By Hendrik van der Hoven
Can a CCMA commissioner change a charge on a charge sheet during arbitration when hearing and adjudicating a case of unfair dismissal?
A health and safety officer at a mine brought activities to a halt when he was not carrying out his duties to declare a section of a mine safe. During a disciplinary hearing the employee was charged with not proceeding to his workplace after having clocked for work at the mine, thus failing to carry out his duties. The worker was found guilty and was dismissed on the basis of this finding.
A case of unfair dismissal was then referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). During arbitration the CCMA commissioner rejected the employee’s explanation regarding his failure to carry out his duties. The commissioner found that the facts pertaining to the event complied with the definition of fraud and dishonesty and therefore ruled that the employee’s dismissal was justified.
The commissioner’s finding was referred to the Labour Court to review the arbitration award. In Phuthi v Commission for Conciliation, Mediation and Arbitration & others (2016) 37 ILJ 2417 (LC) the Labour Court found that the fairness of a dismissal must be determined on the grounds for dismissal given by the employer at the time of the dismissal.
In this particular instance the charge sheet referred to the fact that the employer had clocked for work but failed to proceed to his workplace. The charge sheet thus contained no allegations of fraud or dishonesty.
The Labour Court found that the employee could only be held accountable for the specific charges brought against him, and that charges as grave as dishonesty and fraud could not be read into the above charge.
Hence, the commissioner was not empowered during arbitration to change the charges on which the employee had been dismissed. The arbitration award was set aside by the court, and the matter was remitted to the CCMA to be heard and adjudicated by another commissioner.
Source: Grogan, Maserumule, Govindjee, Juta’s Annual Labour Law Update (2017) JUTA