Siyapambili

AN INTRODUCTION TO EVIDENCE - Andrew Levy

AN INTRODUCTION TO EVIDENCE

More frequently than not when an employer loses a case at the CCMA, it is because of a problem with evidence.  It is an area where, once again, employers make their life more difficult than it needs be, and often employees get away with murder, so to speak.

If you fail in properly collecting the evidence, or in evaluating or presenting it, this is little other than an ‘own goal’ for an employer, and ought not to occur.  Invariably, in my experience, cases that go wrong, especially in the CCMA, can all be traced back to one source of problem – evidence.  Remember, it is no good to say that you know so and so is stealing.  You have to prove it, or at least show in balance of probability that your version of events is more likely to be true than that of the employee.  There are definite rules which apply to evidence in hearings and arbitrations, and you need to know and understand them in order to work properly with evidence.  You cannot wing it, or make it up as you go along. 

The disciplinary process involves ensuring that the employee has a fair hearing, can challenge the evidence against him and lead his own evidence, although what should really be a simple and common sense process has been over formalised, abused, and proceduralised to the extent that it has now become a matter of great national concern.    It is to be hoped that common sense will soon prevail, but even when it does, the purpose of hearings of any sort will remain the same.  To get to the facts of the matter, and answer the question “What happened here?”  That is why hearings always turn on evidence.  In order to focus on your case, and sure it is a winner, you must answer two questions...........  What must I show the arbitrator to win this case, and how will I prove this.  If you can’t answer these two questions convincingly, your case is a poor one.

The rules of evidence are not unreasonable, nor are they difficult to adhere to. Time and patience are required to collect the evidence and to present it in a correct and fair way. In order to do this the employer will require an understanding both of the role of evidence in hearings and of the different types of evidence which may be presented.

The problem, however, is that we often jump to conclusions; don’t verify and check the facts, and don’t ensure that we have all the evidence necessary to prove the charge (or even to lay it in the first place). We then present what little evidence we have and hope for the best.

The purpose is to ensure that, when you lay a charge against an employee, that you have the proper evidence to do so, it has been correctly collected and prepared, and your decision to charge is based on evidentiary facts and not fiction, and that when you present a case in the CCMA, you have all your evidentiary ducks in a row, and to make sure that they quack when required.

A question often asked about hearings is”who has to prove what?”  In other words, does the accused (the employee) have to prove that he is innocent, or does the accuser (the company) have to prove that he is guilty?

In the South African system of law, we hold fast to the ‘presumption of innocence”.  An individual is considered to be innocent until proven otherwise, and the general rule of law is that he who alleges must prove.  Therefore, in most cases of misconduct, management will bear the”onus of proof”. 

This means that it will be the employer who will be required to put forward sufficient evidence to prove that the employee did commit an offence.  Presumption of innocence means that it is possible for the accused employee to say nothing at all during the entire hearing and still be found not guilty, if management were unable to provide the evidence to prove the charge to the satisfaction of the hearing chairperson.  However, if the employee does offer a version, then the burden of proof shifts to him or her.  It is now the employee’s responsibility to offer proof for his version of events, so that the two versions can be weighed in the balance and the probabilities be determined.

This is where employees so often go wrong.  They either make a bald denial, on which basis they will lose the case if the employer’s version is strong enough to pass the test of being credible enough to require a response (the so called prima facie case – which means at first sight the case is strong enough), or they start to lie.

Employees erroneously believe, and many employers also accept this as true, that once the employee states his version, the employer has to prove that this is not true.  This is not the case at all.  If the employee offers a version with no evidence at all, and the employer offers a credible version, then the employer will win – simple as that. 

What both of the parties don’t realise, is that the more the employee lies, the easier it becomes to sustain the dismissal on good evidence, since once the employee offers a version, he now has the onus to prove it, and the more he lies, the harder it becomes to sustain these fanciful stories.  So rather than get into a tailspin, and ending up trying to prove the improvable, the employer needs to take comfort in the strength of its case, and let the employee dig himself in deeper.

Written by: Andrew Levy - Labour Economist & Consultant from Andrew Levy Employment

Issued by: Marketing Specialist Celia Hugo

Email: ciciliah@expresssa.co.za www.expresspros.co.za

LABOUR LAW OVERHAUL

SEEING RED

By Carol Paton and Thebe Mabanga

Of all the items on the legislative calendar, the banning of labour brokers has become the most hotly contested issue. But it's not just about labour brokers. Carol Paton and Thebe Mabanga look at a bigger labour law overhaul that's coming and what it means for business, workers and the economy.

Rapists, slave traders and human traffickers - that's what labour brokers are being labelled in todays politically charged atmosphere where it's become fashionable to appear more radical than the next person.

In a competition to see who can shout the loudest, everyone from labour minister Membathisi Mdladlana to new director-general Jimmy Manyi and parliamentary committee chair Lumka Yengeni have sworn that by February next year labour brokers will be banned.

"The first general change to the law is that the employer must be defined" - Membathisi Mdladlana

It's been the kind of noise that many in business may be tempted to ignore. But the measures to regulate labour brokers (those offering temporary employment services) extend far beyond that R26bn industry. The labour market faces a fundamental overhaul. And, all employers and businesses across various sectors are in for a shock - not just labour brokers.

Both the Labour Relations Act (LRA) and the Employment Equity Act are set for significant changes in a re-examination of the labour market that will be the biggest since former president Thabo Mbeki's hard-fought attempt to relax labour regulation in 1999.

This time, though, the trend will be in a different direction. Loopholes are to be closed and regulation of the market tightened a fact that will spook both business people and investors who cite SA's labour market rigidity as a constraint to investment. This also counts against SA's competitiveness.

From the side of the brokers, backed by the opposition Democratic Alliance, there has been almost as much propaganda. They argue that about 10% of the SA workforce filled by broker employees will face destruction, and first-time job seekers will find it impossible to enter the market.

Richard Pike - A million jobs at risk

Richard Pike, CEO of listed labour broker Adcorp, warns that 1m jobs could be at risk. As an example, he cites the banning of labour brokers in Namibia where 30% of that country's contractors lost their jobs as a result. "For the minister to attack a legitimate industry worth US$325bn/year globally, and compare it to human trafficking, is simply a veneer to cover up failure to administer a more than adequate existing legislative framework."

However, a look at the detail of what is proposed in regulating brokers shows that the most likely economic effects will be that labour costs in general will rise as temporary employees win new rights. It will also become more difficult to fire people. But the destruction of jobs - all real and existing jobs in the economy - is a much less logical but likely outcome.

The department has not done a regulatory impact assessment of banning brokers. Parliamentary hearings allowed limited considered debate on the issue, since they were dominated by harrowing tales of exploitation, such as a tearful farm worker from Klapmuts who rides on the back of a truck on most mornings to work for R25/day with no paid leave.

But the FM is in possession of a discussion document from the labour department which is being used as a basis for new regulations. From this and the Nedlac discussions, we can chart some of the coming changes.

Neva Makgetla - Not so much that jobs will be lost

It begins with the issues around labour brokers. The ANC election manifesto promised the party would "introduce laws to regulate contract work, subcontracting and outsourcing, address the problem of labour broking and prohibit certain abusive practices". The department says its task is to interpret this mandate. While it is worth noting that the manifesto didn't propose a ban, the department is divided on whether a ban is either desirable or possible.

On the one side, there is labour law expert Paul Benjamin, drafter of the department's discussion document and the man charged with drafting the legislation. He writes that since SA has "permitted the operation of labour brokers since 1983, every restriction would have to be justified as not being unduly invasive of the rights of those operating in the sector".

In other words, he believes that a blanket ban would be unconstitutional. At best, what could be achieved, he writes, would be to exclude brokers from sectors where it would prove impossible to protect workers from abuse.

Lumka Yengeni - Brokers will be banned from next year

But Mdladlana, his department and Cosatu don't seem to be buying this argument. In an interview with the FM, the minister notes that "the same constitution says workers have a right to fair labour practices".

To his mind, the constitutional issue is far from settled. However, he is cautious about using the word ban as "it can be misleading. I would rather say exclude' in some sectors".

The department's manager responsible for labour relations, Thembinkosi Mkalipi, is wrestling with the problem. He says it is premature to speculate that a ban won't materialise as it may not be possible for a worker to enjoy full rights when employed by a labour broker.

A good example would be trade union rights. "The question you have to ask is whether the practice can be separated from the beast. Show me one labour broker, for example, that makes it possible for a worker to enjoy full freedom of association."

Cosatu believes separating the two is impossible. Mduduzi Mbongwe, Cosatu's representative in the Nedlac talks, says the existence of a third party to the employment contract will never be tolerated. Aside from abuses - such as disguising permanent employment as temporary - Mbongwe says that because brokers set contractual terms without involving workers and charge fees that represent money that could be going to workers, they should be banned.

"When you have a broker of any sort, that person always gets something," he says. "We believe the existence of labour brokers is contrary to the decent work agenda" - a principle of the International Labour Organisation (ILO) endorsed by the ANC in its manifesto.

What does that mean for employers in general? With the banning issue up in the air, there's lots of uncertainty. But whether labour brokers are ultimately banned or not, the loopholes in the law that have allowed them and those who use them to bypass labour rights are going to be tightened, says Mkalipi. This is where, for employers in general, it is time to sit up and take notice.

It is common cause that many labour brokers - defined as agents, who recruit, place, pay and discipline labour for a client - have taken advantage of the right to provide "temporary employment services" and "abused fixed-term and temporary contracts as a disguise for permanent employment".

Employees can find themselves working for the same client for years on end, performing the same tasks and working in the same workplace but accountable to and paid by a broker. As far as both the client and the broker are concerned, they are temporary employees and don't enjoy legal recourse when it comes to retrenchment or unfair dismissal.

Added to this is the reality that in addition to the large, corporate-style brokers that dominate the market (companies like Adcorp), broking at the lower end has been a trade plied by unscrupulous characters who operate out of a bakkie or a car boot, don't pay workers benefits and disappear overnight with their money.

For workers in these relationships, this has amounted to an obliteration of the gains of 1995, affecting levels of pay, benefits and job security. For Cosatu, the rise of informal work and labour broking has, besides making it difficult to defend their members, "had a direct impact on undermining trade union rights to collective bargaining", and diluted union membership and power.

Labour broking, which proliferated as an industry after the passing of the LRA in 1995, has partly been a response to employers wanting to circumvent legislative requirements. But it has also been a response to the way employment and workplaces have changed over the past decade, and the rise of what the ILO calls "atypical forms of employment" (see graph on page 38). Labour brokers have stepped into the gap to facilitate temporary or short-term opportunities, a fact the ILO agrees has helped the labour market function more efficiently.

John Botha, the COO of labour broking industry association the Confederation of Associations in the Private Employment Sector (Capes), says that without labour brokers, job seekers will need to return to the days of knocking on doors or queuing at gates.

In SA, statistics show that 30% of everyone in formal employment has an "atypical" contract or work arrangement.

Botha, who has been part of the discussions in Nedlac where he represents Business Unity SA, says the one point which all the parties agreed on was that reforms to the law would affect everyone.

"Any dispensation for labour brokers will apply equally to temporary workers employed elsewhere. There will be no separate dispensation for one set of temps and not another. So business needs to come on board and take note," says Botha.

The first general change to the law is that the employer must be defined, says Mdladlana. "There has got to be someone who takes responsibility for that worker."

The suggestion in Benjamin's paper is that a distinction be drawn between those who are genuine temps and those placed by a broker. Genuine temps, who work for several employers a year for short periods, are rightly seen as employees of the broker. But employees who work for a client in ongoing employment are not really employees of the broker, he says, and should always be seen as employees of the client.

It is a crucial distinction which all parties - even Cosatu - recognise as valid. Mbongwe, for instance, says Cosatu accepts the economic need for temporary workers on projects or at peak times. It objects, though, to these workers being employed by a labour broker.

ANC parliamentarians share this view and Yengeni says her main concern is "to remove the middle man" and allow an employee to enjoy a direct relationship with an employer.

The widespread interpretation by business that all temps would have to be converted to permanent employees at enormous cost and loss of employment appears more of a scare story than accurate, as the existence of genuine temps is accepted. In the case of temps who are not genuine and should really be permanent employees, the broker and client will be "jointly and severally responsible" for all violations of labour rights, including unfair dismissal.

For government, protection from unfair dismissal is the number one issue. Workers employed by brokers, says Mdladlana, are commonly arbitrarily told "to get out of my workplace" without explanation or compensation. Changes to the law will mean that clients will not be able to end contracts without proper dismissal procedures or retrenchment. Labour brokers will also be liable to pay workers who are withdrawn from clients and, if they are not placed again, will have to pay them retrenchment costs.

The extension of protection from unfair dismissal would apply to all fixed-term contracts as well. While, at present, the LRA guarantees only a fixed-term contract employee the right to a process - if they can prove they had a reasonable expectation that their contract would be renewed - after the amendments, fixed-term employees will have the same rights as permanent staff.

Botha says Capes members don't object to being responsible for the job security of those on their books. "Companies will have to provide for it in their fees."

Increased costs like this would raise the bar for entry into labour broking and may also increase costs of employment.

Suraj Maharaj, president of the Association of Personnel Organisations, one of the presenters labelled a "slave trader" at the parliamentary hearings, says the industry has studied the decent work model and is in the process of laying down minimum standards and setting up a labour broker board, to be co-run by government and the industry.

The board will register brokers and compel them to meet minimum requirements such as belonging to an association, having a functional payroll and having a form of provident fund for placed workers. This is expected to raise barriers of entry to the labour broking industry to eliminate the so-called "bakkie brigade".

But the far bigger impact on employment costs will be the introduction of another principle that is linked to the labour-broking phenomenon: equal pay for equal work.

Labour brokers, says Botha, must pay the industry minimum, as agreed at bargaining councils or set by wage determination. In addition, they must include 20% for benefits, which are deducted and paid over on behalf of workers.

The problem, say both Cosatu and the department, is that because of other bargaining arrangements, most employers pay their permanent staff above the minimum. Labour supplied by brokers, therefore, is typically cheaper, which the department says it has empirically demonstrated.

Business did not agree with this principle during the Nedlac discussions, says Botha. "While we agree that there shouldn't be unreasonable discrimination, we don't support unjustified equality. There are many issues that determine what people are paid, like experience and performance."

But the equal pay, equal work principle - endorsed by the ILO and also recently implanted by the European Union - will be impossible to argue against. The discussion paper says: "There is widespread acceptance that the principle should apply to people engaged by labour brokers."

It recommends that the Employment Equity Act be amended to " provide an effective remedy for unjustified discrimination in wages and working conditions on the basis of the contractual arrangements in terms of which employees are engaged".

Mdladlana, who over the past few years has projected himself first and foremost as a protector of labour, admits to being only a little concerned about rising costs of labour which, he says, will be balanced by a happier and more productive worker. "Who can say they are not concerned about labour costs or productivity? But the issue I am raising is that a worker who is not happy will not be productive."

WHAT IT MEANS

• All atypical employees will be protected
• Cost of labour will rise

Development Bank of Southern Africa economist Neva Makgetla says the main effect of regulating or banning labour brokers will be that it will be more difficult to fire people, and not that jobs will be lost.

"To the extent that labour brokers are set up just to get people out of the bargaining unit and there is a need to fill those jobs, regulating or banning brokers won't lose a lot of jobs," she says. "It will, of course, become more difficult to fire and retrench people."

But it is difficult to air the issues in a way that looks properly at the effects of prohibiting brokers or just some of their "exploitative practices". Parliamentary hearings have bordered on hysteria and discussions in Nedlac are not for public consumption.

Government is playing its cards close to its chest.

The discussion paper quoted extensively above is not freely available, for instance, and the department says it will say little on the labour law review until it has a bill that is ready for cabinet.

This is only likely in February. Until then, employers will have to wait until Mdladlana reveals what he promised last week in a speech to a bargaining council: "There will be drama."

Fifa puts screws on keyring designer

Business Report
By Florence de Vries

Another local entrepreneur has fallen foul of the stringent Fifa advertising regulations and now faces the possibility of paying tens of thousands of rands in legal fees.

Cape Town businessman Grant Abrahamse registered his design for a keyring holder, with the year "2010", a vuvuzela and a soccer ball on it, with the Companies and Intellectual Property Registration Office (Cipro) in 2004. Fifa has taken legal action against Abrahamse and wants the registration to be cancelled as it infringes on its rights.

Using designs bearing the words "World Cup 2010" or variations thereof are not negotiable, says Owen Dean, an attorney from law firm Spoor Fisher, representing Fifa's intellectual property interests. "It is unlawful because it constitutes passing off goods under the common law suggesting that there is a connection with Fifa and its sponsors," Dean said.

At least three civil cases of alleged ambush marketing thought to be in contravention of Fifa's rights to the World Cup trademark have been heard in South Africa since Fifa president Sepp Blatter announced in 2004 that the country would host the event.

In April this year Fifa won a court judgment against Pretoria sports bar Eastwoods Tavern for carrying the writing "World Cup 2010" below the main signage on its roof. Fifa obtained a judgment with costs against Eastwoods.

Another case, involving retail giant Metcash, a subsidiary of Massmart, distributing lollipops labelled "Astor 2010 pops", is pending at the North Gauteng High Court.

Abrahamse said he had approached Fifa to ask that the keyring case be settled without litigation, but to no avail. He now faces having to pay Fifa's legal costs, which amount to R150 000. The case continues in the North Gauteng High Court.

Victor Williams, an attorney at law firm Hahn and Hahn, believes Fifa's regulations are not well thought through and do not allow South Africans the opportunity to gain from the World Cup event.

"What about a guesthouse owner who wants to advertise accommodation for the event?"

However, Dean argued that Fifa had registered the words "World Cup Soccer 2010" soon after the 2004 announcement, making the football federation the sole owners of the words and variations thereof.

Fifa's official sponsors, which include MTN, McDonald's and FNB, are the key beneficiaries of these measures as they pay millions of rands in sponsorship fees allowing them the use of Fifa's trademark.

Dean said guesthouses could advertise their businesses without calling it "2010 accommodation".

He said traders who were in contravention might face steep penalties ranging from R10,000 to at least three years in prison.