Employees who believe they have been dismissed unfairly may refer the matter to the CCMA or the relevant Bargaining Council for arbitration. Since arbitration is a de novo process, the commissioner conducts a fresh assessment of whether the dismissal was fair. This often raises an important question: How far may an arbitrator deviate from the reason for dismissal relied upon during the internal disciplinary hearing? Can a commissioner find an employee guilty of something the employer never charged them with? Or may a commissioner “fix” poorly drafted charges or incomplete reasoning from the internal inquiry? Two leading cases, namely Samancor Chrome Ltd v CCMA and Others (2020) 31 SALLR 142 (LAC) and POPCRU obo Vearey v National Commissioner of the South African Police Service and Others (C708/2021) [2024] ZALCCT 10, provide clear guidance. Together, they establish that although arbitration is a fresh inquiry, it is not an opportunity to invent new misconduct or to substitute the employer’s stated reason for dismissal with a different one. The arbitrator may consider broader evidence than what was presented internally, but the core reason for dismissal must remain the one relied on by the employer at the time of dismissal.
The Samancor Principle: Arbitrators Cannot Invent New Charges
In Samancor, the employer dismissed an employee for misconduct relating to safety procedures. During arbitration, however, the commissioner upheld the dismissal based on a completely different form of misconduct, one that the employee had never been charged with or given an opportunity to answer. The Labour Appeal Court made it unequivocally clear that an arbitrator may not find an employee guilty of a charge that the employer never advanced. The commissioner’s role is to determine whether the dismissal was fair based on the employer’s stated reason, not on a new or improved reason formulated afterwards. While the commissioner may consider additional or better-presented evidence during arbitration, they may not change the substance of the charge or reformulate it in a way that prejudices the employee. This case underscores that if an employer frames the charge incorrectly, too narrowly, or in a way that does not accurately reflect the true misconduct, the arbitrator cannot fix it at arbitration. The employer’s case must stand or fall on the reason for dismissal relied on internally.
The Vearey Case: The Employer Must Stand By Its Chosen Reason
In Vearey, the employee was dismissed for several specific allegations of misconduct. At arbitration and thereafter, the employer attempted to justify the dismissal on additional grounds that had not been put to the employee during the disciplinary hearing. The Labour Court firmly rejected this approach, emphasising that fairness requires the employee to know the case they must meet at the time of the internal inquiry. An employer is therefore bound to the charges it presents during the disciplinary process, and an arbitrator may not uphold a dismissal on any reason other than the one relied upon by the employer at the time. The Vearey judgment aligns closely with Samancor: arbitrators cannot ratify a dismissal based on a reason that was not part of the employer’s internal rationale. Employees cannot be ambushed at arbitration with new allegations, alternative justifications, or re-characterised charges.
How Much Deviation is Allowed?
Although arbitrators are restricted from substituting new reasons for dismissal, they do have some flexibility. An arbitrator may consider evidence that was not led in the internal process, may evaluate whether the employer had a valid and fair reason, and may interpret the employer’s charge broadly, if it remains fundamentally the same misconduct. The arbitrator is entitled to look at the substance of the charge rather than its technical wording and may reformulate the explanation slightly if it remains aligned with the original reason for dismissal. However, an arbitrator may not find an employee guilty of a different form of misconduct, may not justify the dismissal on a reason the employer never relied on, and may not allow the employer to rely on new allegations at arbitration. Any deviation that would prejudice the employee or change the case they must answer is impermissible.
Conclusion
These cases highlight the importance of drafting charges accurately and conducting thorough internal investigations. Employers should ensure that the misconduct is correctly identified, clearly formulated, and properly presented during the disciplinary inquiry. A chairperson’s finding must also reflect the correct and complete reason for dismissal, as this cannot be repaired at arbitration. A poorly formulated or incomplete case at the internal stage usually cannot be rescued later because fairness demands that employees know the exact allegations they must respond to. While employers may supplement evidence and provide clearer explanations during arbitration, the reason for dismissal must remain constant. Arbitrators may reassess the evidence entirely, but they may not uphold a dismissal for a reason the employer did not rely on at the time. Ensuring that charges are well-constructed and investigations are sound significantly reduces the risk of losing an otherwise solid case at arbitration.
