It is common knowledge that a person’s character can be described as the traits of a person which may make them distinct from another person. This is considered by doing an assessment based on personal opinions, general reputation and the deposition of the person concerned.
Character evidence can be defined as “any testimony or document submitted to prove that a person acted in a particular way on a particular occasion based on the character or disposition of that person“.
In certain instances, whether during a disciplinary enquiry or an arbitration process, evidence can be lead about a person’s character, which ultimately affects the credibility of the evidence they present. Not all character evidence that is tendered during the abovementioned proceedings is automatically admissible and of relevance and will still need to be determined. In general, character evidence is normally irrelevant and, therefore, inadmissible in a court of law. However, there is no statutory rule that makes the same inadmissible during arbitration proceedings.
The mere fact that character evidence is logically relevant to an issue will not render it admissible. Therefore, the assertion lies in the relevance of character evidence and should only be considered when an applicant or witness testify about the good nature of their character. The respondent can dispute the same by presenting evidence to the contrary.
An example of character evidence would be, for example, an applicant who claims an unfair dismissal for a first offence. During evidence led by the respondent, it comes to light that the applicant is a habitual offender. Such ‘character evidence’ will be relevant and considered by a commissioner in an arbitration process.
In the review application of NUM obo Winston Busiswe Manganye V Commission For Conciliation, Mediation & Arbitration, Matthew Ramotshila N.O. and Eskom Holdings (Pty) Ltd (Jr 793/2007), the applicant wished to review and set aside the arbitration award whereby the commissioner ruled that the dismissal was procedurally and substantively fair.
The applicant was dismissed due to misconduct that occurred on several occasions.
The applicant’s witnesses testified about his character, however “the commissioner largely discounted the character evidence of the applicant’s witnesses as a proper counterweight to the evidence of the employer’s witnesses, because the applicant’s witnesses’ evidence did not challenge the evidence of the employer’s witnesses relating specifically to the charges.”
The court stated that “the applicant’s complaint that the commissioner ignored the evidence of his witnesses, is largely met by the commissioner’s observation that much of their evidence was evidence of the applicant’s good character or previous good record as an effective investigator with integrity. Their testimony did not make any serious inroads into the evidence relating to the facts of the applicant’s alleged misconduct, provided by the respondent’s witnesses.”
It should be noted that once an employee testifies about their character, the testimony must outweigh the evidence that the employer is relying on. If the character evidence does not outweigh the other evidence, the evidence can be discounted by the commissioner. Therefore, the onus is on the employee to prove that his character evidence is more relevant than the other evidence, for example, documentary evidence.
It is thus highly advisable to refrain from using character evidence in an attempt to persuade the commissioner to rule in a party’s favour. The parties should only use this evidence to prove the contrary once the applicant testifies about the nature of his character.
Article by: Anjone Muller
Dispute Resolution Official – Pretoria