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Avoid the mistake 95% of employers make and win your next CCMA case

by , 19 November 2015
You've got a case at the CCMA on Friday. You've prepared all your evidence. You're ready...

Have you called the witnesses? Have you organised for them to be at the CCMA on Friday? Did you go through their evidence with them before the hearing?

If so, make sure that you see them separately and not together. Make sure that a witness who must still testify isn't in the room when another testifies. This is a common mistake 95% of employers make and it could lose you your case. Your evidence can win or lose your case, but it's witnesses who present the evidence. So, you must ensure their evidence isn't tainted and at risk of being thrown out.

Don't think just because you've got a sure-fire win, you can ignore the correct procedure to follow. The CCMA will toss out your case if you don't follow these 3 rules.

Keep reading below...

You don't need to pay a lawyer thousands to draft winning documentation for the CCMA, it's all been done it for you
Save yourself a host of time and effort wondering if you got all the right forms with the right information, in the right format.
You won't have to draw up a single form or document from scratch.
Simply use one of the seven existing templates supplied in the CCMA for Managers, add your information, and win your case!
And because you have this incredible resource, when your employee issues you a notice that he's taking you to Labour Court, you'll know this matter's actually supposed to be heard at the CCMA.
But do you even know where to start with the types of documents involved in a CCMA case? 

3 Witness related-rules to win your case
Rule #1: Ensure only one witness presents his evidence at a time
This guarantees their evidence isn't tainted by outside influence. It's an important component of a fair procedure.
On the 29th of August 2012, John sees Andrew (at around 19h00) in the basement garage packing his boot with two large crates. That's all he sees and all he can truthfully say. Anything else is speculation. At the time, John didn't think there was anything inappropriate in Andrew's behaviour and didn't give it a second thought. However, if John sits through his colleague Peter's testimony, who says the inventory taken by him on that day shows that two crates are missing, John may jump to the conclusion that what he saw in the basement was Andrew loading two stolen crates into his boot, and he was acting very suspiciously.
Rule #2: A witness must give his evidence before assisting in the enquiry
If your witness has to give evidence and you also ask him to assist in the ongoing investigation, make sure he gives his evidence first before helping your case in any other capacity.
The CCMA could consider his evidence corrupted, or affected, if he was able to listen to everyone else's evidence before giving his. keep reading below for the 3rd rule...
The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
Everything you need to know about substantively and procedurally fair disciplinary hearings.
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail. But not you...

Rule #3: You have the right to object if the other side breaks the rules
If the employee has witnesses present in the enquiry when someone else is testifying, you must object to the chair and ask the other witnesses to wait outside until required. The same applies in arbitration – raise an objection with the commissioner if he hasn't said anything. The chair/commissioner should then warn the employee that his evidence may lose its value if it appears another witness's evidence influenced him. If the chair allows the other witness to remain and you lose the overall case, you can take the matter on review to the Labour Court.
If the commissioner lets the witness stay and testify he must evaluate the witness's testimony, and decide whether his version could have been influenced by the evidence given by other witnesses. 
You can ask questions (during cross-examination) to assess whether the witness's version was influenced by them.
Other rules to remember
  • Witnesses must always attend in person, even if they've given written statements or affidavits. It's essential to give the other party the opportunity to cross-examine them.
  • Your witness must, as far as possible, present the evidence in person. If the person can't, then use other means such as video conferencing. In certain cases involving, say, violence or intimidation where the complainant or a witness legitimately fears for their or their family's safety, they can provide evidence in camera (behind closed doors). This means only the witness, his representative and the chair are present. He gives his evidence and the chair cross-examines him. 
So, next time you have to call witnesses, keep these rules handy.

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Avoid the mistake 95% of employers make and win your next CCMA case
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