COURT RULING SHIFTS BALANCE IN CASES OF UNFAIR DISMISSAL

Wow, this legal stuff is interesting as well as complicated. So it is in your own best interests to ensure that you have a good Labour Attorney, who understands and is up to date with the law, when dealing with sensitive issues like this!

Court ruling shifts balance in cases of unfair dismissal
October 8, 2007
By Ronnie MorrisCape Town -

It was a landmark judgment that had been eagerly awaited by employers and employees, and was of special significance to the Commission for Conciliation, Mediation and Arbitration (CCMA) and Cosatu, which obtained permission to intervene.

On Friday the constitutional court overturned a supreme court of appeal (SCA) decision that had severely criticised the labour appeal court (LAC). The SCA found that in deciding unfair dismissal disputes, CCMA commissioners should approach the employer's sanction in relation to misconduct with a measure of deference because it was the employer's function in the first place to impose a sanction. The constitutional court rejected this rule. The case involved the dismissal more than seven years ago of Z Sidumo, who was employed to patrol a high-security Rustenburg Platinum Mines facility.

Sidumo was dismissed for failing to apply established search procedures, but he contested his dismissal, referring the dispute to the CCMA.The commissioner found Sidumo guilty of misconduct but said no dishonesty was involved. It reinstated him with three months' compensation, subject to a written warning valid for three months.


Rustenburg Platinum applied to the labour court to set aside the award. The labour court dismissed the applicatiton. The mining company then turned to the SCA, which held the dismissal was fair. Sidumo applied to the constitutional court for leave to appeal. The constitutional court judges wrote four judgments. All agreed that the SCA decision must be overturned. They were unanimous that in deciding a dismissal dispute, the commissioner was not required to defer to the employer. However, the commissioner was not given the power to consider afresh what he or she would do, but to decide whether what the employer did was fair.

The commissioner must have regard to all relevant circumstances. According to Andrew Smith, a senior associate at law firm Bowman Gilfillan, the constitutional court struck a balance between the interests of employers and employees.