Any and all evidence that is placed before either a disciplinary hearing or an arbitration must be taken into consideration.
In the matter of City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (19 August 2019) the Labour Court emphasised the necessity to heed circumstantial evidence and to draw the necessary inferences based on that evidence.
The applicant (an employee by the name of Banda) was dismissed when he was found guilty of defrauding the municipality. The fraudulent transactions consisted of closing certain customer’s municipal rates debtor accounts and creating new accounts for them thereby extinguishing the debt and causing the municipality a loss of approximately R168 000.00.
The arbitrator was not convinced that the employee was correctly found guilty of working in concert with other employees to defraud the municipality, and inter alia advanced the following reasons for his finding that the dismissal was unfair:
- The evidence against the applicant was circumstantial and could therefore be disregarded;
- The fact that two other employees had resigned when they were confronted by the investigator, didn’t make the applicant guilty;
- The fact that the applicant contacted another employee by the name of Makoka to obtain the credentials of someone who was not on duty did not mean that he did so with an ulterior motive. Rather than accept that these credentials were used to commit the fraud, the arbitrator accepted the applicant’s version that he wanted the said contact details because he supposedly had romantic designs on the female in question;
- The applicant disputed that he had made a confession implicating himself during the investigation. As he did not make this confession in the form of a written statement, it came down to the employer’s version and the investigators evidence on the one hand as opposed to the applicant’s denial on the other. The arbitrator found that the employer could not provide any evidence to corroborate the investigator’s evidence in this regard. Consequently the arbitrator accepted the applicant’s version that he had not made such a confession.
The court held that the arbitrator had reached a conclusion which no reasonable arbitrator could have arrived at given the evidence before him.
In a detailed analysis of the evidence the court held, inter alia, that
- While much of the evidence was circumstantial this did not mean that this evidence “could not be compelling” [8];
- The arbitrator ignored material facts such as that the employee had received the necessary training and therefore not only knew how to open and close the accounts from which the municipality was defrauded, but also used the credentials he had obtained from Makoka while the person (whose credentials were used) was not at work. The arbitrator further ignored the email trail taken from the employee’s computer which was direct evidence of his involvement. The court commented as follows:
[10] Even more remarkably, the arbitrator ignored the utterly incredible evidence of Banda that he was aware of the emails which were sent in his name but that even though he claims not to have sent them, it did not alarm him that his email was being abused by an unknown third party in this way.
- The arbitrator improperly disregarded the investigator’s evidence that the employee had made a confession which provided information that implicated two other employees. Those employees resigned when they were confronted with the information provided by him, and therefore
“the arbitrator completely ignored the corroboratory evidence that other persons involved could not have been identified without Banda providing that information” [9].
The court thereafter held that in the event that the arbitrator had
[12] (…) dealt with the inconvenient evidence he ignored he would have been compelled to conclude that the only reasonable inference to draw was that Banda was guilty as charged
This judgment once again emphasises that circumstantial evidence cannot be brushed aside on the basis that it does not constitute direct or factual evidence.
If the arbitrator had had any regard to the circumstantial evidence and had he drawn the most readily apparent and acceptable inference in the circumstances, he would have found that the employee was guilty as alleged.
In summary the court emphasised how important it is to analyse and evaluate circumstantial evidence, and to draw inferences from that evidence.
