The focus of this article is about witnesses at internal disciplinary hearings conducted by employers and not witnesses at CCMA or Bargaining Council hearings. 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 oral 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 defense against the allegation.
Witnesses are key to hearings. It is always very difficult and often impossible to win a case without witnesses. Evidence at hearings fall in three categories, i.e. documents, sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand, and lastly, 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 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.
Unless expertly handled witnesses may get nervous during the hearing. They may therefore get flustered and so make mistakes.
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.
A hostile witness is a person who gives adverse testimony or who displays hostility or prejudice against the party that called the witness to testify. Or 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.
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 witnesses 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 witnesses understanding of the allegations against the accused employee, that their evidence is relevant, what issues are involved, the questions that the witnesses 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 defense 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 of leading evidence 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. Put another way, it is evidence not 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 affidavits/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 that 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.
The order of presenting witness evidence after both parties have made their opening statements is as follows:
- The initiator leads the evidence in chief of the first employer witness.
- The accused employee (or the employee’s representative, i.e. a co-worker or a shop steward) cross-examines the employer witness.
- The initiator clarifies issues arising from the employer witness’ evidence during cross-examination by re-examining the employer witness.
- The witness is excused.
- The presiding officer (chairperson of the hearing) may ask questions at any stage.
- The aforesaid steps are followed with all the employer witnesses.
The same order is followed in leading the evidence of the witnesses of the accused employee.
- The accused employee (or his representative) leads the evidence in chief of the employee’s witness.
- The initiator cross-examines the employee witness.
- The accused employee (or his representative) re-examines the employee witness in order to clarify issues.
- The witness is excused.
- The presiding officer may ask questions at any stage.
- The aforesaid steps are followed with all the employee witnesses.
As this article is about witnesses and their evidence, the other stages of an internal disciplinary hearing are not dealt with here.