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Rules of Evidence

What are the basic rules of evidence when an employer has a case at the CCMA?

Rules of EvidenceWhen an employer presents a case of a disciplinary hearing at the CCMA, the employer representative needs to know the basic rules of evidence.

Why is this important? Because the final resolution depends on the evidence that is presented.

Evidence and the CCMA: What an employer needs to know

The Chairperson of a hearing or the CCMA Commissioner can only make a decision using the evidence that is presented. If reliable and admissible evidence are not given, the case would not be won.

It is thus essential to know the basic rules of evidence. Even if the employer representative knows how to present evidence, cross-examine witnesses and argue the employer’s case, it will be lost if he does not have a basic understanding of what the law says about evidence.

To do this, the representative has to know the answer to 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 to use to persuade the Chairperson or Commissioner to decide in the employer’s favour?

What does evidence mean, what are the four admissible forms of evidence and the rules that will make a piece of evidence valid?

What is evidence?

Evidence is not an argument. It is the form of proof that is used to support an argument. Without evidence to support a case, the case at the CCMA hearing will be lost.

Four forms of evidence that can be presented at the CCMA:

1. Oral evidence
Verbal statements witnesses make during the hearing.

Example
A statement by a security guard. He says he saw one of the employees put a roll of copper wire into the boot of his car and then drive off the company premises.

2. Documentary evidence
Documents that are produced/submitted during the hearing to support the case.

Example
The minutes of the disciplinary hearing involving the accused employee.

3. Real evidence
Actual objects that are produced/submitted during the hearing.

Example
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 the accused employee’s car.

4. Video evidence
Video footage showing the accused employee committing the crime and caught on camera.

Example
The security camera in the parking lot shows the accused employee putting the copper wire into the boot of his car.

Three rules when using a document as evidence at the CCMA:

1. It must show that whatever is in the document is relevant to the case.

Example

The employee says his dismissal was procedurally unfair. He says he did not know what the allegations were before the hearing. The notice sent before the hearing needs to be shown, which shows the allegations, as evidence. It is relevant evidence because the employee’s arguing procedural fairness.

To prove a case it has to be shown that the procedure was fair and that the employee was given notice with the allegations.

The other party must admit that the document is authentic, not a fake. If the other party would not admit it is authentic, it has to be proven. This can be done through a witness who can confirm it is real because he:

• Was the one to write it up;
• It is his signature on it; or
• Was a witness to it.

Example
A manager draws up and signs the notice to attend a hearing. He can say the document that the employer representative has as evidence is the actual one he gave to the employee.

2. The original document must be at hand and not just a copy.

Exception:
A copy can be used if the original is not available, but it will have to be explained why it is not available if the employee says it is not authentic.

3. Copies need to be made – the original must be given to the Chairperson/Commissioner, a copy to the other party, a copy for the witness should witnesses be called to testify and a copy to be kept by the employer representative.

NOTE: These rules of evidence also apply when presenting evidence at internal disciplinary hearings.