Labour Practitioners have lately found themselves on uneven ground in the wake of the Constitutional Court judgement of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others  12 BLLR 1097 (CC).
On one occasion, the writer attended a court session where the learned Judge referred to the Sidumo case as the 'Holy Grail' of employment law, well, at least as far as the test for review is concerned and has provided the labour fraternity with much needed guidance under what circumstance the Court will interfere with the outcome of an arbitration award or otherwise.
The rejection of the 'reasonable employer' test, introduced by the Sidumo judgement, has incited a new enthusiasm for the Labour Court to make its jurisprudential footprint felt in the reported cases, which will decorate our libraries for many years to come.
The Sidumo judgement has been a topic of hot debate for the better part of the last year.
The Constitutional Court (CC) acknowledged that the LAC has been inconsistent in dealing with the approach to an appropriate sanction by CCMA Commissioners. Traditionally, the Commissioner was principally required to determine whether a dismissal is fair or not in terms of the provisions of the Labour Relations Act 66 of 1995 (LRA) i.e. a Commissioner is not given the power to consider afresh what he or she should do, but simply to decide whether what the employer did was fair.
In arriving at a decision, a Commissioner was not required to defer to the decision of the employer but was required to consider all relevant circumstances such as the importance of the rule breached, the reason the employer imposed the sanction of dismissal, the basis of the employee's challenge against the dismissal, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating that misconduct, the effect of dismissal on the employee and the employee's long service record.
The CC has finally resolved the contentious issue of the appropriate approach to be applied by CCMA Commissioners when considering an employer's decision to impose the sanction of dismissal by formulating a new approach to the grounds for review of any arbitration award, namely: Is the decision reached by the Commissioner one that a reasonable decision maker could not reach?
There were a number of cases that emerged after the Sidumo case where the judges sought to analyse and articulate their views on this case.
In the matter of Phalaborwa Mining Company limited v Anthony James Cheetham and 2 others (unreported JA 7/2006), Willis JA commented on the effect of the Sidumo judgement by stating that: “the judgement has the clear effect that the Courts, and, in particular, the Labour Courts, must defer (but not in the absolute sense) to the decision of the Commissioners.”
The ‘reasonable decision maker test’ is obviously an objective test, which requires that all the evidence and the issues which where before the Commissioner should be taken into account in determining whether or not the decision or ruling of the Commissioner is reasonable.
Fidelity Cash Management Service
In Fidelity Cash Management Service v CCMA & Others  3 BLLR 197 (LAC), Zondo JP breaks open the mould for the test even further by delivering a solid judgement stating that the Commissioner must take all the factors into consideration, and he or she would then have to answer the question whether the dismissal was, in all circumstances, a fair sanction in such a case. In answering that question, the Commissioner would have to use his or her own sense of fairness.
However, Zondo JP goes further to state that when considering whether the award of a commissioner is one that a reasonable Commissioner could not have derived at, the Court must revisit the record and take all of the factors of the matter into consideration, even where the record presents factors not taken into consideration by the Commissioner.
In other words, where a Commissioner bases his award on factors A,B and C, and the Court finds the Commissioner's award to be reasonable, in the sense that the award is one a reasonable Commissioner could have derived at on factors D, E and F, the Court will decline to interfere with the award.
The Court further held that the Sidumo judgement does not permit CCMA arbitration awards or decisions to be simply set aside because the Court would have arrived at a different conclusion.
In the Edcon Ltd v Pillemer NO & others (2008) ILJ 614 (LAC), Sangeni AJA held that, predominantly, the employer-employee trust relationship was the determining factor as to whether dismissal was an appropriate sanction.
Notwithstanding the fact that the Commissioner will be required to conduct the hearing de novo, the record of the disciplinary hearing, including the charges, the evidence and the findings reached, will be to establish and asses that the reasons relied on to justify the dismissal.
It is evident from the reading of the "post Sidumo" case law that the Labour Court is moving closer to the rationale incorporated in the arguments raised by Cosatu during the Sidumo trial.
Employers will need to adopt a conservative approach when deciding whether or not to dismiss an employee. However, it appears that employers are left with a particular uncertainty on the standard to meet dismissal as the employer would have to dance to the tune of the Commissioner's own sense of fairness.
Fiona Leppan, Director in the Employment Law practice, and
Michael Yeates, Associate, Cliffe Dekker Hofmeyr