How to present a winning case in a disciplinary enquiry Part 1 of 3: The Opening Statement

Essentially, a case should be presented to the chairperson of a disciplinary enquiry in 3 stages:

  1. Opening statement
  2. Examination in chief of witnesses and presentation of other evidence
  3. Closing statement

The above stages are the same whether you are acting as the complainant/initiator for the company, or whether you are the accused in the disciplinary enquiry.  In this article, we deal with the opening statement.

In Labour Dispute Resolution, (Juta, 2004), author Casper Lötter submits that an effective and competent opening address in an arbitration renders an enquiry by the arbitrator redundant.  The same can be said of a disciplinary enquiry.  An effective and competent opening statement given by the complainant (since in a disciplinary enquiry, the complainant will present his or her case first), will assist the chairperson of the disciplinary enquiry to understand the essence of the case.  The statement usually consists of the following:

  • Introduction:

Good morning Chairperson, I am Joe Bloggs, I represent the company in this disciplinary enquiry.  The enquiry before you concerns misconduct that the company believes has been committed by the accused, Mr John Smith. 

Bear in mind that by the time the complainant is presenting his or her opening statement, the charge will already have been read out and the employee will have already pleaded.  It is assumed that the employee has pleaded not guilty in the example.

  • Brief summary of the matter:

Chairperson, as you have heard from the charge it is the company’s submission that Mr John Smith is guilty of assaulting a fellow employee, Mr Jim Brown, in that on the 12th of January 2021, at 07h25, Mr Smith grabbed Mr Brown by the collar and threw him against a locker in the changeroom, causing injury to Mr Brown who was then treated by the company nurse before being taken to hospital to seek further treatment to his injuries.

The Chairperson is now clear in terms of what the company’s view is and has been given some detail into what the company will be presenting as its version as to what transpired.  In the example above, the chairperson already knows when the assault took place, where it took place and that the assault was serious. However, be cautious not to raise false expectations – for example, don’t state that Mr Brown was treated by the company nurse or that he went to hospital unless it is relevant and it is your intention to lead evidence in this regard. If you make the statement and the accused pushes you to prove it, you will look foolish if you cannot and therefore ought not to have made it. In my example above, the statement is only made if the intention is to indicate that the assault was serious and the company intends to have the nurse appear as a witness (and present documentary evidence from the hospital).

  • An outline of the evidence that will be led:

Chairperson, the company will call witnesses to show that the assault took place in the locker rooms on the morning of 12 January 2021 at 07h25, just before the beginning of the shift.  The company intends on calling three witnesses that will testify to the assault on Mr Brown and that Mr Brown suffered significant injuries as a result of the attack.

The Chairperson know knows that the company will be bringing witnesses to corroborate its version and how many witnesses will be brought.  Be careful not to make the mistake here of giving evidence – that is not the purpose of the opening statement – that will be done through the examination of the witnesses.  All you are seeking to do here is to outline how you are going to present the evidence.

  • The submission of a bundle of documents:

Chairperson, the company also wishes to submit a bundle of documents on which it intends to rely.  A copy of the bundle has been prepared for the accused and the witnesses as well.

The bundle of documents should include a contents page, which shows what documents are contained in the bundle and where they can be found.  The bundle should also be paginated and bound, to prevent the documents falling out of order.  Three copies of the bundle should be made, as described above – one for the chairperson, one for the accused and one for the witness to follow.  Always bear in mind your objective, whether acting as the complainant or the accused, is to convince the chairperson of your version.  The trick to doing this is to make his or her job as easy as possible.  One of the ways to do that is to present your argument in a logical manner by referring to documents in a bundle with the minimum amount of fuss possible.  If you wish to refer to a particular point on (for example) page 27 of the bundle whilst you are questioning a witness, you may say the following:

Mr Witness, please turn to page 27 of the bundle of documents.  Can you tell me what that document is and what it is used for?

Since each party has his or her own bundle, each person, including the chairperson, can turn to page 27 and see the document to which you are referring and listen to the response given by the witness.  Compare this to a situation where you only have one copy, you have to pass it around to each person in turn, the witness has begun to answer your question before the chairperson has had a chance to look at the document, etc.  It’s not hard to see which situation is preferable for all parties.

In summary, the opening statement should be brief, clear and succinct and identify the key points that will be dealt with during the course of the enquiry.  If you present a competent opening statement, you will be well on your way to winning the chairperson over and being a step closer to convincing him or her of your version.