The complainant and the chairperson must know the differences in the various types of evidence, what weight a certain type of evidence carries, and what evidence is admissible and what is not admissible.
In considering the finding of guilty or not guilty, the chairperson will consider all the evidence led at the disciplinary hearing by both parties. Based on the evidence, they will decide, on the balance of probability, whose story is more likely to be true – that of the initiator or that of the accused employee. Based on the decision of whose story is more likely to be true, they will arrive at a finding of guilty or not guilty.
A sanction will only be considered if the finding is guilty. If the accused employee is found not guilty, that finding is communicated to the accused employee and the matter is closed.
In considering a sanction the chairperson will consider facts such as the length of service of the employee, the position held in the company, the seriousness of the offense, the personal circumstances of the employee, the degree of remorse if any, and any other mitigating or aggravating circumstance.
The chairperson must also consider the employer’s disciplinary code and procedures, and also consistency in terms of previous sanctions imposed for similar offenses.
Leading and testing evidence and versions
Once all the preliminary issues have been disposed of, the initiator must lead evidence first – in keeping with the principle that “they who alleges must prove.”
The initiator may lead evidence by calling witnesses in support of the charge or by producing documents or objects relevant to and in support of the charges. Lead evidence on the documents – documents cannot prove themselves. The fact that it has been submitted does not mean that the content has been proven or admitted.
The accused employee shall be given the opportunity to cross-examine the employer’s witness when each witness has completed their evidence in chief. When such cross-examination is completed, and the initiator does not wish to re-examine their witness, the witness may be excused after having been suitably warned not to discuss their evidence or any part of the proceedings with any other person or witness who has not yet been called to give evidence.
The accused employee must be afforded reasonable access (this means with enough time to prepare for it) to all documentary evidence or object evidence used and led by the initiator in the case and must be afforded a reasonable opportunity to respond to it. It is preferable that documentary evidence to be used during the Disciplinary Hearing be supplied to the accused employee and vice versa, prior to the commencement of the hearing.
It should be noted that if the dependent of a written statement is not present at the hearing, then the written statement may not be admitted into evidence unless both parties agree that such statement can be admitted in the absence of the deponent, therefore the accused employee admits the content of the statements. This is because the accused employee has the right to cross-examine management witnesses and they cannot cross-examine a piece of paper if the deponent is not present.
Statements are normally taken as part of the investigation and preparation of the employer. Due to the fact that the deponent is testifying, the employer should consider if it is necessary to submit the statements at all. We advise not, but if it is considered, the statements should be supplied to the accused employee before the commencement of the disciplinary hearing in order for the accused employee to have time to prepare the statements.
After the initiator has completed and closed their case, the accused employee is invited to present their evidence in chief by calling witnesses in support of their defense. The initiator must be given the opportunity to cross-examine the accused employee or the witness when each witness has completed their evidence in chief.
When such cross-examination is completed, and the accused employee does not wish to re-examine their witness, the witness may be excused after having been warned not to discuss the evidence with other witnesses. The initiator must be afforded reasonable access to all documentary evidence or object evidence led by the accused employee and must be afforded a reasonable opportunity to respond to it.
The chairperson may ask the accused employee or the initiator or any witness, any questions for clarification purposes. The chairperson should be careful not to descend into the arena of the parties by asking too many questions or taking over the role of the representative or initiator.
If the accused employee fails to put their version/defense to the witness of the employer, the chairperson will lose the benefit of hearing the complete version of both sides, as the reply of the witness to the version of the accused employee will be lost. They will be faced with two versions that have not been tested against each other. It also places the initiator at a disadvantage as they only hear the version of the employee after their case has been closed, placing them in the position that they might want to apply to re-open their case to bring evidence in rebuttal. This is what is called untested evidence.
The opening statement
The initiator must prepare an opening statement and have it ready to present when they open their case at the disciplinary hearing. Chairpersons should ask for opening statements as it assists them in determining the core of the case right at the beginning of the hearing, making it easier to determine the value of the evidence as it is presented.
The opening statement is basically a summary of the basis of the case and how the party plans on proving or disapproving the case or a charge. It is a statement to the chairperson of what the matter is all about. It is not vitally necessary to prepare an opening statement for a disciplinary hearing, but in serious cases, it can be a big advantage.
Evidence in chief
Usually, the proceedings will start with the employer (initiator) leading their evidence. This is called evidence-in-chief. The initiator must lead the witness – but you do not ask leading questions: in other words, you do not tell them what to say – you do not put words into their mouth. Any question that has a “yes” or “no” answer is a leading question. The way you lead a witness is key by asking them questions that they must answer.
They do not give evidence by reading from a written statement
After the witness has given their evidence, the opposing party would be entitled to cross-examine the witness on the evidence they have been given.
After cross-examination, the party calling the witness will be entitled to re-examine the witness. This is not to bring in new evidence but only to clarify points of cross-examination. From the statement, you will formulate the questions that you are going to ask your witness when they enter the hearing to give their evidence.
By asking them the proper questions, you will lead your witness into giving the evidence that they have put in their written statement, without introducing the statement into evidence.
The purpose of cross-examination is to allow one party to dispute or try to discredit the evidence or witness of the opposing party.
It is an art – generally, and perhaps, unfortunately, not something that can be learned from a book. One of the best ways to learn the art of cross-examination is to attend court cases – in the criminal courts and the civil courts. Especially in high-profile cases, you will see the experts at work.
In cross-examination, by planning and preparing a strategy, a cross-examiner might be able to get a witness to say something or give information that is favourable to their opponent’s case, or that the cross-examiner might be able to use when cross-examining other witnesses. If you follow the “bulldog” approach and do not let up on questions – meaning, follow up on their answers and work according to your strategy – you will be surprised how many admissions you can get from a witness. The best strategy to follow is to know the weak points in the case and the evidence of the opponent and to follow up on that.
In cross-examination, trying to show that the evidence the witness gave is vague, cannot be corroborated, is highly unlikely or improbable, that they are lying or is biased, or that they have been told what to say. Such tactics are very often frustrating the witness – because they suddenly realise that the alternative scenario you have put to them is quite possible – thus casting doubt on their own evidence.
A party must be careful when re-examining a witness, you must not cross-examine your own witness. Do not dispute any evidence that they have already given – because you would be disputing your own evidence, to the great advantage of the other side.
Re-examination means that a party is given the opportunity to clarify or emphasize anything that the witness said previously in their evidence.
Your re-examination must be limited to either emphasizing or clarifying issues, and it must be limited to matters raised by the opposing party during cross-examination.
In the re-examination, you are not permitted to introduce new evidence or new facts that you may have forgotten previously.
A witness should not give evidence by merely reading from their written statement. The reason is that if they do read from their written statement, then the other party is entitled to be given a copy of that statement – this would give them the opportunity to pick up on even the slightest technicality if the witness deviates in any way from their statement. If a lengthy period od time has elapsed between the time the witness made their statements, and their appearance at the disciplinary hearing, and they need to refresh their memory, then the witness should read through their statement before they give evidence. If the contents of the statement are admitted by the other party, the statement can be handed to the chairperson as evidence.
The same, in fact, apply to hearsay evidence. If the opposing party agrees, then that hearsay evidence can also be accepted.
Whilst there may not be any specific legislation concerning the submission or taking of statements, there is a right way and wrong way to do it and the courts have given us some guidelines as to what a statement should entail in order for it to be of any probative value.
The Court formulated the test which should be applied when deciding whether or not written statements should be admitted into evidence: “That the rule of thumb by which an adjudicator decides whether to admit or exclude an oral or written statement tended as evidence should be whether the statement is relevant, reliable, and logically probative and of such a nature that responsible people would rely upon it in serious affairs.”
If the statement does not comply with this requirement, then it should not be accepted.
A written statement, whether it is an affidavit (sworn statement in front of a Commissioner of Oaths) or a plain statement, can make or break a case and especially when the deponent is under cross-examination.
If a statement or affidavit is badly taken down, badly worded, or vague, the other side will tear that evidence to pieces. You should also consider whether you want to use the statements during the hearing or whether it is only for preparation or investigation purposes. There is no rule stipulating that the statement or affidavits must be submitted, it depends on the initiator.
It must be remembered that obtaining statements is one method used to obtain all the relevant facts concerning a reported offense, and these facts are used by the investigator or initiator to decide whether or not a Disciplinary Hearing should be proceeded. The statements introduced into evidence must be supplied to the accused employee before the time to give them an opportunity to prepare and the deponent appears as a witness to confirm what they have said in the statement and can also be subjected to cross-examination.
It is therefore vital that the statement be accurate, that the deponent is fully familiar with the contents, has read and confirmed the contents before the hearing, and that the deponent be 100% sure of and fully familiar with the evidence that they give.
Investigators should carefully consider whether they want to submit the statements to the other side or even during the hearing. In light of the fact that the deponent will testify, it is strictly speaking not necessary to supply the statements. It forms part of the preparation material of the initiator.
If it is submitted, the written statement and the oral evidence of the deponent must be able to withstand the sometimes-rigorous test of cross-examination.
A statement is a written account of the experiences or an account of what the deponent witnessed or experienced. Its value lies in the fact that it is given shortly after the incident and when the facts are still clear in the witnesses’ minds. By the time the hearing starts, facts might have faded, and the statements then play a valuable role.