Regardless of whether it is a court hearing, a disciplinary hearing or an arbitration hearing it is always very difficult, and often impossible to win a case without witnesses.
For example, should an employer send no witnesses to an 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:
- Hear closing statements; and
- Assess the evidence and make the award.
The evidence that the arbitrator assesses for purposes of making a decision falls into three broad categories. Namely:
- Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand; and
- Witness testimony (or oral evidence).
While all three types of evidence are very important, the testimony of witnesses is the most crucial of all.
It is important to note that although the aforementioned refers to CCMA or Court hearings, the same principles and process apply to internal employer disciplinary hearings/enquiries where the testimony of witnesses are equally critical.