How the CCMA commissioner will assess evidence and draft an award
On 25 October, Melanie Harte of Cliffe Dekker Hofmeyr, gave us an overview of the new guidelines the Commission for Conciliation, Mediation and Arbitration (CCMA) recently published. This week Johan Botes, one of her colleagues at Cliffe Dekker Hofmeyr, tells us how commissioners will assess evidence and draft awards.
3 stages the commissioner should follow when he assesses evidence in an award
1. Assess the background facts to the case to include relevant facts dealing with the
- Parties;
- Workplace;
- Applicable disciplinary codes and/or procedures and collective agreement/s;
- Employment relationship;
- History of the dispute;
- Relief sought; and
- Conducting of the arbitration.
2. Make a summary of the evidence led. During this phase, record all relevant evidence led, either in the order presented or chronologically, and present the documentary evidence as a list. Don’t assess the evidence at this stage.
3. Analyse the evidence and determine the relevant facts, of the case, which will allow the Commissioner to make a finding on the procedural and substantive fairness of the case. This involves:
- Assessing the case and weighing up what is more likely to have occurred in the case;
- Credibility of the evidence; and
- The rules applicable to this process.
The commissioner will look at these 5 issues when he assesses the reliability of witnesses:
- The extent of the witness's first-hand knowledge of the events;
- Any interest or bias the witness may have;
- Any contradictions and inconsistencies;
- Corroboration by other witnesses; and
- The credibility of the witness, including demeanour.
How must the commissioner structure his analysis of the evidence?
1. When the commissioner makes a finding on the procedural fairness of a dismissal, it should follow the structure or considerations listed in item 4 of the Code of Good Practice: Dismissal (Code) as elaborated in Part D of the guidelines.
2. In relation to a finding on substantive fairness of a dismissal, the Commissioner must look at the aspects covered under item 7 of the Code as elaborated in Part E of the guidelines.
3. Lastly, in relation to sanction or relief, this should be done in accordance with sections 193 to 195 of the LRA and Part F of the guidelines.
