. In South Africa, the Labour Appeal Court has reiterated this point in the case of Semenya & others v/s Numsa & Others (2006) 15 LAC 1.11.1. The applicant (employer) and the respondent (employee) met and the former informed the latter that her employment contract was terminated.
The meeting was not a formal disciplinary enquiry with an independent chairperson. The worker protested that she was dismissed without a formal disciplinary proceeding.
The employer offered her a formal hearing with an independent chairperson. The worker held that the company had already dismissed her and that the hearing would be a mere formality. She refused the offer.
The Commission for Conciliation, Mediation and Arbitration commissioner and the court found in favour of the worker. However, the Labour Appeal Court reached a different conclusion with costs against the respondent (employee).
Labour Court Judge President Zondo and Acting Judges of Appeal Davis and Nkabinde found that both the Labour Court and the respondent CCMA commissioner were wrong in their judgment.
The judges found that the worker was wrong to refuse the hearing. The independent chairperson could have reached a different finding.
This judgment should therefore educate workers that as much as they think that chairpersons chairing disciplinary hearings are bound to be biased because their services are paid by the company, they need to accept offers for the hearing as long as the chairperson was not involved in the incident.
If they feel the chairperson was biased then they can declare a dispute at the Ministry of Labour or bargaining council after receiving the notice of dismissal.
The judgment is also a reminder to employers that they need to conduct hearings before dismissing employees.
Therefore, even if the employee has stolen millions of dollars or even in strike situations, regardless of whether the strike is protected or not, the courts have declared that the dismissal without a hearing is unfair, irrespective of the offence whether its serious or very criminal, as was the case in Modise and Others v Steve’s Spar Blackheath (2000) 9 LAC 9.3.).
Basically in criminal law, the burden is “beyond reasonable doubt” but in civil law (like employment law cases) the burden is “balance of probabilities” so effectively a lower burden of proof is required for a “conviction” or of course to prove innocence.
Theft in criminal law requires tangible and convincing evidence but in civil matters like disciplinary hearings, probabilistic approaches are used.
These are parallel systems and a decision in one has no bearing on the other. If the criminal court acquits you, the employer may still fire you based on probability that you committed an offence or misconduct of serious nature.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.
Taurai Musakaruka is a Human Resources Practitioner. For feedback e-mail: [email protected] or [email protected]
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