Two cases come to mind when dealing with the issue of electronic evidence in disciplinary matters. In one case the employee had been caught on CCTV attempting to steal, he was a young man from a very rural background who happened to be working in a mine because it was the policy of the mine to employ people from local communities. He denied that he had attempted to steal and the presiding officer allowed the presentation of the CCTV footage. Poor man, when he saw himself on the screen he burst out with delight, Hee Banna! That is me!! He was so excited to see himself on the screen and did, for a second realise that in fact he was confirming that the person in the image was himself attempting to steal. Case closed.
In the second case, this employee was also caught on CCTV attempting to steal. She on the other hand was a girl from the city who was educated and was well aware of what can and cannot be admissible as evidence in court or in a disciplinary hearing. If inadmissible she also knew why such evidence was classified as such, she even had the luxury of a lawyer who took care of these details. So, in the hearing she simply indicated that the person caught on camera was not her, despite the clear picture that showed her as the person doing the deed. Other details have been left out here, but the important point to pick up in this case was that the employee simply denied her being the person attempting to steal and even went on to say the footage had been manipulated.
In both cases it was highly possible that the footages could have been manipulated but the presiding officers allowed them in court with caution as they were key in trying to get to the bottom of the whole case. The presiding officer knew that such evidence was not admissible, in the first place, but could be admitted if supported by other evidence. Lawyers say if such evidence is corroborated. The question is why is evidence of electronics, for example, video recorders, voice recorders, WhatsApp messages, Voice notes (that have become so popular in our country), cameras, breathalysers, polygraph machines and other electronic equipment not admissible in the first place but must be corroborated if admissible?
Experts have defined digital evidence as any data stored or transmitted using a computer that supports or refutes a theory of how an offense occurred or that address critical elements of the offense such as intent or alibi. Often times this data is constituted by a combination of numbers that represent information of various kinds, including text, images, audio, and video. In essence digital evidence is none physical information that is usually generated by electronic devices such as a computer or a smart phone that maybe used in legal proceedings to prove or disprove facts.
The law of evidence is very strict about what can be presented in the disciplinary hearing as evidence which can be used to determine the guilt or otherwise of the charged employee. At the end it is on the basis of this evidence that the chairperson of the hearing will decide whether the employee is in fact guilty as charged or not. Admitting such evidence comes with the risk that the employee may be found guilty and lose his/her job on the basis of false evidence. The concept of admissibility of evidence refers to whether a particular item maybe introduced at a hearing and taken into consideration by the Chairperson of the hearing. In essence it provides what items may be accepted as evidence in a particular case and type of proceedings, in relation to issues in dispute. Therefore digital evidence is subject to rules of evidence.
The second employee in the cases above was correct, it is very easy to manipulate this kind of evidence. With modern advancements in technology it is very easy to manipulate a picture, photo or even a voice recorder to bring out a totally different product from the original one. She was correct it could easily be that the person showing in that short video may not have been her but a manipulated version all in the attempt of pinning the transgression on her. The motive for doing this is a discussion for another day but these things do happen. We are not even saying this is what happened in that case but to show that her allegation that the video had been tampered with was a possibility. With modern applications that can change your face, your age, your body and your hair anything is possible these days. Computers and smart phones now have Photoshop and filters that can give you a totally new identity that can shock you. Artificial intelligence has also gathered speed so much that having a robot attending to client queries or even having a robo-lawyer is not a far-fetched dream anymore, it is becoming a reality that we have to come to terms with and align appropriately.
Even though disciplinary hearings may be a bit relaxed than court proceedings and therefore may allow even evidence that would ordinarily not be allowed, Courts have been strict and very reluctant to admit such evidence for the very reason that it is prone to being tampered with and manipulated to suit the owner of the evidence’s interest. Secondly, once such evidence is presented it becomes difficult to probe it and ask questions and cross-examine unless the person who took the picture or the video and the rest of the devises mentioned is called in to be cross –examined on the evidence. While we appreciate that evidence in disciplinary hearings does not have to be proved beyond reasonable doubt but on a balance of probabilities, there is a requirement to put up a believable case to find the employee guilty. This is why it is important to ensure that the evidence presented is supported and has been put under cross –examination. We are not looking to find the employee guilty at all costs but to rely on facts that can be challenged. This has always been the position of the courts (and disciplinary hearings).
However, the Covid-19 pandemic brought with it a lot of innovation to the workplace. Due to lockdowns, workplaces had to find easier and safer methods of still continuing to be productive while also taking cognisance of the virus. The workplace is still a workplace and processes still have to be followed which means employers are still entitled to take disciplinary action even for misconducts that happened in places that traditionally would not have been regarded as workplaces This is when concepts like working from home, remote working, flexi-time and other like terms took momentum. Since employees were working away from the office it did not mean that misconducts stopped happening. There was still need to hold disciplinary hearings and even to proceed with court matters. This is when employers had to innovate and hold remote disciplinary hearings, an act that no employer or employee had ever thought would happen. This meant that evidence was presented virtually, evidence that traditionally was inadmissible became admissible. In Lesotho as in South Africa and other countries digital data is often referred to as hearsay evidence. While it may be argued that if the data provided is proved to be authentic, then it should not be considered as hearsay or circumstantial evidence, however, by its nature of being malleable and/or ephemeral makes it hearsay by legal definition.
There is no law in Lesotho that provides guidelines for the use of digital evidence in disciplinary hearings. Labour Laws do not explicitly consider digital evidence and its role in disciplinary hearings.
Researchers indicate that while it is ordinary that court procedures require a formal admission of evidence, disciplinary hearings are by nature less formal. Therefore dealing with digital evidence becomes risky where the chairperson may not have any experience with digital evidence; the chairperson could easily reach an unfair conclusion thus leading to an unfair dismissal. Due to the ease with which digital evidence could be tempered with or admission of incomplete evidence, there remains the likelihood that unfair hearings may occur in cases where corrupted evidence could be allowed.
To address these challenges, it is therefore argued that it is necessary to have minimum requirements or set standards for the collection and presentation of digital evidence in disciplinary hearings in order to minimise the chance of unfair hearings. However despite the fact that Lesotho labour laws are not positioned to deal with digital evidence, it has in several cases been admitted as evidence in disciplinary hearings. We are seeing more and more courts accept evidence of WhatsApp messages and videos that were initially accepted as evidence in a disciplinary hearing. After all, in Lesotho, disciplinary hearings are regarded as less formal internal administrative processes. The Labour Court in the case of Moeko Maboee v Maluti Mountain Brewery (PTY) LTD remarked that a disciplinary enquiry, as the name suggests, is but an enquiry and is generally factual. It is in essence concerned with establishing whether or not an employee is, on a balance of probabilities guilty of the alleged misdemeanour. The court concluded by affirming that disciplinary proceedings are essentially informal and should not be judged according to standards expected of courts of law. It follows therefore that disciplinary hearings are free from formal and stringent rules of procedure and evidence; they can be conducted in a fair and reasonable manner by the chairperson.
Given this status quo it is not very difficult to fathom that this line of understanding could be adopted by lower tribunal bodies such as the DPPR and Chairpersons of internal disciplinary hearings. With much of procedures uncertain, there is however a shred of light that awaits Lesotho. Part IV of the much anticipated Computer Crime and Cyber-Crime Bill deals with admissibility of electronic evidence. The guidance that has been outlined in the Bill will definitely bring a lot of change in the admissibility of digital evidence especially considering some misconducts like violence and harassment which are private in nature and depend on digital evidence to prove.
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