Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
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 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 procedure at an arbitration hearings usually follows the following order:
- opening statements are made by each party outlining what they intend to prove
- the parties present their evidence via witnesses, documents and/or other evidence
- the opposing party cross examines each witness
- submission of closing statements
- assessment of the evidence and making the award.
The evidence that may be presented falls into three broad categories:
- Documents
- Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand
- Witness testimony
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 because 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. 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:
- Unless properly managed witnesses can disappear or fail to turn up at the arbitration hearing
- Unless properly prepared witnesses forget important details
- Witnesses can be bribed or otherwise persuaded to lie
- Unless expertly handled witnesses may get nervous during the arbitration hearing. They may therefore get flustered and so make mistakes.
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:
- 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
- Work out which witnesses will be used to validate which documents and other evidence.
