How To Present Evidence At A Disciplinary Hearing – Types Of Evidence

Disciplinary hearings exist to either discipline or ultimately dismiss an employee. In either instance, the course of action must be justified, which is found when the chairperson analyses the evidence presented at a disciplinary enquiry. Evidence proves the points raised by a party and gives validity to their arguments. 

The following types of evidence may be consulted and presented, where available: 

• Witness / verbal evidence – Persons who witnessed what happened may give oral testimony to support what they observed, whether in favour of the employer or the employee in question.  

When relying on witness evidence, witnesses must be appropriately prepared before giving their testimony to ensure a reliable, accurate, and understandable recounting of events. 

• Documentary evidence – Written records of an event, such as emails, attendance registers, or other written documents, may be used to establish events.  

When relying upon documentary evidence, original documents should be submitted insofar as possible. Moreover, when there is a sworn statement, it must only be allowed if the person who made the statement is present at the disciplinary enquiry to confirm the content or context thereof.  This is because parties have a right to cross-examine witnesses based on the content of their statements. Lastly, both parties have to agree to the authenticity of a document. If one party does not agree with the genuineness of a particular document, then a witness is needed to testify concerning its authenticity. 

• Audio-visual evidence – Video or photographic footage, as well as audio recordings, are perhaps the most reliable source of evidence, provided it has not been tampered with.  

This must be presented so that all parties present can observe, hear and/or understand what is being portrayed. As such, a translator may be necessary where there may be a language barrier. 

• Concrete evidence – This is where an actual article or object is presented as proof of something, such as the actual item an employee was caught with in cases of theft charges.   

Where concrete evidence is presented, it is sometimes necessary for a witness to confirm that the object in question is, in fact, the item pertaining to the case at hand and not a fabricated piece of evidence.  

Another form of evidence that may be resorted to is hearsay evidence. This is evidence given by someone who does not have first-hand knowledge of or did not actually witness the event. This should be avoided if possible. 

It is worth noting that, as per the case of ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA), it was decided that, before disciplinary hearings, employees are not entitled to be furnished with documentary evidence which the employer intends to introduce. This is because disciplinary proceedings are not bound by the same standards and rules of evidence as courts of law. Before the hearing, it is therefore sufficient for an employer to merely give the employee enough detail of the charges to enable him/her to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence given against them. 

Disciplinary hearings exist to either discipline or ultimately dismiss an employee. In either instance, the course of action must be justified, which is found when the chairperson analyses the evidence presented at a disciplinary enquiry. Evidence proves the points raised by a party and gives validity to their arguments. 

The following types of evidence may be consulted and presented, where available: 

• Witness / verbal evidence – Persons who witnessed what happened may give oral testimony to support what they observed, whether in favour of the employer or the employee in question.  

When relying on witness evidence, witnesses must be appropriately prepared before giving their testimony to ensure a reliable, accurate, and understandable recounting of events. 

• Documentary evidence – Written records of an event, such as emails, attendance registers, or other written documents, may be used to establish events.  

When relying upon documentary evidence, original documents should be submitted insofar as possible. Moreover, when there is a sworn statement, it must only be allowed if the person who made the statement is present at the disciplinary enquiry to confirm the content or context thereof.  This is because parties have a right to cross-examine witnesses based on the content of their statements. Lastly, both parties have to agree to the authenticity of a document. If one party does not agree with the genuineness of a particular document, then a witness is needed to testify concerning its authenticity. 

• Audio-visual evidence – Video or photographic footage, as well as audio recordings, are perhaps the most reliable source of evidence, provided it has not been tampered with.  

This must be presented so that all parties present can observe, hear and/or understand what is being portrayed. As such, a translator may be necessary where there may be a language barrier. 

• Concrete evidence – This is where an actual article or object is presented as proof of something, such as the actual item an employee was caught with in cases of theft charges.   

Where concrete evidence is presented, it is sometimes necessary for a witness to confirm that the object in question is, in fact, the item pertaining to the case at hand and not a fabricated piece of evidence.  

Another form of evidence that may be resorted to is hearsay evidence. This is evidence given by someone who does not have first-hand knowledge of or did not actually witness the event. This should be avoided if possible. 

It is worth noting that, as per the case of ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA), it was decided that, before disciplinary hearings, employees are not entitled to be furnished with documentary evidence which the employer intends to introduce. This is because disciplinary proceedings are not bound by the same standards and rules of evidence as courts of law. Before the hearing, it is therefore sufficient for an employer to merely give the employee enough detail of the charges to enable him/her to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence given against them. 

We at  McCarthy Attorneys are well-versed in all aspects of disciplinary hearings, with years of experience in chairing such proceedings and reaching fair decisions.