Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC)


  1. The application of any test other than ‘the balance of probabilities test’ by the CCMA renders that decision reviewable by the Labour Court.
  2. The LRA 1995 does away with a formalistic, ‘criminal justice’ model approach to disciplinary hearings.

The employee was dismissed for being an accomplice to theft. At the CCMA arbitration the employer produced a videotape showing the employee’s complicity in the theft. The commissioner found that the footage was not conclusive in establishing guilt. The commissioner also found that as the Chairperson of the hearing was a subordinate of the initiator of the hearing, this gave rise to a perception of bias and that the dismissal was procedurally unfair.

On review to the Labour Court, the court stressed that the test in such matters was on a balance of probability but the commissioner had used the test of whether any doubt existed or whether there was any other reasonable inference.

As regards issues of procedural fairness, the Court pointed out that the employee was relying on authorities that pre-dated the present LRA. The Act itself is silent on the content of the right to procedural fairness. The Code is a fundamental departure from the ‘criminal justice’ model developed under the 1956 LRA. The rules introduced in 1995 did not replicate the criminal justice model of procedural fairness. The court concluded that there was no legal basis for the application of the rule against bias that the commissioner had applied. The award was reviewed and set aside.

Extract from the judgment:

[At 1650C]   This court has previously held that when a commissioner errs by applying a standard stricter than proof on a balance of probabilities, the award is reviewable.

[At 1651I]   The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting. For employers, this right of  resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.

The balance struck by the LRA thus recognises that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits.

[At 1652G]   …There is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like.