Presenting Your Case

A disciplinary hearing is an internal process where substantive and procedural fairness must be applied in all cases. The employer bears the burden of proof to establish guilt. Although the rules applied in a court of law and the rules for a disciplinary hearing are not the same, there are similarities.

It is not up to the chairperson to bring the evidence or to show that the evidence brought constitutes proven facts. The chairperson merely creates the environment in which the parties can present their evidence they brought with them. In this sense the chairperson acts as a master of ceremonies.

That is, he manages the following hearing process: 

• Opening statements are made by each party outlining what they intend to prove.
• The parties present their cases via witnesses, documents and other evidence.
• The employer goes first, then each time the employer’s representative is finished questioning one of his witnesses, the accused employee has a right to cross examine that witness.
• The chairperson 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 case according to the above listed steps.
• Each party presents a closing statement.
• The chairperson adjourns to assess the evidence and to make the finding.

Opening Statement

The opening statement is often neglected. Its tactical value is under-estimated. The opportunity to use an opening statement begin the process of persuasion is often not exploited fully. It can play an important role in the process. It introduce to the chairman the issues and the evidence to be led on the issues, making the chairman’s task easier and more focused. You have a right to make an opening statement. Insist on being able to exercise that right.

Presenting evidence in chief

This is the most important phase of the hearing for you. It enables you to put forward the employer’s version of the facts and supported by your own witnesses.

Cross-examining

This phase of the hearing takes place after the employee has finished asking the questions of his witness. You now have a chance to ask the witness questions that 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.

Tips for Effective Cross-Examination

Do not necessarily follow the order of the accused employee or his representative direct examination of the witness. What the chairman hears first and last are most memorable.

There are two types of cross-examination, constructive and destructive.

Constructive cross-examination

The initiator seeks to get helpful testimony from the witness. Such testimony can corroborate the testimony of one of your witnesses or impeach another witness, either or both of which may be helpful to your case. The format, “Mr. Jones, can we agree that…?” is often useful in framing constructive questions.

Destructive cross-examination

Your goal is to “destroy”, or at least seriously hurt the witness’ credibility or limit the effect of his testimony. Destructive cross-examination is “got you” time. Generally speaking, if you need constructive testimony from a witness, it is better to get it first before moving into destructive cross-examination. After having his credibility challenged, the witness will be more likely to fight you on the points about which you seek his agreement.

Destructive cross-examination of a hostile witnesses

Your goal is to establish your immediate control over the witness in his mind and in the mind of the chairperson. Again, the chairman have come to expect this and if you fail to come out swinging, they’ll assume you can’t impeach this critical witness. In addition to starting strong, you should finish strong holding certain “zingers” until the end of the cross. The first and last things a chairman hear, stick with them. Establish and maintain your control over the witness by following the traditional rules of cross-examination: Ask only leading questions, ask only questions which can be answered with a “yes” or “no” (if possible in a situation where either answer hurts the witness) and never ask a question unless, firstly, it is absolutely necessary and, secondly, you already know the answer. Don’t ask that one question too many.

Framing your Questions.

Your questions should be tight and limited to one fact per question. The more complicated a question or the more loaded it is with facts, the more easily the witness can quibble with it or deny it. The witness may deny the question based the fact that a sub-part or minor fact, for example, is technically incorrect. Don’t give the witness that opportunity—leave out the extraneous stuff.

In framing your questions, and in keeping with the notion that you should dare the witness to disagree with you, don’t use the “Isn’t it true that…?” format. Instead, you, the initiator should testify. For example, don’t say “Isn’t it true that the light was red?”, “Isn’t it true that you were going 95 miles per hour?” etc.  Rather, say, “The light was red.”, “You were going 95 miles per hour.” and so forth.

In summary, make your “statement”, get your “yes” or “no” answer and move on. Sometimes the best cross-examination, even of a critical witness who just completed a lengthy direct examination, consists of only a question or two. For example, consider a case in which the other side has an expert, but you don’t for whatever reason (and you’re not having one doesn’t hurt you). Following the expert’s presumably lengthy and technical testimony where opposing counsel didn’t “draw the sting” by asking the expert about her fees, consider this cross:

Q: Dr. XXXX you’re getting paid $450 per hour to testify here today?

A: Yes.

Q: I won’t take another minute of your time.

The Evasive Witness.

The witness is evasive, won’t directly answer your question with a “yes” or “no” or claims not to know what the meaning of “is” is. Never interrupt the witness, just go back and repeat your question. Never rephrase it. Repeat it verbatim. If the evasiveness persists, continue to repeat the question exactly slowing down and pausing between words if necessary. Eventually, the witness will look obstructionist or ridiculous to the chairman. You have succeeded already in your cross even if the witness still hasn’t answered your question. Demand a “yes” or “no” answer if that’s what you’re seeking, but never invoke the chairman unless all else fails. Establish and maintain your control, don’t be rude to the witness. For example, if the witness dodges or gives a rambling answer to a simple, direct question, let him finish and then start over saying, “I’m sorry, sir, I must not have been clear. My question actually was…”

Remember the Point of Cross-Examination

Cross-examination is not a time for the initiator to grandstand or win a battle of wits with the witness. Cross-examination is like all other parts of the hearing (opening, direct examinations and closing), a means by which you argue your case. If nothing else, remember that and you would have conducted a successful cross-examination.

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.

The chairperson adjourns at this point of the proceedings to assess the evidence and to make a decision regarding the finding (guilty/not guilty). The phase of the hearing below only takes place when the chairperson has made a finding of guilt.

Address in mitigation and aggravation

Mitigating factors are any evidence presented regarding the accused employee’s character or the circumstances of the offence, which would cause the chairman to decide on a lesser sanction. The accused employee can call witnesses if he think it necessary for them to support the allegations.

Mitigating factors can be divided into the following:

Factors affecting the accused employee personally

• Age;
• Personal circumstances;
• Length of service;
• Disciplinary history;
• State of health;
• How close to retirement;
• Financial circumstances;
• Level of education;
• Attitude to the offence (e.g. remorse) and
• Willingness to make amends, if relevant.

Factors relating to the offence itself

• The circumstances surrounding the breach of the rule and
• Urged on by others.

Factors relating to the employer

• Would the sanction imposed be consistent with previous similar cases involving other employees?
• Position with the employer.

Aggravating Circumstances

Aggravating Circumstances are those circumstances that count against the accused employee, e.g. the seriousness of the offence seen in the light of his length of service, position in the company, to what degree did any element of trust exist in this employment relationship, etc. These needs to be submitted to the chairman by the employer representative after the accused employee has been found guilty on the allegation(s).

Conclusion

Before you hear the verdict, and perhaps even more so afterwards, you might be inclined to experience regrets the moment the hearing ends. The point you forgot to make, the question you forgot to ask, the preparation you didn’t have time to perfect, can come rushing to your mind.

At least you will be able to say, “no matter the outcome, I know that I did everything I could to present my case as strong as possible”. I hope this training will have helped you to do so.

Relevant Legislation and Code of Good Practise

Code of good practice on dismissals: General

Code of good practice: Performance

Poor Work Performance