9 February 2008

The determination of fairness in dismissal disputes for misconduct is not the prerogative of the employer

The determination of fairness in dismissal disputes for misconduct is not the prerogative of the employer, says the Constitutional Court.

The Supreme Court of Appeal (SCA) Rustenburg Platinum Mines Limited v CCMA found that commissioners of the CCMA should approach the employer's sanction in relation to misconduct with a measure of deference because it is the employer's function to impose a sanction.

The Constitutional Court in Sidumo v Rustenburg Platinum Mines & Others (unreported judgment – case number CCT 85/06) had two issues to consider. Firstly, whether in deciding on the fairness of the sanction of dismissal for proven misconduct, commissioners should approach the employer's decision with a 'measure of deference'. Secondly, whether when entertaining reviews of CCMA awards, the Labour Court must apply the standard laid down in the Promotion of Administrative Justice Act (PAJA) or the stricter grounds set out in section 145 of the Labour Relations Act (LRA).

The court ruled that the LRA requires commissioners to determine fairly and swiftly whether disputed dismissals are fair. Firstly, commissioners must establish whether the employee actually committed misconduct and secondly, the fairness of the dismissal must be established. This entails that the commissioner must take into account the reasonableness of the rule breached by the employer and the circumstances of the infraction.

The court went on to say that it is a practical reality that it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. They are therefore not competing discretions. The employer and commissioner each play a different part. The decision to dismiss belongs to the employer whilst the determination of its fairness does not. Ultimately, the commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third party's determination on whether or not a dismissal was fair is likely to promote labour peace.

In approaching the dismissal dispute impartially a commissioner must take into account the totality of the circumstances. This entails the importance of the rule that had been breached. In other words the commissioner must consider the reason the employer imposed the sanction of dismissal and he must consider the basis of the employee's challenge to the dismissal. Further factors to be taken into account include the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of the dismissal on the employee and his long service record. The list is not exhaustive.

However, the court went on to say that in terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.

In answering the second question, the court concluded that the LRA was purposefully designed to provide simple procedures for the resolution of disputes through speedy and inexpensive resolution of labour disputes. The SCA erred in holding that PAJA applied to the review of decisions and awards of CCMA commissioners.

The court also considered whether the restricted grounds of review provided in section 145 complied with the Constitution. The court held that it did and reasoned that Section 145 must be read to ensure that administrative action by the CCMA is lawful, reasonable and procedurally fair.

Tim Mills and Rudy Chetty

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