Ensure that the concept of “proof on the balance of probabilities” is clearly understood. This is the burden (or amount) of proof required for an employee to be found guilty in a fair manner. Put simply, the employer must be able to prove that the employee is probably guilty.
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Prepare well. Preparation must be invested in witnesses and documents. Witnesses must be thoroughly prepared and understand that the line of questions put to them will follow that of evidence in chief/ cross-examination/ re-examination.
Prepare a bundle of documents to be used, paginate the bundle and arrive at the arbitration hearing with four copies of this bundle. The Commissioner, your opponent and you will get a copy this document bundle, and a copy will be placed for witnesses to refer to as necessary.
Conduct a pre-arbitration conference. The Commissioner for Conciliation, Mediation and Arbitration CCMA rules provide for a pre-arbitration conference. This is a meeting between both sides held a few days before the arbitration hearing, and is intended to limit the issues between the parties to ensure that the arbitration hearing runs more smoothly. Typical agenda items for the pre-arbitration conference would include:
– What is common cause, what is in dispute and who will begin
– Be courteous at all times
– Understand the nature of your evidence and its value relative to the evidence
– Remember, the employer bears the onus of proof. As such, it is for the employer to prove guilt.
– Prepare arguments. Support closing statements with relevant case law and reference material.