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If no one testifies, it could be difficult to convince an arbitrator
Ivan Israelstam
Regardless of whether one is faced with a court hearing, a disciplinary hearing or an arbitration hearing it is always very difficult, and often impossible to win one's case without witnesses. For example, should an employer send no witnesses to a CCMA arbitration, the employer's representative will find it extremely difficult to win the case because the testimony of witnesses normally forms the crucial core of the procedure at any arbitration hearing. The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules.
This entails explaining that:
- Opening statements are made by each party outlining what they intend to prove;
- The arbitrator could, for example, require the employer to present its case first. This will be done via the testimony of witnesses, or by presenting to the hearing documents and other evidence;
- Each time the employer's representative has completed questioning one of his/her witnesses, the employee has a right to cross-examine that witness;
- The arbitrator has the right to ask the witness questions for clarity and the employer is allowed to re-examine the witness, but only regarding the issues raised during cross examination; and
- Once all the employer's witnesses have been heard the employee presents his/her case according to the above listed steps.
After the arbitrator has explained this process and has followed it he/she must:
The evidence that the arbitrator assesses for purposes of making a decision falls into three broad categories. Namely:
While all three types of evidence are very important the testimony of witnesses is the most crucial of all. This is because it is difficult (and often impossible) to bring documentary or other evidence without using witnesses as a channel.
For example, should the employer's representative need to bring a letter or a video tape as evidence against the employee, the representative will need to validate the letter or video by bringing, as a witness, the author of the letter or the person who filmed the video.
Thus, witnesses are normally the conduit for all other evidence. In the case of Ntoyakhe v Open Arms Home for Children (2007, 10 BALR 946) the employee was dismissed for, among others, assault and drunken driving.
The CCMA arbitrator found that the employee had been fired at a hearing where the guilty verdict had been based on the evidence of people who had not been called as witnesses and on the contents of a police docket and a court record.
The arbitrator rejected this and found the dismissal to be unfair despite the fact that the employee admitted that he had been guilty of assault. The employer was ordered to pay compensation to the employee. Not only are witnesses the most crucial source of evidence they are also the most difficult source of evidence to utilise.
There are many reasons for this:
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Unless properly managed, witnesses can disappear or fail to turn up at the arbitration hearing;
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Unless properly prepared, witnesses forget important details; and n Witnesses can be bribed or otherwise persuaded to lie.
Due to the fact that witnesses are the most crucial means of winning a case at arbitration and, at the same time, the most difficult evidentiary element to control, any party at arbitration should use the services of a labour law expert to:
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Identify well in advance all the witnesses that will be needed;
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Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them; and
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Work out which witnesses will be used to validate which documents and other evidence.
Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or via e-mail:
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Our appreciation to Ivan and The Star newspaper for permission to publish this article.
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