By Ivan Israelstam

Labour legislation in South Africa is heavily weighted in favour of employees. The heavy protection of employees against being dismissed makes it very difficult for employers to run efficient workplaces. This in turn compromises the ability of businesses to grow and employ more employees.
One example of this problematic legislation is the fact that some arbiters give too much weight to mitigating circumstances. For example, while it is acceptable to use an employee’s long service as a mitigating circumstance in certain situations, it makes no sense to view the length of service as an immovable barrier against dismissal.
For instance, should a penalty of dismissal be imposed in a case where the employee has been grossly derelict in his duties, the employer normally intends for the employee to stay fired. This is because:
● No enterprise can run effectively and harmoniously with employees who break the rules, destroy trust, or fail to do their duty.
● The employer needs to replace the errant employee and will therefore not have a post available for a dismissed employee who is reinstated.
● The employer wants all employees to know that if they cross the line they will be out of a job.
● The reinstatement of a dismissed employee, therefore, undermines the harmony and effectiveness of the workplace and the authority of management.
The employer, therefore, has a very strong need to know that its dismissal decision will not be interfered with. However, the Labour Relations Act (LRA) dilutes the employer’s right to dismiss by:
● Laying down numerous and stringent criteria for deciding whether a dismissal decision should stand or not.
● Giving arbitrators and judges the right to overturn dismissal decisions.
It is the above provisions that have plagued many employers over the past years and have resulted in many thousands of employees being reinstated.
Some years ago, Rustenburg Platinum Mines dismissed Mr Sidumo for failing in his duty as a mine security officer. Sidumo failed to follow the required loss prevention procedures to be utilised for searching employees employed in a high-security area.
On the day in question, the employee failed to search all but one of the people who exited the company’s precious metal store. Sidumo, through his trade union, disputed the dismissal at the CCMA.
The arbitrator accepted that Sidumo had been guilty as charged but decided that the dismissal decision was too harsh.
As Sidumo had 15 years of service and had ‘not been trained’ in the required duties the arbitrator ordered he be reinstated.
The employer attempted to get this award overturned at Labour Court on the grounds that, where an employee is indeed guilty of a serious offence, the CCMA should not have the right to interfere with the sanction imposed by the employer.
Both the Labour Court and Labour Appeal Court dismissed this argument of the employer. Rustenburg Platinum then approached the Supreme Court of Appeal where it was decided that arbitrators should approach the sanction of the employer with some deference and should only overturn it if it is way out of kilter with what would be fair. In other words, the Court said that, even if the arbitrator believed that a sanction other than dismissal would be fairer if the employer’s decision was still within the bounds of fairness, the arbitrator should not interfere with the employer’s decision.
This was because it was the employer’s function to impose a sanction and because the employer has the prerogative to decide, within reason, how strong its sanctions should be.
This decision was hailed by employers because it supported the need for employers to be able to protect their interests from the threat of errant employees and it represented an important swing in the pendulum towards a balance between the rights of employees to fair labour practice and the right of employers to run their businesses effectively.
However, the trade union movement saw the decision as a threat to the tight hold they had achieved during the past years over labour legislation. As a result, the matter was taken to the Constitutional Court.
In the case of Sidumo vs Rustenburg Platinum Mines Ltd and others (October 2007, Skills Portal Newsletter) the Constitutional Court overturned the decision of the Supreme Court of Appeal.
The Court said that arbitrators are not required to defer to employers’ decisions and must instead take all relevant circumstances into account in deciding if the employer’s sanction decision was fair.
In effect, the Constitutional Court has decided that the law protecting the jobs of employees must remain paramount.
In their disappointment employers should not lose heart and be deterred from dismissing employees who deserve it.
Instead, they must ensure that, before they discipline and dismiss employees, they consult a labour law expert to ensure that employees who deserve to be dismissed remain fired. –

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