When it becomes apparent to an employer that there is potential misconduct or an incident that has occurred in the workplace, the general starting point in ascertaining information and gathering evidence relating to the misconduct in question is by obtaining witness statements from parties who have been involved in or have knowledge of the misconduct committed. A statement by a witness can either be oral or written, but it is advisable to always have a witness reduce his or her statement to writing. The gathering of, and assimilation of witness statements may seem like a menial or mundane task to an employer, but the importance thereof should not be underestimated or undervalued.

When obtaining statements from witnesses, it is important for an employer to obtain these statements timeously after the commission of the misconduct in question as certain facts tend to fade over time and may not be so clear to the author of the statement at a later stage. Furthermore, it is advisable for employers to obtain statements from witnesses in a private space and to ask questions in a manner which elicits information and does not attack the witness giving the information. This can be done by asking questions to the witness which establishes a chronology of the events that transpired. Such questions may include, “who”, “what”, “where”, for instance. Once a statement has been received from a witness, it is imperative that the employer goes over the statement with the witness, confirming that they have understood what the witness has said and what they mean, and further that they confirm that the statement they have been given by the witness is accurate as according to that witnesses’ memory of the facts as they were.

Once an employer has gathered various witness statements, the employer should then seek consistencies and, if there are, differences between the statements. If it is found that there are inconsistencies between witnesses statements, the employer should then determine whether it would be necessary to re-interview witnesses so as to clarify these inconsistencies and to determine which witnesses might be called for the employer’s case and which witnesses might be called to corroborate the employee’s case.

As mentioned earlier, it is highly recommended that witness statements be reduced to writing and preferably in the witnesses own handwriting. The reason being is that the statement might be used, not only at the disciplinary hearing, but possibly also at a labour tribunal such as the CCMA in the future. Generally, there is some time that passes between the disciplinary proceedings and the arbitration at the CCMA, for instance, and witnesses tend to forget the finer details of the case by that time. If there is a written witness statement, in that witnesses own handwriting, it is much easier for the witness to recall in greater detail what transpired relating to the misconduct or incident and also diminishes the chances of a witness later disputing that they wrote the statement.

It is important to note, however, that while witness statements are very useful in ascertaining facts and information relating to a case, they may generally only be used in arbitration proceedings provided that the person who made or wrote the statement testifies in those particular proceedings. Should the witness not be present to testify as to the statement, same will be inadmissible, and the statement will amount to hearsay evidence. While The Law of Evidence Amendment Act provides that parties may agree on admitting witness statements into evidence, without the author thereof testifying thereon or being present, this very is seldom seen in practice.

It is therefore paramount that the employer ensures that the witnesses who gave statements at the disciplinary proceedings or other such proceedings are available to testify on or about the said statements at the arbitration of the matter. This will ensure that the required evidentiary weight will be attached thereto to assist in the employer party discharging its onus of proof.

Article by: Daniel van der Merwe
Provincial Manager – Port Elizabeth