The Constitutional Court has reserved judgement in Cosatu’s application for leave to appeal a finding that Commission for Conciliation, Mediation and Arbitration (CCMA) decisions be subject to appeal and not just to review.
The finding was made by the Supreme Court of Appeal (SCA) in 2006 when it overturned a CCMA decision that Rustenburg Platinum Mines reinstate a security guard who was dismissed in 2000 for misconduct.
The SCA also found that the CCMA had to be cautious in deciding whether workplace sanctions were fair, and exercise ”a measure of deference” to employers’ sanctions, as the Labour Relations Act (LRA) made it primarily the employer’s function to decide on proper sanctions.
The Congress of South African Trade Unions claims the SCA decisions ”set an extremely dangerous precedent which could severely weaken the country’s labour laws”.
Counsel for the CCMA, Wim Trengove, SC, argued on Tuesday that CCMA decisions were made under the Labour Relations Act, which is administered by the labour courts.
The LRA gives a limited power of review to ensure that arbitrations, even if challenged, can be decided speedily and inexpensively.
He contended that this had not been displaced by the Promotion of Administrative Justice Act (Paja), which enabled broader appeals against administrative decisions.
He submitted that deciding on dismissals, the CCMA performed the same function as the Labour Court, making this a judicial rather than an administrative decision — albeit performed by an administrative body — and not subject to the Paja.
Trengove also criticised the finding that employers be shown deference.
”It is critically important that a fairness judgement be made by an impartial party whose point of departure is the LRA and Constitution rather than the interests of any one of the parties,” he said.
Cosatu’s counsel, Malcom Wallis, SC, said: ”It is undoubtedly for the employer to say ‘These are the standards I set’.
”It is undoubtedly for the employer to say — indeed fair labour practice demands — ‘These are the consequences I think should flow and I will implement if you breach these rules’.”
This stressed the seriousness of the contravention. People needed to be aware of the risks to which they were exposing
themselves, Wallis told the court.
Commissioners could only interfere when these rules were not reasonable or fair.
Wallis submitted that there was no need for deference, and contended that it was being ”confused” with the entitlement of the employer to set workplace standards.
Jeremy Gauntlett, SC, for Rustenburg Platinum Mines ‒- which backs the SCA decision and opposes leave to appeal — argued that the LRA placed the burden on the employer to justify dismissal.
This tilted the scales in favour of employees, he contended.
”We are arguing for a measure of deference, where it is appropriate … not too much, but some understanding,” he told the court, claiming a misportrayal of the SCA decision by Cosatu and the CCMA.
”Deference is the magnitude of appreciation you give to a person reading the balance sheet and coming to a difficult decision,” he submitted.
On the matter of appeal, Gauntlett argued that the CCMA was not excluded from the Paja, because it was not specifically exempted in the Act.
The CCMA was not judicial, he told the court, and it did not have the all the normal judicial powers.
Excluding it simply to expedite arbitrations deprived parties of their constitutional right to protection from unfair labour practices.
Cosatu members protested outside the court throughout the day — mainly during adjournments — carrying placards reading, ”Stop exploiting workers, accept reinstatement,” and ”Justice for all workers”.
In a statement, Cosatu said the case had initially been ”a simple dispute about an individual dismissal” conducted by the individual and his own attorney.
”Had either Cosatu or the [National Union of Mineworkers] known this was to be a test case where fundamental issued were to be considered, they would have sought to make submissions on issues that are vitally important to our members and indeed the entire labour relations dispensation,” it said. – Sapa