THE DE NOVO LIMITS OF AN ARBITRATOR
Does the De Novo principle allow a Commissioner at arbitration to entertain charges in respect of which the employee was found not guilty at the original disciplinary hearing?
Clearly the case law and the legislation supports the use of the de novo principle. For an arbitrator to be completely independent it is absolutely necessary to hear the evidence in full. In reality chairpersons of disciplinary hearings are often unschooled in principles of law and in fact have very little back ground in labour legislation. One also understands that evidence at disciplinary hearings is often untested and given under strange circumstances. Many times we hear that witnesses testify at arbitrations to explain why they gave wrong evidence at the disciplinary hearing.
Also evidence comes to light after disciplinary hearings which can be used and in fact should be used.
No it does not. If the employee has been found not guilty in the internal inquiry it means he or she has been exonerated by the employer. The de novo rule does not entitle the employer to effectively recharge the employee on the same charges in the external CCMA arbitration. This would constitute double jeopardy for the employee.