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Supreme Court decisions not final

By unknown | Oct 16, 2007 | COMMENTS [ 0 ]

It is up to the employer to hire and fire employees.

It is up to the employer to hire and fire employees.

Only the employer has the power to fire an employee. However, section 185 of the Labour Relations Act 66 of 1995 protects employees against being unfairly dismissed by their employers.

It entrenches the rights of employees not to be unfairly dismissed by their employers. This right is further protected by section 188 of the Labour Relations Act, which provides that a dismissal must be for a fair reason relating to the employees conduct.

Commission for Conciliation, Mediation and Arbitration (CCMA) commissioners are empowered by the Labour Relations Act to determine the fairness of a dismissal for misconduct.

A commissioner in considering whether a dismissal is for a fair reason must take into account the Code of Good Practice: Dismissal which can be found in Schedule 8 for the Labour Relations Act. The code states that dismissal for a first offence is not appropriate unless:

"The misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct are gross dishonesty, or wilful damage to property, physical assault and gross insubordination."

Determining the fairness of a dismissal involves a two-stage enquiry.

The first stage is to determine whether the employee indeed committed the offence that led to the dismissal. If it is proven that the employee indeed committed the offence then the fairness of the sanction of dismissal must be determined.

Whose duty is it to determine whether the employer's decision to dismiss was fair?

The Supreme Court of Appeal decided in Rustenburg Platinum vs CCMA and Others (2006) 27 ILJ 2076 that it was the employer's prerogative to determine sanction and that a commissioner had to approach an employer's decision to dismiss with a degree of respect and was not empowered to substitute his opinion for what was an appropriate sanction for that of the employer.

This approach of the Supreme Court of Appeal was overturned in the recent Constitutional Court case of Sidumo and Another vs Rustenburg Platinum Mines Ltd and others Unreported Case No. 85/06.

The Constitutional Court stated that while the decision to dismiss belonged to the employer, the determination of the fairness of the dismissal did not.

The commissioner as an impartial, unbiased person is in a better position to determine the fairness of the dismissal, bearing in mind all the circumstances that led to the dismissal.

In determining the fairness of the dismissal, the commissioner will exercise his own value judgment taking into account the importance of the rule that has been breached and the reason why the employer imposed the sanction of dismissal.

Other factors that will be considered are the harm caused by an employee's conduct, whether additional training will rectify the behaviour and the length of service.

- By Lavery Modise, director, and Felicia van Rooi, senior associate, at Routledge Modise Attorneys.


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