CAN THE ARBITRATOR INTERFERE WITH THE COMPANY’S SANCTION?

10 Mar 2008

By Robert Niemand Should an employee be dismissed for a serious offence and, after he has referred his dismissal to the CCMA, the commissioner finds that he was guilty of the offence, can the Commissioner interfere with the sanction and pronounce that dismissal was too harsh and that a lesser sanction would have been more appropriate? This matter has been finally resolved now in the Constitutional Court case - Sidumo v Rustenburg Platinum Mines Ltd. (2007) 28 ILJ 2405 (CC). As a result, the following guidelines apply to all commissioners in assessing whether or not dismissal was an appropriate sanction. These include: In considering whether or not dismissal was an appropriate sanction for the contravention of the rule or standard, the Commissioner is required to determine whether or not the employer’s decision to dismiss the employee was fair. The Commissioner must determine fairness as an impartial adjudicator. This requires the Commissioner to give consideration to the position and interests of both the employer and employee in order to make a balanced and equitable assessment. Commissioners must utilise their sense of fairness to determine whether the employer’s decision to impose the sanction of dismissal was fair. However, Commissioner’s must not approach the question on the basis of what sanction they would have imposed had they been the employer. The Commissioner must assess the fairness of the dismissal objectively by taking into the totality of circumstances. Facts and circumstances that may be relevant to the question whether dismissal was an appropriate sanction include: the importance of the rule that has been breached, the reason why the employer imposed the sanction of dismissal; the basis of the employee’s challenge to the appropriateness of the sanction; the harm caused by the employee’s conduct; the effect of dismissal on the employee; whether additional training and instruction may result in the employee not repeating the misconduct; whether progressive discipline was applied and if not, whether progressive discipline may be effective; the employee’s disciplinary record and length of service; the presence or absence of dishonesty in the employee’s conduct; whether the employee admitted the misconduct or disputed it and; if the employee disputed it, whether the employee behaved dishonestly or inappropriately in doing so; whether the misconduct is serious and makes a continued employment relationship intolerable; whether the employee has applied the sanction of dismissal consistently in the past and between employees who participate in the same misconduct. Commissioners must decide whether dismissal was an appropriate sanction on an objective assessment of all relevant facts and circumstances presented at the arbitration. The Commissioner must always consider the relevant provisions of the Act and take into account the Code of Good Practice: Dismissal. LABOURNET will be presenting free morning seminars nationally on “When can an employer dismiss an employee for misconduct? - the implications of the judgment of the constitutional court in Z Sidumo & others v Rustenburg Platinum Mines Ltd & Others and the effects of such judgment on how disciplinary hearings must be conducted in the future”. Check our website www.labournet.com for the date of the seminar in your city.