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Thursday, October 24, 2019 – 12:45

 

In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to:

  • Subpoena witnesses and documents, 
  • On authorisation, enter and inspect any premises on which any relevant document or other object is to be found, 
  • On authorisation, 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 settle labour disputes amicably, 
  • Hear evidence at arbitration 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, and
  • Make rulings on matters such as: 
  • The jurisdiction of the CCMA to hear specific matters, 
  • The right of parties to be represented at conciliation and arbitration hearings, and 
  • Applications for variation or rescission (cancellation) of an arbitration award.

Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. 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 vs 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 several reasons that 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; and 
  • CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.

The meaning of this finding is not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision discourages commissioners from overturning dismissals without strong reasons.

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. This must include a solid rationale as to why the mitigating circumstances failed to prevent dismissal.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

To attend our 27 July seminar in Johannesburg on  DEFEATING THE DANGERS OF DISMISSALS please contact Ronni via ronni@labourlawadvice.co.za or 0845217492.