It is important to know that the Chairperson of a disciplinary hearing or the CCMA Commissioner can only make decisions based on the evidence that has been presented. If reliable and admissible evidence is not provided, the case, in all probability, will not be won.
It is thus essential to be familiar with the basic rules of evidence.
Firstly, evidence is not an argument. It is the form of proof that is used to support an argument. Without evidence to support a case, the case at the CCMA hearing will be lost.
Secondly, the most “powerful” evidence should be used to persuade a Chairperson or Commissioner in order for a finding/award to be given in your favour.
There are numerous forms of evidence that can be presented at the CCMA, these include:
1. Oral evidence, which is verbal statements witnesses make during the hearing.
– An example would be a statement that was made by an employee, who saw a fellow employee taking a chocolate bar from the shelf and putting it in his/her pocket.
2. Documentary evidence that is produced/submitted during the matter to support the case.
– These would be the minutes of the disciplinary hearing involving the accused employee, for example.
3. Real evidence is the actual objects that are produced/submitted during the matter.
– For example, this would be the chocolate bar that was found in the employees’ pocket after he/she was asked to reveal what was in his/her pocket when the other employee reported the incident to the manager.
4. Video evidence showing the accused employee committing the crime.
– This will be the footage of the security camera in the store that shows the accused employee putting the chocolate in his/her pocket.
It is imperative to prepare well. The allegations against the employee must be assessed to determine whether such allegations are valid or perhaps the result of hidden motives. Investigate the circumstances surrounding the incident. This includes reviewing the circumstances before the incident to establish why the alleged misconduct took place. In addition, review the evidence collected to determine what is, indeed, acceptable evidence and what is speculation or unreliable evidence.
Article by: Marco Horak
Dispute Resolution Official – Upington