Commissioners are entitled to conduct arbitration hearings in a manner that they consider appropriate in order to determine a dispute before them fairly and expeditiously.
Section 138 of the Labour Relations Act 66 of 1995 stipulates that the commissioner can use his/her discretion as to the manner in which he/she would like to conduct the hearing. Therefore it is said that arbitration cases are considered as hearings de novo.
Some commissioners, however, in dealing with arbitrations feel inclined to apply the term de novo in its literal sense. They understand de novo to mean that one disregards whatever happened at the disciplinary hearing and hear the matter afresh and for the first time; instead of determining the fairness or otherwise of the employer’s decision.
There are, however, disadvantages should an arbitrator not conduct an arbitration as a hearing de novo, which could lead to such award being taken on review.
One can look at the case of the Gauteng Department of Education v Cawe and Others (JR1973/12) :
The commissioner in the above-mentioned case had approached the arbitration as though she was sitting as a court reviewing and setting aside the chairperson’s decision, instead of determining the fairness of the third respondent’s dismissal de novo. She incorrectly treated the chairperson’s decision, dismissing the third respondent as an administrative decision.
The following appears from the judgment:
“The arbitrator’s conclusion eliminates every doubt that she did not conduct a hearing de novo in that she relies on case law which deals with instances when not to interfere with an administrative decision. As the applicant correctly pointed out, the Constitutional Court has held that decisions taken by the State as employer, which include decisions of chairpersons of disciplinary enquiries, do not constitute administrative action. Consistent with the conduct of review applications, the arbitrator finds that the applicant acted irrationally and failed to apply its mind to the case. Instead of enquiring de novo into the fairness of the third respondent’s dismissal, based on her sense of fairness, the arbitrator decided to review the decision of the chairperson of the disciplinary enquiry. Her decision, therefore, stands to be reviewed and set aside on the grounds that she committed a gross irregularity by undertaking the enquiry in the wrong manner.”
In light of the above, it is evident that the role of the commissioner in such proceedings is to determine the fairness or otherwise of the decision to dismiss. It is imperative that commissioners treat arbitration cases as hearings de novo.
Article by: Nagarsen Naicker
Dispute Resolution Official – Pretoria