THE EVALUATION, ANALYSIS AND ASSESSMENT OF EVIDENCE

“There is no art

To find the mind’s construction in the face

He was a good gentleman on whom I built An absolute trust”  – Macbeth l.iv.13.

 The award of the arbitrator also leaves much to be desired. He had to conduct two enquiries. First, he had to decide a dispute of fact about the reason for the dismissal. He favoured the employee’s version but neglected to offer an explanation of why he did so. Second, he had to decide if any misconduct of which the employees were truly guilty, warranted dismissal. This enquiry he did not embark on because he exonerated the employees of any misconduct. [At 4].

The judgment of the Labour Court is defended by neither party and was plainly incorrect as regards the test adopted for review. It may safely be ignored. [At 3].

 IDWU OBO CYRIL LINDA AND 4 OTHERS and SUPERGROUP, W M RAFELETA N.O., NATIONAL BARGAINING COUNCIL FOR THE FREIGHT INDUSTRY [2017] ZALAC Case no: JA19/2015 (28 February 2017) 

INTRODUCTORY COMMENTS AND BACKGROUND

I was privileged in that I was trained as an arbitrator and mediator by the renowned arbitrators and mediators, John Brand and Felicity Steadman and also became a mentee of John Brand where after I became a panellist in 1994 of the now-defunct Independent Mediation Service of South Africa(IMSSA).

During the training the importance of the rules and the law of evidence were topics extensively addressed due to their obvious importance insofar as any arbitrator or trier of fact should be well versed in the aforementioned law and rules; especially their application in the assessment and evaluation of evidence.

In a paper presented at an IMSSA Arbitration Seminar held during 1990, by Advocate P J Pretorius SC “Assessing Credibility in Labour Arbitration” based largely on information gathered during a visit of three IMSSA officials to the United States and on South African Law and practice, the learned counsel submitted ‘This topic is to my mind one of the most neglected in our jurisprudence.

Practitioners of the law and arbitrators for that matter receive little or no training in the field. There is scant writing on the topic and probably less evidence of any empirical research having been done in South Africa. Yet how many disputes that are adjudicated require a decision as to which of two or more conflicting versions of the facts is true or probable? Such a decision can and often does mean the difference between life and death for an accused in a criminal trial or between a job or unemployment for a grievant in an arbitration.’ [Emphasis added].

At an IMSSA education seminar held during March 1992, the celebrated counsel Advocate Gilbert Marcus SC presented a paper “Evaluating Evidence”, where learned counsel submitted, ‘The result of an arbitration hearing is self-evident of vital concern to the parties. After reading the last page of the award the loser will inevitably seek the justification for the decision.

The written motivation for the award is a characteristic of labour arbitration generally…No matter what the arbitrator might instinctively feel concerning the outcome of the arbitration, the need to justify the result requires analysis and interpretation of the relevant evidence. This process of evaluation is undoubtedly the most difficult task of the arbitrator.”

Marcus SC made a critical observation, ‘Judges trying civil and criminal cases are skilled in the evaluation of evidence and have formulated rules to guide their discretion. In most cases, labour arbitrations are not conducted with the same formality and rigidity as ordinary civil and criminal cases. But informality does not eliminate the problems of evaluating evidence. Indeed, as will be demonstrated, in some cases the absence of formality makes the process more difficult. [Emphasis added].          

To date, arbitrators have access to many publications authored by authorities on the subject matter as well a wealth of case law where the Courts pronounced and gave guidance as to the evaluation and assessment of the evidence. This notwithstanding, errors are made from time to time by arbitrators [and judges] as the reader of the summary of the Super Group judgment would notice.

INTRODUCTION – Super Group judgement by the LAC

The appeal was brought on behalf of employees who had initially been found by an arbitrator to have been unfairly dismissed by the first respondent (the employer) but which award to that effect had been set aside on review.

In the footnote, it is recorded that ‘The parties have put up no quarrel with ‘Super Group’ being cited as the employer. The evidence indicates that the employer was ‘Sizeka’ a labour broker. The relationship is not explained in these papers. However, as this was not a controversy, no attempt is made in this judgment to unravel the exact facts.’

At the outset, the LAC recorded that the judgment of the LC was defended by neither party and was plainly incorrect as regards the test adopted for review. It, therefore, could safely be ignored.

The LAC criticized the award of the arbitrator and state that the award ‘also leaves much to be desired.’

The arbitrator had to conduct two enquiries.

First, he had to decide a dispute of fact about the reason for the dismissal. He favoured the employee’s version but neglected to offer an explanation of why he did so.

Second, he had to decide if any misconduct of which the employees were truly guilty, warranted dismissal. This enquiry the arbitrator did not embark on because he exonerated the employees of any misconduct.

The LAC stated that two questions arise for decision.

First, the state of a reconstructed record provoked a need to consider whether it was appropriate to hear the appeal at all.

Second, on the premise that it was appropriate to do so, whether the award holding the dismissals unfair, failed to pass muster as one to which no reasonable arbitrator could have come.

The Court then dealt with the issues recorded above.

THE RECORD

It constituted a narrative summary, in the third person, of what was supposedly said by three witnesses. There was no rendition of questions and answers. The origin of the information was not expressly identified. Supposedly, it was drawn from notes of the employees’ representatives at the arbitration. An affidavit recorded that the respondent’s attorneys gave ‘input’. The Court posed the question ‘is it good enough to enable a court to decide a material dispute of fact’?

The referral was made to the problem of the adequacy of a record of an arbitration taken on a review that enjoyed the attention of the Constitutional Court. In Toyota Motors (Pty) Ltd v CCMA[2016] 3 BLLR 217 (CC) and in Baloyi v MEC, Health & Social Development, Limpopo (2016) 37 ILJ 549 (CC).

The dilemma which faced a review court when presented with an inadequate record was addressed. What emerged from the various dicta of that Court is that where the interests of justice demand it, a pragmatic approach is appropriate, despite the inadequacies of the record.

In certain cases, the record may be rather poor for the relevant purpose, although not completely useless. The preferable option could be to set aside the whole proceedings and allow the dispute to be adjudicated afresh. The Court found the former option, although, from a purely forensic standpoint to be attractive, the implications of a remittal may work an undue hardship on one or both parties. Typically, that unhappy predicament results from the long lapse of time since the dispute arose. When a remittal would, after a long lapse of time, trigger prejudice, the appropriate choice may be to hear the matter, warts and all.

In the present case, the precipitating event occurred on 8 February 2008, fully eight years and one month prior to the appeal being heard.

The award was given on 11 August 2008. The review was heard on 13 December 2011, and lamentably, judgment delivered on 1 October 2014. The employees, we have been told from the bar, do not seek reinstatement. The parties wished to press on.

The Court found that ‘the sensible option is to hear the matter and put the dispute to bed’.

THE ARBITRATION AWARD/ (UN)REASONABLENESS OF THE AWARD

Background:

Super Group is a labour broker; that it assigned the employees to Goodyear at a site in Germiston, on 8 February 2008, and that they left the site before the end of the work-day.

The employer relied on the desertion of the employees from their jobs on that day to justify the dismissal.

The employees’ defence was that they did not desert; rather, one Lucas Nkosi (Nkosi), a supervisor, told them to leave as they were not up to the job, and they acquiesced in that instruction. The versions were, thus, diametrically opposite. [Therefore, dismissed for poor work performance, or so the employees alleged].

The arbitrator preferred the employees’ version.

The Court found that the straightforward question to be asked is whether the body of evidence that was put before the arbitrator could not have justified a reasonable arbitrator in preferring the employees’ version.

After an analysis of the reasoning by the arbitrator recorded in the award; as well as documentary evidence submitted at the arbitration hearing, the minutes of the disciplinary hearing and the evaluation and assessment of the probabilities of the employees’ version vis-à-vis that of the employer the LAC at [29] found:

“…the employees’ version is so vitiated by improbability that it is unreasonable to prefer it. Much was made of the absence of direct evidence of the employees supposed expressions of dismay about their pay and travel costs. This is misdirected.

The proper perspective is to take the remarks made by themselves at the disciplinary enquiry as important. Their plea of guilty to desertion had to be explained; it was not. The travel costs grievance, which was not a part of what Reid [an employee of Good Year client of employer] or Nkosi conveyed (for what little that was worth) was ventilated there for the first time at the disciplinary enquiry.

The employer charged the employees with misconduct based on hearsay allegations of desertion. There was nothing improper with that. They pleaded guilty and offered reasons to mitigate their misconduct. They did not, at the disciplinary hearing, say a word about Nkosi firing them for poor performance. This body of fact, married to the e-mails, [from Nkosi and Reid employees of Good Year] whose significance is not the truth of their contents, but the timing of the allegations, forms a formidable case.”

Such was the material before the arbitrator upon which to make findings on credibility and on the probabilities. Could a reasonable arbitrator conceivably prefer the employees’ version? The onus rests on the employer, so if there is doubt as to which version to prefer, the employees’ version must be preferred.

The LAC found that the assessment of the evidence by the arbitrator was vexed in that he gave no clue as to why he believed the employees.

This remiss by the arbitrator required a reviewing court [LC] and the LAC to speculate in order to plumb the possibilities that a reasonable fact finder could be persuaded that the employees were chased off by Nkosi, as alleged.

To do so, one would have to find that there was a ‘conspiracy hatched’ by no later than 14h15 that same day and that the eight persons ‘at an alleged non-existent disciplinary enquiry conspired soon after to concoct the employer’s version.’

The LAC held at [29] found that ‘the body of evidence cannot sustain the result rendered by the arbitrator. The appropriate set of facts to be found proven was that advanced in support of the employer’s case. This is not simply because this court takes that view and, ergo, the arbitrator was unreasonable. Rather, the finding in the award is perverse in relation to the evidence. Accordingly, the employees were guilty of desertion.’

THE SANCTION

An enquiry into an appropriate sanction on the proper facts was not undertaken by the arbitrator. The LAC, therefore, considered what an appropriate sanction should have been.

The contestation over sanction involved, on the one hand:

– the plight of the employees who had miscalculated the impact of additional travel costs and who rashly abandoned their posts, against;

– on the other hand, the impact of that abandonment on the business credibility of the employer.

It was appropriate to weigh the business embarrassment factor as the DE chairman did, but in the absence of addressing the circumstances holistically, the question of the degree of culpability was fudged.

The labour broking market was competitive, hence maintaining credibility with customers was imperative to retain custom. The desertion dented the employer’s goodwill with Goodyear. No further placements have been called for since this incident. No challenge was put up to these contentions.

The LAC found, it fair to accept that the probabilities indeed supported such a perspective, as testified at the arbitration by the employer’s operational manager.

Secondly, as testified by the operational manager the contractual relationships with the employees, by its very nature as employees of a labour broker, the employees formally agreed to be moved from site to site as operational demands required and opportunities changed.

The employees written contracts of employment were adduced, the terms of which, supported this evidence. Accordingly, they were all familiar with the usual operational arrangements.

The perfunctory handling of the issue of guilt owing to a plea of guilty may have been overlooked in the hands of laymen, but the matter of sanction warranted conscious consideration.

The sole premise for deciding the sanction of dismissal was the embarrassment the employer suffered. That was not good enough.

On the meagre wages being earned, it should have been obvious that the net earnings after transport costs were a major factor in the ability of the employees to support themselves, and no less, support or contribute to the support of their families.

Accordingly, and so it was found by the Court despite the employees have been guilty of desertion, and despite the serious consequences for the business credibility of the employer, the sanction of dismissal was inappropriate.

Allowing the due weight to the effect of their misconduct on the business credibility of the employer, a final written warning would be proportionate to their delinquency. If there had been no other opportunity to be placed, as appears to be the case, the employees would have faced retrenchment.

Compensation was sought by the employees. Thus the Court determined an appropriate sum.

It was found that an appropriate measure to denote the unfairness of the dismissal, an award as compensation to each employee-appellant the sum of R2400, a sum equivalent to one months’ wages, at an estimation of current 2015 values.

The judgment by the LC was set aside, the sanction of dismissal for desertion held to be inappropriate and unfair and compensation awarded as referred to supra.

No order as to costs was made.

 Johann Scheepers

October 06, 2017. [Updated June 24, 2019]

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