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Arbitration hearings: What you need to know about presenting evidence and questioning witnesses

by , 12 March 2014
You can't just walk into an arbitration hearing and present evidence or question witnesses the way you like. You have to follow a certain procedure. Read on to find out more about this so you can increase your chances of success at arbitration.

How to present evidence and question witnesses during an arbitration hearing

Preparation is everything when it comes to arbitration hearings. Here's what you need to know about evidence presentation and the questioning of witnesses.

Evidence presentation explained

The Labour Law for Managers Loose Leaf Service says you must decide the order in which you present your evidence and how you'll present your case before the hearing takes place. You need to act as follows:

#1: You must prove that the offence your employee committed was a prohibited offence. You can do this by referring to the relevant section in your disciplinary code and procedures.

#2: You must prove that your employee was guilty of the offence.

#3: You must present evidence that shows your employee was aware it was a prohibited offence. You can do this by presenting a document on which he acknowledged receipt of a copy of the disciplinary code and procedures. You can also do this by stating that your disciplinary code is clearly displayed in the workplace and if necessary having one of your witnesses testify to this fact.

#4: You must show in evidence that the rule broken was a reasonable one.

#5: You'll have to present evidence to show your company suffered harm (if that's the case) or, if the offence were to be repeated, the company would sustain damage or harm.

'This is important in supporting your contention that the dismissal was substantively fair, i.e. effected for a fair reason,' says the Loose Leaf Service.

What are the rules when questioning witnesses?

***********

Do you have a paper-shuffler working for you?

You know that person…

Always busy but never meets deadlines…

Always making excuses for why he doesn't meet company targets…

He doesn't meet his KPI's…

And he's constantly making costly mistakes…

The next logical step is to get rid of him and get someone who can do the job. But watch out, that could cost you BIG at the CCMA!

So what can you LEGALLY do?

***********

When questioning your witnesses, lead the questions DON'T lead the witness.

Confused?

Leading the witness simply means you're 'putting words in his mouth.' You must never do this and if the other party does this with any witness, you must object.

Here's an example of leading the question:

You: 'Mr Peters, please tell us where you were on the morning of 1st January at 7:30 am.'
Mr Peters: 'I was in the consumable store, standing at the water cooler.'

You: 'Did you witness anything taking place?'

Mr Peters: 'Yes.'

You: 'Please tell us what you witnessed.'

Mr Peters: 'I witnessed John strike William on the head with a piece of wood.

Now take a look at an example of leading the witness:

You: 'Mr Peters, on the morning of 1st January, were you in the consumable store and did you witness John strike William on the head with a piece of wood?'

Mr Peters: 'Yes.'

There you have it. Knowing how to present evidence and question witnesses during an arbitration hearing will help ensure you're thoroughly prepared.



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