Evidence is frequently confused with proof. Disciplinary and arbitration hearings are concerned, in essence with establishing whether or not an employee is “probably guilty” of the allegation(s) being leveled against them. It is only once, and if, such “Probable guilt” is established that the selection of an appropriate sanction becomes relevant and necessary.
Guilty or not guilty verdicts are determined on whether there is enough proof to find the employee probable guilty. This notion of probable guilt is determined by assessing the evidence led and the so-called persuasive, or otherwise, nature of the argument. It follows, therefore, that for an employee to be found (probable) guilty, the sum of the evidence led and argument presented, must lead a reasonable-minded person to infer “probable guilt”. That’s how the justice system works in the adjudication of labour disputes (such as alleged unfair dismissal cases) and indeed civil and criminal cases in general. The notions of evidence and proof are key to the fair adjudication of labour disputes. In short, evidence consist of oral statements (oral evidence), documents (documentary evidence) and objects (real evidence).
Some of these basic principles are worth visiting briefly. In the main, hearsay evidence is inadmissible, be it via third parties or documents. There are exceptions which, on occasion, permit the admission of hearsay evidence. Oral, real and documentary evidence each have there own rules and guiding principles. The leading of oral, for example, by way of witnesses is crucial. Evidence-in-chief, cross-examination and re-examination are the corner-stone of oral evidence, with each having a specific function and characteristics.
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