This week we continue Preparation and Presentation of Cases to the Industrial Court by REGINALD ARMOUR SC

II. The Court’s Approach

Evidence

Section 9(1)

In the hearing and determination of any matter before it, the Court may act without regard to technicalities and legal form and shall not be bound to follow the rules of evidence stipulated in the Evidence Act, but the Court may inform itself on any matter in such manner as it thinks just and may take into account opinion evidence an such facts as it considers relevant and material but, in any such case, the parties to the proceedings shall be given the opportunity, if they so desire, of adducing evidence in regard thereto. (All emphasis supplied).

A flexible approach to evidence, however, does not indicate the absence of a standard.

It is important to state the fundamentals of this section, given its breadth.

1. Acting “without regard to technicalities and legal form and shall not be bound to follow the rules of evidence stipulated in the Evidence Act” does not mean that the baby and the bath water have been thrown out. An understanding of evidence and fair procedure is critically important nevertheless.

2. That the Court may inform itself “on any matter in such manner as it thinks just,” whilst a breathtaking power in itself, is nevertheless subject to the rules of natural justice ie fair procedure, since the Court must nevertheless give to both parties “the opportunity, if they so desire, of adducing evidence in regard thereto.”

Thus, in a case of a dismissal of a worker for stealing, ie proof of a “criminal offence, the Court has drawn a distinction between the evidence required by management to make a finding of guilt and that which would secure a conviction in a criminal court. So, in examining the evidence it is not a question...whether the evidence would admit of conviction in a criminal court.”

However, although it does not ask that the evidence prove such allegations beyond a reasonable doubt, where the evidence is “substantially circumstantial in nature,” the Court does require that it be “cogent, logical, consistent and reliable particularly.”

Practical common sense in the work place is applied, given the irreducible level of trust and good faith which must exist between an employer and an employee. In this regard it has been said that the Court is also a court of practical common sense.

The act does not specify which party bears the burden of proof.

As well as empowering the Court to depart from the rules of evidence, the act does not impose a burden of proof on any party. For this reason the Court has stated that”

It is unproductive to speak about the burden of proof in the context of a trade dispute in the same way as that expression is understood in the common law courts.

Both parties are responsible for presenting to the Court for its consideration such evidence as it has in its possession and the Court will then decide the trade dispute in accordance with the entirety of the evidence tendered, having regard to the provisions of the Act. (Emphasis supplied)

As Parliament has chosen not specify who bears the burden of proof, the Court will not do so although, all other things being equal, it’s practical common sense will allow it to apply the maxim “He who alleges must prove.”

Nevertheless, though freed from the strictures of the rules of evidence, the Court cannot depart from minimum rules in a willy nilly fashion

The Court’s power to depart from the rules of evidence does not mean that it is to have no regard to rules of evidence.

Thus, in JN Harriman and Co Ltd v the Communication Workers’ Union a case in which the company’s evidence had fallen below the standard expected of witnesses testifying before the Court, the Court nevertheless took the opportunity to reiterate that the Court can only act on evidence.

In Transport and Industrial Workers’ Union v Public Transport Service Corporation applying well known principles of evidence, the Court struck out certain paragraphs of the union’s written evidence and arguments that the PTSC contended were inadmissible as containing hearsay and/or matters protected by parliamentary privilege.

Counsel for the union had submitted that the Court should in this case make use of its “statutory freedom to depart from the rules of evidence”.

The Court noted that while section 9(1) did seem sufficiently wide to allow the Court to admit reports of the Hansard into evidence if the Court should find these necessary to fairly and justly determine the matter before it , it would nevertheless decline to make use of its power in that case. Continues next week.