We often get asked whether it is necessary to bring a witness along for an arbitration when the employer has a written statement or audio recording from their witness. The short answer is yes. Failure to bring a witness to testify will amount to hearsay evidence and will bring very little to zero support to your case at the CCMA or Bargaining Council.
Hearsay evidence is defined in Section 3 (4) of the Evidence Act, No 45 of 1988, as:
“evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.”
Section 3 (1) of the Evidence Act, No 45 of 1988, states that:
“(1) Subject to provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-
- Each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
- The person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
- The court having regard to (7 factors) –
(vii)…; is of the opinion that such evidence should be admitted in the interests of justice.”
All parties, namely the employer and employee are responsible and required to bring enough evidence before the Commissioner, in order to allow the Commissioner to make a finding primarily based on the facts and evidence presented during the arbitration. The Commissioner will not be able to make a sound and informed finding with only some of the facts and evidence before him. Evidence is best described as your form of proof, albeit, documentary, verbal, audio or recorded evidence, to support your version of events/argument.
The following types of evidence may and should be presented at arbitration:
- Documentary evidence, such as:
- Notice of suspension or notice to attend the disciplinary hearing with the proof of service;
- Minutes of the disciplinary hearing, signed by all parties and Notice of dismissal;
- Signed employment contract, disciplinary code and/or policies and procedures;
- Statements by other employees or the employer’s client who was involved or witnessed the incident;
- Vehicle tracking system records and/or photos of the incident, etc.
- All audio or video evidence, such as:
- The audio or video recording of the employee confessing to committing or being involved in the offence;
- The audio or video recording form the security cameras showing the employee committing or being involved in the offence;
- The audio or video recording from the vehicle which the employee drove or was a passenger, showing the employee committing or being involved in the offence;
- The audio or video recording of the tracking system in the vehicle driven, showing the employee committing or being involved in the offence; etc.
- Witness testimony by your witness, such as:
- The Chairperson or initiator at the disciplinary enquiry;
- Other employees involved in the incident or who witnessed the incident;
- The author of the statement or letter presented as documentary evidence;
- The employer’s client who was involved with or witnessed the incident;
- An employee of the vehicle tracking system to testify and confirm how the tracking system works or an employee from the security company responsible for the security cameras to testify and confirm how the system works and that it was recording the correct information at the time of the incident, presented as video or documentary evidence;
- The person involved in the conversation on the audio recording, presented as audio evidence, who can testify to the content thereof, etc.
It is very important to remember that each person at the arbitration has a right to question the validity and authenticity of the evidence presented, which entails the questioning/examination and cross-examination of the witness. This ultimately means that the testimony of your witnesses is incredibly important and play an extremely important role in the “drawing of your picture” and presentation of your case/version of events.
Therefore, it is important to ensure that you are well prepared for your arbitration case or even the possibility of a dispute being referred to the CCMA or Council. Ensure that you identify what evidence you have and whom you would require to validate the evidence at the arbitration and remember the following:
Ultimately know and understand that in the end witnesses play an extremely important role at the arbitration.
Article by: Tarien Conradie
Dispute Resolution Official – Pretoria