The Resource Remedy

PROBLEM

I HAVE NEVER BEEN EXPOSED TO ANY LAW AND THEREFORE DO NOT KNOW EXACTLY HOW TO COLLECT EVIDENCE AND WHETHER IT WILL BE CONSIDERED SUFFICIENT TO PROVE THAT THE EMPLOYEE IS GUILTY.

CAUSE

The CCMA and Bargaining Councils required that you apply the rules of evidence when conducting a Disciplinary Enquiry or presenting a case at Arbitration.

REMEDY

A good overview of what evidence is and the basic rules of evidence are provided below.

What is evidence:

Evidence refers to the information you need to provide to convince the Commissioner that the employee is guilty of what you are claiming he/she is guilty of. Remember that in Labour Law you only need to prove that the employee is guilty on what is known as the “balance of probability” not “beyond a reasonable doubt “as is required by the normal court of law. It a court of law you need to prove that it definitely was a particular person who committed the crime (beyond a doubt). In any Labour proceedings, you just need to show that it was “most probably “ the employee who committed the act.

Best type of Evidence:

Direct Evidence

          Evidence provided by a witness who actually witnessed the incident with his/her own senses ( saw it, heard it, smelt it, touched it). If your witness is credible this is the best type of evidence. Try get at least two such witnesses.

Documentary Evidence

         This refers to the documents that can help you prove your case. This will include Contracts of Employment, Disciplinary Codes and Procedures, Induction and Training forms, Staff Information Handbooks etc. You will need a witness to present this documentation and explain what it is.

Circumstantial Evidence

         This evidence refers to the circumstances surrounding the incident. For example you may not have a witnesses who saw the employee break the rule but the circumstances at the time can lead you to only one conclusion and that this that the employee is guilty of the act. If the employee was the only one in the room at the time , the only one who has access to the money etc.

Evidence that you cannot use:

Hearsay Evidence

          This evidence refers to the evidence given by a witness who did not actually see the incident but was told about it by someone else. They therefore “heard” that it occurred. This is not acceptable as it cannot be subject to cross examination.

Confidential Evidence

          Some information is confidential and even if you are aware of it you cannot use it as evidence. Personal Information about the employee, medical records which the employee has not given permission to obtain are some examples.

Opinion Evidence

The only person who can give an opinion which is deemed acceptable evidence is a person qualified to do so. For example a medical Doctor or Psychologist can give an opinion about the employee’s state of health or mind. This is known as Expert Opinion and this is the only time an opinion will be considered evidence

Further Information and Advice :

         The Resource Remedy offers a unique product which will ensure that you have excellent documentary evidence available. These documents are specific for your industry .Click on the Link “Products” for further information.

          Any further assistance in the collection and presentation of evidence or should you wish for a consultant to hold your enquiry for you, click on the Link ““Consultants” for a consultant in your area.