Many employers have heard the phrase “there is insufficient evidence to find guilty” during disciplinary hearings. This is an unfortunate reality for employers, and unfortunately, this has led some employers to feel they would rather ignore a matter if, at face value, it appears to be a situation where one employee is stating one version of events and another employee the polar opposite which is the “he said she said” scenario.
In previous articles, the risk of not investigating employee claims, especially claims of discrimination (racial discrimination, sexual harassment/gender discrimination etc.), has been highlighted. The articles show the employer’s duty to investigate and appropriately act on any allegation of discrimination.
But what about those cases where one person is making a claim against another where there are no witnesses? The court in Shoprite Checkers (Pty) Ltd v JL dealt with this situation, and the court remarked that this is a very common occurrence, especially in sexual harassment cases. The following methods were used by the commissioner and also the court to eventually find the offending manager guilty, despite the company claiming there was not sufficient evidence:
- Polygraph testing;
- The motive of the employee claiming discrimination;
- The credibility of the two parties as witnesses;
- Reliability of the facts presented by each party;
- Circumstantial evidence surrounding the alleged incident may be used to distinguish which party is more likely, to tell the truth.
Cases of single witness only, especially sexual harassment, can quickly get complicated. It is, therefore, of the utmost importance to involve a trained advisor. The CCMA or Labour Court can still keep an employer liable, even if an investigation was done, if it can be shown the employer’s investigation was flawed.
Need more information on the process from the grievance stage to a disciplinary hearing? Contact your nearest SEESA Labour legal advisor. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Andries Lerm is a senior Legal Advisor at the SEESA Cape Town branch. He has an Honours Degree in Employment Relations (Industrial Relations) from the North West University (Potchefstroom) and an LLB from the University of South Africa.
Resources:
- Shoprite Checkers (Pty) Ltd v JL and Others (C886/17; C627/2018) [2021] ZALCCT 95; (2022) 43 ILJ 903 (LC) (10 December 2021).