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 Ivan Israelstam


The Supreme Court of Appeal does not allow employers to fire employees at will.

The Labour Relations Act gives CCMA commissioners a number of powers including the power, in respect of any dispute the commissioner is attempting to resolve, to:

  • Subpoena witnesses and documents
  • On authorisation, enter and inspect any premises on which relevant documents or objects are found
  • Remove and inspect any relevant document or other object
  • Take from persons on the premises any statement relevant to the matter
  • Make a finding that a person is in contempt of the CCMA
  • Attempt to assist employers/ employers' organisations and employees/trade unions to reach a mutually satisfactory settlement to any dispute recognised by the LRA
  • Hear evidence at hearings
  • Issue arbitration awards
  • Award employees reinstatement or compensation in respect of disputes that the LRA allows the CCMA to arbitrate
  • Dismiss applications lodged with the CCMA
  • Make default awards against employers who fail to attend arbitration hearings
  • Make rulings on matters such as the jurisdiction of the CCMA to hear specific matters; and the right of parties to be represented at hearings and applications for variation or rescission (cancellation) of an arbitration award.

Among the most important and most frequently used powers that commissioners have are to decide whether a dismissal is fair or not. There is a need for employers, trade unions, employees and other interested parties to have an understanding of the powers of the CCMA commissioners. In deciding whether a dismissal is fair, the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA.
        
This means that, even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate. In the light of this power conferred by the LRA for commissioners to decide on the appropriateness of the dismissal sanction, employers, trade unions, employees and other interested parties have become confused by the recent finding of the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Limited v CCMA and Others (SCA case number 598/05 as reported in CLL Vol 16 No 4 November 2006). In this case a Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the reasons the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.
         
The Supreme Court of Appeal found that:

  • Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal.
  • CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings.

       

CCMA commissioners should not, without compelling reasons, second-guess employers who have decided to dismiss employees. This does not mean that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision prevents commissioners from overturning dismissals merely because, in their opinion, another sanction could have been more fair.

Instead, if the arbitrator is going to find that dismissal was inappropriate he or she will have to show that there was no objectively rational basis for the sanction of dismissal. While employers are hailing this decision as a victory, they should not interpret it to mean that they can now impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure.

      

  • Ivan Israelstam can be contacted at
  • Our appreciation to Ivan Israelstam and The Star Newspaper for permission to publish this article

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