The Immutable Grounds Principle
As labour practitioners know, the CCMA arbitration process is a de novo hearing, meaning it starts afresh with new evidence permitted. However, this doesn’t give employers carte blanche to introduce entirely new reasons for dismissal. A fundamental principle in South African labour law restricts employers from changing their tune when defending dismissals at the CCMA or Labour Court. This article explores this crucial principle and its practical implications for HR and IR managers.
The Principle: Consistency in Dismissal Reasons
The Labour Appeal Court has firmly established that employers cannot justify a dismissal at arbitration on grounds different from those relied upon at the time of dismissal. This principle was clearly articulated in the seminal case of Fidelity Cash Management Services v CCMA and Others, where the court stated:
“It is an elementary principle of not only our labour law in this country but also of labour law in many other countries. That the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal, which the employer gave at the time of the dismissal.”
The court further clarified in Fidelity that: “The exception to this general rule is where at the time of the dismissal, the employer gave a particular reason as the reason for dismissal in order to hide the true reason such as union membership.” Only in such cases may the tribunal consider the true reason rather than the stated one.
Recent Application: Pioneer Foods v Verwey
In the recent Labour Appeal Court case of Pioneer Foods (Pty) Limited v CCMA and Others (2025), the court reaffirmed and applied this principle when dismissing an appeal by Pioneer Foods.
The facts are instructive. The Employee was dismissed following a sexual harassment charge. The chairperson of the disciplinary hearing focused on three specific incidents:
- The spreading of rumours about a relationship between the complainant and a co-employee
- Comments on the complainant’s clothing and visible underwear
- An email about cheating men shared with the complainant.
However, during the arbitration proceedings, Pioneer Foods attempted to introduce six additional incidents dating back to 2016 as grounds for dismissal. The Labour Court correctly found that these additional incidents could only serve as contextual evidence. Not as independent grounds for dismissal.
As the Labour Court stated and the LAC endorsed:
“Employers are not allowed, during the arbitration proceedings, to seek to justify the dismissal based on reasons outside those given during the internal hearing. The fact that arbitration proceedings are de novo hearings is not a license for employers to bring new facts. Also not to give reasons that are disconnected from, and different to, the reason given for the employee’s dismissal.”
Samancor Chrome Mines: A Foundational Precedent
This principle was also affirmed in Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA & Others, where the LAC dealt with a case involving employees dismissed for alleged insubordination. The court made it clear that although relevant additional evidence can be adduced at CCMA arbitration, “it is however not open to an employer to alter or amend the reason for dismissal. Nor to rely on an entirely different reason for such dismissal at arbitration.”
Case Study: The Consequences of Shifting Grounds
The Fidelity case provides a stark example of what happens when employers try to change the reasons for dismissal. In that matter, the employee was dismissed for specific charges. Related to failing to ensure an escort vehicle was at Virginia Airport, refusing to undergo a polygraph test, and failing to attend venues for disciplinary hearings.
However, in appeal proceedings, the employer attempted to justify the dismissal based on different grounds. That the employee had not spent sufficient time in the control room and had given incorrect information to another employee. The court firmly rejected this approach, dismissing the appeal solely on the basis that the reasons relied upon to justify the dismissal were not those for which the employee was actually dismissed.
The Distinction Between Evidence and New Charges
It’s important to note that this principle doesn’t prevent employers from introducing additional evidence that contextualizes or supports the original reasons for dismissal. The distinction lies in whether the employer is attempting to:
- Provide context and supporting evidence for the original charges, which is permitted, or
- Introduce entirely new reasons for dismissal, which is prohibited
Practical Implications for HR and IR Managers
For HR and IR managers, this principle has several critical implications:
- Comprehensive Disciplinary Charges: Ensure that charge sheets contain specific and detailed allegations. In Pioneer Foods, the court noted that “the charge sheet is obviously vague,” which created problems later. Your charge sheet should be comprehensive and specific about the conduct constituting the alleged misconduct.
- Thorough Disciplinary Hearings: The chairperson of your disciplinary hearing should investigate and consider all relevant misconduct. As seen in the Fidelity case, when the employer later tried to rely on charges that weren’t part of the chairperson’s findings, the court rejected this approach.
- Clear Dismissal Letters: Your dismissal letter should clearly articulate all grounds for termination. In Pioneer Foods, the court specifically looked at “the reasons for dismissal which the employer gave at the time of the dismissal” to determine what could be considered at arbitration.
- Consistency in Case Presentation: As noted in Pioneer Foods, there should be consistency between how you characterize the dismissal at the disciplinary hearing and at arbitration. The court stated: “The appellant’s submission that the level of the seriousness of his conduct did not merit dismissal” showed the importance of consistency in how serious you consider the misconduct.
Conclusion
The principle that employers cannot change dismissal reasons at arbitration is fundamental to procedural fairness in South African labour law. As the cases of Fidelity Cash Management Services, Samancor Chrome, and Pioneer Foods demonstrate, our courts consistently uphold this principle.
For HR and IR managers, understanding and adhering to this principle is essential to ensure dismissals withstand scrutiny at the CCMA or Labour Court. By ensuring thorough disciplinary processes, comprehensive charge sheets, and clear communication of dismissal reasons, employers can strengthen their position and avoid the procedural pitfall of having their case undermined by attempting to introduce new reasons at arbitration.
Remember: The reasons you give for dismissal today are the only ones you can rely on tomorrow when defending that dismissal at the CCMA or Labour Court.
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