An example of how inferences should be drawn in misconduct cases was demonstrated in two recent judgements regarding the theft of sugar from employers. Some assumptions could not be proven in one and were obvious in the other.
Various forms of evidence 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. 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.
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.
In Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (PR270/22) [2024] ZALCPE 37 (27 August 2024) the inference was consistent with the proven facts and was the only reasonable inference capable of being drawn.
The employee was employed as a van assistant by the applicant’s employer. He had an unblemished record of employment. After the company experienced the loss of a 12,5kg bag of sugar, it investigated the incident and interviewed employees. The outcome of the investigation was a prima facie case of misconduct by the accused and other employees. The accused was charged on a sole count of misappropriation of the sugar and ultimately summarily dismissed.
The employee referred an unfair dismissal dispute to the CCMA. The commissioner found that the applicant bore an onus of proof and never discharged it. Crucially, she determined that the applicant could not prove that the employee was responsible for the sugar’s loss. She therefore concluded in her award that the employee’s dismissal was substantively unfair. As relief, she awarded the employee’s reinstatement, which was not retrospectively operative.
On review, the labour court noted that the employee’s representative from his union never challenged the applicant’s evidence that goods would be off-loaded from the van’s loading bay one-by-one and in delivery episodes, i.e. the bags of dough mix would be off-loaded at various sites along the delivery route. Therefore, the applicant asserted that the employee, who would push the trolley with the items just off-loaded from the van to the customer’s goods-receiving area, would have noticed the bag of sugar once the wall of dough mix had lowered sufficiently. This inference was consistent with the proven facts and was the only reasonable inference capable of being drawn. The commissioner’s inferential reasoning was revealed when she stated as “fact” that the employee may not have noticed the sugar being off-loaded as he “might” have been occupied elsewhere. There was no evidence before her to support that finding. This inferential reasoning by her was not a reasonable one which was consistent with the proven facts. The award was reviewed and set aside and substituted with an order that the dismissal of the employee was substantively fair.
In Shoprite Checkers (Pty) Ltd v Makaloi and Others (PR98/23) [2024] ZALCPE 36 (26 August 2024) acting judge DA Smith, who oversaw the case, noted that there was no direct evidence to confirm the origin of sugar allegedly stolen by the accused. Theft was an inference which management came to unreasonably.
Godfrey Makaloi, who had been a baker at the supermarket since 1991, was terminated for misconduct after being accused of consuming company stock. Makaloi was seen on CCTV footage adding sugar to a hot drink in an area not designated for food or drink consumption. The company, which had been experiencing sugar losses in its bakery, concluded that the sugar used by Makaloi came from a 25kg canister intended for baking, thus reducing their stock. Although Makaloi admitted to stirring his drink, he denied that the sugar came from the bakery’s large bag used for customer goods.
Judge Smith pointed out that the video footage did not reveal the source of the sugar. The analysis of the evidence was neither unreasonable nor did it produce an unreasonable outcome. The judge also noted that there was no evidence of Makaloi drinking from the mug, so consumption could not be proven. Regarding the second charge of not following staff buying procedures, a witness testified that she had provided Makaloi with his personal sugar from the cash office department, and her testimony went unchallenged. This employee had kept their provision of sugar inside the store within the bakery area, where the employer’s own large canister of sugar was kept. It was impossible to determine the source of the sugar used in the employee’s drink. Judge Smith concluded that Shoprite Checkers failed to prove its case, dismissed the application, and upheld the CCMA’s decision.
The key takeaway is not to mistake an assumption for a fact. The gathering of evidence is critical, and employers must ensure that they have appropriate means to gather photographic, video, and other evidence. The allegations and disciplinary proceedings must also be carefully considered.
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