The requirement for proper analysis of evidence
[Tuesday, September 29, 2009 12:01:16]ARTICLE FOR LABOUR SA: SEPTEMBER 2009
The requirement for proper analysis of evidence: SAMWU v City of
In the recent decision of SA Municipal Workers Union on behalf of Petersen v City of Cape Town & Others (2009) 30 ILJ 1347 (LC), the Cape Town Labour Court decided to review and set aside an arbitrator’s award for failing to properly evaluate the evidence before him and for failing to appreciate his task as arbitrator when assessing the evidence.
The employee was dismissed for allegedly sexually harassing a female contract worker (“the complainant”). It is settled law that, regardless of what transpired at the disciplinary enquiry at the workplace, an arbitration is a hearing de novo. This means that the employer has the onus to prove at the arbitration, on a balance of probabilities, that the dismissed employee was guilty of misconduct and consequently that his dismissal was substantively and procedurally unfair.
After hearing evidence, the arbitrator decided to accept the complainant’s evidence and found in favour of the employer.
The labour court reviewed the evidence produced at the arbitration and concluded that the employer’s evidence which was produced at the arbitration to prove that the employee’s dismissal was fair, was unsatisfactory. The reasons for the court’s rejection of the complainant’s evidence was based on the following:
1 the complainant was a single witness and her evidence about the alleged incident of sexual harassment, (which incidentally would also constitute an alleged indecent assault), was uncorroborated by other witnesses;
2 the behaviour of the complainant, in going to the police to make an affidavit regarding an alleged incident of sexual harassment without laying a complaint against the dismissed employee, was suspect;
3 the complainant gave conflicting versions of the incident and could not remember key aspects of the incident, for example when and where exactly the incident took place.
The result of the rejection by the court, of the complainant’s evidence, is that the arbitrator’s decision in believing the complainant, despite her unconvincing evidence which was not credible, and in spite of a contrary version lead by the employee and another witness who testified on his behalf, and the arbitrator’s conclusions, were irrational and ought to be reviewed and set aside. The court found that the arbitrator, in assessing the evidence, had failed to appreciate his task- which was to properly assess the evidence placed before him, and to properly determine whether the respondent had discharged its burden to prove that the employee’s dismissal was fair. In order to reach such a conclusion (i.e. that the employee was fairly dismissed), the arbitrator had to assess the evidence and had to conclude, on a balance of probabilities, that the complainant’s evidence was credible and acceptable.
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The court therefore reviewed the arbitrator’s award and set it aside because there was no rational connection between the facts presented to the arbitrator, and the arbitrator’s findings. The arbitrator’s findings and reasons were therefore irrational and unreasonable, having regard to the evidence.
The next step for the court was to decide whether to refer the matter back to the bargaining council for a rehearing of the case before a new arbitrator, or whether to substitute the arbitrator’s award with a finding by the court. The court does not usually substitute the arbitrator’s award with its own decision. In this case however, the court was of the view that if the case were to be referred back to be heard before another arbitrator, the parties would simply canvass the same grounds as appear in the transcript of the arbitration hearing and that would be unnecessary.
In the result, the court ordered that the employee be reinstated, without loss of income.
Rudi Kuhn
Labour law attorney,