the balance of probability
15 September 2008

One area of confusion concerns the "the balance of probability," and “reasonable doubt.”

The "balance of probability" is the method used for deciding guilt or innocence, based on the evidence submitted, in civil matters whereas “Reasonable doubt” is applicable only in criminal cases.

The problem arises because the chairperson or presiding officer of the disciplinary hearing searches for “100% proof” of guilt, when in fact nothing near 100% proof of guilt is required when deciding an issue on the balance of probability.  And this is where the misunderstanding comes in.  The chairperson or presiding officer at the hearing very often finds the respondent not guilty “because there was no proof.”

The employer needs only to lead sufficient evidence, to show on a balance of probability that the employee is guilty.  The employer does not need to lead evidence to prove 100% guilt - only sufficient evidence to show that “he is probably guilty.” And how much is “sufficient.?”  Probably 51% is sufficient only enough to tip the scale.

“Sufficient” means enough for the chairperson or presiding officer, after having examined the evidence from both sides, to be able to say “ I think he is probably guilty.”, or “ I think he is probably innocent” - that is sufficient, and that is all that is required.

The principle of “ balance of probability” works both ways - in other words, in proving guilt  as well as in proving innocence.  In ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA), where a sum of money had disappeared, the employees who had been charged alleged that they had dropped the money into a “drop safe.”  The “drop safe” was emptied by security guards, and the employer failed to produce any reliable evidence to show that the security guards did not take the money.

Without any evidence to show to the contrary, it therefore existed only an unsubstantiated possibility that the employees may have stolen the money. Therefore, that is insufficient evidence to make a finding on the balance of probability - and the dismissal was ruled to be unfair.  Also in this particular case,  another problem was highlighted that faces employer's, and that is the question of whether or not the employer is expected to hand over the evidence on which he intends to rely, to the other side prior to the disciplinary hearing.

Accused employees do not have an absolute right to examine the employer's evidence prior to a disciplinary hearing.  The employer is required to provide the employee with a charge sheet, giving only “sufficient detail” of the charges to enable the employee to prepare a defence.  The perusal of the employer's evidence takes place at the disciplinary hearing, as the employer leads his evidence in chief.

For further information, contact Derek Jackson on advice@labourguide.co.za

Derek Jackson,  www.labourguide.co.za