The evidentiary stage of an Arbitration hearing is a defining part of the process. What types of evidence may be relied upon, and what is the Employers’ burden of proof, the value of witness testimony, and the consequences of failing to produce a witness?

An Arbitration is a process whereby both parties present evidence supporting their arguments. The Commissioner will then determine from the facts of the dispute and the evidence presented which party has successfully argued their case.  It is, therefore, the presentation of that evidence which is the crucial part of an Arbitration process.

The types of evidence that may be presented are characterised into the following categories: Oral evidence, documentary evidence and real evidence, which can include video recordings, audio files and electronic records. No single type of evidence is weighted more than the other but considered wholistically in the case presented before the Commissioner.  It is, however, essential to note that documentary and real evidence will need to be validated by the testimony of a witness to authenticate the source of that evidence. Therefore, the Employer must prepare the relevant witnesses who will be relied upon in the Arbitration.

At Arbitration, the Employer usually bears the onus of proof, particularly in a disputed dismissal. It is the obligation of the Employer to present evidence in support of their case that the dismissal of the Employee was both procedurally and substantively fair in relation to the Labour Relations Act (LRA).  The Commissioner must then determine, from the facts in dispute, the following:

  1. Credibility of the witness(es).
  2. Voracity and cogency of the testimonies.
  3. Probability and the likelihood of that witness(es) testimony.

The consequences for an Employer who fails to lead witness testimony or relevant witnesses run the risk of an adverse ruling against them. Employers may face operational needs that make it challenging to release witnesses to testify. In contrast, sound operational needs are relevant to whether a matter can be postponed. It does not get weighted in a Commissioner’s decision at the finality of an Arbitration dispute. Should a credible witness not be called to testify, the Commissioner may regard the evidence the Employer relies upon as unqualified or unsubstantiated or that the evidence relied upon is hearsay evidence.

It is, therefore, important in the preparation of an Arbitration that the Employer:

  1. Identifies the issue in dispute.
  2. Identifies what they need to prove to get a successful award.
  3. Identifies which evidence is needed to support their case.
  4. Identifies which witnesses are needed to testify.

Once the witnesses are established, the preparation with that witness is crucial as the determining factor is not what the witness testifies to but rather the quality of their testimony. Witnesses must have first-hand knowledge of the facts of the dispute. Therefore, an Employer representative cannot provide testimony on its behalf at the CCMA. The representative’s role is to present the best case possible and argue based on the witnesses’ testimony. Resultingly, all witnesses must attend Arbitration proceedings with the representative to argue the case.

Article By: Wesley Lazarus
Dispute Resolution Official – CEO George