It is settled law that arbitration proceedings before the CCMA or bargaining councils are conducted de novo. However, is the record of a disciplinary internal proceeding necessary for the fair determination of such dispute before the CCMA or the relevant bargaining council?
- It is trite that arbitration proceedings are conducted de novo. Section 138 of the LRA stipulates that a commissioner can use his discretion as to the manner in which he would like to conduct the hearing. Therefore, it is said that arbitration cases are considered as hearings de novo. The commissioner is tasked with determining the fairness or otherwise of the employer’s decision and is not meant to reconvene a disciplinary hearing. This begs the question of whether the record of a disciplinary proceeding is necessary for the fair determination of the dispute at the CCMA, in light of the fact that the arbitration is a hearing de novo?
- InSidumo, the constitutional court explained how the discretion contained in s138 of the LRA should be understood, as follows:
‘Equally true is that when an employer determines what is an appropriate sanction in a particular case, the employer may have to choose among possible sanctions ranging from a warning to dismissal. It does not follow that all transgressions of a particular rule must attract the same sanction. The employer must apply his or her mind to the facts and determine the appropriate response. It is in this sense that the employer may be said to have discretion’.
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But recognising that the employer has such discretion does not mean that in determining whether the sanction imposed by the employer is fair, the commissioner must defer to the employer. Nor does it mean that the commissioner must start with bias in favour of the employer. What this means is that the commissioner … does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner’s starting point is the employer’s decision to dismiss. The commissioner’s task is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss is fair.’
- The commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceeding could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal (see Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits 2015 (5) BLLR 484 (LAC)).
