Disciplinary Hearing Preparation

At internal disciplinary hearings the accused employee and the employer (or employer representative, otherwise referred to as the complainant or initiator) have the right to call witnesses, in the same way as in hearings at the CCMA or Bargaining Councils. The employer may call witnesses to give verbal evidence as part of his allegation – misconduct or incapacity (poor work performance or ill-health/injury) – against the accused employee and the employee may call witnesses as part of his defence against the allegation.

While all types of evidence are important, the testimony of witnesses is the most crucial. 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 initiator need to bring a letter or a video tape as evidence against the accused employee, the initiator 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 outlets for all other evidence.

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 hearing;
• Unless properly prepared, witnesses forget important details;
• Witnesses can be bribed or otherwise persuaded to lie and
• Unless expertly handled, witnesses may get nervous during the hearing. They may therefore get flustered and so make mistakes.

Identification of Witnesses

Witnesses for either party (the accused employee and the initiator) would generally be internal witnesses such as colleagues and managers. However, either of the parties may also call external witnesses. Neither of the parties may object to and/or refuse external witnesses, as they are permissible and should not be confused with external representation.

The parties must identify all the witnesses that will be needed well in advance of the disciplinary hearing. Witnesses (internal or external) must be persons that have first-hand (direct evidence) or observed (were present) knowledge of the alleged offence that had been committed by the accused employee.

Each party is responsible to identify and determine whether their witnesses are willing to testify or give evidence at the hearing. A witness has the right to refuse to testify at internal disciplinary hearings, in which case the relevant party cannot subpoena such a witness, as is the case in hearings at the CCMA or Bargaining Councils. Prospective witnesses cannot be forced, coerced, intimidated or threatened to give testimony, but must do so willingly and/or voluntary, otherwise it could be a hostile witness.

Once the parties have identified and established their witnesses’ willingness to testify, it is each party’s responsibility to arrange that the witnesses are available and ready to be called to testify at the hearing. Advance permission must be obtained from the witnesses’ managers to be absent from their workplaces in order to give evidence at the hearing, as well as time off to attend preparation meetings with the accused employee and the initiator respectively. It should be noted that there is no legal requirement that either party, prior to the proceedings, must inform the other party of the witnesses that will be called to give evidence.

Preparation of Witnesses

Both parties must prepare for the hearing. Apart from preparing the evidence for their opening statements at the hearing, they also need to prepare the witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them. The parties must prepare their witnesses before the hearing and work out which witness will be used to validate which documents and other evidence. The witnesses must also be prepared for what to expect during the proceedings.

Preparation should include the witness’s understanding of the allegations against the accused employee, ensure their evidence is relevant, what issues are involved, the questions that the witness would need to answer at the hearing and the process that would be followed in leading the evidence.

Both parties must prepare their witnesses in such a manner that it would, in the case of the initiator (employer), advance or support the allegation against the accused employee, and in the case of the accused employee, advance or support his defence against the allegation.

Both parties should prepare a list of possible questions and the answers to those questions. This is required to ensure that the witnesses are aware in advance of what questions to expect at the hearing and what the answers to those questions should be.
Questions must be specific and phrased in such a manner that the witness presents factual, relevant and admissible evidence. Witnesses may also present documentary evidence.

Both parties should anticipate possible questions from the other party and prepare the witnesses accordingly. The witnesses should specifically be briefed about what to expect from the other party during cross-examination and prepare themselves mentally for the possible stress and pressure during this phase so that they do not get flustered or make mistakes.

Witnesses need to understand the concept of hearsay evidence, i.e. evidence that is not first hand or not observed/experienced by the witness self, but evidence received, heard or observed from another person. It is not evidence what a witness himself saw, heard or otherwise came to know, but what he heard others tell him about the matter being investigated. The general rule is that hearsay evidence is not allowed because it is unreliable and it should be treated with great caution. The reason for this is that the actual observer (or source of the story) is not testifying and cannot be subjected to cross-examination.

Similarly, written statements are generally and in most instances inadmissible at disciplinary hearings and considered to be hearsay evidence as the person who had made the affidavit (deponent) is not present in order to be questioned or cross-examined on the content therein.
However, it is important to remember that not all reported statements are hearsay evidence. Where a witness says he heard someone say something, it is only hearsay where the words are offered to prove the truth of what was said. In the absence of convincing contrary evidence, hearsay evidence, which is consistent with other proven facts, will be admissible.

Hostile Witnesses

A hostile witness is a person who give adverse testimony or who display hostility or prejudice against the party that called the witness to testify. In other words, it is a person who intentionally gives unfavourable evidence against the party that called him as a witness.

It is therefore advisable that when the parties identify witnesses, to ascertain that a witness is not possibly hostile. This may occur when a witness is forced or coerced by either of the parties to give evidence against his will. It would be in the best interest of that party not to call such a witness as the testimony may prejudice or jeopardise the party’s case.

Preparing an Opening Statement

The purpose of the opening statement is to explain what the case is about. It enables the chairman to place the details of the evidence given in the context of your case as you have already explained it. You give him an indication of what case you intend to establish and how you intend to do so with the evidence at your disposal. Failing this, the chairman will not know beforehand the facts that will be proved and the evidence available to establish them. If he receives the evidence piecemeal, he can easily obtain a skewed view of the overall picture. Your opening address will enable him to have a better grasp of the issues so that the significance of each item of evidence will be apparent.

The opening statement or address is not an argument. It is an opportunity to outline the facts that you hope to prove. It must be brief (± 5 minutes). State the facts simply that they speak for themselves. Deal candidly with any weaknesses in your case while coupling it with a compensating fact that diminishes the damage and gives the chairman a context in which to place the weakness servitude has less of an impact on your case. Avoid argument and exaggeration. Use a moderate – even understated – tone.

An opening statement must have a logical structure. It must put all the important part of the matter in a proper context.

There must be order and clarity. Include the following:

• State what the issue is: e.g. “Mr Chairman, this hearing is about the employee’s alleged misconduct in that he have…… [Here describe the central allegation/s against the employee]”;
• Summarise the material facts of what the employer is alleging and point out these facts will be proved “on a balance of probabilities”. This means that your allegations must be at least 51% more likely than the employee’s version or explanation of what happened;
• Summarise the material facts you are alleging. Consider setting out the timeline of the relevant events. If you like, do it in a written schedule and hand this to both the chairman and employee or employee’s representative;
• Identify the witnesses you will call and summarise the evidence that each will give and
• Finally, state to the chairman your relief sought. In other words, what you would like the chairman’s findings to be. I presume it would be a finding of guilty.

Preparing your questions for the Employee witness (Cross-Examination)

This phase of the hearing takes place after the employee has finished asking questions of his witness. He will have done this in order to enable the witness to provide the facts of which he has knowledge to the disciplinary hearing. You now have a chance to ask that witness questions which will serve to challenge the truth of what he has been saying or to evoke answers to issues that he has failed to mention. This is known as cross-examination. You cross-examine opposing witnesses in order to make your own case better.

The purposes of cross-examination are pursued through questions which:

• Encourage or oblige the witness to provide favourable evidence for you;
• Test and even hopefully discredit the reliability of the evidence the witness gave when being questioned by the employee or employee’s representative (e.g. contradictions) and
• Put your version of the disputed facts to the witness so that the witness may comment. It is important to do this because, if you do not, the fact that you have not allowed the employee’s witnesses to comment on allegations and/or evidence that you presented, will count against you.

Cross-examination, like an opening statement, is a tool of persuasion. It is used to try and have your evidence accepted and the employee’s evidence rejected. It is a tough assignment. Few witnesses are suddenly likely to give you a gift of agreeing to the submissions that you put to him in support of your own case. This is especially true if his change of evidence will be against the accused employee. While the employee’s witness is giving “evidence-in-chief”, you should take notes.

Create a margin down the side of the page to mark any part of the witness’s evidence that you want to challenge in cross-examination. Your first priority in cross-examination should be to entice favourable evidence from an opposing witness.

At the least you will need to:

• Be courteous to the witnesses;
• Lead the witness to the answers by asking questions that suggest the answer you are seeking;
• Be satisfied with a significantly favourable answer. Don’t push things too far. You might lose the advantage by doing so. Many a good cross-examination has been ruined by a question too many;
• Keep the questions short, asking for, or suggesting one fact at a time and
• Avoid arguments with the witness. Ask questions in such a way that you invite facts rather than arguments or explanations.

Preparing your questions for your own witness (Evidence-in-Chief)

The biggest danger in this phase of questioning is asking what is called a “leading question”. This is simply a question that indicates the answer that you are seeking from the witness. The facts have to be provided by the witness, not you. You must not suggest what he should say in reply to your question. The absence of leading questions enables the chairman to evaluate the evidence of your witness on its own merits. If you start your questions with where? When? What? Who? Which? How? Or Why? You will avoid leading questions. Another way of avoiding leading questions is to present the witness with an alternative. Instead of asking “you saw him drive away didn’t you?” ask “did you or did you not see him drive away?”

Be clear in your mind what facts you want to establish with each witness. Plan a structure for the questions to put each witness. (Do a rehearsal with your witness if you can.)

This normally involves:

• Introducing the witness. (I.e. give some easy questions – name? address? etc.) ;
• Have the witness explain why he can testify to the facts you want to submit to the hearing (e.g. he was at the scene, works in the same department, etc.);
• Deal with the subjects you have hopefully previously agreed with the witness;
• Lead the evidence on each topic in chronological order (exhaust the evidence on a given topic before moving onto the next; i.e. keep each topic in a separate category);
• Anticipate topics of cross-examination by the employee and discuss these with your witness without actually telling him what to say;
• If you can, obtain a statement from the witness that sets out all the evidence that witness will be providing. You can then use this as a guide for the questions that you ask that witness and
• If necessary, inform the witness that he should address the chairman not yourself.

Some tips to apply during examination-in-chief:

• Do not ask loose or vague questions rather than those that are simple and short and which elicit only one fact at a time;
• Use simple everyday language rather than clichés or slang;
• Make eye contact with the witness and
• Where possible or useful, supply visual aids, demonstrations or documents.

Preparing your closing argument

The purpose of your closing argument or address is to persuade the chairman to accept your submissions regarding the case and to reject those of your employee.

You want the chairman to agree that:

• Your view of the case is supported by the facts and
• Your opponents view is either not supported at all or is less probable than yours.

Your planning for the closing argument should start long before the hearing. During the preparation, and the hearing itself if necessary, you should collect and re-organise the facts to support your case.

You need to:

• Identify your objectives for the hearing and the obstacles you need to overcome to achieve them;
• Identify relevant and helpful facts;
• Anticipate your employee’s goals;
• Anticipate the employee’s factual material and
• Draft a skeleton giving structure to your closing argument. If necessary, adapt it as the hearing unfolds.

The initiator will generally address the chairman first. The accused employee will then have the opportunity of replying. After that the initiator can briefly address any new material that the accused employee may have dealt with in his address.

A suggested structure for your closing address is the following

State the issues:

• Point out that the employer’s version is more probable on a balance of probabilities;
• List the evidence in support of your case;
• Deal briefly with the employee’s case – e.g. its weakness, its lack of credibility, its lack of proof and other defects. If necessary, compare the two cases to point out why your case should be preferred;
• If there are any relevant rules or legal principles that you are aware of, apply these to the facts and the verdict you are claiming and
• State clearly the decision you want the chairman to make and why he should do so.

Style and Tactics in your Closing Address

• Be natural; be yourself;
• Be confident and competent, which you will be if you prepare yourself well;
• Speak without emotion but not without some passion;
• Use an orderly presentation;
• Have a clear view of what you are going to say;
• Keep your strong points for the beginning and the end;
• Make concessions where appropriate;
• Deal with the other side’s case briefly and
• Be honest, be brief.