There are various forms of evidence that can be used at the CCMA or Bargaining Councils to prove a case.  The best evidence, of course, would be direct evidence linking an employee to the commission of an offence, for example, closed-circuit television (CCTV) footage of an employee helping themselves to money from the cash register.

As we all know, workplace misconduct is never really that easy to prove.  The courts and the labour dispute forums in South Africa have permitted the use of circumstantial evidence to prove that an act, omission or offence took place.  In contrast to direct evidence, circumstantial evidence relies on drawing inferences from proven facts.  The Appellate Division in 1939 commented that “the inference sought to be drawn must be consistent with all the proved facts.” (R v Blom 1939 AD)

To paint a clearer picture of circumstantial evidence, please consider the following example:
Tom and Tim are the only employees at a popular corner café.  At all times, only Tom and Tim have access to the staff room at the back of the café, which is secured under lock and key.  On a particular day, Tom stored his laptop in the staff room, locked the door and went on lunch.  When he returned to work, he discovered that although the staff room was locked, his laptop was now missing.  Tom noticed that there was no damage to the door lock and the windows.

Tom viewed the CCTV footage and observed that Tim entered the staff room during the lunch break and exited the staff room by locking the door behind him.  Tim was also observed walking away in a peculiar manner holding something under his jacket and walking almost hunched over.

Although there is no direct evidence that shows Tim taking the laptop, the only reasonable inference from the facts is that Tim took the laptop.  Having this evidence, the employer convened a disciplinary hearing and dismissed Tim on the charge of dishonesty.  Tim, aggrieved by this, approaches the CCMA for arbitration.  At the CCMA, the employer must prove that from the facts outlined above, the only reasonable inference to be drawn was that Tim was responsible for taking the laptop.

Even though circumstantial evidence is admissible at the CCMA, there are rigorous standards that must be adhered to before such evidence is accepted.  The employer must prove all the circumstantial facts of the case.  In Tim’s case, the employer must prove that Tom and Tim are, in fact, the only employees that have access to the staff room and a maintenance contractor, for example, does not have a key to the staff room.  The employer must also prove that Tom did, in fact, place his laptop in the staff room.  It is when these objective circumstantial facts are proved that a Commissioner or Judge can conclude that the only reasonable inference to be drawn is that Tim took the laptop.

As eloquently quoted by Sir Arthur Conan Doyle in Sherlock Holmes: “When you have eliminated the impossible, whatever remains however improbable must be the truth.”
Therefore, an employer cannot simply rely on his or her own inferences about a case. The surrounding facts must be well established to support a case based on circumstantial evidence.

Article by: Shakti Jainarain
Senior Dispute Resolution Official – Durban