Regardless of whether one is faced with a court hearing, a disciplinary hearing or an arbitration hearing it is always very difficult, and often impossible to win ones case without witnesses. For example, should an employer send no witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because the testimony of witnesses normally forms the crucial core of the procedure at any arbitration hearing.
The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules. This entails explaining that:
After the arbitrator has explained this process and has followed it he/she must:
While all three types of evidence are very important the testimony of witnesses is the most crucial of all. This is because it is difficult (and often impossible) to bring documentary or other evidence without using witnesses as a channel. For example, should the employer’s representative need to bring a letter or a video tape as evidence against the employee, the representative will need to validate the letter or video by bringing, as a witness, the author of the letter or the person who filmed the video. Thus, witnesses are normally the conduit for all other evidence.
In the case of Ntoyakhe vs Open Arms Home for Children (2007,10 BALR 946) the employee was dismissed for, amongst 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.
Not only are witnesses the most crucial source of evidence they are also the most difficult source of evidence to utilise. There are many reasons for this:
Due to the fact that witnesses are the most crucial means of winning a case at arbitration and , at the same time, the most difficult evidentiary element to control any party at arbitration should use the services of a labour law expert to:
To book for our 27 July 2012 Johannesburg seminar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on firstname.lastname@example.org or 0845217492.
Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com . Web Address: www.labourlawadvice.co.za.
This article first appeared in The Star.