One for the workers…

Earlier this month the Constitutional Court ruled in a case with tremendous consequences for ordinary South Africans and our system of labour relations.

The appeal involved the dismissal, more than seven years ago, of Zingisile Sidumo by Rustenburg Platinum Mines. Sidumo was employed to patrol the mine’s high-security facility, where precious metals are separated from lower-grade concentrate.
He was dismissed for failing to apply established procedures. He contested his dismissal and took his dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the compulsory arbitration provisions of the Labour Relations Act.

The CCMA commissioner found that Sidumo was guilty of misconduct. In considering the appropriate sanction, however, the commissioner found that no dishonesty was involved and took into account his clean, 15-year service record. For these reasons the commissioner reinstated Sidumo with three months’ compensation, subject to a written warning.

Rustenburg appealed, without success, to the Labour Court and the Labour Appeal Court. The platinum company finally found succour at the Supreme Court of Appeal, which held that the dismissal was fair. A key finding of the court was that, in deciding unfair dismissal disputes, the CCMA should approach an employer’s sanction in relation to misconduct with a measure of deference, because it is the employer’s function in the first place to impose a sanction.

This decision was met with glee by employers and the lawyers who ply their trade on their behalf. Business finds the Labour Relations Act particularly troubling, contending that it creates “inflexibility” in the labour market, retarding growth and employment. Employees and their unions, in contrast, argue that the Constitution seeks to protect the weak against the abuse of power, and that international labour law seeks to introduce impartial safeguards against arbitrary or unreasonable dismissals.

The Supreme Court of Appeal judgement introduced a test for dismissals that could be reduced to the following: if a dismissal is judged by an employer to be reasonable, then the CCMA should not interfere!

The stakes were therefore high for both sides before the Constitutional Court. If upheld, the appeal court judgment would have curtailed the review power of the CCMA and given employers more unfettered power to dismiss workers than they have had for at least two decades.

As always with the Constitutional Court these days when it deals with controversial matters, there were a number of judgements. But the court was unanimous that, in a dismissal dispute, a commissioner is not required to defer to the decision of the employer. The commissioner is not given the power to consider afresh what he or she would do, but must decide whether the employer’s decision was fair.

The principal difference between the two major judgements of Judge Mohomed Navsa (ironically acting in the Constitutional Court but a permanent judge of the appeal court) and that of Judge Sandile Ncgobo turned on whether a commissioner acts in a judicial or administrative capacity. Judge Sachs wrote a judgement in which, not for the first time, he managed to agree with everyone!

The Constitutional Court also cleaned up the mess left by the appeal court about whether both the High Courts and Labour Courts can hear labour matters, which had created the opportunity for forum shopping. The Constitutional Court confirmed the role of the Labour Courts in these disputes.

But these disputes are not as relevant to the interests of workers. Their victory lies in the finding of all the judges that the power of a commissioner to make a decision concerning the fairness of a dismissal without deferring to the employer has finally been established. And if the decision of the commissioner is reasonable on the facts, it must stand, which implies far less review of the CCMA in the Labour Courts. This is no small thing considering that 70 000 to 80 000 such cases come before the CCMA each year.

Speed of final resolution should now win over legal trench warfare. The Constitutional Court has restored the promise of constitutional fairness to these cases, landing a major blow in favour of South Africa’s workers.

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