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The “balance of probability” may be best described as a method of determining the guilt or innocence of an employee who is charged with an offense of misconduct in the workplace. The duty of arriving at this verdict rests with the independent chairperson of the disciplinary hearing, unless an employee admits to guilt on any charge(s) brought against them, then the chairperson is to determine only the appropriate sanction for the guilt.

In a criminal court, guilt or innocence is established on the basis of “beyond reasonable doubt”. In a civil court, guilt or innocence is established “on the balance of probability”.

To understand the concept of balance of probability, look at the scale of evidence below which is calibrated from 1 to 10 with a point of balance in the centre at the figure five.

If the evidence of the accused, starting at 1 goes up to 5, the scale will tip down towards innocent. Conversely, if the evidence of the complainant, starting at 10 goes down to 4.9 the scale will tip towards guilty.

This then is all that is required to establish guilt or innocence. The accused does not need to be found 80% or even 60% guilty. The accused only needs to be found probability guilty and that is why it is termed the “balance of probability”. If the complainant’s evidence is more believable than the evidence of the accused, then the accused is “probably guilty”. That is the decision that must be made, not 100% guilty but only probably guilty.

A chairperson must be careful to only consider relevant evidence, and in these deliberations, they must separate opinions and hearsay from the facts. A case that is based on hearsay or unsupported circumstantial evidence is very weak indeed. It is not the quantity of evidence that is important – it is the quality of the evidence that is important.

When arriving at a verdict, the chairperson must always state what evidence was and what facts led them to the conclusion made. It is not sufficient for the chairperson to simply state “Based on the evidence presented to me I find the accused guilty as charged”. That is a very poor unsubstantiated verdict and shows that the chairperson did not have a good understanding of their duties and responsibilities and did not understand the process of considering the evidence and reaching a verdict based on the balance of probability. The chairperson must state what particular evidence or what particular facts led them to the conclusion that the accused is “probably guilty”.

Always attempt to prove beyond a reasonable doubt instead of loosely relying on the balance of probability.

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