Ever wondered why the burden of proof shifts between the employer and the employee during dismissal arbitrations?
Section 192 of the Labour Relations Act No 66 of 1995 (as amended) stipulates the following:
1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal;
2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
Examples where the burden of proof rests with the employee:
1) The employee alleges that he/she was dismissed by the employer, whereas the employee resigned;
2) The employee alleges that he/she was dismissed by the employer, however, the employee signed a fixed term contract which came to an end;
3) The employee alleges that he/she was dismissed by the employer, but the employee deserted and did not report for duty.
In the case where the onus rests on the employee to prove that he/she was dismissed, he/she must start with the arbitration process by leading witnesses, or in the absence of any witnesses, testify himself/herself.
The employee must therefore first establish the existence of a dismissal. If this is successfully established, the employer must prove that the dismissal was procedurally and substantively fair.
In the case where a disciplinary hearing was held, and it resulted in dismissal, the employer will confirm that the employee was in fact dismissed. The burden of proof will in this instance rest with the employer to prove that the dismissal was fair and therefore the employer will start with leading witnesses in an arbitration hearing.
Where the employer disputes dismissal, the onus will rest on the employee to prove that he/she was dismissed
Article by: Marteleen Lindemann
Dispute Resolution Official – Klerksdorp