ConCourt reserves judgment on dismissals issue

The finding was made 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. Cosatu claims the SCA decisions ‘set an extremely dangerous precedent which could severely weaken the country\'s labour laws’. And Counsel for the CCMA, Wim Trengove SC, argued that CCMA decisions were made under the Labour Relations Act. 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 judgment 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. 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. ‘We are arguing for a measure of deference, where it is appropriate... not too much, but some understanding,’ he told the court. Full report on the IoL site

Cosatu argues fairness should be determined in a different way, says a report on the SABC News site. ‘The proper starting point must be that a dismissal is unfair if the employer does not prove that it was for ‘a fair reason’ related to the employee\'s conduct or capacity,’ Cosatu argues. ‘It is for the employer to justify a dismissal by showing that both the reason for dismissal and the procedure adopted are fair. Otherwise it is unfair. The commissioner who arbitrates a dismissal dispute must be persuaded that both the reason and the procedure are fair,’ it adds. Full SABC News report