Ever came across a situation where an employee who is arrested by the police on criminal charges (say, for fraud) is prosecuted but acquitted by the courts?
More often than not, the employee comes back to the workplace with evidence of their acquittal and demands their job back. What would you do when faced with such a scenario?
The focus of this week’s article is on the relationship between the standard of proof required in criminal cases and that required in company disciplinary procedures.
According to labour consultant, George Makings, criminal proceedings and disciplinary (civil) proceedings are “two roads that never cross”. I will explain why this is so.
An employee may be found not guilty by the criminal court but can still be charged and convicted by the employer for the same misconduct in terms of company procedures.
In Moahlodi v East Rand Gold and Uranium Company (1988), the court remarked that, “An employer is not bound by the criminal standard.
He may dismiss an employee should he have reason to believe on a balance of probabilities that an offence has been committed.”
The court went on to say that it “cannot find fault with an employer who has decided to hold an enquiry after an employee has been acquitted in a criminal court, for lack of sufficient evidence.
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“A criminal court seeks to protect society against wrongdoers, but in the case of an employment relationship, the employer aims to protect business interests and for this reason he is entitled to take a different view of the employee’s conduct from that adopted by a judge or magistrate.”
The standard of proof required in disciplinary (civil) cases is called “balance of probabilities” and that used in criminal cases is called “beyond reasonable doubt”.
Balance of probabilities means that on the basis of evidence submitted, it is more likely than not that the employee is guilty.
It is not necessary to prove 100% guilt — my view is that 51% or more evidence is sufficient for the chairperson or presiding officer, after having examined evidence from both sides, to be able to say the offender is probably guilty or probably innocent. If facts were to be established with scientific precision in disciplinary hearings, then very few cases would ever be proved!
In a criminal court however a charge must be proved beyond reasonable doubt. In other words you have to establish 100% guilt or something closer to that, to prove that an offence did actually take place. The judge must be able to reach the point where he can say that he has no reasonable doubt as to guilt. Three examples of cases decided by the courts will assist in illustrating the difference between the two standards of proof.
In Early Bird Farms (Private) Ltd v Mlambo (1997), Mlambo was dismissed for having been found loitering on company premises without good reason.
Later that day, when the employer’s security guard searched the workshop, he discovered boxes containing about 80 raw chickens stashed in black plastic bags.
The natural inference drawn by the employer was that Mlambo had placed the chickens in the boxes with the intention of removing them from the premises.
He was dismissed. The Labour Court ruled the employee’s dismissal unfair because the employer could not find with “absolute certainty” that the employee had been responsible for the attempted removal of the chickens.
The Labour Appeal Court found that to be a misdirection, as it was not necessary for the employer to prove with “absolute certainty” that the employee had committed the alleged misconduct.
Similarly, in Zesa v Dera (1998), Dera was dismissed after being caught driving a vehicle with stolen tyres. Aggrieved, he appealed to the Labour Tribunal (now Labour Court) which decided in his favour, arguing that Zesa had failed to prove theft beyond reasonable doubt.
Zesa appealed to the Supreme Court against the decision. The Supreme Court allowed the company’s appeal on the grounds that the level of proof required in company hearings was of a lower level than that required in criminal courts.
In his judgement, Justice McNally noted that due to the seriousness of a criminal conviction, which could result in a death sentence or long-term imprisonment, proof beyond reasonable doubt is required.
On the contrary, a civil case is merely a dispute between individuals, whose consequences are not detrimental to society as a whole and whose resolution can be done by balancing competing interests.
This was the same argument in later judgements by the Supreme Court in Marine Centre (Private) Limited v O’brian Chakwizira (2005) and in Zimbabwe Financial Holdings v Mafunga (2005). In the Mafunga case, a bank employee was dismissed for fraud.
The Labour Court ordered the bank to reinstate him on the basis that there was insufficient evidence to find him guilty. The bank appealed to the Supreme Court.
The Supreme Court criticised the Labour Court judgement and found out that Zimbabwe Financial Holdings had proved its case on a balance of probabilities. The employee’s dismissal was confirmed.
I have noted that in most cases, the lower courts in Zimbabwe and elsewhere seem to misinterpret the difference between criminal and civil proceedings in regard to the standard of proof required in each, leading to errors of judgement, as in the Dera and Mafunga cases cited above.
However, the higher courts have not hesitated to overturn such judgements. It is refreshing for employers to know that they can seek recourse from the Supreme Court on a point of law if the lower courts misdirect themselves.
I believe the reason for requiring a lower level of proof in company disciplinary cases is that company managers have little or no expertise in labour law.
The requirement to prove cases on a beyond-reasonable-doubt basis would be unrealistic in such a scenario.
For instance, the level of investigative skills possessed by the police in handling criminal cases cannot be expected from managers. Perhaps this point was made more succinct in the case of Malimanjani v CABS (SC 47/2007).
The Supreme Court made an interesting point — that it would be a travesty of justice to restrictively interpret the provisions of codes of conduct drafted and administered by laymen.
Lest I be misunderstood: I am not in any way implying that it is an easy task to prove guilt in a company disciplinary hearing.
Far from it! In fact, where possible, it would be advisable to prove cases on a beyond-reasonable-basis so that evidence can withstand the scrutiny of any court.
A hearing chairperson needs to carefully analyse the evidence available, sum up the major points and draw conclusions from those facts before coming to a finding on the balance of probabilities.
The question of how much evidence will depend on the merits of each case. It is prudent that all findings are reduced to writing.
This will help to clarify facts and could be useful in subsequent proceedings, bearing in mind that each disciplinary case has the potential to end up at the Supreme Court.
Isaac Mazanhi is a labour analyst writing in his own capacity. E-mail: imazanhi@gmail.com or cell: 0773 063 653
