Benita du Plessis - Cape Town
It is often said that, in a disciplinary hearing, your case is only as strong as the evidence you submit. The initiator should therefore have knowledge of the rules that apply when dealing with the different types of evidence to ensure that the best possible evidence is submitted to prove the facts of the matter, that evidence submitted is relevant to what is being investigated and that the evidence is not inadmissible due to the nature thereof. Failure to produce proper and acceptable evidence will lead to the fact that the employer will be unable to substantiate the charges against the employee.
The purpose of a disciplinary hearing is to establish facts in order for the chairperson to make a finding based on a balance of probabilities. This is also the purpose of witnesses' testimonies.
In the case of Ntoyakhe v Open Arms Home for Children (2007, 10 BALR 946) the employee was dismissed for, among others, assault and drunken driving. The CCMA arbitrator found that the employee had been fired at a hearing where the guilty verdict had been based on the evidence of people who had not been called as witnesses and on the contents of a police docket and a court record. The arbitrator rejected this and found the dismissal to be unfair despite the fact that the employee admitted that he had been guilty of assault. The employer was ordered to pay compensation to the employee.
Different forms and types of evidence can be used to prove the allegations against an employee accused of misconduct. The most common way of presenting evidence is by way of the testimony of witnesses, referred to as viva voce evidence. However, just like any other forms of evidence, there are a number of principles that determine the value and the admissibility of such evidence.
Witnesses should be called in order to allow the evidence to be presented in a logical and chronological order. This will assist the chairperson to understand the case. It is therefore of cardinal importance that witnesses should be properly prepared prior to the disciplinary hearing. They should know what to expect and be informed of what they are testifying about.
Not only are witnesses the most crucial source of evidence but they are also the most difficult source of evidence to utilise.
Unless properly managed, witnesses can even 'disappear' or fail to turn up at the disciplinary hearing. This can have negative consequences to the company and it is therefore advised that witnesses be requested to submit written statements prior to the hearing. In the absence of the witness, the company can argue that the statement, which would normally be regarded as hearsay evidence, should be deemed as admissible evidence after reasonable attempts have been made to contact the witness (See Rand Water v Legodi NO & Others (2006) 27 ILJ 1933 (LC)).
It must also be remembered that for evidence to have value, it must be open to challenge by the other party. This means that any witness presenting evidence must be allowed to be cross examined by the other party and both parties will have the opportunity to either call witnesses or cross question the other party's witnesses.
Should the accused employee therefore bring witnesses as part of his/her defence, it is of the utmost importance for the complainant to cross-examine those witnesses. The purpose of this is to deny those things said by the witnesses that the complainant believes to be untrue; exposing the weaknesses in the testimony of the witnesses; highlighting the lack of credibility of the witness and to ask the employee's witnesses any questions that could shed light on the employee's guilt. Failure to cross question a witness (if the complainant is disputing any part of the testimony) may result in the chairperson viewing the evidence as unchallenged and it being accepted as the truth.
Again the importance of preparing your witness should be emphasized and possible questions that may be asked by the accused employee should be discussed before the hearing.
The next issue to consider in this regard is the issue of corroboration. The principle in this regard is that where corroborating witnesses of a particular case exists, they should be called to give evidence. The reason is that corroborated evidence may have more value than single evidence, as a matter of principle. However, and even more importantly, there is a general rule of evidence that where there is a corroborating witness available that is not called, a negative inference can be drawn against the party that fails to call such witness (see ABSA Investment Management Services (Pty) Ltd v Crowhurst (2006) 27 ILJ 107 (LAC); Tshishonga v Minister of Justice & Constitutional Development & Another (2007) 28 ILJ 195 (LC)).
In conclusion to the above discussed matters, the initiator should ensure that the following is correctly done prior to the hearing:
- Identify well in advance all the witnesses that will be needed;
- Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them; and
- Work out which witnesses will be used to validate which documents or any other evidence.
LabourNet can assist in providing training on how to initiate disciplinary hearings. Contact your LabourNet consultant who can assist you with your preparation for the disciplinary hearing and the preparation of witnesses and offer sound labour advice on the entire disciplinary process.
Not yet a LabourNet client, but would like to know more about our service and products, visit our LabourNet website or send a mail to sales and they will contact you to set up an appointment.
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The information published in this article or newsletter is of general nature and should not be used without obtaining specific advice as to its application in your business or under your specific circumstances. LabourNet will accept no liability if the information is used without first obtaining specific advice from one of our consultants.