The CCMA may overturn the employers decission to dismiss

'The CCMA is entitled to overturn the sanction of dismissal imposed by an employer even if the dismissal sanction could be seen by reasonable people to be fair' - Ivan Israelstam

The above quote refers to the sentiment expressed by the Constitutional Court in, Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22 (5 October 2007), where the court indicates that the CCMA commissioner, may overturn the employers decision to dismiss, where in his ‘own opinion' , the commissioner finds the dismissal substantively unfair (for a unfair reason). The commissioner will need to take the totality of circumstances into consideration, when making a moral and value decision as to the fairness of the dismissal. The Constitutional Court decision was as a result of an appeal from the decision of the Supreme Court of Appeal, where the SCA indicated that the commissioner should 'defer to' (accept) the decision of the employer to dismiss an employee for conduct or capacity ('Reasonable employer test').

The court gives an indication of a very limited list of relevant ‘(totality of) circumstances’, at par 78

‘The importance of the rule that has been breached;

The reason the employer imposed the sanction;
The basis of the employee's challenge to the dismissal;
The harm caused by the employee's conduct;
Whether additional training and instruction may result in the employee
not repeating the misconduct;
The effect of the dismissal on the employee; and
The employee's long-service record.’ (Ed – listed for convenience of discussion)

The court wished to set a flexible rule as opposed to a set of ridged rules when deciding "fairness". The employer retains the right to decide on the workplace rules and procedures and whether to dismiss the employee for misconduct or (in)capacity, however the commissioner or court will decide whether the disciplinary action by the employer was fair (procedurally and substantively)

This list can obviously be expanded substantially and when the employer who makes the decision to dismiss should give consideration to the all the circumstances, creating a quagmire of legal uncertainty for the employer.

In future articles we will look at all the (totality) of circumstances which the employer decision-maker will need to consider before making the decision to dismiss in order not to fall foul of an adverse decision by the commissioner.

Ed - George Smith