BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: email@example.com. Proof is evidence soundly supported by other relevant evidence. Regardless of the seriousness of an employee’s misconduct his/her dismissal will be found to be unfair if the employer is unable to provide at arbitration sound and relevant evidence that the employee was guilty of the offence for which he/she was dismissed. Proof of guilt is a factual and skilful exercise requiring:
- Testimony that is not contradictory
- Evidence that has been tested and cross-examined by the accused employee and, despite such a test, still holds water
- Documents that are validated and that clearly show up the employee’s misconduct
- Evidence that is corroborated by other evidence
- Testimony from credible witnesses
- Evidence derived from thorough and honest investigation.
- The presiding officer may not be properly trained to be able to understand what is and is not relevant.
- Lack of clarity of the evidence itself. For example, the witness giving the evidence may waffle so badly that it is difficult for even a trained presiding officer to recognise the relevance of the testimony.
- The evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant to a charge of poor performance it might not be irrelevant. That is, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.