If an employee has committed gross misconduct or if he or she has not corrected his or her actions after having received warnings for lesser misconduct, management may form the view that termination of the employee’s services ought to be considered. If this is the case, the Labour Relations Act 66 of 1995 requires that a formal disciplinary enquiry be convened. Since we assist clients with disciplinary enquiries, we have chaired thousands of enquiries and it never ceases to amaze us just how reluctant people are to interview witnesses in order to gather evidence and prepare for the requisite enquiry. Do not be reluctant to talk to people who can provide information and eye-witness testimony of what has transpired. Follow the guidance provided below when interviewing witnesses to maximise the efficacy of your case to be presented in a disciplinary enquiry. This advice can be followed by both sides in an enquiry – the accused, who will be gathering evidence to prove his or her innocence (or gathering evidence to provide in arguments in mitigation of sanction) and the complainant, who will be gathering evidence in an effort to prove guilt on the part of the accused.
Preliminary points to remember:
It is crucial to remember that the sooner the interviews take place after the misconduct has been committed, the better. Interviewing people whilst the events are still fresh in their minds will be invaluable – people’s recollection of events starts to deteriorate quickly and is sped up tremendously if they are influenced (even unintentionally) by speaking to other witnesses. Also, you want to be able to interview witnesses sooner rather than later, as they may be intimidated at a later stage. If this happens before you have had a chance to interview people, the truth may become extremely hard to ascertain.
Do not waste time in interviewing witnesses who will not be able to provide relevant evidence. Determine whether the evidence that the witness is able to give is a first-hand account of what transpired, or if it amounts to hearsay evidence. Try as much as possible to gather the first-hand accounts first before assessing the relevance and usefulness of any hearsay evidence. Bearing the above in mind, follow these five steps below when interviewing witnesses in order to prepare effectively.
Step 1: Arrange for a quiet office or room, free from interference or distractions. Do not try and interview witnesses in the presence of others. The witness needs to be able to give his or her account free from the interference or influence of others.
Step 2: Inform the witness that a recording of the interview will be taken. Have a recording device ready and ask for permission before starting to record. Ask the witness to describe the events from their perspective from start to finish, with minimal interruptions.
Step 3: If the witness is prepared and able to give this statement in writing, then ask for that – a detailed, written account of what transpired which can be corroborated by the witness in the subsequent disciplinary enquiry in very powerful. It is often very useful to also prepare a timeline of events. It is incredibly useful for the parties in a disciplinary enquiry to refer to events as they occurred in chronological order.
Step 4: Challenge any inconsistencies in the witnesses version, but do not bully him or her. Robust questioning of inconsistencies or contradictions can very often draw out a clear picture, but you do not want the witness to offer information simply because he or she has been made to feel so uncomfortable in the interview that he or she will say anything to get out of the room. Also, do not ever suggest to the witness what may or may not have happened. It is your job to extract the truth, not a version of it that you would prefer.
Step 5: Once the written statement has been finalised, request the witness to sign in acknowledgement that the statement is truthful and is given of their own free will. Inform them that the statement will be presented in the disciplinary enquiry and that they will be asked to appear to give the evidence verbally in the enquiry as well.
Having written statements from witnesses to present at a disciplinary enquiry is very often overlooked, but is extremely powerful. If you have already gathered statements from witnesses before the start of the enquiry, you are leaving very little to chance. You are already aware of exactly what the witness will say and are able to significantly cut down on the amount of irrelevant testimony and evidence that may be provided otherwise. Also, if the witness decides, for whatever reason, to change his or her version, you will be in a position to do something about it, as it can be pointed out to the chairperson of the enquiry that two conflicting versions (the written statement and the verbal account given in the enquiry) cannot both be true. At the very least, it can be argued that the witness’s testimony is unreliable and should be disregarded or treated with circumspection. Finally, it is also less likely that a witness will change their version if they have already committed to the truth in the interview process.
The steps above can be followed for any witness that you feel should be interviewed, including the accused employee.