I have seen on numerous occasions how employers couldn’t prove a case because they don’t know what evidence they may use in a disciplinary enquiry. Employers don’t investigate the incident well enough and often don’t have answers when confronted with questions regarding facts in a disciplinary hearing.
This often leads to a case being lost by the employer. Part of knowing whether you have a case against an employee is to advise your disciplinary code. Measure the employees conduct against the disciplinary code and/or establish the employees’ previous warnings.
The Chairperson/CCMA will scrutinise the code to make sure you have followed the correct procedure in your disciplinary code.
The following will guide you to establish a good case against an employee.
Section 188 of the Labour Relation Act stipulates:
- A Dismissal that is not automatically unfair is unfair if an employer fails to prove:
- That the reason for dismissal is fair:
- Related to the employee’s conduct or capacity; or
- Based on the employer’s operational requirements.
- That the dismissal was effected in accordance with a fair procedure.
- Any person considering whether the reason for dismissal is a fair reason or whether the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issues in terms of the Act (item 2 of the Code of Good Practice.
There are four types of evidence the employer can rely on:
- Witness Evidence
This refers to people who witness an incident. Make sure that the people write a statement as soon as possible in order not to compromise the case at a later stage because the witness couldn’t remember details of the incident. Details may make or break a case.
- Documentary evidence
This refers to evidence that is on paper;
- Maps;
- Reports;
- Statements;
- Investigations.
- Physical Evidence
This refers to any evidence in the form of material objects–an object used in an assault or in the theft.
- Place
This refers to misconduct committed in a specific place. This evidence is important in cases of theft or motor vehicle accidents.
Always consider the witness’ statement against objective evidence and cross-examine your witness to test the witness’ version of events. This will give a good indication whether your witnesses are reliable and credible to prove your case on a balance of probabilities (balance of probabilities–to determine whose version is more likely to be true given the facts before him/her).
SEESA has always been committed to providing ongoing quality service to all of our clients. Should you require any Labour assistance, please contact your nearest SEESA Office alternatively leave your contact details on our website at www.seesa.co.za.
Resources:
Labour Relations Act 66 of 1995, Law of Evidence.
About the Author
Andre Symington completed his articles in Bloemfontein. He joined SEESA in 2009 and is currently a Legal Advisor at SEESA Bethlehem.