Tel: (011) 339-4911
Fax: (011) 339-5080/339-6940
Email: donald @ cosatu . org . za
For comments on the website email: email@example.com
Media Centre | COSATU Press Statements
COSATU submission to Concourt on SCA judgement on Rustenburg Platinum v CCMA
12 - 19 - 06
The Congress of South African Trade Unions has submitted an application to the Constitutional Court for leave to appeal against the judgment of the Supreme Court of Appeal (SCA) on 26 September 2006 in the case between Rustenburg Platinum Mines Ltd and the Commission for Conciliation, Mediation and Arbitration (CCMA).
COSATU believes that this judgement sets an extremely dangerous precedent which could severely weaken the country's labour laws.
COSATU's application concerns the SCA's key findings on the powers of the Labour Court in reviewing CCMA arbitration awards in unfair dismissal cases and CCMA commissioners' approach to sanctions for misconduct in conducting arbitrations in cases of allege d unfair dismissal in terms of the Labour Relations Act (LRA). COSATU believes that the SCA has significantly altered the law governing these matters.
This case was initially simply a dispute about an individual dismissal. Leave to appeal to the SCA was sought and granted on the basis that it was a "test case", but unfortunately, although the court regarded it as such, none of the major trade unions were involved in the litigation, which was being conducted by an individual with his own attorney.
Had either COSATU or NUM known this was to be a test case where fundamental issues were to be considered, they would have sought to make submissions on issues that are vitally important to our members and indeed the entire labour relations dispensation.
The SCA's judgment was reported in mid-November 2006. Shortly before the publication of the report, officials of COSATU's affiliates became aware of the judgment and requested that it be placed on the agenda of the Central Executive Committee (CEC), which met from 20-22 November 2006. It resolved that COSATU should instruct attorneys to investigate the possibility of challenging the decision in the Constitutional Court.
The case centres on Zandise Sidumo, who was employed as a security guard by Rustenburg Platinum, until he was dismissed in 2000. He took an unfair dismissal dispute to the CCMA. It was not resolved through conciliation and he requested it be arbitrated. Th e CCMA appointed an arbitrator who held that Sidumo was guilty of misconduct but that dismissal was not an appropriate sanction. He ordered the company to reinstate him on a written warning and to pay him three months' back pay.
The company applied to the Labour Court to review and set aside this award, but they held that it was justifiable and dismissed the review application.
Then the company appealed to the Labour Appeal Court (LAC), which held that the commissioner's reliance on Sidumo's clean disciplinary record and long service could sustain the finding that the sanction of dismissal was too harsh. The LAC dismissed the com pany's appeal with costs.
The company was then granted special leave to appeal to the SCA against the LAC's decision. The SCA accepted the company's argument that in assessing the fairness of a dismissal, CCMA commissioners should apply the "reasonable employer" test, exercise caut ion when determining whether the sanction imposed by an employer is fair, and display a measure of deference to the employer's sanction.
The SCA's decision is clearly of great importance beyond the facts of this particular case. COSATU is approaching the Constitutional Court with a view to resolving the following fundamental issues that arise and need to be considered in an appeal:
- What is the function of a CCMA commissioner in deciding an unfair dismissal dispute?
- How is a CCMA commissioner to approach an employer's decision to impose the sanction of dismissal? Is the commissioner limited in any way by the employer's view of the matter, or is that merely evidentiary material to be taken into account in deciding w hether the dismissal was fair?
- What principles govern the review of a CCMA commissioner's arbitration award?
- What approach should be adopted by a Court hearing an appeal against a judgment of the Labour Court in a review application?
We shall submit that 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. It is for the employer to justify a dismissal by showing that bo th 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.
If, as the SCA holds, the starting point is one of deference to the decision of the employer, whose decision on sanction should not lightly be departed from, the effect is to reverse the onus that the legislation places on the employer, or at least to crea te what amounts to a presumption in favour of the fairness of the employer's decision.
COSATU is submitting that this matter raises important points of law that are of significance beyond the facts of the present case, and that the constitutional matter is one of substance on which a ruling by the Constitutional Court is desirable.