Contact Serr Synergy Have a consultant call me

Important factors to consider when faced with two conflicting versions at an arbitration

On numerous occasions during an arbitration proceeding a commissioner may be faced with two competing or conflicting versions from either party which must be weighed up on a balance of probabilities. 

Conflicting versions at an arbitration

In the recent Labour Appeal Court (LAC) case of Department of Health, KZN v PSA (DA 4/15) heard on 20 March 2018, the commissioner was faced with two conflicting and very interesting versions as to whether two employees had handed over a patient or, alternatively, whether the employees had left the patient in an ambulance and gone home. A further contradictory version pertained to whether one of the employees had attended to the patient while en route to their destination or whether both employees had sat in the front part of the ambulance leaving the patient unattended.

The LAC had relied heavily on the case of Stellenbosch Farmer’s Winery Group Ltd and Another v Martell et Cie and Others, 2003, (1) SA 11 (SCA) and held that the technique generally employed by the courts in resolving factual disputes of this nature may conveniently be summarised as follows.

To reach a conclusion on the disputed issues, a court must make findings on–

A – the credibility of the various factual witnesses;

B – the reliability of the witnesses; and

C – the probabilities.

In terms of point (A) above, the court’s findings on the credibility of a particular witness will depend on its impression regarding the veracity of the witness. This, in turn, will depend on the following subsidiary factors, not necessarily in order of importance:

  • The witness’s candour and demeanour in the witness box;
  • The witness’s bias, latent and blatant;
  • Internal contradictions in the witness’s evidence;
  • External contradictions to what was pleaded or put on the witness’s behalf;
  • The probability or improbability of particular aspects of the witness’s version;
  • The calibre and cogency of the witness’s performance compared to that of other witnesses testifying about the same incident or events.

In terms of point (B) above, a witness’s reliability will, apart from the factors mentioned under point (A)(i) to (vi), depend on, but not be limited to, the following:

  • The opportunities the witness had to experience or observe the event in question; and
  • The quality, integrity and independence of the witness’s recollection of the incident or event.

In terms of point (C), this necessitates an analysis and evaluation of the probability or improbability of each party’s version of each of the disputed issues.

In light of the assessment of points (A), (B) and (C) the court (commissioner) will then, as a final step, determine whether the party burdened with the onus of proof succeeded in discharging it.

The LAC concluded that the commissioner had taken into account all the relevant factors in concluding that the sanction of dismissal imposed by the employer was fair. The commissioner was alive to what was expected of him. He had considered the versions of the respective witnesses and, using the formulae and factors under points A, B and C, gave detailed reasons why he preferred the version of the employer’s witnesses over that of the employee’s witnesses.

We at SERR Synergy guide employers to prepare for an arbitration using these fundamental techniques that can potentially enhance an employer’s prospects of success. Our services include guiding an employer and its witnesses to be mindful, aware and fully cognisant of the factors that a commissioner must take into account when faced with two competing or conflicting versions at an arbitration.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.

image_pdfimage_print