Employers are often faced with difficult positions where the facts surrounding an incident points to the guilt of an employee but there seems to be no direct evidence. The burden of proof in labour law is that an employee can be found guilty if his guilt is proved on a balance of probabilities. This is, however, a lesser burden of proof as in criminal proceedings. Circumstantial evidence is admissible in hearings and is often relied on to prove the guilt of an employee.
One needs to understand what circumstantial evidence is before we can consider if a person can be found guilty on a balance of probabilities. Circumstantial evidence can be defined as evidence where there are no direct assertions about a fact in dispute. However, there may be no direct assertion, circumstantial evidence is in no way less useful or reliable than direct evidence.
An example of circumstantial evidence will be where an employee steals money from a safe and his fingerprint is found on the safe. In such an instance, the circumstantial evidence will be compelling enough to find an employee guilty on a balance of probabilities. Circumstantial evidence will not always be this compelling and should be evaluated with a measure of caution.
Circumstantial evidence should not be viewed in isolation, but all the facts should be viewed as a whole to determine if there is a chain of evidence from which an inference can be made, and an employee is found guilty.
In a recent case it has been stated by a commissioner that “Something will be proved in circumstantial evidence when:
- the inference to be drawn is consistent with all the facts proved, and
- the inference to be drawn is the most plausible inference.”
The above mentioned-case confirms that there must be a logical inference that can be drawn with the facts in front of the chairperson and that the inference should be the most plausible inference. Should such inference exist, an employee may be found guilty based on circumstantial evidence.
Should there be more than one inference that is logical and plausible, it will not be possible to find an employee guilty on a balance of probabilities. Caution must always be applied when evaluating the evidential weight of circumstantial evidence. Such evidence must be evaluated from an objective point of view to ensure that there are no other logical and plausible inferences that can be drawn.
In short, one needs to be careful in determining what inference can be drawn from a set of facts and ensure that the inference drawn should be the most logical and plausible inference. Speculation is not an inference as it is not based on facts and will not bare any evidential weight.
Circumstantial evidence proves a fact indirectly and such evidence is admissible if tendered to prove a relevant fact. An inference should only be drawn if it is consistent with the proven facts and is the most probable inference, which may be drawn from the facts.
It is always advisable, if an employer is unsure, to consult an objective party about the set of facts in dispute to determine what inferences can be drawn and not to look at a set of facts just from a subjective point of view.
Once an employer understands how to evaluate circumstantial evidence, it will become of great value to an employer.
Should you require any Labour assistance, please contact your SEESA Office alternatively leave your contact details on our website at www.seesa.co.za
ABOUT THE AUTHOR
Daniel Brandson obtained his Bachelor of Laws at the University of the Free State in 2016. He thereafter completed his articles and was admitted as an Attorney of the High Court of South Africa. He is currently appointed as a Legal Advisor at SEESA Labour in Upington.