Archive for sidumo

When can you review an unfair dismissal award? Constitutional Court lays down the Law

Posted in Unfair Dismissal with tags , , , , on September 3, 2007 by labourlawoffices

The highest court of the country has laid down the law in its recent judgement in the unfair dismissal case of Sidumo and another versus Rustenburg Platinum Mines. The decision also affected the legal principles applicable to the review of CCMA arbitration awards.

The case involved the dismissal of the employee for reasons relating to misconduct. The commissioner found the employee guilty of misconduct but found that no dishonesty was involved. Based on the employee’s clean service record of 15 years, the commissioner reinstated him with three months compensation subject to a written warning valid for three months. Both the Labour and Labour Appeal Courts agreed with the outcome and refused any review relief. The Supreme Court of Appeal found that the employee’s dismissal was fair, hence the employee ended up with no relief.

A key finding of the Appeal Court was that in deciding unfair dismissal disputes, CCMA commissioners should not lightly interfere because it is the employer’s function in the first place to decide on punishment. The Constitutional Court decided that a commissioner is not required to defer to an employer’s dismissal decision. In reaching a decision the commissioner must have regard to all relevant circumstances. The standard of review to be applied when a decision by a commissioner on a dismissal dispute is sought to be reviewed was stated as follows: Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach?

The Court held that compulsory arbitration proceedings in the CCMA constitute administrative action, but held that it was not subject to the provisions of the Promotion of Administrative Justice Act. It held that the requirements of section 33 of the Constitution, which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, applied. The Court concluded that having regard to the reasoning of the commissioner, based on the material before him, it could be said that his conclusion was one that a reasonable decision-maker could reach.

The effect of this decision is that it is now more difficult to show that an award should be reviewed and set aside. Whereas before the decision, the test for review was whether based on the evidence available at the hearing the decision made was justifiable with regard to the reasons therefore, now unless a finding of unreasonableness can be sustained, an award will stand.

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