Schedule 8 of the Code of Good Practice prescribes certain aspects that all employers should adhere to with regards to a fair dismissal. An employer should ensure a fair procedure as well as substantive fairness prevails when employees find themselves in a disciplinary hearing.
An employer has to prove that an employee is guilty of the said misconduct, on a balance of probabilities, by way of calling witnesses and providing documentary as well as video evidence.
The presiding officer will either find an employee guilty or not guilty of the misconduct as set out in the notice of disciplinary hearing.
If the employee was dismissed as sanction after the aforementioned misconduct, the employee has the right to refer the dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The commissioner has the responsibility to listen to both parties submissions and decide whether the dismissal was fair in the specific circumstances. As such, both parties need to prove their case de novo (anew).
The question remains whether de novo implies that the commissioner should ignore what transpired in the disciplinary hearing that was held or the record of the disciplinary hearing as the commissioner is hearing the matter for the first time or should a commissioner determine the fairness of the decision that had already been made in the disciplinary hearing?
In the recent Labour Appeal Court case namely Palluci Home Depot (Pty) Ltd v Herskowits  the court held that a commissioner made a fatal mistake by finding an employee guilty on a charge that did not play any part in the initial reason for dismissing the employee. As such, the commissioner should take the record of the disciplinary hearing into account when making his decision on whether the dismissal by the employer was fair or not.
The record of disciplinary hearing cannot be ignored as this is the document that a commissioner uses to narrow the facts of the dispute as well as a summary of what transpired and what was taken into consideration by the employer before the decision to dismiss was taken.
The commissioner should not start the arbitration proceedings anew or on a clean slate in a literal sense but should take the evidence led and supplied in the disciplinary hearing into account.
Therefore it is of the utmost importance that presiding officers do the necessary to ensure that they minute everything that was submitted, said and testified to in a disciplinary hearing in as much detail as possible as to enable the commissioner to make as much as an informed decision as possible.
Article by: Meghan Laubscher
CEO Dispute Resolution Official – Bloemfontein