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Ivan Israelstam

 
Legal procedure makes it immensely difficult for a party at arbitration to win its 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 witnesses, documents and other evidence.
  • Each time the employer's representative is finished 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;
  • 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: hear closing statements, assess the evidence and make the award. The evidence that the arbitrator assesses for purposes of deciding in favour of the employer or employee falls into three broad categories.

    These are documents; sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand; and witness testimony. 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 Numsa obo Buthelezi vs Falcon & another (2003, 10 BALR 1110), the employee was dismissed for attempting to steal paint belonging to the employer. He had been apprehended by a security guard who found the paint in his possession. The employee denied that he had taken the paint and the employer brought a sworn statement from the security guard who had caught the employee with the paint.
      
    However, as the security guard did not give evidence at the arbitration hearing the employer was unable to validate the sworn statement. The arbitrator, therefore, found the dismissal to be unfair and ordered the employer to reinstate the employee with full back pay to the date of the dismissal.
      
    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:
  • Unless properly managed, witnesses can disappear or fail to turn up at the arbitration hearing.
  • Unless properly prepared, witnesses forget important details.
  • Witnesses can be bribed or otherwise persuaded to lie. 
  • Unless expertly handled, witnesses may get nervous during the arbitration hearing. They may, therefore, get flustered and so make mistakes.
       
    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 identify well in advance all the witnesses that will be needed, to prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them and to work out which witnesses will be used to validate which documents and other evidence.
  
  • Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via e-mail:
  • Our thanks to Ivan and The Star newspaper for allowing us to reproduce their info

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