Section 192 (1) of the Labour Relations Act 66 of 1995 (LRA), states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and only then must an employer prove that the dismissal was fair. This is particularly important when an employee alleges that he was dismissed, but the employer disputes the claim.

Therefore, Section 192 of the LRA places the onus to prove the existence of a dismissal on the employee. This effectively means that the employee will start the arbitration proceedings by presenting evidence in the form of either oral testimony or documentary evidence, or both.

The employee needs to prove the existence of a dismissal on a balance of probabilities, which is the standard of proof. This means that the employee needs to persuade the commissioner that their version is more probable than that of the employer for him to be successful in proving that he was dismissed. In practice, it usually ends up being the word of the employee against the word of the employer without any further testimony or evidence to assist them in tipping the scales in their favour. The commissioner then needs to decide whether the applicant discharged the onus of proving the existence of the dismissal on a balance of probabilities.

In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others [2003] (1) SA 11 (SCA), it was held that where a commissioner is faced with two conflicting versions before him, the commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case. Therefore, the arbitrator should resort to credibility where the possibilities fail to point to which version embraces the truth more.

When deciding on the veracity of the witness, the following factors will be looked at:-

  1. The witness’s candour and demeanour in the witness box;
  2. The witness’s bias, latent and blatant;
  3. Internal contradictions in the witness’s evidence;
  4. External contradictions to what was pleaded or put on the witness’s behalf;
  5. The probability or improbability of particular aspects of the witness’s version;
  6. The calibre and cogency of the witness’s performance compared to that of other witnesses testifying about the same incident or events.

In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), it was held that the credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’s evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted and that therefore the other version is false and may be rejected with safety.

If the version of both parties is equally persuasive, the party bearing the onus will not be successful. In Cooper and Another v Merchant Trade Finance Ltd [2000] (3) SA 1009 (SCA), the court held that if the facts permit more than one inference, the most probable inference should be selected. If this favours the party on whom the onus rests, he will be entitled to relief. If, on the other hand, an inference in favour of both parties is equally possible, the party who bears the onus will not be entitled to relief.

Therefore, it would be in the best interest of both parties to ensure that they have sufficient evidence to prove their case on a balance of probabilities but to further make sure that any witnesses called to testify in support of their case provide credible testimony in support of their case.

Article by: Ilze Erasmus
Dispute Resolution Official – Gqeberha