Similar fact evidence in arbitration proceedings

28 Nov 2019

The question as to what constitutes hearsay evidence and when it is admissible in arbitration proceedings in the CCMA or a bargaining council has been the subject of consideration in numerous arbitration awards and court decisions. The question whether “similar fact” evidence is admissible has received less attention. The admissibility of similar fact evidence usually arises in the context of criminal prosecutions but can also arise in the context of arbitration proceedings.

Similar fact evidence can be described as

… facts that are directed at showing that a party to the proceedings … has behaved on other occasions in the same way as he is alleged to have behaved in the circumstances presently being considered by the court”. (See Schwikkard and van der Merwe Principles of Evidence 2ed at 66 and the decisions referred to there.)

If the State is trying to prove that a person committed the criminal offence of fraud involving a specific modus operandi, the State may try to lead evidence to show that the accused used this modus operandi in the past and that this is evidence of the fact that he is guilty of the later offence. This evidence would be similar fact evidence. At least in criminal prosecutions the courts have been wary of admitting this type of evidence because the prejudice to the accused may outweigh the probative value of the evidence. The test is whether there is a link between the conduct which is being complained of and the previous conduct. Whether there is such a link will depend on the facts but the courts have held that similar fact evidence should not be admitted as evidence if the purpose of the evidence is to show that the accused has a “propensity” to commit the criminal acts alleged to have been committed.

The utilisation of similar fact evidence in the context of arbitration proceedings was considered in Western Cape Government: Department of Education v Adv Hanekom N.O & Others. The employee in this matter was employed by the Department of Education (“the Department”) as a general assistant at a secondary school in George. Following allegations that the employee had removed gas burners from the school premises without permission, he was charged with theft, or alternatively, improper conduct on the basis that he removed gas burners from the school premises without the necessary permission of his supervisor with the intention of permanently depriving the school of the gas burners.

Following a disciplinary hearing, the employee was found guilty and dismissed.

When this matter came before the bargaining council, evidence was led by the Acting Principal to the effect that, in terms of the school’s policy, no-one could remove property belonging to the school without permission. In addition, the Acting Principal testified that dismissal was an appropriate sanction as the employee had previously been issued with a final written warning a few months prior to the incident involving the gas burners and suspended for two months without remuneration for the theft of food from the school.

The commissioner found that this similar fact evidence placed before him was not admissible as evidence. This was because it merely showed a tendency or propensity to commit theft.

On review to the Labour Court, Conradie AJ considered the commissioner’s approach to the similar fact evidence led at the arbitration proceedings. He recognised that similar fact evidence is usually regarded as inadmissible, primarily because its potential prejudice to the employee exceeds its probative value; similar fact evidence would only be admissible if its probative value exceeded its prejudicial effect. This would be the case if the similar fact evidence was logically and legally relevant. He found that, in this case, the previous disciplinary transgression should have been a material consideration in the arbitrator’s assessment of the appropriate sanction.

Conradie AJ also referred to the Labour Appeal Court’s decision in Gaga v Anglo Platinum Ltd & Others where the following was stated insofar as similar fact evidence is concerned:-

As regards the commissioner’s ruling in respect of the similar fact evidence, that too was a reviewable irregularity. The exclusion of evidence that ought to be admitted will be either misconduct in relation to the duties of a commissioner or a gross irregularity in the conduct of the arbitration proceedings, as contemplated in section 145(2)(a) of the LRA. In the context of an unfair dismissal arbitration, similar fact evidence of a pattern of behaviour or serial misconduct will often be relevant to both the probabilities of the conduct having been committed and the appropriateness of dismissal as a sanction. It may be more so where the alleged misconduct is characterised by an element of impulsivity…. There ordinarily would be a sufficient link or nexus between the earlier similar misconduct (if proved) and the disputed facts pertaining to a method of commission, or a pattern possibly revealed, to make that evidence exceptionally admissible. Given the nature of the evidence which the first respondent proposed to lead, and the fact that the allegations would have been known to the appellant, it would not have been unfair or oppressive to have allowed the evidence because the appellant had adequate notice and was in a position to deal with it”.

Conradie AJ accordingly found that, had the Commissioner properly dealt with the undisputed evidence that before the removal of the burners the employee had been issued with a final written warning, he would not have come to the conclusion that dismissal was inappropriate. The award was reviewed and set aside and substituted with an order that the employee’s dismissal had been fair.

The Department of Education decision demonstrates that the Labour Court is inclined to accept that similar fact evidence may, in certain instances, be admissible in determining the guilt of an employee and the appropriateness of the sanction of dismissal in future misconduct proceedings.

It is, however, important to bear in mind that, where an employer seeks to lead similar fact evidence, it is important to illustrate to a commissioner that the probative value of the similar fact evidence outweighs any prejudice to the accused employee. The mere fact that an employee has misconducted himself in a similar manner in the past, even where that prior misconduct is proven and sanctioned, does not necessarily mean that the employee is guilty of similar misconduct in any future proceedings. Each case must be judged on its own merits to ensure that employees’ dismissals are not rendered substantively unfair.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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