Evidence and the CCMA: What you need to know
The Chairperson of your hearing or the CCMA Commissioner can only make a decision using the evidence you present. If you don't give him reliable and admissible evidence, you won't win.
It is thus essential that you know the basic rules of evidence. Even if you know how to present evidence, cross-examine witnesses and argue your case, you'll lose if you don't have a basic understanding of what the law says about evidence.
To do this, you have to know how to answer the following questions:
1. What is evidence?
2. What evidence is admissible in a disciplinary hearing or arbitration?
3. What types of evidence carry weight? In other words, what will be the most powerful evidence you can use to persuade the Chairperson or Commissioner to decide in your favour?
Let's look at what evidence mean, the four admissible forms of evidence and the rules that will make a piece of evidence valid.
What is evidence?
Evidence isn't an argument. It's the form of proof you use to support your argument. Without evidence to support your case, you'll lose at the hearing at CCMA.
Four forms of evidence you can present at the CCMA:
1. Oral evidence
Verbal statements witnesses make during the hearing.
A statement by Mr Jones, a security guard. He says he saw one of your employees, Mr Smith, put a roll of copper wire into the boot of his car and then drive off the company premises.
2. Documentary evidence
Documents you produce during the hearing to support your case.
The minutes of the disciplinary hearing involving Mr Smith.
3. Real evidence
Actual objects you produce during the hearing.
The roll of copper wire handed in at the hearing. This is what the security guard confirms to be the roll of copper wire he got from the boot of Mr Smith's car.
*********** Recommended For You ***************
Part-Time CCMA Commisioner reveals:
'If you want to stay out of the CCMA, you need to have these 50 HR policies and procedures in place in your company!'
Click here to find out more…
4. Video evidence
Video footage showing the employee committing the crime and caught on camera.
The security camera in the parking lot shows Mr Smith putting the copper wire into his boot.
Here are the three rules you need to know when using a document as evidence for a CCMA case:
1. You must show that whatever is in the document is relevant to the case.
The employee says his dismissal was procedurally unfair. He says he didn't know what the allegations were before the hearing. You'll need to show the notice you sent before the hearing, which shows the allegations, as evidence. It's relevant evidence because the employee's arguing procedural fairness.
You need it to prove your case that the procedure was fair and you gave the employee notice with the allegations.
You must get the other party to admit that the document's authentic, not a fake. If he won't admit it's authentic, you have to prove it is. You can do this through a witness who can confirm it's real because he:
• Was the one to write it up;
• It's his signature on it; or
• Was a witness to it.
A manager draws up and signs the notice to attend a hearing. He can say the document you have as evidence is the actual one he gave to the employee.
2. Normally, you have to have the original document
and not just a copy.
You can use a copy if you don't have the original. But you'll need to explain why you don't have it if the employee says it isn't authentic.
3. You need to make copies
- two should be fine – so you can give the original to the Chairperson/ Commissioner. Give a copy to the other party and keep one for yourself.