Posted: January 31, 2013 in Uncategorized

It very often happens that an employer or employee attempts to present evidence at arbitration, which evidence was not presented during a disciplinary- or incapacity enquiry.


The Labour Appeal Court in County Fair Foods (PtyLtd v CCMA & others (1999) 20 ILJ 1701 (LAC) (“Country Fair”) found that “[t]he decision of the commissioner as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator. To that extent, the [arbitration] proceedings are a hearing de novo.”


This despite, the CCMA tends to follow the view expressed in French v Compuware Corporation Southern Africa 2003 (23) ILJ 2001 (CCMA), i.e. that Country Fair merely meant that the arbitration proceedings did not constitute an appeal and that as such all previously led evidence had to be presented de novo.  Commissioners thus favoured the view that evidence not led at the disciplinary hearing could not be led during the arbitration is the only case which says you cannot present evidence not presented at the initial disciplinary hearing.


The Constitutional Court however in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ; (2007) 28 ILJ 2405 (CC) at [§59] found that “[t]his determination [whether a disputed dismissal was fair] and the assessment  of  fairness  is  not  limited  to  what  occurred  in  the disciplinary hearing”.


In Wasteman Group v SAMWU & Others (2011) 32 ILJ 1057 (LAC) Davies JA similarly concluded that “[t]he commissioner is required to come to an independent decision as to whether the employers decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner”.


It was however only recently in IMATU obo Strydom v Witzenburg Municipality & others [2012] ZALAC 1;  [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC) where the Labour Appeal Court for the first time directly dealt with the question of new evidence being presented at an arbitration hearing.  In the said matter the employee was dismissed for incapacity and led evidence at the arbitration hearing which was not presented (or for that matter available) at the incapacity enquiry.  The Commissioner concluded that such evidence had to be disregarded.  Molemela AJA however (at [§15]) recorded that [o]n the understanding of what an arbitration hearing entails, one would have expected that the commissioner would listen to evidence afresh and then make a determination as to the fairness or otherwise of the employee’s dismissal. Instead of doing so, the commissioner sought to confine himself only to the evidence that was available as at the time of the enquiry notwithstanding the fact that new evidence was adduced before him, both documentary and oral. The latter approach was wrong as it equated an arbitration hearing with an appeal hearing of some sort, quite far removed from the principle enunciated in the afore-mentioned cases”.


From the above it is thus clear that new evidence may be led at an arbitration hearing.  One should however be careful as the reliance on such evidence might render the initial enquiry procedurally unfair, e.g. where a party intentionally elected not to confront the other party with damning evidence which were available during the initial inquiry.

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