Please note that this pertains to South African Labour and Best Practice requirements.
I have had to facilitate a huge number of disciplinary hearings during the first half of this year and each one has just magnified the importance of having witnesses. Sure documents tell their own story but the weight of the testimony of a good witness is much stronger.
In the instances that the employee has taken their case to the CCMA – the witnesses also went along to present their testimony which has then been backed up, for the most part, by the documentation and other evidence.
Remember though, no matter how strong or convincing the witness may be, the employee has the right to cross examine that witness and challenge the documentation and other evidence, so it is of the utmost importance that the witness is clear on the facts and that the story is told clearly, factually and without embellishments.
Whatever the story, whatever the facts, these should be backed up with documentary evidence.
Obviously the more witnesses you have and the more documented evidence you have to support the testimony of your witnesses the stronger your case will be.
Disciplinary Chairpersons and CCMA Arbitrators make decisions based on three criteria (apart from the stories that are told by the employer and the employee) and these are:
• Items such as video tapes, the actual items that may have been stolen and
• Witness testimony
Although the evidence is critically important, the most crucial is the witness.
Say for example that there is a document that states a particular process in a step by step manner, the author of the document or the person who used the document for training purposes would still be required to firstly, validate the document and secondly to explain the reason or intent behind why the document exists. Finally, how the employee did not adhere to the procedures as stipulated in the document would have to be explained to.
Remember though, that for witnesses to be effective they need to be managed properly, to ensure that they actually pitch to the hearing. They have to be properly prepared, to ensure that they have all the relevant details available. The biggest thing to control though, is to ensure that your witnesses are not bribed or persuaded to lie or negatively embellish the facts in any way.
Be prepared and always be pro-active.