Evidence during a disciplinary hearing

Employers must ensure they have basic knowledge of the law of evidence.  This includes the definition, what is admissible and what type of evidence carries the most weight in order to prove a case, as well as limit risk.  When an employee is dismissed, the onus rests on the employer to prove the correct procedure was followed and there is enough evidence to justify the sanction.

Compliance with legislation can be intimidating, especially for people without a legal background.  Labour law is not negotiable and compliance requires specialist knowledge, which poses a business risk to the employer.  One of the most important rules is that the employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing.  This ensures that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed.

What should you as an employer know?

Evidence is defined as:  “the available body of facts or information indicating whether a belief or proposition is true or valid”.  It is not the argument, but rather facts or information to prove the argument is correct.  During the disciplinary hearing, the chairperson can only make a decision based on the evidence presented at the disciplinary hearing.  If admissible and trustworthy evidence were not presented, it cannot be taken into account.

Types of evidence:

  • Verbal
    This is verbal testimonies from witnesses, for example where a person testifies at the hearing that he/she saw the accused employee steal a bag of potatoes.
  • Documentary
    Documents that will prove the allegations against an employee, for example an attendance register that will prove that an employee was absent from work on a specific date.
  • Concrete
    For example the actual bag of potatoes that the employee was caught with.
  • Picture footage
    Video footage from a security camera showing the theft at work.  Photographs and sound clips will also fall in this category.

Rules relating to documentary evidence:

  • A sworn statement will only be allowed if the person who made the statement is present at the disciplinary hearing to confirm the content.  The reason for this is that parties have a right to cross examine witnesses based on the content of their statements.
  • Both parties have to agree to the authenticity of a document.  If the other party does not agree, a witness has to testify with regards to its authenticity.
  • Original documents should be submitted as far as possible.  If you only have a copy available, the lack of an original document has to be explained.

Hearsay evidence:

Verbal evidence given by a person that does not have first-hand knowledge of a matter is regarded as hearsay evidence.  A typical example of hearsay is where a case of theft was reported to a manager by an employee who heard of the theft from another employee.  The evidence from the manager and the employee who reported that he/she heard about the theft would be hearsay.  Hearsay is not permissible unless it is substantiated by evidence from someone who has first-hand knowledge of the matter in question.

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.  When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.  The employer should always first establish if there is enough evidence to prove a case prior to making the decision to proceed with a disciplinary hearing.

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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