The party bearing the onus in arbitration proceedings before the CCMA or a Bargaining Council must prove their version on a balance of probabilities. This simply means that their version must be more probable than the other party’s version to succeed (also known as discharging the onus).
What is then to be done when a Commissioner is confronted with two mutually destructive versions? There is no stale mate, does this then mean that the party bearing the onus must fail?
In the matter of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others (2015) 36 ILJ 2070 (LC) the Labour Court deliberated exactly on this point. The matter was set for review after the CCMA Commissioner, on being faced with two conflicting versions, took the view that there was no basis on which to discredit either of the versions, that the evidence was therefore evenly balanced, and that the Respondent had failed to discharge the onus.
On review, the Court set aside the award and found that the Commissioner had applied the onus without first considering the probabilities and the credibility of the respective parties’ witnesses.
The court emphasised the duty of commissioners to consider the credibility of witnesses, as well as the probability and improbability of the versions of the evidence before them. When confronted with two conflicting versions, the discharge of the onus depends on a qualitative assessment of the evidence of the witnesses and which of the two versions are the more probable.
The question follows, how should Commissioners assess the quality of witness testimony? The Guidelines on Misconduct Arbitrations were published in this regard to guide Commissioners inter alia in assessing evidence.
The guideline proposes that the reliability of witness testimony should be determined by assessing the extent of the witness’s first-hand knowledge of the events, any interest or bias the witness may have, any contradictions and inconsistencies in the evidence, the corroboration by witnesses of the facts and the credibility of witnesses, including their demeanour when they give evidence.
It is therefore not only important that a case is presented in a manner that shows it to be more probable than that of your opponent (especially when carrying the onus of proof) but also to ensure that witnesses are reliable as this remains an important factor. If these considerations are met, you will be sure to tip the scale of balance of probabilities.
Article by: Rolien Velloen
Dispute Resolution Official – Gauteng