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 the employer is normally required to present its case first. This will be done via witnesses, documents and other evidence
• the 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 abovelisted steps.
Thereafter the arbitrator 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. Viz:
• Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand
• 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 as reported via a sworn statement from the security guard who had caught him. However, as the security guard did not give evidence at the arbitration hearing the arbitrator found the dismissal to be unfair and ordered the employer to reinstate the employee with full back pay.
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
• Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them
• Work out which witnesses will be used to validate which documents and other evidence.
By Ivan Israelstam, CEO of Labour Law Management Consulting