CCMA Con/Arb Series


Arbitration Stage Procedures - Witnesses

All witnesses remain outside the room.

Once you have either read from your opening statement, or simply stated your case, call the first witness.

The Commissioner will swear the witness in, that is: the evidence is given under oath.

The witness will confirm each relevant document, as you are refer to them and ask the witness to explain, for example if a report had been sent to you that started the original investigation culminating in the disciplinary action, your questions will go something like this:

• Please introduce yourself.

• What is the nature of our relationship? That is: explain what your position is in the company, or your relationship with the company.

• Please refer to the bundle of documents, page x, and ask, do you recognise this document? The witness will answer, yes this is a copy of the report which I wrote to you.

• Ask open questions, such as what happened on that day which caused you to write the report?

• Then follow up questions such as: what happened next?

• The intention is to obtain a description of what happened so that the Commissioner has all the relevant information and details.

The ex-employee will then be able to cross-examine your witness.

You can then follow up to confirm your version of events, that is: re-asking a question to confirm what the witness originally answered.

The Commissioner might also want to ask questions of clarification.

Once you are sure you have covered everything, that witness can then leave, or alternatively remain in the room, but not participate in the proceedings.

Call your next witnesses in the order of what took place, for example the witness who will cover the procedure that you followed, whose questions would be something like this:

• Please introduce yourself.
• Please describe the procedure followed at the hearing, and as you go through, I will refer to the relevant document.
• As he proceeds, refer to the bundle of documents, page y. Is this the form which was completed?
• Was the employee given a chance to explain himself?
• Did he seem to understand the allegations?
• Did he deny that they were correct?
• Why were you convinced that he was guilty of the allegations?
• You took a decision to dismiss him/recommended a dismissal; did you take other previous incidents into account? Yes.
• Please describe the other incidents.
• For each incident, refer to the bundle of documents, and the specific page.

For some parts of the incident/s it may be necessary for you to ask to be sworn in, refer to the relevant document, and describe what took place.

In addition, everything which you can testify to personally, in which you were involved, and any documents which haven’t been covered, you confirm what they are.

By the time you have got through your evidence, you should have referred to every document in the bundle to confirm what it is, and to have the relevant evidence covered.

At the end, you can either do a summing-up statement then, or ask the Commissioner if you could submit your final statement to him in writing. You can do that via email to the Commissioner and copy the employee. The employee will then also get a chance to reply also via email & copy you. You will then also get a final chance to respond.

You can agree this last bit with the Commissioner and the exact timing for each stage.

In your final statement, in case the Commissioner finds that you are at fault and not the employee, if you are not prepared to take the employee back into your company, you need to explain why it would not be possible to bring the employee back as a re-instatement, and why this would not be sustainable to you, & if appropriate, whether you have lost trust in him.

The Commissioner has 14 days to decide on the outcome and to provide you with a report.

There is no appeal process after this decision. The Commissioner can only be taken on review to the Labour Court on very limited grounds.