1305 An introduction to the law of evidence in hearings and arbitrations

The importance of the law of evidence in the context of disciplinary hearings and arbitrations can not be underestimated. Chairpersons face the risk of their finding being altered by an arbitrator, resulting in trauma for a dismissed employee and increasing the cost of dismissal to the employer. The failure to apply the law of evidence is one of the grounds on which an award may be set aside on review. Company and union representatives fail to understand the nature of the evidence in a particular case, and fail to present  and/or challenge evidence when they should do so. Chairpersons often fail to weigh up evidence correctly, or are either one-sided or intimidated into allowing baseless objections, or irrelevant evidence. Many arbitrators are not legally trained and this adds a level of uncertainty to a process where, despite much of the substantive law being settled, arbitrator fail to assess evidence in terms of  the standards required by law.