Witnesses And Evidence

The law relating to evidence is a technically complex subject and it is not expected that the Chairman of a disciplinary enquiry should have a full grasp of the complexities involved. However, it is recommended that certain basic guidelines should be adhered to in order to avoid the possibility that the Chairman arrives at a decision based on evidence that would not be permitted at later proceedings should an appeal take place. These guidelines are briefly as follows:

Witnesses

Except in extraordinary circumstances, the rule is that witnesses must give their evidence in person so that the “accused” has an opportunity to put questions to them and the Chairman can assess their credibility. Evidence in the form of statements that are merely handed in at the hearing is not generally acceptable.

This is often a problem as there will be many instances where witnesses are prepared to make a statement to Management but are not willing to give evidence at a hearing as a result of intimidation.

The result may be that the Employer’s case fails because of a lack of witnesses prepared to give “direct” evidence.

Hearsay Evidence

Hearsay evidence is often called “secondhand evidence” meaning evidence given by a person who does not tell what he saw or heard himself, but what he heard from someone else. Under most circumstances’ hearsay evidence is not admissible at arbitration proceedings, and if it is admitted it will carry little weight. A chairman of an internal disciplinary hearing should therefore not rely on hearsay evidence in coming to his decision.

Documentary Evidence

Evidence in the form of documentation often plays a vital role at the hearing. Two basic principles apply when dealing with documentary evidence.

Evidence must be led to prove that the document is what it appears to be (for example a witness says “this is a Standard inter-employer memorandum sent to all employees”.)

Evidence must be led to prove the contents of the document (for example a witness says “I am the general manager of human resources and in this memorandum, I instituted a rule that no employee may clock in or out for another”.)

DVD Recordings

Many companies rely on DVD cameras placed in strategic areas to record unauthorised acts by employees. DVD recordings are admissible as evidence provided that they are authenticated either by the person who operated the DVD camera, or who set up the original installation of a remote camera that automatically recorded events.

Burden Of Proof

It is generally accepted that the chairman of a hearing must be satisfied “on a balance of probabilities” that the employee committed the offence of which he is charged before he can find the employee guilty. (This matter has already been dealt with earlier on in this manual).