It’s common knowledge that employers shoulder the burden of proof when it is necessary to establish whether employees are indeed guilty of the allegations being levelled against them.

The same burden is borne by the employer at arbitrations under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council.

A question that is being asked at arbitration hearings and Labour Court proceedings more frequently is: “May the CCMA (or bargaining council) or the Labour Court entertain an application of absolution from the instance?”

This question relates to whether applicants can ask adjudicators to dismiss the case against them on the grounds that the respondents have not produced sufficient evidence against them.

On occasion, the same question is raised in internal disciplinary proceedings. For example, an employer party may begin by leading the employer’s evidence. On conclusion, the employee may ask the chairperson to dismiss the case on grounds that the employer has not shown that there is prima facie evidence supporting the employer’s case and, if this is so, the chairperson should dismiss the case and not require the employee to respond to the allegations.

In the civil courts, this is referred to as “absolution from the instance” and in criminal cases as a “discharge”.

In R Mohale v Nedcor (GA31339-97), the commissioner held that, notwithstanding the fact that the CCMA’s status equates to that of an administrative tribunal with no judicial authority as opposed to a court of law, this does not per se preclude the CCMA from entertaining an application for absolution.

But the commissioner concluded that section 131(1) of the Labour Relations Act “enjoins the commission to determine disputes fairly and quickly”, which, the commissioner held, amounted to adjudicating a matter “as a final determination as opposed to leaving the matter hanging in the air”. The application for absolution was denied.

The jury may still be out, however, on the role of absolution at the CCMA. For as commissioner Willis submitted in Duarte v Hallmark Motor Group (GA28697), section 138 of the Labour Relations Act provides that a commissioner “may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly”.

The position in the Labour Court is different, however. In John & 62 members of Wesusa v HTK Manufacturers (Pty) Ltd (Labour Court case No J466/99) the judge confirmed that “this court, which is equivalent to a high court, has the power to grant absolution from the instance in the course of a trial”. The judge granted an application for absolution.

To some degree, absolution already exists when, for example, a hearing is held in an employee’s absence and the employee is found not guilty due to a lack of evidence on the balance of probabilities.

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