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Who should lead evidence at an arbitration hearing?

by , 04 March 2014
When it comes to labour matters like arbitration hearings, following the correct procedure is crucial. For instance, you can't just walk into an arbitration hearing and lead evidence. Certain criteria have to be met first. Continue reading to find out who should give evidence first at an arbitration hearing.

How to determine who should lead evidence at an arbitration hearing

The question of who will lead evidence first is usually determined by the onus of proof.

What's the onus of proof?

The Labour Law for Managers Loose Leaf Service defines the onus of proof of as a situation where one party in a case carries the duty to establish certain facts before the other party is obliged to respond.

If he doesn't establish those facts, the other party has nothing to respond to and the party who has the onus of proof loses the case.

Now let's get to who should lead evidence first at an arbitration hearing.

The Labour Relations Act (LRA) states that in dismissal disputes, your employee has the onus to prove he was dismissed. Once it's clear there was a dismissal, the onus is on you (employer) to prove dismissal is fair.

This means that unless you're denying you dismissed your employee, you'll have to lead evidence first in a dismissal dispute. But, if you say you never dismissed your employee (for example you believe he resigned), then your employee will have to lead evidence first to prove you did dismiss him.

There are two exceptions to the rule of who leads evidence first at an arbitration hearing:

  1. Constructive dismissal; and
  2. Unfair labour practice disputes.

In a constructive dismissal case, your employee has to lead evidence first.

This is because in these cases, it's always your employee who resigns, but says he did so because you made life intolerable for him at work. Because he has to prove the dismissal, he must lead evidence first.

In unfair labour practice cases, your employee has to prove you committed an unfair labour practice, so he'll have to lead evidence first.

Sounds complicated?

Use this guideline below to work out if you'll have to lead evidence first

This guideline summarises who has the onus of proof and who'll probably have to lead evidence first in the most common arbitration cases:

#1: Type of dispute: Dismissal for misconduct or incapacity
Who must lead evidence first? - The employer

#2: Type of dispute: The employee alleges dismissal, but you say you didn't dismiss him
Who must lead evidence first? - The employee

#3: Type of dispute: Constructive dismissal
Who must lead evidence first? - The employee

#4: Type of dispute: Unfair labour practice
Who must lead evidence first? - The employee

#5: Type of dispute: Failure to renew a contract where an employee says he had a reasonable expectation of renewal
Who must lead evidence first? - The employee.

Knowing who leads evidence first will help ensure you follow the correct procedure at an arbitration hearing.

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