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HR 101 – What to do when . . . You have a Witness

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Please note that this pertains to South African Labour Law and Best Practice requirements.

Having a witness, when dealing with a disciplinary, an arbitration, a CCMA hearing or even a court hearing is often the difference between winning and losing! Doing it all by yourself is often very difficult, but if you have someone who can back you up and vouch for your story, this is usually a winning factor!

Let’s bring in my favorite pair – Mike the employer and George the employee.

Mike and George have had their usual tiff and now they are at the CCMA for an arbitration hearing. Mike has sent his representative (which in this case would be himself), but he has not sent Sue, who can corroborate his story. Mike is going to find it extremely difficult to win the case because the testimony of the witnesses (both for the employer and for the employee) forms an important part of the procedure at any arbitration hearing.

The arbitrator (let’s call him Charles) has to start the proceedings, by explaining the arbitration process and the rules – these are (but not limited to):

• That opening statements have to be made by both parties (both Mike and George) to outline what it is that they intend to prove.
• Charles may decide to have Mike present his case first. This would mean that Mike, at this point should have all of his witnesses come in one at a time to give their testimony. It is also at this time, that Mike would present any documents or other evidence that he may have to prove that George did whatever it is that he says that George did.
• Each time that Mike or his witnesses give testimony, George is entitled to cross-examine Mike or his witness.
• Charles also has the right to ask either Mike or his witness any questions but only pertaining to clarity – in other words, if Charles is not sure of what Mike is saying, he can ask to have that particular point explained in more detail. So for example, if Mike’s witness Sue says – “George did not follow procedures” – Charles could ask what those procedures entailed, so as to get a better understanding of the situation.
• Mike also has the right to question his own witness, but only on issues that were brought up in the cross-examination of the witness. So for example, if Mike’s witness Sue stated that George was late for work – Mike could ask her exactly how late George was for work.
• Once all of Mike’s witnesses have been heard, been cross-examined and questioned by both Charles and Mike, and Mike has presented all of his documentary evidence, visual or auditory evidence, then George has his chance to present his case – in exactly the same manner.

Once both sides of the story have been told, in graphic detail, the following will take place.

• Charles will hear closing statements – this is when both sides (just like in a court of law) make a final plea as to why they should be awarded or win the case.
• Charles then needs to take himself off to his office, go through all the evidence again, so that he is sure that he understands everything, and then make the award. In other words, at this point, he will decide who has won the case.

The evidence that Charles needs to mull over and assess before he makes his decision usually falls into 3 distinct categories. They are, but not limited to:

• Documents
• Items such as, videotapes or clips, stolen goods, photos, and other such items that would be relevant to the case
• Witness testimony.

Witness testimony is always the most crucial. For example, if Mike says that George told Sue that he was not coming to work because he wanted to stay at home and watch the soccer on TV, it stands to reason that Sue should be there to confirm and say exactly what it was that George told her.

So having your witnesses there means that they can corroborate each piece of evidence thereby giving it more weight.

Make sure that when you attend any of the above hearings or arbitration that you have all your evidence in order and everyone present who can back everything up.