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Johanette Rheeder
For quite some time now, when it comes to discipline, employers were used to setting their own standards of discipline, as it was judged by the CCMA Commissioners from the perspective of the employer. This test of fairness – the reasonable employer test - changed dramatically during the latter part of 2007 as a result of the Constitutional Court finding of Sidumo v Rustenburg Platinum Mines Ltd 2007 BLLR 1097 (CC).
In this case, the first applicant, a security guard, was dismissed after 15 years of service with its employer. The guard was dismissed for negligently failing to follow prescribed search procedures. These procedures were different from the random search procedures at the post from which he was recently transferred. The detailed search procedures at the guard's new post were part of an effort by the employer to reduce losses, inter alia due to theft. He denied being trained to do the searches. On investigation it was found that the guard received a copy of the search procedure and that it had been explained to him. Out of 24 searches, he only conducted one search according to the procedure, on eight occasions he conducted no search and he allowed persons who had not been searched to sign the search register.
The CCMA Commissioner accepted that misconduct was committed, but ruled dismissal not to be an appropriate sanction and reinstated the guard with a final warning and compensation. The matter went to the Labour Court and on appeal to the Labour Appeal Court, where the reinstatement was upheld. On appeal to the Supreme Court of Appeal, the finding was overturned and the dismissal found to be fair. The matter then went to the Constitutional Court.
The Constitutional Court found that it is the Commissioner's sense of fairness that must prevail, not that of the employer. The Commissioner must first establish whether the employee indeed committed misconduct. This is a factual inquiry. The second part of the process is to determine the fairness of the dismissal. Here the Commissioner must take into account the reasonableness of the rule breached by the employee. Nothing in the LRA suggests that the Commissioner must then defer to the penalty chosen by the Employer.
Commissioners must exercise their discretion independently. The Court found that Commissioners must consider all circumstances, including the importance of the rule, the reason why the employer imposed the sanction, the harm caused by the employee's conduct, the length of service and whether counselling or training could have avoided a repetition of the misconduct and mitigating circumstances.
The result hereof is the reasonable decision maker test. Employers must now test their rules and regulations against the test of the reasonable decision maker, therefore will a commissioner at the CCMA, looking at the case independently, find the dismissal to be fair in the circumstances.
This test emphasized the importance of schedule 8 of the Labour Relations Act as this is currently the most important benchmark available to employers to decide on the fairness of dismissal. Employers will have to test their rules and codes against this benchmark and again start concentrating on the principles entrenched in the schedule, such as progressive discipline and mitigating factors.
The Constitutional Court further ruled that the Commissioners in the CCMA exercise public powers, therefore perform an administrative function. Section 145 of the LRA, dealing with reviews, must be read so as to ensure that administrative action by the CCMA is constitutionally compliant, therefore lawful, reasonable and procedurally fair administrative action. An administrative decision is reviewable if is one which a reasonable decision maker could not reach. The right to fair labour practices, in the context of a review, overlaps and interconnect with the right to fair administrative action.
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