Employers often rely on different types of evidence to prove their case during a Disciplinary Hearing at the workplace and/or an Arbitration proceeding at the CCMA/Bargaining Council. Both the employer and employee party must submit all relevant evidence before the Chairperson (Disciplinary Hearing) and/or Commissioner (Arbitration proceeding), who cannot reasonably ignore or refuse to hear such evidence related to the case unless the specific evidence is deemed inadmissible due to its lack of authenticity or should it not be corroborated or explained during such processes.

The purpose of an employer using and submitting different types of evidence during these proceedings is to substantiate, support, and to prove their case on a balance of probabilities, in that, for example – there is a just and reasonable cause to dismiss an employee during a Disciplinary Hearing and/or to prove that such dismissal was both procedurally and substantively fair during an Arbitration proceeding.

However, there is an exception to this rule, that being that the evidence admitted must also be legally permissible. One type of evidence that is most widely used is that of documentary evidence, which is indeed admissible but would have to be introduced and explained through relevant witness testimony.

Documentary evidence in this context refers to evidence that is presented during a Disciplinary Hearing and/or an Arbitration proceeding in the form of documentation. Documentary evidence is understood to refer to writings on paper, but the term can also apply to any kind of media by which information can be preserved, such as photographs. The statement is often made that the paper trail should be followed to track down the perpetrator. This paper trail refers to the documentary evidence which is used by an employer to prove their case.

Documentary evidence could include, and is not limited to the following:

  • Minutes of meetings;
  • Witness statements;
  • Test results;
  • Attendance registers;
  • Grievance forms;
  • Photographs;
  • Financial statements;
  • Expert opinions;
  • Salary Advice;
  • Contracts of employment;
  • Written agreements;
  • Disciplinary code of the workplace;
  • Employee’s disciplinary records.
When an employer presents such documentary evidence, the following three principles should also be considered for such evidence to be deemed admissible:
  1. The content needs to be relevant to the dispute.
  2. The authenticity needs to be proven.
  3. The best evidence rule is applicable.

The best evidence rule is a principle that provides that, “the best evidence that the nature of the case will allow, must be submitted.” What this entails is that should an employer present documentary evidence to prove their case, then ideally the original documents should be submitted as evidence – and that same should be substantiated through witness testimony explaining the relevance of such documents, and the reason for its submission relating to the case. This is usually done through the testimony of an eyewitness to the execution, drafting, and/or signing of the document, and/or the testimony of a witness who is reasonably aware as to the contents of such documents, and can identify and explain the same.

Furthermore, all parties must be afforded the opportunity to exercise their right to question the evidence that is advanced against them through cross-examination. It, therefore, goes without saying that an employer’s witnesses should be present at the Disciplinary Hearing and/or at an Arbitration proceeding to corroborate their evidence as it appears so that it is not deemed inadmissible.

It’s not as straightforward as documentary evidence would seem, which is why employers should contact their nearest CEO office so that we may assist, advise, and handle your labour disputes effectively and efficiently.

Article by: Carl Ranger
Dispute Resolution Official – Bloemfontein