In a recent CCMA case handled by LabourNet, the import of the term de novo in the context of arbitration proceedings at the CCMA was revisited.
The employee had been dismissed for being dishonest when questioned about the authenticity of a medical certificate and the details of his visit to the doctor, it being alleged that he knowingly submitted a fraudulent medical certificate, and for his failure to report for duty on the 10th and the 11th of December as per his working roster. The employee did not call the medical practitioner to his internal hearing to testify to the authenticity of the medical certificate. Based on the evidence and argument then before the chairperson of the disciplinary hearing, the employee was dismissed for dishonesty, unauthorised absence, and failure to report his absence. However, at the arbitration, the employee’s attorney called the medical practitioner to testify. The witness made a favourable impression on the commissioner, and she had no doubt that the practitioner had indeed issued the medical certificate on the said date and therefore accepted the evidence.
The duties of an arbitrator are twofold. Firstly, they must establish whether the misconduct was committed, and once established, decide whether dismissal was the appropriate sanction. The employer did not attempt to embellish its case by including additional or new reasons for the dismissal. The employee for the first time at the arbitration led convincing evidence that he had not submitted a fraudulent medical certificate. He therefore, for the first time, discharged the evidentiary burden placed on him.
On the charge of failing to report for duty, overwhelming evidence was led by the employer’s witnesses, which the commissioner accepted. The employee had a valid warning on file for AWOL which was still in effect at the time of dismissal. Based on the above, the commissioner found that the dismissal was the appropriate sanction.
The record of the disciplinary proceeding is crucial to the exercise of discretion by arbitrating commissioners. It aids the arbitrator to understand how the employer arrived at the decision to dismiss the employee. As such, the commissioner does not start from scratch in real terms. From such record, the commissioner is in a position to assess whether the employer complied with the guidelines set out in Code of Good Practice: dismissal.
The commissioner stated that as much as she does not regard the term de novo to mean that she should start the arbitration on an entirely clean slate, one should allow parties to call in witnesses who may not have testified at the initial internal hearing where this is in the interest of justice. In the abovementioned case, the employee could show that there was no merit to the employer’s claim that he had submitted a fraudulent medical certificate.
In conclusion, arbitration proceedings (relating to dismissal disputes) constitute a hearing de novo, which should be understood in a proper context. The role of the commissioner in such proceedings is to determine the fairness or otherwise of the decision to dismiss, the hearing is de novo in that regard. However, the arbitrator does not start from a blank slate. He or she must consider the evidence that was led during the disciplinary proceeding as well as the evidence led before him or her at the arbitration, to assess the versions of the witnesses. Parties can call in additional witnesses who may not have testified at the initial internal hearing.
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.
