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[2007] ZALAC 5
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Engen Petroleum Limited v Commissioner for Conciliation Mediation and Arbitration and Others (JA12/05) [2007] ZALAC 5; [2007] 8 BLLR 707 (LAC); (2007) 28 ILJ 1507 (LAC) (4 May 2007)
144
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA12/05
IN THE MATTER BETWEEN
ENGEN PETROLEUM LIMITED
Appellant
AND
THE COMMISSIONER FOR CONCILIATION,
First
respondent
MEDIATION
AND ARBITRATION
COMMISSIONER THABE NKADIMENG
Second
respondent
JONES SIBANGANI MASHALE
Third respondent
JUDGMENT
ZONDO JP
Introduction
[1] This appeal is about what the correct approach is
that a commissioner of the Commission for Conciliation, Mediation and
Arbitration
(
âthe CCMAâ
),
the first respondent in this matter, must adopt when required to
decide whether or not dismissal as a sanction in a particular
case is
fair. In the main there are two schools of thought on what the
correct approach is. The one school of thought is to the effect
that
the commissioner is required to make up his own mind and decide the
issue according to his own opinion or judgement. For convenience
I
shall call this school of thought the
own
opinion school of thought. I call this approach the â
own
opinion
â approach because, according to it,
the commissioner must determine the fairness or otherwise of
dismissal as a sanction according
to his own opinion or judgement of
what is fair or unfair and should not defer to anybody. The other
school of thought is to the
effect that the commissioner has no power
to decide this question according to his own opinion or judgement but
he is required to
â
defer to the employer
â
and hold the dismissal as a sanction fair unless it is so unfair that
it makes him whistle or unless it is so excessive as to
shock oneâs
sense of fairness or it is so unfair that no reasonable employer
would have regarded it as a fair sanction in which
case the
commissioner can then interfere with the employerâs decision to
impose dismissal as a sanction and hold the dismissal
to be unfair.
Its basis is that different reasonable employers could react to the
same misconduct of an employee in different ways
each one of which
could fall within a range of possible reasonable responses. In terms
of this school of thought it is said that
the fact that the tribunal
would have imposed a different sanction does not necessarily mean
that the employerâs sanction is unfair.
The tribunal, so goes the
argument, should not substitute its own opinion for that of the
employer. In this judgment I shall call
this school of thought â
the
reasonable employer
â approach or the
âdefer to the employer
â approach.
[2] In this matter Counsel for the appellant submitted
that the correct approach is the reasonable employer test and that a
CCMA commissioner
is not entitled to use the â
own
opinionâ
approach in deciding the issue but
is obliged to use the reasonable employer test. He submitted that, if
a commissioner used the
â
own opinionâ
approach and substituted his opinion for that of the employer on the
issue of sanction, the commissioner will have misconstrued the
inquiry and acted outside his powers and his decision would be
reviewable. In support of his contention Counsel for the appellant
relied upon the decision of this Court in
Nampak
Wadeville v Khoza (1999)20 ILJ 598 (LAC)
and
Ngcobo AJPâs judgment in
County Fair Foods
(Pty)Ltd v Commission for Conciliation, Mediation and Arbitration &
others (1999)20 ILJ 1701 (LAC)
both of which
judgments support the contention advanced by Counsel for the
appellant. Of course, after those judgments this Court
handed down
its judgment in
Toyota SA Motors (Pty)Ltd v
Radebe & others (2000) 21 ILJ 340 (LAC)
in which the reasonable employer test was rejected and it was said
that it was not part of our law. The question of the reasonable
employer test in our law of unfair dismissal was the subject of a big
debate in the labour law field for some time during the 1980âs.
I
thought it had been so decisively rejected by our courts then that I
thought it had been buried. Of course subsequent developments
have
shown just how wrong I was in so thinking. In this regard I refer to
the fact that in
Rustenburg Platinum Mines Ltd
v CCMA & others 2007(1)SA 576(A)
the SCA
has rejected the â
own opinion
â
approach and adopted the reasonable employer test / the defer to the
employer approach. I shall refer to this judgment of the
SCA as the
â
Rustenburg judgment
â.
[3] It is now argued in this matter that the reasonable
employer approach / the defer to the employer approach is the right
approach
which CCMA commissioners should adopt. It was about 1984
when the industrial court imported this concept into our labour law
from
English law. Since then there have been long periods when it
seemed to have gone away. However, from time to time the question
arises
as to whether Courts and other tribunals which deal with
dismissal disputes are required to apply the reasonable employer test
or
the â
own opinion
â
approach in determining the fairness of dismissal in our law of
unfair dismissal. This time the issue has arisen again and this
Court
will deal with the issue fully and thoroughly once and for all. In
saying this, this Court does not purport to claim a final
say on the
issue but it seeks to do so because it has previously rejected the
reasonable employer test and it has been criticised
in the Rustenburg
judgment for its decision to reject the reasonable employer test. In
any event, although the SCA has made its decision
in the Rustenburg
judgment to reject the â
own opinion
â
approach and to prefer the reasonable employer approach, it would be
within its rights to at any stage in the future reconsider
the issue
and either reaffirm its decision or reverse it. Should it decide to
give the matter further consideration in the future,
it would be able
to do so with the benefit of full and thorough reasons supporting
this Courtâs previous decision rejecting the
reasonable employer
test and preferring the â
own opinion
â
approach.
[4] The reasonable employer test or the â
defer
to the employer
â approach comes from
English law. It seems to me that it is important to consider the
reasonable employer test within the different
statutory frameworks
which obtained in England and in South Africa during the 1980âs
before it can be considered within the current
statutory framework in
SA.
The UK background of the
reasonable employer approach / the defer to the employer approach
[5] From 1978 the statutory framework governing the
reasonable employer test in the UK was sec 57(3) of the Employment
Protection
(Consolidation) Act of
1978. Sec 57(3)
of that Act read
thus:
âThe determination of the question whether the dismissal was fair
or unfair, having regard to the reasons shown by the employer,
shall
depend on whether in the circumstances
(including the size and administrative resources of the employerâs
undertaking)
the employer acted
reasonably or unreasonably in treating it as a sufficient reason for
dismissing the employee; and that question
shall be determined in
accordance with equity and the substantive merits of the case
â
(my underlining).
It would seem that at the moment this provision is
contained in sec 98(4) of the Employment Rights Act, 1996 of the UK.
[6] In
British Leyland UK Ltd v
Swift
[1981] IRLR 91
(CA) three judgments were
given by the three Judges who heard the matter, namely, Lord Denning,
Lord Justice Ackner and Lord Justice
Griffiths. Lord Denning included
in his judgment a passage which appears to be quoted frequently in
support of the reasonable employer
test. That passage appears in par
11 at 93 of Lord Denningâs judgment. It reads thus:
â
The first question that arises is whether the
Industrial Tribunal applied the wrong test. We have had considerable
argument about
it. They said: ââ¦a reasonable employer would, in
our opinion, have considered that a lesser penalty was appropriateâ.
I do
not think that that is the right test. The correct test is: Was
it reasonable for the employers to dismiss him? If no reasonable
employer would have dismissed him, then the dismissal was unfair. But
if a reasonable employer might reasonably have dismissed him,
then
the dismissal was fair. It must be remembered that in all these cases
there is a band of reasonableness, within which one employer
might
reasonably take one view: another quite reasonably take a different
view. One would quite reasonably dismiss the man. The other
would
quite reasonably keep him on. Both views may be quite reasonable. If
it was quite reasonable to dismiss him, then the dismissal
must be
upheld as fair: even though some other employers may not have
dismissed him.â
Lord Justice Ackner delivered a separate judgment in
which he said that he agreed that the appeal should be allowed but
did not expressly
say whether he agreed with the reasons given by
Lord Denning in his judgment. He appears to have relied on his own
reasons for his
agreement that the appeal be allowed. Lord Justice
Griffiths also gave a separate judgment but he expressly stated at 94
par 27 that
he agreed with the reasons given by Lord Denning for the
conclusion that the appeal should be allowed. Accordingly, the
passage from
Lord Denningâs judgment referred to above can be taken
to have been part of the judgment of the Court.
The relevant statutory
framework in SA during the 1980âs and early 1990âs
[7] Under the old Act the tribunal which dealt with
unfair dismissal disputes at first instance in South Africa from the
early 1980âs
to the time of the repeal of the Labour Relations Act,
1956 (Act 28 of 1956) (â
the old Act
â)
was the industrial court. Although called a court, that tribunal was
not a court of law but did perform quasi-judicial functions.
At all
relevant times there was some or other definition of an unfair labour
practice which the industrial court had to apply in
deciding whether
a dismissal was unfair. Technically, the industrial court had to
decide in each dismissal dispute that came before
it whether the
dismissal constituted an unfair labour practice. A finding by the
industrial court that a dismissal constituted an
unfair labour
practice meant that the dismissal was unfair. A dismissal could be
found to be unfair by reason of the fact that, although
the employee
was guilty of misconduct, dismissal as a sanction was excessive in
all the circumstances of the case, and was, therefore,
unfair.
Obviously the basis of the finding of unfairness could also be that
the employee was innocent of misconduct or that the dismissal
was not
effected in compliance with a fair procedure.
[8] Between the early 1980âs and the repeal of the old
Act, the definition of an unfair labour practice that the industrial
court
had to apply was amended in 1988 and 1991. The definition which
applied before September 1988 read thus:
â(a) â
unfair labour practiceâ means any act or
omission, other than a strike or lockout, which has or may have the
effect that â
any employee or class of employees is or may be
unfairly affected or that his or their employment opportunities or
work security
is or may be prejudiced or jeopardized thereby;
the business of any employer or class of employers
is or may be unfairly affected or disrupted thereby;
labour unrest is or may be created or promoted
thereby;
the labour relationship between employer and
employee is or may be detrimentally affected thereby; or
any other labour practice or any other change in any
labour practice which has or may have an effect which is similar or
related
to any effect mentioned in paragraph.â
[9] Pursuant to the Labour Relations Amendment Act 1988
(Act 83 of 1988) (â
the 1988 amendments
â)
and with effect from September 1988 the above definition of an unfair
labour practice was replaced by a long definition of an
unfair labour
practice. It is not necessary to quote the post - September 1988
definition. It will suffice, for present purposes,
to say that the
part of the definition that is relevant to the issue under
consideration was to be found in paragraph (a) of the
definition in
sec 1 of the old Act. It read as follows:
â âunfair labour practiceâ means any act or omission which in
an unfair manner infringes or impairs the labour relations
between an
employer and employee and shall include the following:
(a) The dismissal, by reason of any disciplinary
action against one or more employees, without a valid and fair reason
and not in
compliance with a fair procedureâ¦â
[10] Pursuant to the Labour Relations Amendment Act,
1991 (Act 9 of 1991) (â
the 1991 amendments
â)
there was a further amendment to the definition of an unfair labour
practice in 1991. These amendments included a new definition
of an
â
unfair labour practice
â.
The new definition read thus:
â
Unfair labour practice means any act or omission,
other than a strike or lock-out, which has or may have the effect
that â
(i) any employees or class of employees is or may be
unfairly affected or that his or their employment opportunity or work
security
is or may be prejudiced or jeopardised thereby;
(ii) the
business of any employer or class of employers is or may be unfairly
affected or disrupted thereby;
(iii) labour
unrest is or may be created or promoted thereby;
(iv) the
labour relationship between employer and employee is or may be
detrimentally affected thereby.â
There was no further amendment of an unfair labour
practice after 1991.
Powers of the industrial
court âto determineâ a dispute under sec 46(9) of the old Act
[11] Sec 17(11)(f) gave power to the industrial court to
â
make determinations in terms of sec 46
â
of the old Act. Under sec 46(9) of the old Act the industrial court
was given power to deal with, among others, disputes concerning
alleged unfair labour practices which included disputes about the
fairness of dismissals. Although there were amendments to sec 46(9)
in 1988 and 1991, those amendments always retained one thing. That is
that an unfair dismissal dispute was always required to be
referred
to the industrial court â
for determination
â
or the industrial court was required by sec 46(9) â
to
determine
â the dispute concerning the
fairness of a dismissal. It referred to such a dispute as an alleged
unfair labour practice. Other
disputes which were not dismissal
disputes could also be referred to the industrial court for
determination under that section.
[12] Sec 46(9) referred to a dispute referred to in sec
43(1)(c) of the old Act.
Sec 43 dealt with what was generally referred to as
status quo orders which the industrial court had power to make
thereunder. Sec
43(1)(c) referred to disputes concerning an alleged
unfair labour practice. The fact that at different stages between the
early 1980âs
and the repeal of the old Act essentially sec 46(9)
empowered or required the industrial court either â
to
determine
â a dispute concerning the
fairness of a dismissal or contemplated that such a dispute be
referred to the industrial court
âfor
determination
â means that essentially the
main function or power of the industrial court with regard to
dismissal disputes remained intact for
most of that period. The only
other amendment brought about by the 1988 amendments to sec 46(9) of
the old Act which is relevant
to the present matter was an amendment
of sec 46(9)(c) of the old Act. Before September 1988 sec 46(9)(c) of
the old Act required
the industrial court â
to
determine
â the dispute without giving any
indication as to how it was required to do so. After the 1988
amendments sec 46(9)(c) was amended
but not so as to remove the
phrase â
to determine the dispute
â
to describe the function that the industrial court was required to
perform but to deal with the terms in which it could determine
a
dispute concerning an unfair labour practice including unfair
dismissal disputes. The amendment to sec 46(9)(c) provided that the
industrial court was required to determine the dispute â
on
such terms as it may deem reasonable, including, but not limited to,
the ordering of reinstatement or compensation.
â
Powers of the old LAC in dismissal matters under
the old Act.
[13] Sec 17A(1), inserted into the old Act by the 1988
amendments, established a new court, the Labour Appeal Court (â
the
old LAC
â), which had provincial divisions
on the same basis as the then Supreme Court of South Africa. A Labour
Appeal Court consisted
of a Judge of the Supreme Court, who would be
the chairman of the Court, and two assessors except when it was
dealing with a question
of law or a question whether a particular
question was a question of law in which case the Judge sat alone and
decided such a question
alone. The old LAC was given jurisdiction to
deal with appeals from, among others, determinations made by the
industrial court in
terms of sec 46(9) of the old Act in respect of
dismissals alleged to constitute unfair labour practices.
[14] Sec 17B of the old Act dealt with the powers of the
old LAC. With regard to appeals from determinations of the industrial
court
made under sec 46(9) of the old Act sec 17B(1)(b) gave the old
LAC power â
to decide
â
such appeals.
Powers
of the Appellate Division in dismissal matters under the old Act
[15] Sec 17C provided for an appeal from a decision of
the old LAC to the Appellate Division (later the Supreme Court of
Appeal) except
on a question of fact provided that the old LAC
granted leave to appeal. Where the old LAC refused leave to appeal,
the Appellate
Division could be petitioned for such leave. Sec 17C(2)
provided that, after hearing such an appeal, the Appellate Division
â
may confirm, amend or set aside the
decision order against which the appeal has been noted or make any
other decision or order, including
an order as to costs,
according
to the requirements of the law and fairness
â
(my underlining).
[16] If one has regard to sec 57(3) of the English
statute which was applicable in the UK during the 19980âs as quoted
earlier,
one will see that sec 57(3) did not just require a tribunal
to decide or determine whether a dismissal was fair â which is what
can be said was required of the industrial court by the old Act in
South Africa at the time. Sec 57(3) in effect instructed a tribunal
that, when there was a dispute between an employer and an employee
about whether the employeeâs dismissal was fair, it had to answer
that question not directly and by simply saying yes or no. Sec 57(3)
instructed a tribunal to in effect first ask whether the employer
had
acted reasonably in treating the reason for dismissal as a sufficient
reason for dismissal and, if the answer was yes, to then
answer the
question about the fairness of the dismissal by saying that the
dismissal was fair but, if the answer was no, to then
answer that
question by saying that the dismissal was unfair. It seems to me
that, had sec 57(3) not contained this instruction,
the English
courts might well not have decided that the reasonable employer test
was applicable in the UK. It seems to me that there
was nothing in
the statutory framework of South Africa applicable to the industrial
court, the old LAC and the Appellate Division
that justified or that
would have justified the adoption of the reasonable employer test, or
the â
defer to the employer
â
approach. It would seem to me that the â
own
opinion
â approach was the approach
contemplated by the old Act.
[17] Notwithstanding the absence in the old Act of a
statutory provision similar to or comparable to that part of sec
57(3) which
I have underlined in the quotation of that subsection
above which constituted the statutory basis of the reasonable
employer test
in English law, some decisions of the industrial court
did â
import
â the
reasonable employer test into South Africa. The first one of these
appears to have been
Building Construction and
Allied Workers Union of SA & another v West Rand Brick Works
(Pty)Ltd (1984) 5 ILJ 69 (IC)
. Between 1984
and the early 1990âs the industrial court handed down other
decisions which supported the reasonable employer test.
However,
there were also other decisions of the industrial court which
rejected the reasonable employer test. It is not necessary
to go into
any details about the relevant decisions save to make the point that
by far the majority of decisions of the industrial
court applied the
â
own opinion
â
approach and not the reasonable employer approach. It would also seem
that in most cases the old LAC also applied the â
own
opinion
â approach.
[18] One of the members of the industrial court who at
some stage had handed down decisions supporting the application of
the reasonable
employer test in South Africa in a number of cases
during the mid-1980âs turned his back on it later arguing that the
amendment
of the definition of an unfair labour practice by the 1988
amendments did not leave room for the reasonable employer approach
(see
Govender v SASKO (Pty)Ltd t/a Richards
Bay Bakery (1990) 11 ILJ 1282 (IC
). One of
the decisions of the industrial court which rejected the reasonable
employer test was
Chemical Workers Industrial
Union v Reckitt & Coleman (1990) 11 ILJ 1319 (IC)
in which Dr John, AM, emphasised that the English statute on which
the reasonable employer test was based expressly directed that
the
question whether a dismissal was fair or unfair was required to
depend on whether the employer had acted reasonably in treating
his
reason for dismissing the employee as a sufficient reason.
[19] In what I believe was one of the first, if not the
first, labour law book of note in this country, namely,: â
The
New Labour Law
â, 1987, Juta & Co, by
Brassey & others, Brassey dealt with the reasonable employer test
at 71-78. Brassey rejected the
application of the reasonable employer
test in SA labour law. He argued that the South African legislature
had made a policy choice
to have fairness proper and not the
reasonable employer approach applied in the determination of the
fairness of dismissal. That
was even before the 1988 amendments.
Subsequent to the 1988 amendments Cameron Cheadle and Thompson, in
their joint work, â
The New Labour Relations
Act
â
The Law after
the 1988 amendments
â, also agreed at 109
with Brassey that the South African legislature had chosen â
fairness
proper
â as the criterion and rejected the
reasonable employer test.
[20] In
Tubecon
(Pty)Ltd v NUMSA (1991) 12 ILJ 437 at 443-445H
John Brand, a reputable arbitrator in labour disputes, rejected the
reasonable employer test in unequivocal terms. He also referred
at
444 to an arbitration award by CJ Albertyn in which, according to Mr
Brand, the reasonable employer test was rejected as well.
I accept
that Mr Brandâs terms of reference may have left no room for the
application of the reasonable employer test. Nevertheless,
this does
not detract from the validity of his reasons for rejecting it. Prof
PAK Le Roux and Paul Benjamin were to later add their
voices in the
rejection of the reasonable employer test. (see: â
THE
REASONABLE EMLPOYER TEST
:
SOME
REFLECTIONS
â by prof PAK Le Roux in âLabour
Law Briefsâ Vol No 5 of the 15
th
December 1990 and :
âWhen dismissal disputes
are stifled â¦â
by Paul Benjamin in
Employment Law, Vol 6 NO 5117 at 118. In their work: â
A
Guide to South African Labour lawâ
, 2
nd
ed, 1992 at 197-198 Rycroft and Jordaan refrained from expressing a
view on the issue. Accordingly, from the early 1980âs to the
early
1990âs the reasonable employer test had been used only in the
minority of cases by the industrial court, had lost some of
the
support it had initially had among members of that court, was not
used in most of the cases in the old Labour Appeal Court and
had been
rejected by some of the prominent academics and practitioners in the
field of labour law. It would also seem that it might
not have found
acceptance in arbitrations as well.
[21] I stated earlier on that in addition to the
definition of an â
unfair labour practice
â
in sec 1 of the old Act, sec 46(9) was applicable when the industrial
court was required to decide whether a dismissal constituted
an
unfair labour practice. I drew attention earlier to the fact that sec
46(9) required the industrial court â
to
determine
â such a dispute or required that
such a dispute be referred to the industrial court â
for
determination
â.
[22] Under the current Act the bulk of dismissal claims
previously done by the industrial court is now done by the CCMA.
Accordingly,
the industrial court can justifiably be taken as the
predecessor to the CCMA. That makes it all the more important to
establish whether
under the old Act the industrial court was required
to apply the reasonable employer test/ the â
defer
to the employer
â approach or whether it was
required to apply the â
own opinion
â
approach.
[23] In my view the starting point in seeking to
establish whether the industrial court was required to apply the
reasonable employer
test or the â
own
opinion
â approach is to acknowledge that
the industrial court was a creature of statute. It derived its powers
within the four corners
of the old Act. (See Page and Thirion JJ in
Transvaal Pressed Nuts Bolts & Rivets
(Pty)Ltd v President of the Industrial Court & others (1989) 10
ILJ 48 (N) at 67D-F).
Accordingly, if the
reasonable employer test was not authorised by the old Act, the
industrial court would have had no power to apply
it.
[24] In my view the question whether or not the
industrial court was required to apply the reasonable employer test
or the â
own opinion
â
approach depended on the meaning of sec 46(9) of the old Act in so
far as it required the industrial court â
to
determine
â a dispute concerning an unfair
labour practice as well as the provisions of the definition of an
unfair labour practice in the
old Act. In interpreting the old Act,
it would have been important to remember that words used therein had
to be given their ordinary,
natural and grammatical meaning unless
that would lead to an absurdity. (see
Consolidated
Frame Cotton Corporation Ltd v President of the industrial court &
others (1986)7ILJ 489(A) at 494 F-G
).
[25] In
Trident Steel (Pty)Ltd v
John NO and others (1987)8 ILJ 27 (W)
at 39
B-E Ackerman J, after carefully and thoroughly considering the
history of the relevant sections of the old Act and some decisions,
came to the conclusion that the phrase â
to
determine
â a dispute as used in sec 46(9)
meant to bring a dispute to an end. In Trident Steel it had been
argued on behalf of the employer
that the powers of the industrial
court under sec 46(9) were limited to making declaratory orders and
did not include the making
of a reinstatement order or an order for
the payment of compensation. Ackerman J had no hesitation in
rejecting this proposition
and holding that the injunction â
to
determine the dispute
â as found in sec
46(9) of the old Act empowered the industrial court to also order
reinstatement as well as the payment of compensation.
Accordingly,
the industrial court could not be said to have brought a dispute to
an end if to do so required that a reinstatement
order or a
compensation order be made but it did not make it. I do not think
that the correctness of Ackerman Jâs decision in Trident
Steel has
ever been questioned.
The Appellate Division speaks
[26] Before 1992 some members of the industrial court
had spoken through their judgments on the reasonable employer test.
Academic
writers had also spoken. The Appellate Division had not as
yet spoken on the issue as at the end of the 1980âs. However, the
opportunity
for the Appellate Division to pronounce on the issue
presented itself in
MWASA & others v
Perskor (1992) 13 ILJ 1391 (A) (âthe Perskor caseâ)
.
In the light of the fact that sec 46(9) of the old Act required the
industrial court â
to determineâ
an unfair dismissal dispute, the question was what â
to
determine
â a dispute entailed. This would
be the formulation of the question in respect of the role or powers
of the industrial court in
dismissal disputes. In respect of the role
or powers of the old Labour Appeal Court the question would be what
deciding an appeal
in regard to an unfair labour practice appeal
entailed. This formulation of the question in regard to the old LAC
is based on the
fact that the relevant provisions of the old Act
relating to the old LAC empowered it â
to
decide
â an appeal to it from a
determination of the industrial court under sec 46(9). With regard to
the Appellate Division the relevant
provision of the old act
empowered it â
to confirm, amend or set
aside
â the decision of the old LAC sought
to be appealed against â
according to the
requirements of the law and fairness
â in an
appeal to it from a decision of the old LAC.
[27] The Appellate Division gave its answer to this
question in the Perskor case on what approach had to be adopted by
the courts
in deciding the fairness of dismissal.
[28] At 1400
in
the Perskor case it held that this entailed the passing of a moral
judgment. It put it as follows:
â
The position then is that the definition of an
unfair labour practice entails a determination of the effects or
possible effects of
certain practices, and of the fairness of such
effects. In my view a decision of the Court pursuant to these
provisions is not a
decision on a question of law in the strict sense
of the term. It is the passing of a moral judgment on a combination
of findings
of fact and opinions.â
The significance of this passage from the Perskor case
is that it was applicable not only to the Appellate Division and the
old Labour
Appeal Court but also to the industrial court when each
one of those courts was required to determine or decide whether a
dismissal
was fair or unfair. In this regard it needs to be pointed
out that the definition of an â
unfair labour
practice
â which each one of those courts
had to apply was the same. This passage is to the effect that the
definition of an unfair labour
practice entailed a determination of
the effects of the practice complained of such as a dismissal and the
fairness of such effects.
This passage is further to the effect that
a decision of a Court pursuant to such provisions entailed the
passing of a moral judgment
on a combination of findings of fact and
opinions. This passage explained the role or powers of the industrial
court, the old Labour
Appeal Court and the Appellate Division with
regard to their respective functions in deciding or determining
whether dismissal in
a particular case was fair or unfair.
[29] The Appellate Divisionâs decision in the Perskor
matter was subsequently followed in a number of decisions of the
Appellate
Division even as recently as in 1999. (see
Atlantis
Diesel Engines (Pty)Ltd v NUMSA (1994)15 ILJ 1257 (A) at 1257 A-B;
NUMSA v Vetsak Co-operative Ltd & others (1996) 17
ILJ 455 (A) at
476 B-F; Wubbeling Engineering & Another v NUMSA (1997) 18 ILJ
935 (SCA) at 937E-938D; NUM v Free State Consolidated
Gold Mines Ltd
[1995] ZASCA 109
;
1996 (1) SA 422
(A) at 446 C-I;
Olivier JAâs
judgment (concurred in by Zulman JA) in
Betha
& others v BTR SARMCOL, A DIVISION of BTR DUNLOP Ltd 1998(3) SA
349 (SCA) at 369 I-E;
Streicher JAâs
judgment in
Betha v BTR SARMCOL, A DIVISION of
BTR Dunlop Ltd
[1998] ZASCA 5
;
1998 (3) SA 349
(SCA) at 380 G-I;
Smalberger JAâs judgment in
Betha
V BTR SARMCOL, supra, at 386 H- 388 B
; Scott
JAâs judgment in
Betha v BTR Sarmcol,
s
upra, at 402 I-J where he said that he was
in full agreement with the reasoning and conclusion in Smalberger
JAâs judgment;
Dube & others v Nationale
Sweisware (Pty) Ltd
[1998] ZASCA 52
;
1998 (3) SA 956
(SCA) at 960 D-I; NUMSA v GM
Vincent Metal Sections (Pty)Ltd
1999 (4) SA 304
(SCA) at 314 F-H;
Benicon Group v NUMSA & others (1999) 20 ILJ 2777 (SCA) at 2779
H-J
;
Boardman Brothers
(Natal) - v Chemical Workers Industrial Union 1998(3) SA 53 (SCA) at
58 B-C
.
All
in all no less than twenty Judges of the Appellate Division/Supreme
Court of Appeal had in different cases concurred in this approach.
They are: Smalberger, Hoexter, Goldstone, Kriegler, Botha, Howie,
Kumleben, Nienaber, Marais, Scott, Zulman, Plewman, F H Grosskopf,
Joubert, Nestadt, Streicher, Olivier, Schutz, Hefer, Farlam, Harms
JJA, Melunsky AJA, Nicholas AJA and Madlanga AJA. The above cases
are
authority for the proposition that under the old Act the task of
deciding or determining whether a dismissal was fair or unfair
entailed the passing of a moral or value judgment on a combination of
findings of fact and opinions by the Court. The next question
is what
this entailed. Did it entail applying the reasonable employer test?
Did it entail that some deference be shown to the employerâs
choice
of the sanction of dismissal? Did it entail the application of the
â
own opinion
â
approach? That is the question to which I now turn.
Did the passing of a moral or
value judgment under the old act entail the application of the
reasonable employer test/the âdefer
to the employerâ approach or
the âown opinionâ approach?
[30] Did the Appellate Divisionâs decision in Perskor
as explained above mean that the industrial court or the old Labour
Appeal
Court or the Appellate Division was each deciding such an
issue on the basis of its own opinion / judgment or on the basis of
the
reasonable employer approach and not substituting its opinion for
that of the employer with regard to sanction? The Appellate Division
supplied the answer to this question in the same case, namely, the
Perskor case. Indeed, in the
Perskor
case the Appellate Division made it clear beyond any doubt that it
was the Courtâs opinion of what was fair or unfair that
the Court
was required to give when passing a moral judgment in unfair labour
practice disputes involving dismissals under the old
Act. At
1399Hâ1400B in the Perskor case the Appellate Division noted that
the preâSeptember 1988 definition of an unfair labour
practice was
âbased on the effect which a particular
practice has or may have on matters such as employment opportunities,
work security, welfare,
the disruption of an employerâs business,
the promotion of labour unrest, etc.â
The
court went on to say in the next few sentences:
[
20]
âThe
question whether particular facts have or may have such effects can
hardly be described as a question of law. But the matter
does not end
there.
The court is not only to decide
whether such effects have been caused or may be caused, but must also
have regard to considerations
of fairness or unfairness. This is
stated expressly in paras (i) and (ii) of the definition [of an
unfair labour practice applicable
prior to September 1988], but is
also implicit in the very concept of an unfair labour practice. It is
further underlined by the
provisions of s17 (21A) which establish the
jurisdiction of the Labour Appeal Court in relation to unfair labour
practice disputes
. Subparagraph (c)
empowers the Court on appeal in such matters to âconfirm, vary or
set aside the order or decision appealed against
or make any order or
decision, including an order as to costs, according to the
requirements of the law and fairness.â
Clearly
the courtâs view as to what is fair in the circumstances is the
essential determinant in deciding the ultimate question.
See Marievale Consolidated Mines ltd v President of the industrial
court and others
1986 (2) SA 485
(T) at 498Jâ490I (1986) 7 ILJ 152
(T), Brassey and others The New Labour Law at 12â13, 58â9, Van
Jaarsveld and Coetzee Suid
Afrikaanse Arbiedsreg vol 1 at 328â (
my
underlining
).
The ultimate question that Grosskopf JA was referring to
in this passage was the question
âwhether
particular facts constitute an unfair labour practice.â
(see
p.1394HâI in the same judgment). Botha and Goldstone JJA, Kriegler
AJA and Harms AJA concurred in the judgment of Grosskopf
JA.
[31] In
Atlantis Diesel Engines
(Pty)Ltd v NUMSA (1994) 15 ILJ 1247(A) at 1257 A-B
Nicholas AJA said the same thing with the concurrence of Hoexter,
Kumleben, Nienaber and Howie JJA. See also
Bencon
Group v NUMSA and others (1999) 20 ILJ 2777 (SCA)
at 2779 par 7 through Farlam AJA. See also
NUMSA
v Vetsak Co-Operative Ltd 1996(4) SA 557(A)
at 589 and at 589 A-D through Smalberger JA in a minority judgment.
In the majority judgment in the Vetsak case Nienaber JA at 592J
-
593B made among others the point that as to when a point is reached
in a strike when the employer would be justified in dismissing
striking employees â
is ultimately a matter
for the courtsâ¦
â. In
Wubbeling
Engineering & Another v NUMSA (1997) 19 ILJ 935 (SCA)
at 938 A-D the SCA held in effect, through Plewman JA, that it is the
task of the Court to have regard to the interests of not only
the
worker but also those of the employer â
in
order to make a balanced and equitable assessmentâ
of what is fair in all the circumstances. In
NUM
v Black Mountain Mineral Development 1997(4) SA 51 (SCA) at 54 H-
I
Scott JA said in effect, among other things, that â
the
Court must necessarily apply a moral or value judgment
â
in â
deciding the question of fairness
â.
[32] It is crystal clear from the above that the legal
position under the old Act, which required the industrial court â
to
determine
â a dispute concerning an unfair
labour practice, required the old LAC âto decideâ an appeal to it
from a determination of the
industrial court under sec 46(9) and the
Appellate Division to â
confirm, amend or set
aside
â a decision of the old LAC concerning
the fairness of a dismissal, was that the industrial court, the old
LAC and the Appellate
Division were each required to decide the
fairness or otherwise of a dismissal on the basis of their respective
own opinion/judgment
and not on the basis of the reasonable employer
test or the â
defer to the employer
â
approach. Each one of those Courts was entitled to substitute its own
opinion for that of the employer on whether dismissal as
a sanction
was fair in a particular case.
[33] Indeed, it was the Appellate Divisionâs decision
also that both the old Labour Appeal Court and itself were required
to do
the same in appeals that came before those Courts from
determinations of the industrial court made under sec 46(9) of the
old Act.
In fact when one examines almost all the cases that the
Appellate Division/SCA heard which emanated from sec 46(9)
determinations
of the industrial court, one will realise that, when
it came to the Appellate Division/SCA having to decide in each case
whether
a dismissal constituted an unfair labour practice, such issue
was decided on the basis of the Appellate Divisionâs/SCAâs own
opinion of what was fair. The Appellate Division/SCA did not â
defer
to the employer
â or the reasonable employer
on the issue of sanction. Indeed, the Appellate Division readily
substituted its opinion for that of
the employer with regard to the
fairness of dismissal as a sanction in dismissal cases that came
before it on appeal. (See
PACT V PPAWU &
others (1994) 15 ILJ 65(A); Slagment (Pty)Ltd v Building Construction
and Allied Workers Union and others (1994)
15 ILJ 979 (A); Atlantis
Diesel Engines (Pty)Ltd v NUMSA (1994) 15 ILJ 1257 (A) at 1257 C-D;
NUMSA & others v Henred Freuehanf Trailers
(Pty)Ltd (1994) 15 ILJ 1257 (A); Council for Scientific and
Industrial Research v Fijen
(1996) 17 ILJ18 (A) at 27H-I; NUMSA v
Vetsak co-operative Ltd & others (1996) 17 ILJ 476; WG Davey
(Pty)Ltd v NUMSA (1999) 20
ILJ 2017 (SCA); NUM V Black Mountain
Mineral Development Co (Pty)Ltd (1997) 18 ILJ 439 (SCA); Buthelezi &
others v Eclipse Foundries
Ltd (1997)
18
ILJ 633(A); NUM v Free State Consolidated Gold Mines Ltd
[1995] ZASCA 109
;
1996 (1) SA
422
(A) at 450 E-I;
Olivier JAâs judgment
(in which Zulman JA concurred) in
Betha v BTR
SARMCOL, A DIVISION OF BTR DUNLOP Ltd 1998(3) SA 349 (SCA)
particularly at
374
A-D;
Streicher JAâs judgment in
Betha v BTR SARMCOL A DIVISION of BTR Dunlop Ltd
[1998] ZASCA 5
;
1998 (3) SA 349
(SCA) at 380 H-381H.)
Although at 381 F-G in
Betha & others v BTR SARMCOL
Streicher JA included a statement that â
(i)n
my view, a reasonable employer would in the circumstances not have
dismissed workers who had served him loyally for 25 years,
before
having satisfied himself that it was in fact not possible to reach
agreement on the terms of the recognition agreement
,â
it is clear from the next paragraph in the judgment that Streicher JA
applied his own view of what was fair to decide whether
the dismissal
was fair. He said in the next paragraph:
â
My moral or value judgment, having regard to all
the aforesaid facts and circumstances, is therefore that the
dismissal of the weekly
paid workers was unfair.â
Smalberger JAâs judgment in
Betha v BTR SARMCOL, supra, at 401 H-402E; Unilong Freight
Distributors (Pty) Ltd v Muller
[1997] ZASCA 87
;
1998 (1) SA 581
(SCA); Dube and
others v Nasionale Sweisware (Pty)Ltd
[1998] ZASCA 52
;
1998 (3) SA 956
(SCA) at 969
(SCA) at 969 F- 970 A; NUMSA v G.M Vincent Metal Sections (Pty)Ltd
1999 (4) SA 304
(SCA); Benicon Group v NUMSA & Others (1999) 20
ILJ 2777 (SCA)
particularly at 2785 paras
39-42
; Boardman Brothers (Natal) v Chemical
Workers Industrial Union
1998 (3) SA 53
(SCA) at 58 D-
59
.
From all of the above the conclusion is inescapable that
under the old Act the legal position was that the industrial court,
the old
Labour Appeal Court and the Appellate Division / Supreme
Court of Appeal used what I have called in this judgment the â
own
opinion
â approach to determine whether
dismissal was unfair and this included deciding whether dismissal as
a sanction in a particular
case was fair. That was the position as
the current Act came into operation in 1996 and continued to be the
position of the Supreme
Court of Appeal in regard to unfair dismissal
cases governed by the old Act as recently as 1999. It is now
necessary to consider
what the position is in this regard under the
current Act.
Does the Labour Relations Act 1995 (Act 66 of
1995) (âthe Actâ) require a CCMA commissioner to apply the
reasonable employer test
/ the âdefer to the employerâ approach
or the âown opinionâ approach in deciding whether dismissal as a
sanction is fair
or unfair in a particular case?
[34] Having come to the conclusion above that under the
old Act the industrial court, the old Labour Appeal Court and the
Appellate
Division / Supreme Court of Appeal applied the â
own
opinion
â approach in deciding whether the
sanction of dismissal in a particular case was fair, the question
that arises, which is the question
that needs to be answered in this
case, is whether under the current Act the CCMA is required to decide
the same issue also on the
basis of the â
own
opinion
â approach or on the basis of the
reasonable employer approach.
To determine which one of the two approaches is the
correct one for a CCMA commissioner to adopt falls to be determined
with reference
to what the powers of a CCMA commissioner are in such
a case.
[35] The determination of the powers of the CCMA in
regard to the issue under consideration requires an interpretation of
the Act.
However, the Act should not be interpreted in isolation. It
needs to be acknowledged that the Act is the successor to the old
Act.
Accordingly, the old Act and the jurisprudence which the Courts
which applied that Act have bequeathed to us need to be taken into
account not only to ensure that there is no repetition of the
mistakes of the past but also to ensure that that which was good in
that jurisprudence can be carried forward if it is not inconsistent
with the current Act, its objects and the Constitution. If, as
we
move forward as a nation, we do not, from time to time, look back at
our past in order to shape a future that is better than our
past,
there is a real danger that we will shape for ourselves and those to
come after us a future that is no better than our past,
or, even
worse, a future that is worse than our past. That is true not only in
our political life but also in respect of our legal
system in general
and our jurisprudence in particular. Courts, too, need to bear this
in mind at all times.
[36] In July 1994, which was within three months of the
first democratic elections in this country, the new Cabinet appointed
a Ministerial
Task Team of labour lawyers â
to
overhaul the laws regulating labour relations and to prepare a
negotiating document in draft Bill form to initiate a process of
public discussion and other interested parties
.â
(Explanatory Memorandum to the Labour Relations Bill, 1995 at (1995)
16 ILJ 278). The brief of the Ministerial Task Team, in
so far as it
related to the arbitration and adjudication of disputes of rights,
included that the Task Team was â
to draft a
Labour Relations Bill which would-
provide simple procedures for the resolution of
disputes through statutory conciliation, mediation and arbitration
and the licensing
of independent alternative dispute resolution
services;
provide a system of labour courts â
to
determine disputes
â of right in a
way which would be accessible, speedy and inexpensive, with only one
tier of appeal;â
(Explanatory Memorandum
(1995) 16 ILJ 278 at 279) (underlining supplied).
The fact that the Courts under the old Act used the â
own
opinionâ
approach in determining the
fairness of dismissals as dealt with above does not appear to have
been one of the problems that the
Ministerial Task Team, appointed by
Cabinets, was asked to address in the new Labour Relations Bill,
1995. That this way of deciding
whether dismissal as a sanction was
unfair in a particular case was not one of such problems is evident
from the fact that, when
the Ministerial Task Team set out in the
Explanatory Memorandum to the Bill what the problems with the old Act
were and with how
disputes had been dealt with under the old Act,
this was not among the problems that they set out therein (see
Explanatory Memorandum
to the Labour Relations Bill, 1995 which
appears at (1995) 16 ILJ 278). The question then arises whether, all
this notwithstanding,
the current Act departed from the approach of
the old Act and authorised the reasonable employer test and outlawed
the â
own opinion
â
approach.
[37] In August 1998 Brassey AJ handed down his judgment
in
Computicket v Marcus NO & others
(1999) 20 ILJ 342 (LC).
In that judgment he
adopted at 346 E-H the â
defer to the
employer
â approach which seems the same as
that adopted by Lord Denning in Swift although he did not say whether
he, too, like Lord Denning,
took the view that dismissal as a
sanction would only be unfair if no reasonable employer would have
dismissed the employee or if
no reasonable employer might have
dismissed the employee.
[38] This Court subsequently handed down its judgment in
Nampak Wadeville v Khoza (1999) 20 ILJ 578
(LAC)
in November 1998
.
Nampak was a judgment of Ngcobo JA which was concurred in by Myburgh
JP and Froneman DJP. In that case this Court, through Ngcobo
JA,
relying on Lord Denningâs judgment in
Brittish
Leyland UK Ltd v Swift [1981] 1RLR
91,
adopted the reasonable employer test in paragraphs 33 and 34.
[39] Paragraphs 33 and 34 of that judgment are very
important in the discussion of the issue under consideration. The
reader will
need to bear these two paragraphs in mind as repeated
references will be made to them later on. Paragraphs 33 and 34 of the
Nampak
judgment read thus respectively:-
33. âThe determination of an appropriate sanction
is a matter which is largely within the discretion of the employer.
However, this
discretion must be exercised fairly. A court should,
therefore, not lightly interfere with the sanction imposed by the
employer unless
the employer acted unfairly in imposing the sanction.
The question is not whether the court would have imposed the sanction
imposed
by the employer, but whether in the circumstances of the case
the sanction was reasonable. In judging the reasonableness of the
sanction
imposed, courts must remember that:
â
There is a band of reasonableness within which one
employer may reasonably take one view: another quite reasonably take
a different
view. One would quite reasonably dismiss the man. The
other would quite reasonably keep him on. Both views may be quite
reasonable.
If it was quite reasonable to dismiss him, then the
dismissal must be upheld as fair, even though some other employers
may not have
dismissed him.â
It seems to me that the correct test to apply in
determining whether a dismissal was fair is that enunciated by Lord
Denning MR
in Brittish UK Ltd v Swift at 93 para 11, which is:
â
Was it reasonable for the employer to dismiss him?
If no reasonable employer would have dismissed him, then the
dismissal was unfair.
But if a reasonable employer might have
reasonably dismissed him, then the dismissal was fairâ.
[40] It will be seen from par 34 of the Nampak judgment
that this Court expressly adopted Lord Denningâs test for the
determination
of the fairness of a dismissal as found in his judgment
in Swift. That test is:
â
Was it reasonable for the employer to dismiss [the
employee]? If no reasonable employer would have dismissed him, then
the dismissal
was unfair. But if a reasonable employer might have
reasonably dismissed him, then the dismissal was fairâ.
[41] In June 1999 judgment was handed down in
County
Fair Foods (Pty)Ltd v Commission for Conciliation, Mediation and
Arbitration & others (1999)20 ILJ 1701 (LAC)
in which the issue of the correct approach for a CCMA commissioner to
adopt when deciding the fairness of dismissal as a sanction
arose
again. In the County Fair case each of the three Judges who heard
that matter, namely Ngcobo AJP, Conradie JA and Kroon JA,
wrote his
own separate judgment.
[42] In the County Fair case Kroon JA appears to have
elected not to commit himself one way or another on the issue under
consideration.
At par 20 he was content to say in part: â
Even
if the correct approach were that the arbitrator could decide de novo
on what would constitute a fair sanction, [the arbitratorâs]
decision that fairness dictates that a sanction less than dismissal
be imposed is not justifiable on any rational objective basis.
The
absence of that basis results in the arbitratorâs award being
vitiated by gross irregularity
.â
[43] Ngcobo AJP referred to the Nampak case and in
particular paras 33 and 34 thereof. Although some statements in that
judgment,
particularly in paragraphs 28 and 29, may seem to suggest
that Ngcobo AJP was saying that a commissioner may interfere with
dismissal
as a sanction imposed by an employer if such sanction is
unfair â in other words without requiring any thing more than that
the
sanction of dismissal is unfair â it seems that, upon a reading
of the judgment as a whole, the judgment goes further than that
and
says that a commissioner can only find dismissal as a sanction unfair
â and can therefore, interfere with it â if it â
is
so excessive as to shock oneâs sense of fairness.
â
(par 30 of the judgment). It is assumed that, when dismissal is â
so
excessive as to shock oneâs sense of fairness
â,
it is one that no reasonable employer would have considered fair.
However, it is arguable that not every unreasonable dismissal
can be
said to be â
so excessive as to shock oneâs
sense of fairness.
â Ngcobo JA also referred
to Brassey AJâs judgment in Computicket.
[44] Conradie JA disagreed with Kroon JA and Ngcobo AJP
that the appeal should be upheld. However, he agreed â
fully
â
with Ngcobo AJPâs approach that commissioners of the CCMA should
show deference to the disciplinary sanctions imposed by employers.
(see par 48 of the judgment in 1717). In either December 1999 or
early in 2000 this Court handed down its judgment in
Toyota
SA Motors (Pty)Ltd v Radebe & others (2000) 21 ILJ 340(LAC
)
in which it rejected the reasonable employer test and, thus, departed
from its own judgment in Nampak. This Court made it clear
that it
appreciated that it ought not to lightly depart from its own previous
judgments but took the view that this was a case where
it was
entitled to do so. (see par 50 of Nicholson JAâs judgment). Before
coming to the conclusion that the reasonable employer
test was not
part of our law, this Court considered some academic writings and
previous decisions. Furthermore this Court considered
the fact that
in English law the reasonable employer test was based on a specific
statutory provision and in South Africa we do not
have a
corresponding provision.
[45] In
Rustenburg Platinum Mines
Ltd v CCMA & others 2007(1) SA 576 (A) at 594
par 43, a judgement of Cameron JA in which Harms, Cloete, Lewis and
Maya JJA concurred, the SCA expressed regret that this Court
has â
not
consistently affirmed and applied the analysisâ
of Ngcobo JA in par 33 of his judgment in
Nampak
Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC)
and Ngcobo AJPâs analysis in
County Fair
Foods (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others (1999)20 ILJ 1701 (LAC)
at
par 28. The one in Nampakâs case is contained in par 33 of Ngcobo
JAâs judgment. It reads thus:
â
The determination of an appropriate sanction is a
matter which is largely within the discretion of the employer.
However, this discretion
must be exercised fairly. A court should,
therefore, not lightly interfere with the sanction imposed by the
employer unless the employer
acted unfairly in imposing the sanction.
The question is not whether the court would have imposed the sanction
imposed by the employer,
but whether in the circumstances of the case
the sanction was reasonable.â
[46] Ngcobo AJPâs analysis in County Fair that the SCA
was referring to is to be found in par 28 of Ngcobo AJPâs judgment.
That
part of paragraph 28 of Ngcobo AJPâs judgment that was quoted
by the SCA in Rustenburg as containing part of the analysis which
the
SCA regretted that this Court has since â
strayed
â
away from reads as follows:
â
Given the finality of the awards and the limited
power of the Labour Court to interfere with the awards, commissioners
must approach
their functions with caution. They must bear in mind
that their awards are final â there is no appeal against their
awards. In
particular, commissioners must exercise greater caution
when they consider the fairness of the sanction imposed by the
employer.
They should not interfere with the sanction merely because
they do not like it. There must be a measure of deference to the
sanction
imposed by the employer subject to the requirement that the
sanction imposed by the employer must be fair. The rationale for this
is that it is primarily the function of the employer to decide upon
the proper sanction.â
[47] It is true that this Court has departed from the
approach it had adopted in Nampakâs case on the question of how a
commissioner
of the CCMA should approach his task in determining the
question whether dismissal as a sanction is unfair. Of course, each
superior
court is entitled to depart from its previous decisions in
certain circumstances if there is no decision of a higher court than
itself
on the point in question. However, it is also true that a
court should be slow to depart from its previous decisions.
[48] In the light of the SCAâs expression of regret in
this regard and the fact that in Toyota this Court did not give all
reasons
supporting the rejection of the reasonable employer test, it
seems that this Court should take this opportunity to give full
reasons
which support the approach that it took. There are other
reasons as well why this Court should deal with the debate about the
reasonable
employer test fully herein. One of them is that the main
issue in this appeal was what the correct approach is that a CCMA
commissioner
should take when he has to decide whether dismissal as a
sanction is fair. Counsel for the appellant argued very passionately
and
yet vigorously in support of the reasonable employer test. He
emphasised the need for commissioners to defer to the employer with
regard to the issue of a sanction. In this regard he relied heavily
on the decision of this Court in Nampak and Ngcobo AJPâs judgment
in County Fair. Furthermore, the debate about what the correct
approach is that CCMA commissioners should adopt in determining
whether
dismissal is fair is a debate on which many would wish to
hear the views of this Court before it can be put to rest. I say this
because
of the place occupied by this Court in the arbitral and
adjudicative system of labour disputes under the act
Interpretive framework
[49] Sec 23 (1) of our Constitution confers on everyone
â
the right to fair labour practicesâ
.
Sec 232 of the Constitution reads: â
Customary
international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament
â.
Sec 233 of the Constitution reads:
â
When interpreting any legislation, every court
must prefer any reasonable interpretation of the legislation that is
consistent with
international law over any alternative interpretation
that is inconsistent with international law
â.
Sec 39 (2) reads:
â
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights
â.
The purpose of the Act is:
â
to advance economic development, social justice,
labour peace and the democratisation of the workplace by fulfilling
the primary objects
of this Actâ¦â
It is
not necessary to list all the primary objects of the Act. However,
those listed in sec 1 (a), (b) and (d) (iv) are relevant.
Respectively, they are:
to give effect to and regulate the fundamental rights
conferred by sec 23 of the final Constitution.
To give effect to obligations incurred by the Republic
as a member state of the International Labour Organization, and
To promote the effective resolution of labour disputes.
Sec 3 of the Act deals with the interpretation of the
Act. It reads thus:
â
Any person applying this Act
must interpret its provisions â
to give effect to its primary objects.
in compliance with the Constitution; and
in compliance with the public international
obligations of the Republicâ¦â
Does the language of the Act
support the reasonable employer test or the âown opinionâ
approach?
[50] In seeking to determine whether an arbitrator or
commissioner of the CCMA is required to give his opinion or to defer
to the
employer when he decides whether dismissal as a sanction is or
is not fair in a particular case, it seems that one must start by
emphasising that the CCMA is a creature of statute and derives its
powers within the four corners of the Act read with the Constitution.
In this context what was said of the industrial court in
Transvaal
Press Nuts Bolts and Rivets (Pty) Ltd v President of the Industrial
Court and others (1989) 10 ILJ 48 (N) at 67DâF
by
Page and Thirion JJ can be said of the CCMA albeit within the context
of the current Act. There the learned Judges had this to
say, among
other things, about the industrial court: â
The
industrial court (although it is not strictly speaking a court at
allâCF SA Technical Officialsâ Association v President of
the
industrial court and others
1985 (1) SA 596
(A); (1985) 6 ILJ
186(A)âexists only by virtue of the provisions of
s17
of the
Labour
Relations Act and
is, accordingly, a creature of statute. It
accordingly has no power to assume jurisdiction in respect of
any matter beyond those encompassed by its
statutory jurisdiction.â
In determining
whether the CCMA is required to defer to the employer/apply the
reasonable employer test or to apply the â
own
opinion
â approach, it is necessary to
determine what the statutory powers of a CCMA commissioner are when
he has to decide whether dismissal
as a sanction in a particular case
is fair.
[51] In determining what the powers of the CCMA are when
it has to decide whether dismissal as a sanction is fair, one should
start
with the language of the statute creating the CCMA. In this
regard it is important to bear in mind that the primary rule in the
construction
of statutes is that words and expressions used in a
statute must be interpreted according to their natural, ordinary or
primary meaning
unless this would lead to an absurdity. However, no
less important is the proposition that the words or expressions used
in a statute
must also be interpreted in the light of their context,
including â
the matter of the statute, its
apparent scope and purpose, and, within limits, its background
.â
(see
Jaga no and Another.
1950 (4) SA 653
(A)
at 662 per Shreiner JA; Consolidated Frame Cotton Corporation Ltd v
The President of the Industrial Court and Others (1986) 7
ILJ 489 (A)
at 494FâG).
[52] It would appear that the provisions of the Act that
contain the powers of a CCMA commissioner when he has to decide
whether dismissal
as a sanction is unfair are the following:
(a) secs 115(b), 133(2)(a) and 136(1) â which provide
that the commission must â
arbitrate the
dispute
â,
(b) sec
138(1) â which provides that a commissioner may conduct an
arbitration in a manner that the commissioner considers appropriate
â
in order
to
determine the dispute
fairly
and quickly, but must deal with the
substantial merits of the dispute with minimum legal formalities
â
(underlining supplied).
(c) Sec 138(6) â which provides that a commissioner
must take any code of good practice issued by NEDLAC or guidelines
published
by the Commission in accordance with the Act into account
in determining whether dismissal is fair.
(d) Sec 138(9) â which provides: â
the
commissioner
may make any appropriate
arbitration award
in terms of this
Act, including but not limited to an award â
(a) that gives effect to an arbitration agreement;
(b) that gives effect to the provisions and primary
objects of this Act;
(c) that includes, or is in the form of a declaratory
order
â (underlining supplied).
[53] The language that seems significant under sec 138
relating to powers of a commissioner is the choice of the words â
to
determine the dispute fairly
â in sec 138(1)
and the choice of the words â
may make any
appropriate arbitration awardâ
in terms
of this Act in sec 138(9).
[54] In my view the phrase
âto
determine the dispute fairlyâ
in sec 138
(1) is pivotal in deciding what the statutory powers are which the
CCMA has in deciding whether dismissal as a sanction
is fair. This is
because a dispute about the fairness of a dismissal (see sec 191 (1)
of the Act) encompasses both the issue whether
the employee is guilty
of misconduct as well as the question whether dismissal as a sanction
is fair in the particular circumstance
of a case except, of course,
in those cases where one of these is not an issue between the parties
to an unfair dismissal dispute.
Where both the guilt of the employee
and the fairness of dismissal as a sanction are in issue between the
parties, it would not be
a determination of the dispute in the sense
of bringing it to an end if the tribunal found that the employee was
guilty of misconduct
but did not determine or decide whether
dismissal as a sanction was fair.
[55] The phrase
â to determine
the disputeâ
when used in respect of the
Industrial Courtâs powers under sec 46 (9) in the old Act was
interpreted by Ackerman J, as already
stated, in Trident Steel to say
that it meant to bring a dispute to an end. Those same words, as well
as the statutory provisions
of the old Act which empowered the old
Labour Appeal Court â
to decide
â
an appeal concerning an alleged unfair dismissal matter and the
Appellate Division / Supreme Court of Appeal â
to
confirm, amend, or set aside the decision or order against which the
appeal has been noted or make
any other
decision or order,
including an order
as to costs,
according to the
requirements of the law and fairnessâ
were held by the Appellate Division in Perskor and the other
subsequent decisions that I have referred to above to mean that the
industrial court, the old Labour Appeal Court and the Appellate
Division were required to decide the fairness or otherwise of
dismissal
as a sanction according to their own opinion or judgment of
what was fair or unfair in all the circumstances of a particular
case.
[56] It is difficult to see what basis could possibly
exist to justify giving the phrase
âto
determine the disputeâ
in sec 138 (1) of
the Act a meaning that is different from the one that was given to
the same phrase in sec 46 (9) of the old Act
by the Appellate
Division. That meaning does not lead to any absurdity. Accordingly,
it seems fair to say that sec 138 (1) of the
Act empowers a CCMA
commissioner to pass a moral or value judgment when it decides
whether dismissal as a sanction is fair and that
a CCMA commissioner
is required to decide that issue in accordance with his own opinion
or judgment of what is fair or unfair in
all the circumstances of a
particular case.
[57] The decision of this Court in Toyota to reject the
reasonable employer test and to say in effect or by implication that
the â
own opinion
â
approach applies accords with this approach taken by the Appellate
Division in Perskor and the other cases referred to above in
relation
to statutory language in sec 46 (9) of the old Act that is identical
to the statutory language used in sec 138 (1) of the
current Act in
relation to CCMA commissioners. I do need to point out that the
employeeâs right not to be unfairly dismissed which
the Courts
enforced under the old Act and, therefore, the employerâs duty or
obligation not to dismiss an employee unfairly under
that Act,
although not provided for in those terms, was founded upon the
definition of â
unfair labour practice
â
in sec 1 of the old Act. The definition of an â
unfair
labour practice
â, together with sec 46(9)
of the old Act, was also the source of the unfair labour practice
jurisdiction of the industrial court
which it used to decide the
fairness or otherwise of dismissals in dismissal disputes under sec
46(9). Therefore, although sec 46(9),
read alone, did not expressly
require the industrial court â
to determine
the dispute
fairly
â,
which is what sec 138(1) requires of the CCMA, when read with the
definition of an â
unfair labour practiceâ
,
that is also what it required of the industrial court (my
underlining). Accordingly, it cannot be said that, because, with
regard
to dismissals, there is no applicable definition of an â
unfair
labour practice
â under the current Act
similar to one or more of the definitions of â
unfair
labour practice
â which appeared in the old
Act at different stages, which may have influenced the Perskor
decision and other decisions of the Appellate
Division, those cases
cannot apply under the current Act. So what one has is that sec 46(9)
of the old Act read with the definition
of â
unfair
labour practice
â required the industrial
court to exercise its unfair labour practice jurisdiction â
to
determine
â whether an employeeâs
dismissal was unfair. Sec 138(1) of the current Act requires the CCMA
â
to determine
fairly
â whether an
employeeâs right not to be unfairly dismissed which is provided for
in sec 185 has been infringed. That, of course,
means that it must
determine whether the dismissal was fair.
[58] As to the meaning of the phrase â
to
arbitrate
â the dispute, which is to be
found in sections 115(b), 133(2)(a) and 136(1) of the Act, in my view
the phrase bears the same meaning
for purposes of the Act as the
phrase â
to decide
â.
Under the old act when that phrase described the function of the old
LAC in relation to unfair dismissal appeals it was held
in the
Perskor case to mean that the old Labour Appeal Court was required to
pass a moral or value judgment on findings of fact and
opinion and
that it had to make such a decision on the basis of its own opinion
of what was fair or unfair in a particular case.
That being the case,
in my view, the same must hold true for the phrase â
to
arbitrate
â the dispute. Accordingly, in my
view that phrase in sec 115(b), 133(2)(a) and 136(l) of the Act must
be given the same meaning
as â
to determine
â
or â
to decide
â as
discussed in the Perskor case.
[59] With regard to sec 138(9) the language used
therein, i.e. â
the commissioner may make
any
appropriate
arbitration award
â(my
underlining) seems so wide as to give power to a commissioner to make
such award as he may, in his opinion, consider appropriate
or fair to
make as opposed to requiring him to defer to the employer or to a
reasonable employer.
[60] Apart from those provisions of the Act which deal
with the powers of a commissioner in determining whether dismissal as
a sanction
in a particular case is fair, there are also other
provisions of the Act which, in my view, seem more consistent with
the â
own opinion
â
school of thought than with the â
defer to
the employer
â school of thought. I deal
with them next.
[61] In sec 140 (2) it is provided: â
if
in terms of section 194(1), the commissioner
finds
that the dismissal is procedurally unfair, the commissioner may
charge the employer an arbitration fee
â
(underlining supplied). Sec 141 (1) allows the CCMA to â
arbitrate
the dispute
â if such dispute was supposed
to be referred to the Labour Court for adjudication but instead all
parties to the dispute consented
that it be arbitrated by the CCMA.
These provisions seem to me to be more consistent with the â
own
opinion
â approach than with the â
defer
to the employer
â approach.
The reasonable employer test and the presumption
of fairness of dismissal
[62] Sec 188(1)(a)(i) provides:
â(1) A dismissal that is not automatically unfair
is
unfair if the employer fails to proveâ
that the reason for dismissal is a fair reason
â
related to the employeeâs conduct or capacity.â
The formulation of sec 188(1) where it is said that a
dismissal that is not automatically unfair â
is
unfair ifâ¦..â
connotes an objective
determination of the fairness of the dismissal. It states that, if
the conditions it prescribes are met, the
dismissal is unfair. In
other words, once one or both of the conditions are met, the
unfairness of the dismissal does not depend
upon a reasonable
employer. The dismissal is determined by the statute to be unfair in
such cases.
[63] It also seems that the reasonable employer test or
the â
defer to the employerâ
approach is in conflict with sec 188(1) of the Act. The relevant
part of sec 188(1) has just been quoted above. It says that a
dismissal
that is not automatically unfair is unfair if the employer
fails to prove that there is a fair reason for the dismissal. In my
view,
once it has been established that the employee is guilty of
misconduct, the commissioner would turn to the employer and say:
Although
the employee is guilty of misconduct, tell me why I should
find that this is a fair reason to dismiss! If he was not satisfied
with
what he was told by the employer, he would, in accordance with
the opening part of sec 188(1), find that the dismissal is unfair.
The reasonable employer test or the â
defer
to the employer
â approach actually requires
the opposite. According to this approach, once it has been
established that the employee is guilty
of misconduct, the
commissioner would turn to the employee and say: â
Tell
me why I should find that this is not a fair reason to dismiss. You
see, your employer here thinks that dismissal is a fair sanction
for
this misconduct on your part. Why should I interfere with his opinion
of what is a fair sanction in this case?â
If he was not satisfied with what he was told by the employee, he
would, in conflict with the opening part of sec 188(1), find that
the
dismissal is fair. Accordingly, the reasonable employer test/the
â
defer to the employer
â
approach creates a presumption that, if an employee is guilty of
misconduct, the sanction of dismissal chosen by the employer
is fair
unless the employee demonstrates the contrary â a presumption that
cannot be found anywhere in the act.
The reasonable employer test
and the onus provisions
[64] Section 188A deals with preâdismissal arbitration
conducted by agreement between an employer and an employee when the
employer
seeks to bring disciplinary charges against such employee.
Sec 188A (9) reads: â
An arbitrator
conducting an arbitration in terms of this section must, in the light
of the evidence presented and by reference to
the
criteria of fairness
in the Act,
direct what action, if any, should be taken against the employeeâ
(underlining supplied). The significance of sec 188A (9) is the
reference therein to â
the criteria of
fairness in the Act.
â It seems that here
the drafters of the Act wanted to emphasise that the criterion that
the Act uses is that of fairness. In my
view when this is read, it
must be read to say that the criterion prescribed by the Act is that
of fairness and not reasonableness.
The reasonable employer test and the onus
provisions
[65] Sec 191(1) deals with a dispute about the fairness
of a dismissal and a dispute about an unfair labour practice. The
same disputes
are contemplated in sec 191(5)(a) and (b). Sec 191(5)
provides that the CCMA must â
arbitrate the
dispute
â at the request of the employee if
â
the employee has alleged that the reason
for dismissal is related to the employeeâs conduct or capacity
unless paragraph (b)(iii)
applies,â
Sec
192(2) provides: â
If the existence of the
dismissal is established, the
employer
must prove that the dismissal is fair
.â
Through a provision such as sec 192(2) the
drafters of the Act sought to ease the employeeâs burden by making
sure that, once he
has proved the existence of a dismissal, it is
upto the employer to prove that the dismissal is fair. The
requirement that the employer
must prove that the dismissal is fair
is not confined to the employer simply proving that the employee is
guilty of misconduct. It
also entails that, where the employee admits
that he is guilty or is properly found to be guilty, the employer
must also prove that
dismissal as a sanction is fair.
[66] In my view the â
defer to
the employer
â approach or the reasonable
employer test has the effect of turning sec 192(2) around as if it
read: â
Once the existence of a dismissal has
been established, the employee must prove that the dismissal is
unfair
.â This is because in terms of the
reasonable employer test in effect the view of the employer that the
employeeâs act of misconduct
deserves to be punished with dismissal
is required to be shown a deference or must be accepted as fair and
left intact unless it
is grossly unfair or shockingly excessively
unfair or so unfair that no reasonable employer would have regarded
it as fair or so
excessive as to shock oneâs sense of fairness.
This is contrary to sec 192 (2). The â
own
opinion
â approach is in harmony with sec
192(2).
[67] Sec 193 (1) provides that
â(i)f
the Labour Court or an arbitrator appointed in terms of this Act
finds
that a dismissal is unfair, the Court or the arbitrator mayâ¦
â
and then different remedies are set out which may be granted. The
first part of this subsection seems to be more in line with
the
proposition that what the commissioner finds is that which
constitutes the commissionerâs opinion on the facts and other
matters.
It does not appear to me to be in line with a person who
does not think that the dismissal is unfair but nevertheless says it
is
fair because the employer thinks it is fair which is what the
â
defer to the employer
â
approach requires of a CCMA commissioner. In my view, if the drafters
of the Act had sought to say the latter, it would have been
the
easiest thing for them to say so in clear terms. The question arises:
in what other way would the drafters have formulated this
subsection
if they wanted that the commissionerâs finding should be his
opinion or judgment and not that of the employer? It is
difficult to
think of any.
[68] If one has regard to the provisions of the Act that
I have referred to above, and they cover the powers of a CCMA
commissioner
when dealing with the issue facing us in this matter,
one will notice that the provisions that are specific about what the
commissioner
is required to do either say he is required to
â
arbitrate the dispute
â
or that he is required to â
determine the
dispute
â. Within the context of a
dismissal, the dispute that those provisions say the commissioner is
required to arbitrate or determine
is a dispute such as is
contemplated in sec 191(1) of the Act. That is a â
dispute
about the fairness of a dismissal
â. In my
view the phrase â
to determine the dispute
â
must have been chosen because the old Act had the same phrase in sec
46(9) and, it having been judicially interpreted, its meaning
was
well-known. In my view the use of that phrase suggests that the
drafters of the Act contemplated that the arbitrator was going
to
need to pass a moral or value judgment on the fairness of a dismissal
as a sanction. After all it is trite that, if the legislature
uses
the same words in a statute that it has previously used in a repealed
statute dealing with the same subject matter, it must
be taken to
intend such words to be given the same meaning as the meaning that
the Courts have given to them in the repealed statute.
It seems to
me that, if the drafters of the Act had intended that the
commissioner, in determining the dispute, should defer to the
view of
the employer, they would have gone further than simply saying that
the commissioner must â
arbitrate
â
or â
determine
â the
dispute and they would not have chosen words that have been
interpreted to mean the opposite of what they intended.
A comparison of sec 157(3) of the English Statute
and sec 138 of the Act
[69] As has already been said, the â
reasonable
employer
â test is derived from English law.
Sec 57(3) of the Employment Protection (Consolidation) Act of 1978
read as follows:
â(T)he determination of the question whether the dismissal was fair
or unfair, having regard to the reasons shown by the employer,
shall
depend on whether in the circumstances
(including the size and administrative resources of the employerâs
undertaking)
the employer acted
reasonably or unreasonably in treating it as a sufficient reason for
dismissing the employee
; and that
question shall be determined in accordance with equity and
the
substantial merits of the case
â
(underlining supplied).
[70] That part of sec 57(3) which has been underlined
above and which appears between the word â
employer
â
and the word â
and
â
are the words in that subsection which authorised the adoption of the
reasonable employer test because they directed how a tribunal
dealing
with an unfair dismissal claim had to go about determining whether a
dismissal was fair. In our country there was no such
provision in the
old Act and there is no such provision in the current Act. It seems
that the English legislature chose to add those
words in sec 57(3)
because it thought that, if the English statute simply required a
tribunal to determine whether a dismissal was
unfair, the tribunal
would give such provision its ordinary and natural meaning which is
that the tribunal should decide such an
issue according to its own
opinion of what is fair. It seems that for some reason the English
legislature did not want such an issue
to be decided on the basis of
the opinion of a neutral party but wanted it to be decided on the
basis of the opinion of a reasonable
employer. In South Africa the
drafters of the Act consciously did not include in our statute words
such as those underlined in sec
57(3) above. Accordingly, the Courts
must respect that legislative choice and give effect to it.
[71] There is an additional point with regard to sec
57(3) which fortifies me in my view that the drafters of our Act
deliberately
chose not to incorporate into our Act those words of sec
57(3) which have been underlined above and which direct that a
dismissal
be adjudged to be unfair only if the employer acted
unreasonably in treating the reason for dismissal as sufficient. In
this regard
attention is drawn to the fact that the last portion of
sec 57(3) directs that â
that question shall
be determined in accordance with equity and the substantial merits of
the case
.â Attention can also be drawn to
the fact that, very interestingly, sec 138(1) of our Act contains a
similar injunction. It provides
that the commissioner may conduct the
arbitration in a manner that he considers appropriate â
in
order to
determine
the dispute
fairly
and quickly but must deal with the
substantial
merits
of the dispute â¦â
(my underlining). What is common between the last portion of sec
57(3) and sec 138(1) of our Act are the following features:
(a) in sec 57(3) there is an injunction â
to
determine the question
â and in sec 138(1)
there is also an injunction to the commissioner â
to
determine the dispute
â.
(b) The question that is required to be determined in
sec 57(3) and the dispute that a commissioner is called upon to
determine in
terms of sec 138(1) is a dispute or question whether a
dismissal is fair.
(c) sec 57(3) contains the injunction that the question
be determined â
in accordance with equity
â.
Sec 138(1) contains an injunction that the dispute be determined
â
fairlyâ
. That the
question or dispute be determined in accordance with equity or fairly
means the same thing.
(d) in
sec 57(3) it is stated that the question must be determined in
accordance with â
the substantial merits of
the caseâ
. Sec 138(1) requires that the
dispute be determined â
with the substantial
merits of the dispute
â.
[72] I am of the view that there are too many features
between sec 57(3) of the English statute and sec 138(1) of our Act
which are
similar for anyone to say that this was coincidental. It
seems that the drafters of our Act did look at sec 57(3) and decided
very
deliberately to incorporate only the last part of sec 57(3) and
not the middle part thereof which authorises the reasonable employer
test. If they had wanted to incorporate the reasonable employer test
into our Act, they would have also incorporated the middle part
of
sec 57(3) into the Act. They made a policy choice to leave out that
part of sec 57(3) which would have imported the reasonable
employer
test into our Act. They knew that this was the subsection on which
the reasonable employer test was based in English law.
There had been
reported cases in the Industrial Law Journal during the 1980âs and
early 1990âs which had referred to sec 57(3)
in regard to the
reasonable employer test. The Ministerial Task Team had Prof Hepple
as one of the international advisors, who would
have advised it well
not only on labour law internationally, but also on the position in
English law. (see the Explanatory Memorandum
at 279). They decided to
pick and choose from sec 57(3) what they wanted to form part of the
South African statute and they picked
and chose the part that relates
to the criterion of fairness and left out the part that required that
fairness be determined on the
basis of reasonableness. The
legislature is entitled to make certain legislative policy choices
and, in terms of the doctrine of
the separation of powers, the Courts
must respect such policy choices unless they are inconsistent with
the Constitution. In this
case the legislative choice that was made
is that the reasonable employer test should not be part of our Act.
There can be nothing
inconsistent with the Constitution about that.
Accordingly, the courts must give effect thereto and should not do
anything that would
undermine or frustrate that policy choice.
The
determination of the fairness of disciplinary warnings and the
reasonable employer test/the âown opinionâ approach
[73] Disputes falling under the category of unfair
labour practices are dealt with in sec 186 (2). Sec 186 (2) provides
that
â(a)n unfair labour practice means any
unfair act or omission that arises between an employer and employee
involvingâ
unfair conduct by the employer relating to the
promotion, demotion, probation (excluding disputes about dismissals
for a reason
relating to probation) or training of an employee or
relating to the provision of benefits, the unfair suspension of an
employee
or any other unfair disciplinary action short of dismissal
in respect of an employee;
the unfair suspension of an employee or any other
unfair disciplinary action short of dismissal in respect of an
employee;
a failure or refusal by an employer to reinstate or
re-employ a former employee in terms of any agreement; and
an occupational detriment, other than dismissal, in
contravention of the
Protected Disclosures Act, 2000
), on account of
the employee
having
made a protected disclosure defined in that Act.â
[74] The powers of an arbitrator or CCMA commissioner
when he deals with a dispute concerning an unfair labour practice
provided for
in
sec 186(2)
are set out in
sec 193(4).
Sec 193(4)
reads:
â
An arbitrator appointed in terms of this Act may
determine
any unfair labour practice dispute referred to the arbitrator,
on
terms that the arbitrator deems reasonable which may include ordering
reinstatement, re-employment or compensation
â
(underlining supplied).
These powers are materially similar to the powers which
the old Act after the 1988 amendments conferred on the industrial
court in
regard to unfair labour practice disputes under sec 46(9)(c)
which were discussed earlier. On the basis of how such powers were
interpreted
by the Appellate Division under the old Act in the
Perskor and other decisions of the Appellate Division, in my view the
same interpretation
must be given to these powers in sec 193(4). That
means that the arbitrator is required to give his opinion as to
whether an unfair
labour practice has been committed. One type of
employer conduct which falls within the definition of an unfair
labour practice under
sec 186(2)(a) is disciplinary action short of
dismissal in respect of an employee. This refers to, among others,
disciplinary warnings.
[75] If in regard to the fairness of a dismissal as a
sanction, a CCMA commissioner is required, as the reasonable employer
test requires
him, not to decide the fairness of a dismissal
according to his own opinion or judgement of what is fair but to
defer to the employer
unless he is of the opinion that the dismissal
is shockingly excessive as a sanction or is shockingly unfair or it
makes him whistle
or unless no reasonable employer would have
regarded it as fair or unless it is so excessive as to shock oneâs
sense of fairness,
then the commissioner would be required to apply
the same approach in regard to the determination of the fairness of
disciplinary
action short of dismissal such as a verbal warning, a
first written warning, a second written warning and a final written
warning.
It may well be that, if ever there was a case to be made out
for any deference to the employer with regard to sanction, it would
be in respect of the determination of the fairness of disciplinary
action short of dismissal such as a warning because it would be
very
difficult in most cases to fault the employer in imposing one form of
disciplinary action and not the other. For example, if
an employer
decided that the appropriate sanction in a particular case was a
second written warning, how would one fault that employer
and say it
should have been a first written warning? If the employer imposed a
final written warning as opposed to a second written
warning, it
would not be easy to fault the employer. That means that the CCMA
commissioner would always be deferring to the employer
in such cases
and would not have any scope to interfere with a warning given by an
employer. That is if one applies the reasonable
employer test.
[76] The only conceivable way in which disputes about
the fairness of different forms of disciplinary action short of
dismissal can
be determined is if the CCMA commissioner has power to
decide their fairness on the basis of his own opinion of what is fair
with
no deference to the employer. Once a CCMA commissioner is
required to defer to the employer in regard to such disputes, the
workersâ
right to have such disputes referred to the CCMA for
determination would be illusory and not worth the paper it is written
on. It
would be a hollow right because, in such a case, and in terms
of the reasonable employer test, the commissioner would not be
required
or entitled to find such disciplinary action e.g. a warning
unfair unless he thought it was shockingly excessive or shockingly
unfair
or unless it made him whistle or unless no reasonable employer
would have imposed such a warning. Circumstances which would make
one
warning shockingly excessive or shockingly unfair or which would make
one whistle or which would shock oneâs sense of fairness
as opposed
to another warning are, in my view, non-existent. If the Courts say
that commissioners must apply the reasonable employer
approach in
regard to such matters, for all intents and purposes the workersâ
right to bring such disputes to the CCMA is frustrated
because most
often they would have no prospects of success. This would frustrate
their constitutional right provided for in sec 34
of the Constitution
to take to a court of law or to another independent tribunal or forum
any dispute which is capable of being resolved
by the application of
law. Accordingly, a construction of the Act which suggests that the
Act permits the application of the reasonable
employer test seems
inconsistent with sec 34 of the Constitution when applied to disputes
about disciplinary warnings. This must
be so because, whereas sec 34
entrenches everyoneâs right to have access to the Courts or other
independent fora for the purpose
of the resolution of disputes that
can be resolved by the application of the law, a construction of the
act which permits the reasonable
employer approach renders such a
right illusory in that even if workers were to take such disputes to
the CCMA, the result would
always be a forgone conclusion.
[77] If one says that the reasonable employer test or
the â
defer to the employer
â
approach does not apply to disputes concerning unfair labour
practices relating disciplinary action short of dismissal but applies
to dismissal cases, what would be the statutory basis for drawing a
distinction between such matters and dismissal matters in the
light
of the similarity of the language used in regard to both cases? In my
view the language used both in respect of disciplinary
action short
of dismissal (i.e. sec 186(2) read with sec 193(4)) and the language
used in sec 138(1) and (9) requires for the commissioner
to rely on
his moral or value judgment or opinion to decide whether a particular
warning or dismissal is fair or not and not to defer
to anybody.
[78] Since the language used to describe the powers of
the CCMA arbitrators when they deal with unfair labour practice
disputes relating
to disciplinary action short of dismissal is
materially similar to the language that was used at some stage to
describe the powers
of the industrial court under sec 46(9), it would
be very difficult for anybody to say that that language must be given
a meaning
that is different from the meaning that was given to the
same language under sec 46(9) of the old Act by the Appellate
Division.
That is that in effect such language meant that the task of
the Court was to pass its moral or value judgment on the fairness of
the conduct in question. That is the â
own
opinion
â approach. If it is held, as in my
view it must be, that, because of that, when the CCMA arbitrators or
commissioners deal with
the fairness or otherwise of warnings given
to employees by an employer, they must decide the fairness thereof
according to their
own judgment or opinion, it would be an anomaly to
still say that, when the same arbitrators decide the fairness of
dismissals â
when much more is as stake for the employee and he
needs all the legal protection he can get, the reasonable employer
test must be
used which places him more at risk than he is when he
challenges warnings.
[79] There is no doubt that the Act requires the
commissioner to determine whether the dismissal is fair. In this
regard it must be
recalled that sec 191(1) says that the dispute is
â
about the fairness
â
of the dismissal. If that is the dispute that the commissioner is
required â
to arbitrate
â
or â
to determine
â,
obviously his task is to say whether the dismissal is fair in order
to resolve the dispute between the two disputants, namely,
the
employer who says the dismissal is fair, and the employee who says
the dismissal is unfair. In saying so, the arbitrator is naturally
expected to rely on his own moral or value judgment or opinion. In
this context the commissioner is required to say whether the
dismissal
is fair. To me this scenario is more in support of the
proposition that it is the opinion of a third party as to whether the
dismissal
is fair or not that is required as opposed to it being the
opinion of the employer.
[80] The reasonable employer test or the â
defer
to the employerâ
approach is advocated only
in relation to the question whether dismissal as a sanction is fair.
Those who believe in this school of
thought do not suggest that, when
the commissioner seeks to decide whether the employee is or is not
guilty of misconduct, the commissioner
should not apply his own
judgement on whether the employee committed the misconduct and should
defer to the employer or to a reasonable
employer. The true English
law reasonable employer test also affects this part of the inquiry.
In that country the tribunal is not
required to make a finding
whether or not the employee is guilty of misconduct. It is required
to inquire whether the employer had
reasonable grounds for believing
that the employee was guilty of the misconduct with which he was
accused.
[81] That this is what is required in English law is
clear from the statute itself. Under our Act the commissioner is
simply required
to determine whether the dismissal is fair. In other
words the wording that empowers the commissioner to find whether the
employee
is guilty of misconduct is the same wording that empowers
the commissioner to decide whether the sanction of dismissal is fair.
It
is difficult to understand how it can be said that that same
wording in the statute does not require the commissioner to defer to
anybody but to give his own opinion or judgment on whether the
employee is guilty but that the same wording does not require the
same of him when he has to decide whether the sanction of dismissal
is fair but requires him to defer to the employer. One of the
cannons
of construction is that the same word or expression in a statute
must, as far as possible, be given the same meaning throughout
the
statute.
The Code of Good Practice: Dismissal (Schedule 8
to the Act)
[82] As pointed out earlier, the Act provides that
anyone applying or interpreting the act must take into account any
Code of Good
Practice issued under the Act should be taken into
account. In this case the relevant Code is to be found in Schedule 8
of the Act.
In taking into account the provisions of the Code, it
must be remembered that the Code cannot and should not be given an
interpretation
or construction that is in conflict with the Act. It,
therefore, seems that the correct approach would be to first seek to
interpret
the Act without taking the Code into account and,
thereafter, to Consider the code. If the code has one meaning and
that meaning
is not in conflict with the Act, then such meaning must
be taken into account. If, however, the meaning of the relevant
provisions
of the Code is in conflict with the meaning of the Act,
then, quite obviously, the Act prevails. It could never have been
intended
that in the event of a conflict between the Act and the Code
of Good Practice: Dismissal, the Act should yield to the Code.
Indeed,
the Code makes it clear in sec 1 that it is a guide that may
be departed from in â
proper circumstances
.â
In my view proper circumstances would include a situation where it is
in conflict with the Act. In fact item 3(4) of the Code
also supports
this because in its last sentence it provides that
â(w)hatever
the merits of the case may, a dismissal will not be fair if it does
not meet the requirements of sec 188
â.
[83] Item 1(3) of the Code provides that
â(t)he
key principle in this Code is that employers and employees should
treat one another with mutual respect. A premium is placed
on both
employment justice and the efficient operation of business. While
employees should be protected from arbitrary action, employers
are
entitled to satisfactory conduct and work performance from their
employees
.â In item 3(2) of the Code it is
stated, among other things, that
â(e)fforts
should be made to correct employeesâ behaviour through a system of
graduated disciplinary measures such as counselling
and warnings
.â
Item 3(3) reads as follows in part:
â
Repeated misconduct will warrant warnings, which
themselves may be graded according to degrees of severity. More
serious infringements
or repeated misconduct may call for a final
warning or other action short of dismissal. Dismissal should be
reserved for cases of
serious misconduct or repeated offences.â
This last sentence of item 3(3) does not mean, and
should not be construed to mean, that, if the misconduct is serious,
then the sanction
of dismissal is automatically fair. Indeed, the
misconduct of an employee may be serious and yet dismissal may still
be unfair in
all of the circumstances of a case. Support for this
proposition can be found both in the Code itself and in certain
decisions of
both the Appellate Division and the old Labour Appeal
Court when those Courts dealt with dismissal matters under the unfair
labour
practice jurisdiction of the old Act. There are many cases
under the old Act in which the old Labour Appeal Court or the
Appellate
Division found the misconduct committed by an employee or
employees to be serious and yet held the dismissal as a sanction to
be
unfair. (see for example the Boardmans case, supra).Support for
this approach if to be found in item 3( 4 )and 5 of the Code which
is
dealt with next.
Item 3(4) and (5) of the Code provide:
â(4) Generally, it is not appropriate to dismiss an employee for a
first offence, except if the misconduct is serious and of such
gravity that it makes continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that each
case
should be judged on its merits, are gross dishonesty or wilful damage
to the property of the employer, wilful endangering of
the safety of
others physical assault on the employer, a fellow
employee
,
client or customer and gross insubordination. Whatever the merits of
the case for
dismissal
might be, a
dismissal
will not be fair if it does not meet the requirements of section 188.
When deciding whether or not to impose the penalty
of
dismissal
,
the employer should in addition to the gravity of the misconduct
consider factors such as the
employeeâs
circumstances (including length of service, previous disciplinary
record and personal circumstances), the nature of the job and
the
circumstances of the infringement itself.â
It is noteworthy that the first sentence of item 3(4)
makes it clear that it is not enough for the misconduct to be serious
in order
for it to be appropriate to dismiss an employee for a first
offence. In addition to the misconduct being serious, it is required
that the misconduct must be â
of such gravity
that it makes a continued employment relationship intolerable
â
before it can be said that dismissal is appropriate as a sanction for
an employeeâs first offence.
[84] It goes without saying that, generally speaking, an
employeeâs first act of misconduct, even if serious, would not
render a
dismissal fair if it was not, in the words of the Code, â
of
such gravity that it makes a continued employment relationship
intolerable
â. And, of course, the ipse
dixit of the employer that a particular act of misconduct is of such
gravity that it makes a continued
employment relationship with the
employee intolerable is not good enough. In my view whether or not in
a particular case the act
of misconduct by the employee is of such
gravity that it makes continued employment relationship intolerable
is a question that must
be determined by a party other than one of
the two disputants, for example, the Court or an arbitrator
objectively after taking into
account all of the facts and
circumstances of the case (See the SCA decision in Dube, above).
[85] Item 3(5) of the Code provides that, before an
employer may impose the sanction of dismissal, he should â
in
addition to the gravity of the misconduct consider factors such as
the employeeâs circumstances (including length of service,
previous
disciplinary record and personal circumstances), the nature of the
job and the circumstances of the infringement itself.â
This
part of the Code is in line with a number of cases under the old Act
in which the Appellate Division found acts of misconduct
committed by
employees to be serious and yet held that their dismissals were,
nevertheless, unfair.
[86] Item
7 of the Code is also relevant. It reads as follows:
â
7. Guidelines
in cases of dismissal for misconduct.-
Any person who is determining whether a dismissal for
misconduct is unfair should consider-
whether or not the employee contravened a rule or
standard regulating conduct in, or of relevance to, the workplace;
and
if a rule or standard was contravened, whether or
not â
the rule was a valid or reasonable rule or
standard;
the employee was aware, or could reasonably be
expected to have been aware, of the rule or standard;
the rule or standard has been consistently applied
by the employer; and
dismissal [is] an appropriate sanction for the
contravention of the rule or standard.â
[87] The provisions of the Code referred to above appear
to include all the important provisions of the Code that would be
relevant
to the question whether the Code contemplates the â
defer
to the employer
â approach/reasonable
employer test or the â
own opinion
â
approach. In my view one should not do as the SCA did in Rustenburg,
namely, take into account only the use of the indefinite
article
â
an
â, the use of
the word â
appropriate
â
and the use of fairness in general to conclude as to which school of
thought the Code contemplates. In Rustenburg the SCA did
not consider
any provisions of the Act itself as opposed to one or two provisions
of the Code and other matters to reach the conclusion
that it did. In
my view it ought first and foremost to have considered provisions of
the Act itself because the powers of CCMA commissioners
are to be
found first and foremost in the Act and not in the Code. Indeed,
there are provisions of the Act that are very relevant
to the
question of what the powers of CCMA commissioners are when dealing
with disputes about the fairness of dismissals. As will
have been
seen from the discussion of such matters and others above, the
provisions relevant to that question include sec 138(1)
and (9). As
already stated above sec 138(9) provides that an unfair dismissal
dispute is referred to a commissioner in order for
the latter â
to
determine the dispute
â fairly â a phrase
to which a meaning has been ascribed judicially in this branch of the
law. After all the CCMA is a creature
of statute and any one seeking
to establish what its powers, functions or obligations are should
look for them in the Act.
The reasonable employer test,
the international obligations of the Republic and sec 1 and 3 of the
Act
The ILO convention
[88] It is necessary to have regard to the provisions of
the ILO Convention 158 on Termination of Employment, 1982. Part of
the reason
why it is necessary to consider this Convention is that in
terms of sec 1 of the Act one of the primary objects of the Act is
â
to give effect to obligations incurred by
the Republic as a member state of the International Labour
Organisat
ionâ. Furthermore, sec 3 of the
Act contains an injunction that provisions of the Act be interpreted
in such a way as to give effect
to the primary objects of the Act and
â
in compliance with the public international
law obligations of the Republic
â. That is
quite apart from the requirement, also provided for in sec 3 of the
Act, that the provisions of the Act must be interpreted
â
in
compliance with the Constitution
â. This
last mentioned requirement is particularly important in the light of
the injunction contained in sec 233 of the Constitution.
The effect
of sec 233 is that, if there are two possible interpretations of a
statutory provision one of which accords with international
law while
the other one does not, the interpretation that must be adopted is
the one that accords with international law as long
as it is a
reasonable interpretation. If a construction of the Act is preferred
without considering the relevant conventions of the
ILO which the
Republic has ratified such as this particular convention, there is a
risk that such a construction may undermine, or,
be in conflict with,
the obligations of our country as a member state of ILO .
[89] Article 1 of the Convention reads:
â
The provisions of this Convention shall, in so far
as they are not otherwise made effective by means of collective
agreements, arbitration
awards or Court decisions or in such other
manner as may be consistent with national practice, be given effect
by laws or regulations.â
Article 4 reads:
â
The employment of a worker shall not be terminated
unless there is a valid reason for such termination in connection
with the capacity
or conduct of the worker or based on the
operational requirements of the undertaking, establishment or
service.â
Article 8(1) reads:
â
A worker who considers that his employment has
been unjustifiably terminated shall be entitled to appeal against
that termination
to an impartial body, such as a court, labour
tribunal, arbitration committee or arbitrator.â
Article 9(1), (2) and (3) reads:
â1. The bodies referred to in Article 8 of this Convention shall be
empowered to examine the reasons given for the
termination and the other circumstances relating to the case and
to
render a decision on whether the termination was justified
.
In order for the worker not to have to bear alone
the burden of proving that the termination was not justified, the
methods of implementation
referred to in Article 1 of this
Convention shall provide for one or the other or both of the
following possibilities:
the burden of proving the existence of a valid
reason for the termination as defined in Article 4 of this
Convention shall rest
on the employer;
the bodies referred to in Article 8 of this
Convention
shall be empowered to
reach a conclusion on the reason
for
the termination having regard to the evidence provided by the
parties and according to procedures provided for by national
law
and practice.
3. In cases of termination stated to be for reasons
based on the operational requirements of the undertaking,
establishment or service,
the bodies
referred to in Article 8 of this Convention shall be empowered to
determine whether the termination was indeed for these
reasons, but
the extent to which they shall also be empowered to decide whether
these reasons are sufficient to justify that termination
shall be
determined by the methods of implementation referred to in Article 1
of this Convention
â (
underlining
supplied).
Article 10 reads:
âIf the bodies referred to in article 8 of this Convention
find
that termination is unjustified
and if
they are not empowered or do not find it practicable, in accordance
with national law and practice, to declare the termination
invalid
and/or order or propose reinstatement of the worker, they shall be
empowered to order payment of adequate compensation or
such other
relief as may be deemed appropriateâ
(underlining
supplied).
[90] It seems to me that the language used in the
Convention is in line with the â
own opinion
â
approach. In this regard article 4 prohibits the termination of a
workerâs employment unless there is a valid reason. It seems
that
what is meant by this reference to a valid reason is an objectively
valid reason and not a reason that a reasonable employer
would regard
as valid. In this regard it is interesting to note that the
requirement that there should be a valid and fair reason
to dismiss
which was contained in the then new definition of an unfair labour
practice after the 1988 amendments persuaded De Kock
M in the
industrial court in
Govender v SASKO (Pty)Ltd
t/a Richards Bay Bakery (1990) 11 ILJ 1282
to
turn his back on the reasonable employer test which he had accepted
in cases such as
FAWU & others v CG Smith
Sugar Ltd, Noordberg (1989) 10 ILJ 907 (IC), Nkomo v Pick ân Pay
Retailers Lodge (1989) 10 ILJ 937
(IC) and Zulu v Empangeni Transport
Ltd (1990) 11 ILJ 123 (IC) at 127C.
It is
worth noting that the Appellate Division/Supreme Court of Appeal
applied the â
own opinion
â
approach in deciding the fairness or otherwise of dismissals
irrespective of whether the law that applied was the pre-September
1988 or the post-September 1988 law under the old act.
[91]
As
has been said above the absence of the word â
valid
â
in the old Act before the 1988 amendments did not mean that whether
there was a fair reason required the reason to be determined
subjectively according to the employerâs belief. It had to be
determined objectively. However, the introduction of the word valid
may have served to remove whatever doubt may have existed. When
article 9(1) requires that the bodies referred to in article 8(1),
which include a court or an arbitrator, be â
empowered
to examine the reasons
given for the
termination and the other circumstances relating to the case and
to
render a decision on whether the termination was justified
â
it seems to me that it requires the court or
arbitrator to give its or his own opinion on whether the termination
was justified. It
is interesting to note that the word â
justifiedâ
is used as opposed to â
justifiable
â.
Article 9(2)(b) refers a court or arbitrator being â
empowered
to reach a conclusion on the reason for the termination having regard
to the evidence provided by the parties and according
to procedures
provided for by national law and practice.â
There is no reference to the court or arbitrator having to have
regard to whether a reasonable employer would regard such reason
for
termination as valid.
[92] Article 9(3) provides in part that the court or
arbitrator â
shall be empowered to determine
whether the termination was indeed for these reasonsâ.
That
is where the reasons given by the employer for the dismissal are
those relating to the employerâs operational requirements.
Article
9(3) goes on to say that, in such a case,
âthe
extent to which [the court or arbitrator] shall also be empowered to
decide whether these reasons are sufficient to justify
that
termination shall be determined by the methods of implementation
referred to in article 1 of this Convention
.â
The opening part of article 10 reads: â
If
the bodies referred to in article 8 of this Convention find that
termination is unjustifiedâ¦.â.
In my
view the language used in the Convention supports the proposition
that whether a dismissal is justified or not must be determined
on
the basis of the view of the bodies referred to in articles 8 and 1
and not on the basis of the view of the employer.
[93] It seems that, when regard is had to the provisions
of article 9(3) and article 9(1) of the Convention, it can be said
that article
9(3) permits individual countries to put in place a
legislative dispensation of their choice in regard to whether a
court, tribunal
or arbitrator will have power, and if so, how much
power, to examine the sufficiency of the economic reason for
dismissal. In other
words it permits one country to put in place a
law that says a court or tribunal or arbitrator is not competent to
conclude that
an economic reason for dismissal given by an employer
is not a sufficient reason for dismissal. It also permits another
country to
put in place a legislative dispensation that permits a
court, tribunal or arbitrator to conclude that the economic reason
advanced
by an employer for a dismissal is not sufficient. It is
possible that the Convention contemplates that a particular country
may have
a law that says that this is the position where the court or
arbitrator is of the view that no reasonable employer would have
regarded
such economic reason as sufficient to dismiss.
[94] It seems that, if the question in this case was
whether the correct approach authorised by the Act was for the
commissioner to
â
defer to the employer
â
in regard to the sufficiency of an economic reason for dismissal,
there would have been no room for an argument that the â
defer
to the employer
â approach is in conflict or
inconsistent with article 9(3). However, the question before us, in
so far as the Convention is concerned,
is which one of the two
approaches, namely, the â
defer to the
employerâ
approach/reasonable employer test
or the â
own opinion
â
approach is not consistent with or in conflict with the provisions of
the Convention.
[95] In my view article (9) permits a country to have a
regime that allows deference in regard an economic reason a dismissal
for
operational requirements but there is no corresponding provision
in the Convention that applies to cases of dismissal for misconduct
which permit a country to put in place a statutory regime that allows
or requires deference to the employer in regard to sanction
in cases
of dismissal for misconduct. Accordingly, it seems that a
construction of the Act which says that the Act requires bodies
referred to in article 1 or 8(1) of the convention i.e. the Courts
and arbitrators should defer to the employer on whether a certain
act
of misconduct of an employee is sufficient to justify dismissal is
inconsistent with the Convention. Now that a view has been
expressed
above with regard to the relationship between the reasonable employer
test and the Convention, it is necessary to have
regard to the
interpretation of the Convention by the Committee of Experts of the
ILO.
The opinion of the Committee
of Experts
[96] The provisions of the Convention that deal with
dismissals for misconduct are, among others, those of article 9(1).
Article 9(1)
provides that a court, labour tribunal or arbitrator
dealing with a dispute whether a dismissal is justified â
shall
be empowered to examine the reasons given for the termination and the
other circumstances relating to the case
and
to render a decision on whether the termination was justified
.â
[97] Chapter 111 of the 1995 General Survey of ILO
Convention 158 on Termination of Employment the Committee of Experts
discusses
the topic: â
Protection Against
Unjustified Dismissal
:
Obligation
for termination of employment to be justified by a valid reason
â.
In that chapter the Committee of Experts makes the point in the first
sentence of par 76 that
â(t)he need to base
termination of employment on a valid reason is the cornerstone of the
Convention provisions
.â In the middle of
that paragraph the Committee of Experts once again emphasises: â
The
Convention requires that there be a valid reason for termination of
employmentâ¦â
[98] In paragraph 79 the Committee of Experts has this
to say: â
During the preparatory work, the
Office indicated that for reasons connected with the capacity or
conduct of the worker to be considered
as valid, they must have a
bearing on the work of the worker or the working environment.
It was also specified that Article 1 of the
Convention on methods of implementation applies to the whole of the
instrument and that
it therefore also applies to article 4
.
I
n other words,
the definition or interpretation of valid reasons is left to the
methods of implementation referred to in article 1
subject of course
to the requirement that it must be in conformity with Article 4
.
(My underlining)
â
Article 1 provides:
â
The provisions of this Convention shall, in so far
as they are not otherwise made effective by means of collective
agreements, arbitration
awards or court decisions or in such other
manner as may be consistent with national practice, be given effect
by laws or regulations
.â
What article 1 means is that those states which ratify
this Convention expect, among others, arbitrators and courts to give
effect
to the provisions of the Convention through, respectively,
arbitration awards and court decisions. However, if arbitrators and
courts
fail to give effect to the provisions of the Convention,
legislation would be enacted to give effect to the provisions of the
Convention.
[99] In my view that what the Committee of Experts is
saying in the last sentence of paragraph 79 quoted above is that it
falls within
the province of arbitrators and courts to define what
constitutes valid reasons and to interpret whether a certain set of
facts and
circumstances fit in within the definition of a valid
reason. In other words it is the prerogative of arbitrators and the
courts
to pass judgment whether a particular set of facts and
circumstances constitutes a valid reason for termination. This
statement by
the Committee of Experts fully endorses the â
own
opinion
â approach, is in line with how the
Appellate Division decided unfair dismissal cases under the old Act
and is inconsistent with
the reasonable employer approach or â
the
defer to employer
â approach because the
latter approach is based on the notion that it is primarily not for
the arbitrator or court to say whether
dismissal as a sanction in a
particular case is fair because it is the employerâs prerogative to
say or decide what sanction is
the appropriate sanction for a
particular act of misconduct in his business.
[100
] The Convention permits member states to make laws
that preclude a court or an arbitrator from substituting its or his
own opinion
for that of the employer in regard to the sufficiency of
reasons for a dismissal based upon operational requirements. There is
no
corresponding provision in the Convention permitting member states
to make laws that preclude a court or an arbitrator from substituting
its or his opinion for that of the employer with regard to the
sufficiency of a reason for dismissal that is based on the conduct
or
capacity of an employee. In my view that this means that a member
state may not make a law which precludes a court or arbitrator
from
substituting it or his opinion for that of the employer in the
last-mentioned case. If a member state was so permitted in the
last
mentioned case, then the Convention would not have limited this to
cases of dismissals for operational requirements. If the
Act
precludes, as the reasonable employer test entails, a CCMA
commissioner from substituting his opinion for that of the employer
on whether dismissal as a sanction in a particular case is fair, the
Act is in conflict, or, is at least inconsistent, with the
Convention.
[101] In par 197 of the General Survey of 1995 the
Committee of Experts makes the point that article 9(1) of the
Convention â
establishes the essential
principle of the right to appeal, under which it must be possible for
the reasons and the other circumstances
relating to the case to be
examined by an impartial body,
enabling
it to decide
on the justification of
the termination
.â Of course, the â
right
of appeal
â referred to is not a right of
appeal from one body to another body. It is simply a right to take
the case elsewhere for adjudication
or arbitration of the dispute in
a court or forum of first instance. In par 198 the Committee of
Experts says, among other things,
that the court or labour tribunal
or arbitrator â
shall be empowered to reach a
conclusion on the reason for the termination having regard to the
evidence provided by the partiesâ¦â
In par
203 the Committee of Experts refers, among other things, to â
the
principle whereby in labour disputes legal provisions must be
interpreted in favour of the worker
â
(underlining supplied).
[102] In par 200 of the General Survey of 1995 the
Committee of Experts said:
â
It is the responsibility of the impartial body
to decide, in the light of the evidence presented, whether the
termination is justified
â
(underlining supplied).
This statement suggests very strongly, if not
conclusively, that the Committee of Experts of the ILO holds the view
in effect that
a court, tribunal or arbitrator is required to decide
whether a dismissal is justified according to its or his own opinion
or judgment
of what is justified or fair and what is not in all of
the circumstances in a particular case. This statement, given its
ordinary
and natural meaning, is inconsistent with the â
defer
to the employerâ
approach or the reasonable
employer test because that approach entails that, even if the court,
tribunal or arbitrator is of the opinion
that the dismissal is unfair
or unjustified, it or he is required to find that the dismissal was
fair or justified if the employer
in the case or a reasonable
employer might have regarded it as fair or justified or if the
unfairness is not so strong that it induces
in him a sense of shock.
[103] There is nothing in the wording of the relevant
provisions of the Convention that could possibly provide a basis or
justification
for the proposition that the â
defer
to the employer
â test is contemplated in
regard to dismissals for misconduct or incapacity as opposed to
dismissals for operational requirements.
The provisions of article
9(3) which, it has been suggested elsewhere in this judgment, permit
deference by the Court or tribunal
or arbitrator to the employer in
regard to the sufficiency of an economic reason for dismissal say
that the court, tribunal or arbitrator
â
shall be empowered to determine whether the
termination was indeed for these reasons,
but
the extent to which they shall also be empowered to decide whether
these reasons are sufficient to justify that termination shall
be
determined by the methods of implementation referred to article 1
(underlining supplied).
[104] In par 213 of the General Survey of 1995 the
Committee of Experts have this to say:
â
213. With regard to termination of employment for
reasons based on the operational requirements of the undertaking,
establishment
or service, Article 9, paragraph 3, of the Convention
specifies that the bodies referred to in Article 8 âshall be
empowered to
determine whether the termination was indeed for these
reasons, but the extent to which they should also be empowered to
decide whether
these reasons are sufficient to justify that
termination shall be determined by the methods of implementation
referred to in Article
1â â
In par 214 of the General Survey of 1995 the ILO
Committee of Experts makes the following points:
â
From the outset of the preparatory work, it was
considered that it would be best to leave each country to determine
the question whether
the bodies to which dismissals may be appealed
should be authorized to review the sufficiency of reasons related to
the operational
requirements of the undertaking. This provision
therefore affords a certain amount of flexibility by allowing each
member State to
determine to what extent the competent bodies should
be authorized to review the employerâs judgment as to the
sufficiency of reasons
based on operational requirements. Where
workforce reductions are concerned, the employer must therefore
clearly have a valid reason
within the meaning of Article 4 of the
Convention. But it is left to each country to determine the extent to
which the impartial
bodies before which appeals may be brought
against termination of employment should be empowered to review the
employerâs judgement
as to operational requirements, that is, the
extent to which they are to be empowered to decide whether these
reasons, which are
valid by their nature, are sufficiently important
to justify the termination of employment. The text therefore allows
each country
to restrict the power of the competent body, when
investigating whether termination of employment was justified, to
review the employerâs
judgement in relation to workforce numbers.â
[105] Accordingly, a construction of the Act which
requires an arbitrator or a commissioner of the CCMA not to hold a
dismissal to
be unfair even when he thinks that it is unfair but to
â
defer to the employer
â
and, if the employer thinks it is fair, to hold it to be fair is,
according to opinion of the Committee of expects of the ILO,
either
directly in conflict or at least inconsistent, with the Convention.
If it is in conflict, or, inconsistent, with the Convention,
it is
also in conflict with or inconsistent with, the obligations of the
Republic as a member State of the ILO. Such a construction
violates
sec 3 of the Act and completely undermines one of the primary objects
of the Act, namely, to give effect to the obligations
of the Republic
as a member state of the international labour organisation.
Section 233 of the Constitution and international
law
[106] Sec 39(2) of the Constitution of the Republic
provides that, when interpreting any legislation and when developing
the common
law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights. Sec
232
provides that customary international law is law in the Republic
unless it is inconsistent with the Constitution or an Act of
Parliament.
Very importantly sec 233 of the Constitution provides
that
â(w)hen interpreting any legislation,
every court must prefer any reasonable interpretation of the
legislation that is consistent
with international law over any
alternative interpretation that is inconsistent with international
law.â
It seems that, if the reasonable
employer test is inconsistent with international law as represented
by the provisions of the Convention,
and the â
own
opinionâ
approach is consistent therewith,
the construction of the Act that supports the reasonable employer
test or the â
defer to the employerâ
approach should be rejected on the basis of
sec 233 of the Constitution. Accordingly, the Act must not be
construed in a manner that
will produce a meaning that will be
inconsistent with international law.
A
cademic
views under the Act
[107] I have considered the views expressed on the issue
under consideration by various academic writers and textbook writers.
I mention
some of them and their works and where they express their
views. They are:
Du Toit et al: LABOUR RELATIONS LAW: A Comprehensive
guide, 4
th
ed,
Butterworths at 384-385;
Grogan:
DISSMISSAL DISCRIMINATION & UNFAIR LABOUR PRACTICES, 1
st
ed, 2005 at 226-228;
Thompson
& Benjamin: South African Labour Law, Vol 1 at AA1-AA423;
Brassey:
EMPLOYMENT AND LABOUR LAW, Vol 3: Commentary on the
Labour Relations
Act, A8-69
to A8-72;
Paul Benjamin : When dismissal disputes are stifled:
Employment Law, Vol 6, No 5117 at 118
Prof PAK Le Roux : THE REASONABL EMPLOYER TEST: SOME
REFLECTIONS: Labour Law Briefs, Vol 4, No 5 of the 15
th
December 1990.
I do not consider it necessary to discuss the views of
these authors in detail as that would unduly burden this judgment
which is
already long. It will suffice to simply say what their views
are and to look at the weight that should be accorded such views.
Grogan
and Du Toit et al seem to support the reasonable employer
test/the â
defer to the employer
â
approach. Thompson and Benjamin in their joint work support some kind
of deference to the employer although they emphasise that
their view
is not a resuscitation of the reasonable employer test. Brassey makes
some critical statements about the reasonable employer
test. However,
there are statements in his book which may be read to mean that his
view is that there must be some deference to the
employer. If that is
his view, that would be in line with the view of Brassey AJ in
Computicket. To reconcile the view Brassey expressed
in THE NEW
LABOUR LAW, supra, rejecting the reasonable employer test, with the
view expressed by Brassey AJ in Computicket, it is
arguable that,
when Brassey rejected the reasonable employer test in the New Labour
Law, he was rejecting that part of that test
which requires the Court
or tribunal not to decide whether the employee committed the act of
misconduct for which the employer dismissed
him but to limit its
inquiry to whether or not the employer had reasonable grounds at the
time of the dismissal to believe that the
employee was guilty of
misconduct. May be, he has no difficulty with the reasonable employer
test when applied to the issue of sanction.
Of course this attempt to
reconcile the two views may still leave some questions open with
regard to some of the statements Brassey
makes in EMPLOYMENT AND
LABOUR LAW, VOL 3 at A8-69 to A8-72. However, it is also important to
point out that Brassey expresses the
view somewhere at A8-70 that
â(u)ltimately the question is whether the
employer could reasonably be expected to keep
the employee in her employ
.â This statement
is consistent with, if not the same as, the way the SCA saw the
inquiry to be in Dubeâs case, supra, at 1998(3)
SA 956 (SCA) at 960
G-H .Indeed, it seems to resemble what the code says in item 3(4).
[108] Prof PAK Le Roux and Paul Benjamin, in their
respective articles, are opposed to the reasonable employer test. In
his article
referred to above Benjamin is unequivocal in his
opposition to the test. However, as already stated earlier, in his
joint work with
Thompson, the view expressed therein seems to favour
some deference to the employer. However, Prof Le Roux is unequivocal
in his
rejection of the reasonable employer test or any deference to
the employer except, possibly, in the case of a dismissal for
operational
requirements.
[109] It is difficult to give much weight to the view
expressed by some of the academic writers referred to above in favour
of the
reasonable employer test because they expressed their views in
support of that without the benefit of a discussion of the provisions
of the Act that are relevant to the role and powers of the CCMA when
required to decide the fairness of dismissal as a sanction in
a
dispute, particularly secs 115, 138(1), 138(9) as well as sec 188(1)
and 192(2) of the Act which are all very important to the
issue. They
also did not consider the implications of the ILO Convention 158 on
Termination of Employment, with special reference
to the primary
objects of the Act, sec 3 of the Act and sec 233 of the Constitution.
Of course, this is a shortcoming from which
the Rustenburg judgment
also suffers. There are some references to some of the sections of
the Act in par 7 of the Rustenburg judgment
but they do not feature
in paragraphs 36 to 48 of the judgment which is where the issue under
consideration is discussed in that
judgment. The views of those
academic writers who support the reasonable employer test also suffer
in addition from the other shortcomings
not mentioned herein but
mentioned in respect of the article largely relied upon by the SCA in
Rustenburg which are referred to shortly.
[110] In â
Dismissal As a
Penalty for Misconduct: The Reasonable Employer and other approaches
(2000) 21 ILJ 2145
â, John Myburgh SC and
Andre Van Niekerk discuss the reasonable employer approach and one or
two other approaches with regard to
how a CCMA commissioner is
supposed to approach his function to decide whether dismissal as a
sanction is fair in a particular case.
This is the article upon
which, the SCA, by its own admission, largely relied to resurrect the
reasonable employer test in Rustenburg.
In discussing this article
credit can be given to its authors for the fact that at least they
referred to and, to some extent, discussed
some of the provisions of
the Act in coming to the conclusion supporting the reasonable
employer test. Most of the academic writers
referred to above who
support the reasonable employer test did so without any reference to
or discussion of provisions of the Act.
However, the fact that the
authors must be given credit as aforesaid does not mean that the
article does not have shortcomings. The
following are its
shortcomings:
(a) the learned authors fail to provide a critical
analysis of those sections of the Act to discover what effect they
have on the
powers of CCMA commissioners when they deal with the
fairness of dismissal as a sanction.
(b) although there is a reference to sec 138 (1) of the
Act in the article, there is no appreciation of the importance of the
words
â
to determine the dispute
â
and to do so â
fairly
â
in that provision.
(c) there
is also no attempt to link this phrase to sect 46 (9) of the old Act
as well as the case law relating to that phrase under
the old Act.
(d) there
is no reference to sec 138 (9) of the Act which permits a CCMA
commissioner to make â
any appropriate
arbitration awardâ¦â
(e)
despite the importants of the provision of sec 138(9) of the act, the
article does not take into account what effect sec 138(9)
has on how
a CCMA commissioner is required to deal with the fairness of
dismissal as a sanction.
(f) although
the article does refer to sec 188 and 192, there is no consideration
of whether the reasonable employer test or the â
defer
to the employer
â approach is consistent
with those sections.
(g) although
there is a reference to the object of the Act as provided for in sec
1 of the Act with special reference to the effective
resolution of
labour disputes, there is no reference to, nor, discussion of that
primary object of the act in terms of which the
act is said to seek
to give effect to the obligations of the Republic as a member state
of the International Labour Organization.
(h) there
is also no reference to sec 3 of the Act which, among others,
requires that the Act be interpreted in compliance with the
public
international obligations of the Republic.
(i) there
is no attempt to consider whether the reasonable employer test or the
â
defer to the employerâ
approach is compatible with any relevant Convention of the ILO such
as Convention 158 on Termination of Employment, despite the obvious
significance of such an instrument in the interpretation of the Act
in the light of sec 1 and sec 3 of the Act.
(j) there
is no reference to or discussion of the importance of sec 233 of the
Constitution which is very important in the interpretation
of this
and any other Act.
(k) there is no attempt whatsoever to stand back and
consider whether what is called the â
own
opinion
â approach in this judgment is
authorised by the Act nor is there an attempt to say: while it is
true that the reasonable employer
approach is fair to the employer,
is it or can it be equally fair to the worker? If it is not equally
fair to the worker, is the
â
own opinion
â
approach â applied by a third party whose appointment has been
approved by both organised labour and organised business â
not a
better approach? In the end the authors of this article suggest that
the reasonable employer test should be applied on the
basis of
â
shared values
â.
In this regard they refer to a statement by
Fabricius
AM in National Union of Mineworkers & others v Vaal Reefs
Exploration & mining Co Ltd (1997) 8 ILJ 776 (IC) at 77H-I
that such a decision should be taken âin the light of prevailing
circumstances and social conditions, plus the good judgment of
the
market place â(
the boni mores
)â.
(l) these
learned authors also do seem to approve in the article of the
reasonable employer test as dealt with in the Nampak judgment
of this
Court which does not mean the same thing as the suggestion that they
also make that the decision on the fairness of dismissal
should be
taken in the light of prevailing circumstances and social conditions,
plus the good judgment of the market place. Accordingly,
they seem to
support the reasonable employer test as set out in Nampak and the
reasonable employer test as qualified by the proposition
that the
decision on the fairness of a dismissal must be taken in the light of
the
boni mores
â
which, in my view, are either contradictory approaches or at least
which do not mean the same thing. Unfortunate as it may be,
it is so
that the Rustenburg judgment suffers from the same shortcomings from
which this article suffers.
[111] In any event it is, in my view, not right that a
test that should be used in the determination of disputes between
employers
and employees should be an â
employe
râ
test, even if it is a â
reasonable
â
employer test because it remains an employer test. Such a test is
based on the perceptions and values of the employer side to
these
disputes. It emphasises the interests of employers more than those of
workers. Such a test is probably as objectionable to
workers as a
â
reasonable employee test
â
would be to employers. The latter test is also likely to give more
emphasis on the interests of workers than those of employers.
That is
why elsewhere in this judgment the view is expressed that it would
have been better if what was used was at least what is
referred to in
this judgment as the â
reasonable citizen
â
test where the fairness of the dismissal would be determined on the
basis of what a reasonable citizen would regard as fair.
Other Considerations about
the reasonable employer test
[112] There is another factor which, in my view,
militates against the reasonable employer test. Under the old Act
unions and workers
had a right to resort to industrial action to
secure the reinstatement of a dismissed employee and a right to refer
a dispute about
such a dismissal to the industrial court for a
determination as an unfair labour practice under sec 46(9).
Accordingly, unions and
workers could choose which route they
preferred in a particular case. Probably, they would think that, if
they had a good case,
they could refer such a dismissal case to the
industrial court and not resort to a strike about it. Probably, if
they had thought
they had a bad case which they thought they would
lose in the industrial court, they could resort to industrial action
and use power
to get the worker reinstated (see definition of
â
strike
â in sec 1
of the old Act; see also sec 65 of the old Act). Indeed, the statute
did not even prevent unions in any express terms
from first referring
such a dispute to the industrial court and later changing before
there was a determination by the industrial
court and resorting to
industrial action. They could also start by resorting to industrial
action but later change and go to the
industrial court if industrial
action did not produce a settlement. Whether or not the industrial
court could legitimately take the
view that it would not come to the
assistance of the union because it had started by resorting to a
strike is open to doubt because,
if the Act permitted the unions to
do that, it may have been impermissible for the industrial court to
effectively preclude them
from exercising their right.
[113] Under the current Act, unions and workers gave up
their right to resort to industrial action about disputes concerning
unfair
dismissals and can only take those to either arbitration or
adjudication (sec 65(1)(c) of the Act). In terms of sec 65 of the
current
Act to resort to a strike about a matter which a party has a
right to refer to arbitration or the Labour Court is precluded. A
union
has a right to refer a dispute about the fairness of its
memberâs dismissal to arbitration or adjudication, as the case may
be.
An analysis of the Act suggests that unions and workers may have
been persuaded to agree to this because reinstatement would be the
preferred remedy in terms of the statute and arbitrators would be
independent people who would apply fairness as they see it and
not
the employersâ perception of fairness. If unions and workers had
been told that the arbitrator would apply the employerâs
values or
perceptions of fairness as opposed to his own values or perceptions
of fairness, they probably would have rejected the
deal.
[114] The idea behind the insistence that the statute
should make reinstatement the preferred or primary remedy when an
employeeâs
dismissal has been found to have been substantively
unfair was to keep as many workers in jobs as possible. Fundamental
to that objective
was or would have been whose opinion or judgment
carried the day on whether in a particular case dismissal was unfair
because, if
it was the arbitratorâs opinion â and the unions
would have had a say in his appointment â there was a better chance
that making
reinstatement a primary remedy would yield results.
However, if it was going to be the employerâs opinion of what the
appropriate
sanction was that would, for all intents and purposes,
carry the day, there would have been little chance that making
reinstatement
a primary remedy would yield results. This would be so
because to use the employerâs opinion to decide whether dismissal
is fair
would only work if dismissals were first found to be unfair
and using the employerâs opinion of whether dismissal was a fair
sanction
would drastically reduce the number of cases in which
dismissals would be found to have been unfair and, therefore, also
drastically
reduce the number of dismissed workers who got
reinstated. In the latter case, having reinstatement as a primary
remedy would not
be effective in making sure that as many dismissed
workers as possible got their jobs back.
[115] It would seem that unions and workers would have
been persuaded to agree to forgo their right to strike over
dismissals on the
following basis. You have no need to insist on
keeping the right to strike to secure the reinstatement of any of
your colleagues
or members whom you believe to have been dismissed
unfairly because under the new dispute resolution system the fairness
of dismissals
will be decided by arbitrators who will not only be
independent but also who have been appointed with the concurrence of
representatives
of organised labour in the Governing Body of the
CCMA. Accordingly, dismissals will be decided by arbitrators that you
will have
approved of and they will use their views of what is fair
and what is unfair to decide the cases, not the employersâ views of
what
is fair or unfair. It can, therefore, be said that employers
should not necessarily get excited at the revival of the reasonable
employer test because it may well have the consequence that workers
feel that in respect of a large number of dismissal cases it
is
pointless to refer them to the CCMA in order to get their jobs back
and, therefore, that they should begin to resort to strikes
over
dismissal disputes. That will be bad news for our labour relations in
the country as it may take the country back to the type
of labour
relations that we had before 1994 which was characterised by a lot of
strife and labour unrest.
[116] At 318 of the Explanatory Memorandum the
Ministerial Task Team said:
âA major change introduced by the draft Bill concerns adjudicative
structures. In the absence of private agreements, a system of
compulsory arbitration is
introduced for the
determination of disputes
concerning
dismissal for misconduct and incapacity. By providing for
the
determination of dismissal disputes
by
final and binding arbitration, the draft Bill adopts a simple, quick,
cheap and non-legalistic approach to the adjudication of
unfair
dismissal.
The main objective of the
revised system is to achieve reinstatement as the primary remedy.
This objective is based on the desire
not only to protect the rights
of the individual worker, but to achieve the objects of industrial
peace
and reduce exorbitant costs.
It
is premised on the assumption that unless a credible, legitimate
alternative process is provided for determining unfair dismissal
disputes, workers will resort to industrial action in response to
dismissalâ
(underlining
supplied).
[117] There is an argument that, if commissioners of the
CCMA substitute their opinions for those of employers with regard to
the
fairness of dismissal as a sanction, the CCMA will be inundated
with cases and that should be avoided and the reasonable employer
test ensures that this is avoided. This view reveals a failure to
appreciate the full rational behind the creation of the CCMA. It
is
right and proper that as many disputes as possible that are not
resolved amicably in the workplace should be referred to the CCMA
or
bargaining councils and other mutually agreed fora for conciliation
and, later, arbitration irrespective of what any one may think
of the
merits or demerits of such disputes. The existence of the CCMA and
other dispute resolution fora provided for in the Act helps
to
channel, among others, workersâ grievances to where they can be
ventilated without any interruption and disruption of production
- at
least up to a point. It is also right and proper that unions should
be encouraged and not discouraged to refer dismissal disputes
with
employers to the CCMA for arbitration if they feel aggrieved by such
dismissals. In that way they can ventilate all issues about
their
grievances in regard to such dismissals in that forum before a third
party who can listen to all sides of the dispute and,
using his own
sense of what is fair or unfair, decide whether the dismissal is fair
or unfair. In that way the workers would have
less urge to resort to
industrial action over dismissal disputes.
[118] If the outcome of the arbitration is based on a
third partyâs sense of fairness rather than that of the employer,
albeit a
reasonable employer, there are better prospects that workers
and unions will accept the outcome of such arbitration even if it
goes
against them than would be the case if the outcome thereof was
based on the perceptions or value judgment of the employer on what
is
fair and what is not fair. Part of the rationale for the creation of
the CCMA was that there should be a forum to which employers
and
employees would have easy access for the purpose of the ventilation
of their disputes without going the route of industrial action
at
least for some time. That is why it was decided that, except in
exceptional cases, the CCMA would not or should not make cost
orders
to parties if they were unsuccessful in the cases coming before the
CCMA. All of this was done in order to, among others,
encourage
unions and workers to refer their cases including cases concerning
dismissals for misconduct, to the CCMA even if the employer
or
somebody else might not think that such cases were meritorious. The
Act ensures that cost orders will be used to discourage cases
falling
within the exceptional category. The reasonable employer test will
discourage unions and workers from bringing their cases
to the CCMA
and it will be an additional deterrent. When unions and workers are
discouraged from bringing their cases to the CCMA
and bargaining
councils, where must they take them to? To the streets? The â
own
opinion
â approach will provide them with an
incentive to bring such cases to the CCMA and not to take them to the
streets.
[119] In terms of the Act many unfair dismissal claims
should end at the CCMA. That is why they are referred to arbitration
and there
is no right of appeal. That is why the Act provides that
arbitration awards are final and binding. The Act does not envisage
that
at that level â namely at the arbitration level at the CCMA -
there should be any deference to the employer by the CCMA
commissioner
because the CCMA is a forum of first instance and
everybody must be able to feel that they are able to ventilate all
issues before
a third party who will use his own sense of fairness to
decide what is fair and what is not. In terms of the Act the
deference should
occur at the level where a party seeks to review an
arbitration award of the CCMA in the Labour Court, but not before.
That is why
the grounds of review provided for in sec 145 of the Act
are so limited. Of course, they have been expanded through cases such
as
Carephone (Pty) Ltd v Marcus NO and Others (1998) 18 ILJ 1425
(LAC)) since the passing of the Act. The limited grounds of review
seek to ensure that there is only a single level where deferment
occurs and when it occurs, it is not deference to one of the
disputants
but deference to an independent third party whose
appointment has been approved by organised labour, organised business
and government.
Deference to such a third party is to be preferred to
deference to one of the parties to the dispute.
[120] Should any party feel that at review level it is
not able to ventilate all issues because there is deference to the
CCMA commissioner
or his award, the consolation for such party would
be that there is a forum where he was able to ventilate issues before
a third
party who did not defer to any body. That is at the CCMA
arbitration. Part of what is wrong with the reasonable employer test
is
that it stifles the ventilation of issues in a forum of first
instance and creates a scenario where deference takes place at two
levels instead of one. In terms of the reasonable employer test the
CCMA commissioner must defer to the employer at arbitration with
regard to the fairness of dismissal as a sanction. That is the first
level of deference. When the employee feels aggrieved by the
decision
of the commissioner and brings a review application to the Labour
Court to set aside the commissionerâs decision, there
is a further
deference. That is the deference by the Labour Court to the CCMA
commissionerâs decision which is created by the fact
that that is a
review on rather limited grounds and is not an appeal. That is double
deference. In my view the Act does not intend
to insulate the
employerâs decision to dismiss so much from challenge. This double
deference will make it so much more difficult
to challenge the
employerâs decision to impose the sanction of dismissal in a case!
[121] Moreover, the workers also agreed, as part of the
deal on a new dispute resolution system under the Act, to having
their compensation
capped at a maximum of 24 months remuneration in
the case of automatically unfair dismissals and 12 monthsâ
remuneration in other
cases. In my view the unions and the workers
did not forego all of these rights or benefits on the basis that in
deciding whether
their dismissals were unfair, arbitrators would
uphold dismissals as fair if employers regarded them as fair even if
their own true
opinion was that the dismissals were unfair.
Accordingly, the reasonable employer test undermines the deal between
organised business,
organised labour and government as reflected in
sec 193 and 194 of the Act.
A comparison of the
reasonable employer approach and the own opinion approach purely on
the merits.
[122] What is normally said in support of the reasonable
employer approach is that there is no reason for the employerâs
decision
to effectively be set aside simply because another person,
the arbitrator or court, takes a view that is different from that of
the
employer as to what the fair sanction should be for the
employeeâs misconduct. It is said that different people may take
different
views on the issue of a fair sanction and provided that the
view taken by the employer falls within a range of possible
reasonable
responses to the employeeâs conduct, the employerâs
decision should stand. It is said that the employer is entitled to
set the
standards of conduct that he expects from his employees and
to fix the sanction that will be applicable in the event of
non-compliance
with such standard. It is also said that the
reasonable employer test does not ignore the interests of the
employee and, for that
reason, it is not a bad test.
[123] Whatever test or approach is adopted, it must be
one that recognises that the employer and the employee are disputants
in regard
to a dispute and they must be treated in a manner that
acknowledges this. It must also be recognised that as far as possible
they
must both be treated in a manner that is as likely as possible
to produce a resolution of the dispute that each party can live with.
Their dispute is about whether the dismissal is fair or not. The
employer says it is fair whereas the employee says that it is unfair.
As the employer is economically very strong and usually bears the
knowledge of the reason for dismissal, he bears the onus to prove
that the reason for dismissal is fair.
[124] Part of the difficulty with the reasonable
employer test is that, quite apart from whether or not it is
authorised by the Act,
I do not think that there are sound reasons
why the test to determine fairness between an employer and an
employee must be based
on an employer test. Why is it not based on
the reasonable employee? If employers would have an objection if the
test were that of
a reasonable employee, equally workers would have
objections to a test that is based on the perceptions of fairness of
employers.
If both the employerâs and the employeeâs perceptions
of what is fair do not enjoy the support of both sides, why is it
that
the test of a reasonable citizen who is neither an employer nor
an employee but simply a reasonable citizen not used? Such a test,
which may be called a reasonable citizen test, would operate like
this. When all the evidence and material relevant to the fair
sanction
has been gathered, the question would be whether, on the
basis of all the evidence and mitigating and aggravating factors in a
particular
matter, a reasonable citizen, taking into account both the
employerâs and the employeeâs interests, would regard the
sanction
of dismissal as fair in all of the circumstances based on
his own opinion or judgment of what is fair or unfair. The CCMA
commissioner
would place himself in the position of the reasonable
citizen and reach such conclusion as he thinks would be reached by
the reasonable
citizen.
[125] The advantage about the reasonable citizen test is
that the reasonable citizen falls neither on the side of the employer
nor
on that of the employee. In that way he is neutral and his values
are neither exclusively those of the employer nor exclusively those
of the employee. He is also a member of the public and, where
relevant, he can also take into account public interest. The
reasonable
employer test does not have this advantage because it sees
the matter through the eyes of the employer albeit a reasonable one.
Rulings
made on the basis of the perceptions of the reasonable
citizen have greater chances of being accepted by both sides than
would otherwise
be the case. In that way it promotes the
acceptability of the outcome of the proceedings because the outcome
is based on the opinion/judgment
or perception of a neutral party who
has, nevertheless, taken the interest of both parties into account in
reaching the conclusion
that he has. To use the opinion or judgment
or perceptions of one of the parties to a dispute to decide the
dispute between the parties
undermines the dispute resolution
mechanism of the Act. This is not necessarily a suggestion that the
correct test under the Act
is the reasonable citizen test. In my view
even such a test is not authorised by the Act. What is authorised by
the Act is that the
commissioner must pass his own moral or value
judgment on the fairness of a dismissal as a sanction in a particular
case. All that
is being said with regard to the reasonable citizen
test is simply that it would have been a better test than the
reasonable employer
test or even a reasonable employee test.
[126] If it is accepted that the reasonable citizen test
would be better than the reasonable employer test, then, in my view,
a CCMA
commissioner should be accepted as being that reasonable
citizen and the dispute should be determined on the basis of his
opinion/judgement
of what is or is not fair. This is because:
(a) the CCMA commissioner is a neutral party to the
dispute,
(b)
representatives of organised labour, organised business and
government, as represented in the Governing Body of the CCMA, all
have had a say in the appointment of every CCMA commissioner.
This means that he is acceptable to all sides once he
has been appointed because both organised business and organised
labour in the
Governing Body approve that he be appointed. Obviously,
if through the interview, such candidate was shown not to possess or
subscribe
to the kind of values the Governing Body has in mind for a
commissioner, he would not be appointed. Why then should such a
personâs
opinion/judgment not be the one that is decisive on
whether dismissal as a sanction in a particular case is fair? This
system is
as close to privately agreed arbitration as anything can
be.
The reasonable employer test equals minority rules
even among employers
[127] The reasonable employer test says that, provided
there is one reasonable employer who would or even might have imposed
dismissal
as a sanction, the dismissal is fair. The implication of
this approach is that even if most reasonable employers would not
have dismissed
the employee, if the minority would have dismissed,
that dismissal must stand. Why must a decision that could only have
been supported
by a minority prevail over a decision that would have
enjoyed the support of the majority? It is difficult to see any
reason for
this? If ever the reasonable employer test was also
concerned about the interests of employees, one would have expected
it to say
that the tribunal must ask itself whether the majority of
reasonable employers would have regarded the sanction of dismissal as
fair
in a particular case and, if they would not have so regarded it,
such decision should not stand but if the majority of reasonable
employers would have regarded it as unfair, it should not stand even
if there is a minority of reasonable employers who would have
regarded it as fair. But that is not what the reasonable employer
test entails.
Reasonable employer test and
undue bias in favour of the employer.
[128] When in
WG Davey (Pty)Ltd v
NUMSA
1999 (3) SA 697
(SCA)
it was submitted
on behalf of the appellant that the test of fairness had to be judged
in relation to the employeesâ failure to
comply with the ultimatum
and that the old LAC had erred in focusing the enquiry on whether the
appellant should have extended the
ultimatum to 31 August, the
Supreme Court of Appeal responded thus: â
This
submission seems to lose sight of the need to consider fairness from
the viewpoint of both parties to a dispute, a matter which
is
fundamental in seeking to achieve one of the objects of the LRA â
the preservation of labour peace (see the Vetsak case at 593
G-I)â
.
In my view these words apply with equal force to the reasonable
employer test. Two reasons can be advanced for this. The one, which
is similar to the point that prompted the SCA to make this statement
in the WG Davey case, is that that proposition implies that
greater
attention must be given to the interests of the employer than those
of the employee. The second is that just as labour peace
was one of
the objectives of the old Act, it is still one of the objectives of
the current Act. In this regard sec 1 of the Act provides
that the
purpose of the Act is â
to advance economic
development, social justice, labour peace â¦
.â
Reasonable employer test and the rule against
fixed rules
[129] In Vetsak, supra, at 592 D-F Nienaber JA wrote:
âThe test [of the tribunal concerned expressing a moral or value
judgment as to what is fair in all the circumstances in order
to
determine whether an unfair labour practice has been committed] is
too flexible to be rendered to a fixed set of subrules; which
is why
one is somewhat sceptical of recent attempts by the Labour Appeal
Court (â
this Courtâ) and academic writers to
typify and rank the considerations which are to be factored into a
finding of fairness.â
The reference to the
Labour Appeal Court in this passage is not a reference to this Court
but a reference to the old Labour Appeal
Court created under the 1988
amendments to the old Act. The idea behind the passage is that, as
far as possible, the determination
of fairness on the basis of fixed
rules should be avoided.
[130] In
NUM v Vetsak
Co-operative Ltd 1996(4) SA 557 (A)
at 589D
Smalberger JA said: â
In my view, it would be
unwise and undesirable to lay down, or to attempt to lay down, any
universally applicable test for deciding
what is fair.â
In my view the reasonable employer test seeks to do precisely this -
against this caution which was echoed by Nienaber JA, writing
for the
majority in Vetsak at 592 D-F.
The reasonable employer test and dismissal as a
measure of last resort.
[131] Our jurisprudence in labour law is to the effect
that dismissal is a drastic step, and should, therefore be an
ultimate sanction
and a measure of last resort (Dubeâs case
[1998] ZASCA 52
;
1998
(3) SA 956
(SCA) at 959 G-H; Free State Cons
[1995] ZASCA 109
;
1996 (1) SA 422
(A) at
448 H-I;
W G Davey (Pty) Ltd v NUMSA 1999(3)SA
697 (SCA) at 706 A-C
and Scott JA in
NUMSA
v Black Mountain Mineral Development 1997(4)SA51(SCA)
at 61E). This is said because, in the light of the vulnerability of
most workers and their families, who depend largely, if not solely,
on their work for a livelihood, dismissal is compared to capital
punishment. The idea is that so serious a measure should not be
invoked except as a measure of last resort. Our case law reveals
that, when our courts apply this principle, it is the Court which
decides whether in a particular case dismissal has been invoked as a
measure of last resort. The reasonable employer approach/the
â
defer
to the employerâ
approach is, in my view,
inconsistent with this principle.
[132] In the discussion relating to item 7 (b) (iv) of
the Code the SCA, in par 45 of its Rustenburg judgment, said: â
The
benchmark the code repeatedly sets is whether the sanction is
âappropriateâ. This requires the sanction to be
suitable
or proper.
As Myburg and Van Niekerk
observe, âThe benchmark of appropriateness necessarily implies a
range of responses.â
The SCA said this as
support for the proposition that a CCMA commissioner has limited
power in terms of the Code to find the sanction
of dismissal imposed
by an employer unfair. The effect of this passage by the SCA is that,
provided the employerâs decision is
appropriate or suitable or
proper, a CCMA commissioner should not interfere with it.
[133] If it is accepted that â
appropriate
â
means â
suitable
â
or â
proper
â, as
the SCA said in the passage quoted from par 45 of its judgment, then
that is also the meaning that must be given to that word
in sec
138(9) of the Act where it is provided that a commissioner may make
â
any appropriate
â
arbitration award. That means that the reasoning that the SCA relied
upon in par 45 of its judgment to say that the intention
was that the
employerâs decision should not be lightly interfered with by a CCMA
commissioner should actually be used in support
of the proposition
that the intention was that a CCMA commissionerâs arbitration award
should not be lightly interfered with. That
is why sec 138(9) gives a
CCMA commissioner such wide powers by saying that he may make â
any
appropriate
â arbitration award. If what the
Code says purports to limit the power of a CCMA commissioner which
the Act seeks to widen, the
Code would be in conflict with the Act in
which case the Act will prevail. In this regard it needs to be
remembered that the Act
actually prevails even over other Acts other
than the Constitution or an Amendment Act amending the Act where
there is a conflict
between the Act and another Act (see sec 210 of
the Act). Accordingly, the reasons given by the SCA in relation to
the meaning of
the word â
appropriate
â
to say that the Code gives the employer a wide discretion has to
yield to the proposition that the act gives a CCMA commissioner
a
wide discretion to make â
any appropriate
â
arbitration award in order to resolve a dispute.
[134] That sec 138(9) gives a CCMA commissioner
extremely wide powers in making an arbitration award was not a
mistake. It is in line
with the rationale behind the establishment of
the CCMA and one of the primary objects of the Act. As has been
stated elsewhere in
this judgment, part of the rationale for the
creation of the CCMA was that, as far as possible, dismissal disputes
and other disputes
should be resolved finally by the CCMA and should
not go beyond that institution. That would be achieved by giving the
CCMA wide
powers to resolve such disputes in the way it sees fit with
as little interference as possible by the Courts with its decisions
and
arbitration awards. The provision in sec 138(9) that a CCMA
commissioner may make â
any appropriate
â
arbitration award is also in line with the promotion of â
the
effective resolution of labour disputes
.â
(sec 1(d)(iv) of the Act).
[135] A body or tribunal such as the CCMA cannot be
empowered to ensure an effective resolution of disputes by unduly
limiting its
power to resolve disputes â by confining it to
resolving disputes in a particular way. Such an institution will be
better capacitated
to help achieve that primary object of the Act if,
as far as possible, the Act is construed in a manner that allows it
more power
or discretion to resolve disputes as it sees fit than if
it is precluded from resolving disputes as it sees fit but is
prescribed
to as to how it should go about resolving disputes. Of
course, this does not mean that the Act can ever or should ever be
construed
in a manner that is inconsistent with the Constitution. A
construction of the Act that will capacitate the CCMA to do its work
more
effectively which is also consistent with the Constitution
should be preferred to a construction that will tie the CCMAâs
hands
in trying to resolve disputes. Anyone who has any experience in
the processes of mediation and arbitration will know that the more
powers you give to a mediator or an arbitrator to resolve a dispute
in any manner he may consider appropriate, the more the chances
are
that the dispute will be resolved.
[136] Sec 138(9), when read with sec 145, reveals that
the CCMA was intended to have wide powers to resolve disputes and
that the
Labour Court was intended to have limited powers to
interfere with CCMA awards because, if the position was the other way
around,
this would undermine the promotion of the effective
resolution of labour disputes which is one of the primary objects of
the Act.
The SCA also referred to sec 188(1)(a)(i) and 192(1), (2)
but not in the context of how the provisions of those sections
affected
the powers of a CCMA commissioner when he decides whether
dismissal is a fair sanction in a particular case. It also referred
to
the promotion of the effective resolution of labour disputes (sec
1 (d)(iv) but to say nothing more than that that is one of the
primary objects of the Act. No other provisions of the Act were
referred to by the SCA which related to the powers of the CCMA.
[137] In par 39 of its Rustenburg judgment the SCA said
that it was â
vital
that the LRAâs wording should be given proper effectâ but, as
already stated above, the Rustenburg judgment did not give effect
to
the most important wording of the Act relating to the powers of CCMA
commissioners in relation to the issue under consideration.
That is
sec 138(1) and (9) of the act.
[138] In par 40 of the Rustenburg judgement the SCA
stated that
â(a) sentence in a criminal case
is insulated against intervention because its imposition involves the
exercise of a discretion
entrusted to the judicial officer which is
not readily overturned.
â It went on to say
in the next sentence. â
By contrast, a CCMA
commissioner is not vested with a discretion to impose a sanction in
the case of workplace incapacity or misconduct.
The discretion
belongs in the first place to the employer. The commissioner enjoys
no discretion in relation to sanction, but bears
the duty of
determining whether the employerâs sanction is fair
.â
What the SCA was saying in this passage was that it is understandable
to say that on appeal a decision on sentence in a criminal
matter
should not be lightly interfered with and should actually be
insulated against interference because the court which imposed
the
sentence sought to be appealed against would have exercised a
discretion entrusted to a judicial officer.
[139] The SCA said that a CCMA commissioner is not
vested with a discretion to impose a sanction in the case of a
workplace incapacity
or misconduct. In my view this last mentioned
statement by the SCA finds no justification in the provisions of the
Act giving the
CCMA power to deal with dismissal disputes. In support
hereof the following can be said. Sec 138(1) of the Act gives power
to a CCMA
commissioner to â
determine
â
a dispute âfairlyâ. This includes a dismissal dispute. In Trident
Steel Ackerman J held, correctly in my view, that under
the old Act
the requirement in sec 46(9) of the old act that the Industrial Court
determine an alleged unfair labour practice dispute
meant, in the
case of a dismissal dispute, not only that the industrial court could
issue a declaratory order that a dismissal constituted
an unfair
labour practice but also that it could order the reinstatement of
such employee or the payment of money to such employee
if that was
required in order to bring the dispute to an end. That same function
is given to the CCMA by sec 138(1) of the Act which
requires the CCMA
to determine the dispute. Indeed, the drafters of the Act made sure
that in sec 138(1) they used the same phrase
which Ackerman J had
dealt with in Trident Steel, namely â
to
determine
â in order to describe the
function of the CCMA. In my view the same meaning that Ackerman J
gave to that word under the old Act
applies to the same word under
the current Act. That being the case, in my view, where a CCMA
commissioner finds that the sanction
of dismissal imposed by the
employer is unfair, he has power, if he orders the employeeâs
reinstatement, to impose a penalty or
sanction short of dismissal in
order to bring the dispute between the employer and the employee to
an end. This has to be so because,
if he did not impose another
sanction but simply ordered the reinstatement of the employee, the
employer would feel free to impose
another sanction to deal with what
at that stage will be an as yet unpunished act of misconduct by the
employee.
[140] When the employee initially took his dispute to
the CCMA, the dispute between the employer and the employee would
have included
the question whether, if the employee was guilty of
misconduct, what the fair sanction was. If the CCMA commissioner then
does not
decide what the fair sanction is if dismissal is not a fair
sanction, he will have failed to determine the dispute and to bring
it
to an end. He will have effectively referred the dispute back to
the employer instead of bringing it to an end himself. To say that
the CCMA commissioner does not have power to impose a sanction in
such a case is to say that he should refer it back to the employer.
If the employer then imposes a final written warning and the employee
feels that that is still unfair and that he should have been
given a
first or second written warning, the dispute about what the fair
sanction is for the act of misconduct of which the employee
is guilty
will rage on and will then have to be referred to the CCMA again for
determination.
[141] If a CCMA commissioner finds that a final written
warning is unfair and, again does not impose the sanction that he
considers
to be fair, the issue is effectively referred back to the
employer. If the employer imposes a second written warning and the
employee
still feels that that is unfair as it should be a first
written warning the dispute would once again make its third trip to
the CCMA
for determination. Those are the implications of the
approach taken by the SCA that a CCMA commissioner does not have the
power to
impose a workplace sanction. That approach can simply not be
right. It is inconsistent with the meaning of the word â
determine
â
given to it by Ackerman J in Trident Steel and would undermine the
promotion of the effective resolution of labour disputes given
in sec
1(b)(iv) of the act as one of the primary objects of the Act. The
effective resolution of disputes has to mean an expeditious
resolution of disputes. The approach suggested in this judgment that
a CCMA commissioner does have the power to impose a workplace
sanction when he has found that dismissal is an unfair sanction in a
particular case is in line with Ackerman Jâs judgment in Trident
Steel and would promote the effective resolution of disputes because
in such a case the CCMA commissioner imposes the sanction that
he
considers should have been imposed by the employer in the first place
and, in that way, the dispute is brought to an end after
only one
trip to the CCMA.
[142] In my view a CCMA commissioner also derives his
power to impose a workplace sanction on an employee in a dispute
before him
by reason of the wide powers conferred upon him by the
provisions of sec 138(9) which say that he â
may
make any appropriate arbitration award â¦â
.
That alone is wide enough to give a CCMA commissioner such power.
But, just in case there is doubt that sec 138(9) is wide enough
to
confer such power on a commissioner, the balance of sec 138(9) should
remove such doubt. When the balance of sec 138(9) is included,
sec
138(9) gives the CCMA commissioner power to make â
any
appropriate arbitration award in terms this Act, including, but not
limited to, an award â
â¦
.
that gives effect to the provisions and primary
objects of this Act
â¦
..â
Accordingly, a CCMA commissioner would be entitled in
terms of sec138(9)(b) of the act to impose a warning on an employee
whose reinstatement
he is ordering if he has found that the employee
is guilty of misconduct but that dismissal is not a fair sanction.
[143] In the Rustenburg judgment the SCA gave three
reasons in par 45 for the proposition that the Code locates â
the
first-line responsibility for workplace discipline and sanction with
the employer
â. The first was the fact that
the Code requires the CCMA commissioner to consider whether dismissal
is â
an
â
appropriate sanction for a contravention of a rule or standard. The
SCA said that the fact that the Code refers to â
an
â
appropriate sanction and not â
the
â
appropriate sanction â that is the use of an indefinite as opposed
to the definite article â
the
â
- is an indication of the legislatureâs awareness that more than
one sanction could be considered â
fair
â
for the contravention of a rule or standard. The suggesting SCA that
the legislature knew that there could be more than one sanctions
that
are all appropriate or fair and that, therefore, if dismissal was one
of them, then the commissioner should not regard it as
unfair and
should not interfere with the employerâs decision to dismiss. It
would seem that what the SCA was saying here sought
to underline the
proposition that as long as the decision to dismiss fell within a
range of possible reasonable responses to the
conduct of the
employee, it should be held to be reasonable and, therefore, fair.
[
144
]
Some
observations need to be made in response to
this statement by the SCA. The one is that the use of the indefinite
article â
an
â in
the phrase â
an
appropriate sanction
â
appears in a part of the Code that requires the CCMA commissioner to
consider certain factors in determining whether a dismissal
as a
sanction is fair. In the provisions of the Act there is no provision
that contains the phrase â
an appropriate
sanction
â. Sec 188(1) simply provides that
a dismissal that is not automatically unfair is unfair if the
employer fails to prove that the
reason for dismissal is a fair
reason and that it was effected in accordance with a fair procedure.
On the contrary it is in respect
of the powers of the CCMA
commissioner that the Act uses the adjective â
appropriate
.â
In sec 138(9) it allows the commissioner to make â
any
appropriate
â arbitration award. If one
takes the reasoning applied by the SCA in respect of the use of the
indefinite article â
an
â
to say that he must decide whether the sanction is one of a number of
appropriate sanctions, one would say that sec 138(9) allows
a CCMA
commissioner to make any of a number of appropriate arbitration
awards and, provided the one he makes can be said to be one
of a
number of appropriate ones, the commissionerâs decision must stand
and should not be interfered with on review.
[145] The second reason, which is discussed elsewhere
herein, given by the SCA is that the use of the adjective
â
appropriate
â
necessarily implies a range of responses. The third is that the text
of the Code has â
its roots in the inherent
malleability of the criterion it enshrines, namely, fairness, which
is not absolute.
â The SCA went on to say:
â
The criterion of fairness denotes a range
of possible responses all of which could be properly described as
fair.
â In my view in this sentence the SCA
seeks, without warrant, to in effect suggest that, like
reasonableness, fairness also denotes
a range of possible responses
all of which could properly be described as fair. The SCA then went
on to say: âThe use of âfairnessâ
in every day language
reflects this. We may describe as âvery fairâ (when we mean that
it was generous to the offender, or â
more
than fair (when we mean that it was lenient); or even may say that it
was tough but fair, or even âsevere but fair, or (meaning
that
while oneâs own decisional response might have been different, it
is not possible to brand the actual response unfair
).â
[146] In my view the view that the use of â
fairness
â
in every day language reflects that the criterion of fairness denotes
a range of possible responses all of which could properly
be
described as fair is not correct or alternatively is a wrong question
to ask in order to give an answer of statutory interpretation.
Statutory interpretation requires that words in a statute be given
their ordinary, natural and grammatical meaning unless this would
lead to an absurdity (see
Consolidated Frame
Cotton Corporation Ltd v President of the Industrial Court &
others (1996) 7 ILJ 489 (A) at 494 F-G).
The
Act requires the CCMA commissioner to decide whether a dismissal is
unfair. In effect the statute puts the following question
to the CCMA
commissioner: â
Is this dismissal fair
?â
In my view the ordinary, natural and grammatical meaning of the word
â
fair
â when
anybody is asked whether dismissal is fair in a particular case is
that such person should answer that question on the basis
of his own
opinion of what is fair or unfair.
[147] When somebody asks you whether a particular
dismissal is fair, he, quite obviously, is asking you for your
opinion based on
your own sense of fairness. He is not asking you to
give him your friendâs opinion on the fairness of such a dismissal.
He is also
not asking you to defer to him or your employer or the
employer of the dismissed employee. He is not asking you to give him
what
you think would be the opinion of a reasonable person. He wants
your view and your view only. Usually he has a reason why he wants
your view. It will usually be because he has high regard for your
opinion or judgment or your sense of justice and fairness. If you
do
not give him an answer that is based on your sense of justice and
fairness but give him an answer based on someone elseâs sense
of
justice and fairness, you will not have answered his question and you
will have failed to give him your own sense of justice and
fairness.
You will have failed him! The same can be said with regard to a CCMA
commissioner who must decide whether dismissal as
a sanction in a
particular case is fair or not. As already stated above the question
that the statute in effect poses to him is:
is this dismissal fair?
The commissioner must give an answer to that question. In my view the
only answer he is entitled and, actually
obliged to give, is one
based on his own sense of justice and fairness. He must say: in my
opinion/judgement or according to my sense
of justice and fairness in
this case the dismissal is fair or unfair, as the case may be. He
cannot and ought not to say: although
in my opinion/judgment this
dismissal is unfair I hereby hold that it is fair because the
employer thinks it is fair or because,
defering to the employer, I
think there is no basis for me to interfere and hold it to be unfair
because I cannot say that no reasonable
employer would have dismissed
in the circumstances of this case. The view expressed herein that in
a case where a tribunal is required
to decide whether a dismissal is
fair or unfair, it is required to give an answer to that question in
accordance with its own view
or judgment of what is fair or unfair
was held by the Appellate Division/Supreme Court of Appeal to be the
correct position in a
number of cases under the old Act as discussed
earlier in this judgment. There is no sound basis for any suggestion
that under the
current Act there should be a departure from a legal
position as entrenched as this in this branch of the law. If anything
the current
Act contains provisions that seem to have been intended
to ensure that the judicial opinion given in those cases under the
old Act
would apply with equal, if not more, force under the current
Act.
[148] The third reason given by the Rustenburg judgment
for the statement that the Code is significant in locating the
first-line
responsibility for workplace discipline and sanction with
the employer is this: when the Code states that generally it is not
appropriate
to dismiss for a first offence unless the misconduct is
serious and of such gravity that it makes a continued employment
relationship
intolerable, that, says the Rustenburg judgment,
â
necessarily imports a measure of subjective
perception and assessment, since the capacity to endure a continued
employment relationship
must exist on the part of the employer. It
follows that the primary assessment of intolerability unavoidably
belongs to the employer
.â The SCA went on
to say that this did not mean that the employerâs mere say-so or a
mere assertion on implausible grounds will
be sufficient. In my view
this approach to the determination of intolerability leans too much
in favour of the employer (even if
his mere say-so or his assertion
of intolerability on implausible grounds will not suffice) because in
the past the Supreme Court
of Appeal has said that intolerability of
a continued employment relationship must be assessed objectively.
Dube & others v Nationale Sweisware
(Pty)Ltd (1998) 19 ILJ 1033 (SCA) at 1037 A-D.
There is no sound basis why the SCA should depart from its previous
decision on this point.
What form or variation of the
reasonable employer test / the defer to the employer approach did the
SCA approve of in the Rustenburg
judgment?
[149] In par 40 of its judgment in Rustenburg the SCA
quoted with approval that part of par 33 of the Nampak judgment of
this Court
which Ngcobo AJP also quoted in par 28 of his judgment in
County Fair. The last sentence of that passage says in part that in
determining
whether a sanction is fair, the question is â
whether
in the circumstances of the case the sanction was reasonable
.â
What the SCA did not include in the quotation is another part of the
same paragraph 11 of Lord Denningâs judgment which was
quoted in
par 34 of the Nampak judgment which says that a dismissal is unfair
only if no reasonable employer would have dismissed
the employee in a
particular case.
[150] The question which arises is this: Does the fact
that the SCA did not quote that part of the paragraph or did not
refer to it
mean that it did not approve of par 34 of Ngcobo JAâs
judgment in Nampak or does that omission not necessarily mean a
disapproval
of part of his judgment in Nampak? In paragraph 41 of its
judgment in Rustenburg the SCA said that the key elements of Ngcobo
JAâs
approach were:
â
(a) the discretion to dismiss lies primarily with
the employer;
the discretion must be exercised fairly; and
interference should not lightly be contemplated.â
Immediately after setting out these elements, it went on
to say: â
That is indeed what the statute
requires.â
Two observations may be made in
this regard. First, when one has regard to the three elements which
the SCA said constitute the key
elements of Ngcobo JAâs approach,
the crux of Ngcobo JAâs approach in Nampak is left out. At the end
of paragraph 33 and in par
34, he explained with reference to the
passage of Lord Denningâs judgment in Swift that a dismissal is
only unfair if no reasonable
employer would have dismissed the
employee in the particular case. In my view to mention the key
elements of Ngcobo JAâs approach
in Nampak without mentioning this
key element is to misconstrue Ngcobo JAâs approach in that case.
[151] The effect of the three elements which the SCA set
out in par 41 of its judgment as the key elements of Ngcobo JAâs
approach
is no more than simply that commissioners should not lightly
interfere with an employerâs decision on sanction but that
employers
must act fairly in regard to the imposition of disciplinary
sanction. To describe Ngcobo JAâs approach as encompassing only the
elements stated by the SCA to be the key elements of his approach is
to say that Ngcobo JA adopted an approach that told commissioners
to
â
defer to the employerâ
with regard to sanction but gave them no guideline as to when they
could interfere with the employerâs sanction. Ngcobo JA did
not
make the error of not giving guidance to commissioners. In Nampak he
made it clear in par 34 of his judgment that commissioners
could only
interfere if no reasonable employer would have dismissed in the
particular circumstances. Accordingly, a proper reading
of Ngcobo
JAâs judgment in Nampak will reveal, particularly in par 34, that
his approach went much further than the SCA stated
it to be in par 40
of its judgment in Rustenburg.
[152] In its judgment in Rustenburg, the SCA began par
42 of its judgment by saying in effect that what it had set out in
par 41 as
the key elements of Ngcobo JAâs approach as taken from
his judgment in Nampak â
is indeed what the
statute requires
â. The SCA went on to say
in the next sentence that in County Fair â
Ngcobo
AJP returned to the fairness criterion and to the just ambit of
employer discretion
.â It went on to say in
the next sentence:
â[Ngcobo AJP] now
emphasised (d) that commissioners should use their powers to
intervene with âcautionâ, and (e) that they must
afford the
sanction imposed by the employer âa measure of deferenceâ
â
After this sentence the SCA quoted with approval parts of paragraphs
28, 29 and 30 of Ngcobo AJPâs judgment in County Fair.
The SCA
chose to quote the last two sentences of par 30 of Ngcobo AJPâs
judgment in County Fair. In those two sentences it was
said: â
In
my view, interference with the sanction imposed by the employer is
only justified where the sanction is unfair or where the employer
acted unfairly in imposing the sanction.â
In so far as this sentence means that the commissioner must first
conclude that the sanction is unfair before he interferes, there
can
be no quarrel with it. However, if one reads Ngcobo AJPâs judgment
as a whole, it seems that that sentence did not mean only
that. When
is a commissioner expected to find that the sanction is unfair?
Ngcobo AJP answered this question thus in the last two
sentences of
par 30 which the SCA quoted with approval: â
This
would be the case, for example, where the sanction is so excessive as
to shock oneâs sense of fairness. In such a case, the
commissioner
has a duty to interfere.â
As already stated
earlier, the last two sentences of par 30 of Ngcobo AJPâs judgment
in County Fair seem to refer to an extremely
high standard, namely,
that a sanction will be unfair where, for example, it is shockingly
unfair or shockingly excessive.
[153] After quoting, among others, the last two
sentences of par 30 of Ngcobo AJPâs judgment in County Fair, the
SCA said in part
in the first sentence of 43 of its judgment: â
This
analysis
â â by which it was referring to
Ngcobo AJPâs analysis in parts of paragraphs 28, 29 and 30 of his
judgment in County Fair,
â
is firmly rooted
in the prescripts of the statute and affords an approach to the
duties of commissioners that is not only fair and
practicable, but
would also shield the labour courts from the very flood of litigation
the alternative test have mistakenly been
designed to avoidâ
.
Before going further, it seems justified to respond to this perceived
concern about a flood of litigation to the Labour Court and
Labour
Appeal Court. This Court operates on the basis that it is right and
proper that as many dismissal cases as unions and workers
feel
aggrieved about should be referred to the CCMA and bargaining
councils for conciliation and arbitration except those that are
frivolous or vexatious if this may help to ensure labour peace. This
Courtâs understanding is that, if CCMA commissioners adopt
the â
own
opinionâ
approach and decide cases
according to their own sense of justice and fairness, there will be a
better chance that parties who lose
in such arbitrations will accept
the outcome thereof and not take the matter further on review than
will be the case if CCMA commissioners
are seen to abdicate their
responsibility and defer to the employer. In the former case the
losing party is able to defer to the
sense of justice and fairness of
a third party and accept the result.
[154] This Courtâs understanding of the Act is that,
when a CCMA commissioner has resolved the dispute by giving an
arbitration
award, only those cases which satisfy one or other of the
limited grounds of review permitted by the Act read with the
Constitution,
may be taken further on review to the Labour Court. The
rest of the cases end at the CCMA and bargaining councils whole
arbitration
awards are in terms of the Act final and binding. When
one reads Ngcobo AJPâs judgment in County Fair as a whole, it is
very clear
that it cannot be correct to say, as the SCA does in the
second sentence of par 42 of its judgment, that all Ngcobo AJP
emphasised
in that judgment about when commissioners should interfere
with sanctions imposed by employers is only the two matters that the
SCA
listed in par 42. Those two elements were
â(d)
that commissioners should use their powers to intervene with
âcautionâ and (e) that they must afford the sanction imposed
by
the employer âa measure of deferenceâ
.
[155] In my view those two elements do not add anything
that had not already been captured in the three elements that the SCA
regarded
in par 41 of its judgment as the key elements of the
approach taken in Nampak. Furthermore, when the SCA sought in par 44
to distil
the key elements of Ngcobo JAâs approach as set out in
Nampak, it left out the key test as approved in par 34 of the Nampak
judgment,
namely, that a dismissal will only be unfair if no
reasonable employer would have dismissed the employee â which was
quite a conspicuous
omission in par 41 of the SCAâs judgment. When
the SCA sought to distil the key elements of Ngcobo AJPâs approach
as set out
in his County Fair judgment, particularly in paragraphs
28, 29 and 30 thereof, it also omitted not only Ngcobo AJPâs
reference
in par 29 of his County Fair judgment to paras 33 and 34 of
his Nampak judgment but also the last two sentences of par 30 of
Ngcobo
AJPâs judgment in County Fair. In the last two sentences of
par 30 of the County Fair judgment is where Ngcobo AJP effectively
said that a sanction will be unfair if, for example, it is so
excessive as to shock oneâs sense of fairness.
[156] When one has regard to Ngcobo JAâs judgment in
Nampak and compares it with what the SCA says were the key elements
of his
approach one will see, in my view, that Ngcobo JAâs approach
is inadequately represented in par 41 of the SCAâs judgment and
what is left out is the most critical elements of Ngcobo JAâs
approach. When one has regard to Ngcobo AJPâs judgment in County
Fair as a whole and compares it with what the SCA says in the second
sentence of par 42 of the Rustenburg judgment he emphasised
in County
Fair, one may argue that the SCA ought to have also mentioned the
gist of the last two sentences of par 30 of Ngcobo AJPâs
judgment
in County Fair.
[157] At the beginning of par 42 of its judgment the SCA
said that the elements of Ngcobo JAâs approach as set out in par 41
of
its judgment were â
indeed what the
statute requiresâ¦
â. If that is all that
the statute requires, then the statute does not require that a
dismissal be taken to be unfair only when
no reasonable employer
would dismiss in a particular case. This is so because this is not
captured in the key elements of Ngcobo
JAâs approach as seen by the
SCA in par 41. For all intents and purposes all that is required of a
commissioner in terms of par
41 of the SCAâs judgment is that he
should not lightly interfere with the employerâs sanction.
[158] At the beginning of par 43 of the SCAâs
judgment, the SCA, referring to, among others, the last two sentences
of par 30 of
Ngcobo AJPâs judgment in County Fair, says that that
analysis â
is firmly rooted in the prescripts
of the statuteâ¦â
The question arises:
What is it that the SCA says the statute requires: is it the approach
contained in par 41 of its judgment which
requires no more than that
a CCMA commissioner should not lightly interfere with the sanction
imposed by the employer which in the
first sentence of par 42 the SCA
says is â
what the statute requires
â
or is it the approach reflected in the last two sentences of par 30
of Ngcobo AJPâs judgment in County Fair â which are included
in
the quotation in par 42 of the SCA judgment â which the SCA says in
the first sentence of par 43 is firmly rooted in the prescripts
of
the statute or is it the reasonable employer test as formulated by
Lord Denning in Swiftâs case which was approved by this Court
in
Nampak that says a dismissal is unfair only if no reasonable employer
would have dismissed the employee in a particular case?
Which one of
the three the SCA says is the correct one is difficult to tell. What
is clear is that it cannot be all three.
[159] In the second sentence of par 43 of its judgment
in Rustenburg the SCA said that it is â
regrettable
[that this Court] has not consistently affirmed and applied the
analysisâ
contained in Ngcobo AJPâs
approach as reflected in, among others, the last two sentences of par
30 of his judgment in County Fair.
In the third sentence of par 43
the SCA said that,
â(a)lthough some panels
have affirmed Ngcobo AJPâs approach
â, the
case before it, namely, the Rustenburg case, indicated â
how
far the practice of [this Court] has on occasion strayed from itâ
.
In the next two sentences the SCA said in par 43:
â
Instead of insisting that under the LRA the
discretion to impose the sanction lies primarily with the employer,
to be overturned only
with caution, the approach evidenced in the
present case appears to have upended the due order and conferred the
discretion instead
on the commissioner. Instead of exhorting
commissioners to exercise greater caution when intervening, and to
show a measure of deference
to the employerâs sanction, so long as
it is fair, it has insulated commissionersâ decisions from
intervention by importing unduly
constrictive criteria into the
review process.â
[160] It will be noticed that, when in these two
sentences the SCA says what in its view this Court should have done,
it was content
to simply say that this Court should have said to the
commissioners that the sanction imposed by the employer should be
overturned
only â
with cautionâ
,
that the commissioners should exercise greater caution when
intervening, and should â
show a measure of
deference to the employerâs sanction, so long as it is fairâ¦
â.
Does this mean that the SCA says it would have been enough for this
Court to say only this? In other words would this Court not
have also
had to say, as was approved in Nampak, that a dismissal as a sanction
would only be unfair if no reasonable employer would
have dismissed
the employee in the circumstances of the case? Is the SCA saying that
this Court would not have had to say, in accordance
with the last two
sentences of par 30 of Ngcobo AJPâs judgment in County Fair and par
42 of the SCAâs judgment in Rustenburg
read with the first sentence
of par 43 that
â⦠interference with the
sanction imposed by the employer is only justified ⦠where, for
example, the sanction is so excessive
as to shock oneâs sense of
fairness
â which the SCA says in the first
sentence of par 43 is â
firmly rooted in the
prescripts of the statute
â?
[161] These statements in par 43 of the SCAâs judgment
do not help to clarify precisely which one of the three forms or
variations
of the â
reasonable employer
â
test the SCA is saying is the correct one. If the statements that
commissioners should â
defer to the employer
â
and only intervene with caution are intended to represent the
complete test or approach without saying that commissioners must
only intervene if no reasonable employer would have dismissed or
without saying that they must intervene only if dismissal is so
excessive as to shock onesâ sense of fairness, why did the SCA not
clearly and unequivocally say that it did not approve of those
parts
of the test as given in the Nampak judgment of this Court and in
Ngcobo AJPâs judgment in County Fair? If the SCA was approving
of
those statements, why did it not include them in what it listed as
the key elements of Ngcobo AJPâs approach?
[162] In par 46 of its judgment the SCA said that the
statement that the courtâs duty is to determine whether the
decision that
the employer took falls within the range of decisions
that may properly be described as being fair â
equally
describes the duty of a commissioner
â. In
par 48 of its judgment the SCA sought to summarise what it had said
in the judgment. In so far as the issue under consideration
is
concerned, it did so in (d) and (e) of par 48. There it said:
â
(d) Commissioners must exercise caution when
determining whether a workplace sanction imposed by an employer is
fair. There must be
a measure of deference to the employerâs
sanction because under the LRA it is primarily the function of the
employer to decide
on the proper sanction.
In determining whether a dismissal is fair, a
commissioner need not be persuaded that dismissal is the only fair
sanction. The statute
requires only that the employer establish that
it is a fair sanction. The fact that the commissioner may think that
a different
sanction would also be fair does not justify setting
aside the employerâs sanction.â
It is interesting to note that conspicuous by its
absence from this summary is any statement that a commissioner will
only be entitled
to interfere with the employerâs sanction if no
reasonable employer would have dismissed in the circumstances or if
the sanction
is so excessive as to shock oneâs sense of fairness.
Once again, the question arises: does the fact that the SCA omitted
these
important parts of Ngcobo AJPâs approach mean that it was
disassociating itself from them? But how could the SCA disapprove of
those parts of Ngcobo AJPâs approach because in the same judgment
it said that it was regrettable that this Court had not consistently
applied Ngcobo AJPâs approach? If this Court had consistently
applied Ngcobo AJPâs approach, it could not have done so without
including one or both of these parts of his approach.
[163] One way of understanding the SCAâs judgment is
to say that it means that commissioners must defer to the employerâs
sanction
and not interfere with such sanction lightly and that it
says nothing more than this. What would support this understanding is
that
effectively this is what the SCA said in giving its
understanding of the key elements of Ngcobo AJPâs approach. It is
also the
gist of what the SCA put in its summary in par 48 of its
judgment. However, it must be recognised that the SCA seems to have
adopted
in par 40 of its judgment Ngcobo JAâs statement to be found
in par 33 of the Nampak judgment to the effect that the question is
â
whether in the circumstances of the case
the sanction was reasonable
â. It said at
par 40 that this statement explains what it described in that
paragraph as the key elements of Ngcobo JAâs approach.
In further
support of this understanding one would say that, when the SCA came
to do in par 51 what in its view the commissioner
should have done in
determining whether dismissal as a sanction was fair in the
Rustenburg case, it did not anywhere say: is this
a case where no
reasonable employer would have imposed the sanction of dismissal?
However, it did say in the last three sentences
of par 51 of its
judgment that the sanction of dismissal certainly fell â
within
the range of sanctions that the employer was fairly permitted to
impose
â which may suggest that, if the
sanction had fallen outside the range of sanctions that the employer
was â
fairly permitted to impose
â,
the SCA may have concluded that in such a case the sanction was
unfair and ought to have been interfered with. In terms of this
understanding one would say that the SCA did not anywhere say that
commissioners must only interfere with the employerâs sanction
if
no reasonable employer would have imposed the sanction of dismissal.
[164] What would count against the above understanding
of what the SCA decided are the following factors:
(a) the SCA did not anywhere disapprove of any parts of
this Courtâs judgment in Nampak.
(b) the SCA did quote the last 3 sentences of par 30 of
Ngcobo AJPâs judgment in County Fair.
(c) the SCA is unlikely to have said that it was
regrettable that this Court had â
strayed
â
from Ngcobo AJPâs analysis or approach if it, too, adopted an
approach that â
strayed
â
from Ngcobo AJPâs approach.
(d) this
would mean that the SCA instructed commissioners to â
defer
to the employer
â without giving them any
guideline as to the point at which they should interfere with the
employerâs sanction of dismissal
and it is difficult to think that
the SCA could do so because of the great deal of uncertainty that
this would create among CCMA
commissioners.
(e) the SCA did in par 40 quote with approval among
others a statement in par 33 of Ngcobo JAâs judgment in Nampak to
the effect
that the question is whether in the circumstances of the
case the sanction was reasonable.
[165] Another understanding of the SCA judgment would be
one that rejects the understanding referred to above and would say
that the
SCAâs judgment means that dismissal as a sanction would be
unfair and, therefore, susceptible to being interfered with by a CCMA
commissioner if no reasonable employer would have imposed dismissal
as a sanction in such a case or if dismissal as a sanction was
â
so
excessive as to shock oneâs sense of fairness
â.
What would support this understanding are the following factors:
(a) the key elements of Ngcobo AJPâs approach as
outlined by the SCA must not be read in isolation from the rest of
the judgment
but must be read as part of the entire judgment;
(b) the
SCAâs summary at the end of its judgment must also not be read in
isolation but must be read in conjunction with the rest
of the
judgment;
(c) all
the factors mentioned in (a), (b), (c), (d) and (e) at the end of the
preceding paragraph.
[166] It is because of the matters referred to in the
preceding few paragraphs that I find it difficult to tell with any
degree of
certainty exactly what form or variation of the reasonable
employer test the SCA decided in Rustenburg should be applied in
deciding
whether dismissal as a sanction is fair. However, I do not
think that it is open to me to throw my hands in the air and say that
I cannot apply any form or variation of the reasonable employer test
because I do not know which one the SCA has approved. I think
it is
my responsibility to do the best that I can to apply that form or
variation of the reasonable employer test which, to the best
of my
understanding of the SCA judgment, I think the SCA has approved. In
doing so I may err. But I must try the best that I can.
[167] In the light of all of the above it seems to me
that it is fair to say that the SCA decided that dismissal is unfair
only if
it is so excessive as to shock oneâs sense of fairness or
if no reasonable employer would have dismissed the employee in all of
the circumstances. I say this particularly because of the SCAâs
quotation with approval in par 40 of its judgment of par 33 of
Ngcobo
JAâs judgment in Nampak and the SCAâs quotation in par 42 of its
judgment of the last three sentences of par 30 of Ngcobo
AJPâs
judgment in County Fair and what it says immediately thereafter in
par 43. That test seems to be that a CCMA commissioner
must ask
himself whether dismissal as a sanction is shockingly unfair or
shockingly excessive or is one which no reasonable employer
would
have regarded as fair. If he concludes that it is shockingly unfair
or shockingly excessive, or that no reasonable employer
would have
thought it fair, he may interfere with the employerâs sanction. If
he concludes that it is not shockingly unfair or
shockingly
excessive, or if he concludes that a reasonable employer might have
regarded dismissal as fair he may not interfere and
the employerâs
sanction must stand. In my view the approach or test decided upon by
the SCA as the test that CCMA commissioners
are required by the Act
to use in determining whether dismissal as a sanction is fair is
extremely onerous but this Court will have
to give effect to that
decision because it is bound by the Rustenburg judgment.
[168] It is interesting to note that in the Rustenburg
judgment the SCA criticised this Court in so far as it may have taken
the approach
that it and the Labour Court should not lightly
interfere with a decision of a CCMA commissioner on review. The SCA
said in par 40
that
â(a) sentence in a
criminal case is insulated against intervention because its
imposition involves the exercise of discretion entrusted
to the
judicial officer, which is not readily overturned. By contrast, a
CCMA commissioner is not vested with a discretion â¦â
What is interesting is that in County fair to which the Rustenburg
judgment does refer, Conradie JA took a completely different attitude
in paragraphs 42, 43 and 44 to that taken in the Rustenburg judgment
about reviews of CCMA awards. In particular Conradie JA said
in part
in par 43: â
The test for altering a sanction
imposed by a CCMA commissioner is not so far removed from the one
applied to the alteration of a
sentence in a criminal appeal
.â
Paragraphs 42, 43 and 44 of Conradie JAâs judgment are worth
quoting in full. They read thus:
â
42
.
I am in agreement with my brother Kroon that
s 145
of the
Labour
Relations Act 1995
does not permit an appeal against a commissionerâs
decision. I agree, also, that this means that
a
court of appeal may not consider the merits of the dispute except to
determine whether the result reached by the decision maker
was, on
the facts before him or her, justifiable.
43.
A result which a court of appeal considers to be incorrect may
nevertheless be justifiable. It is not justifiable if it is
dramatically
wrong. Where the result is, for some reason or other,
perverse, one would quite naturally say âI cannot allow this to
happenâ.
There is no real difficulty with cases of that kind.
But
where the result diverges from the result which one would like to
have seen, interference is not justified. The test for altering
a
sanction imposed by a CCMA commissioner is not so far removed from
the one applied to the alteration of a sentence in a criminal
appeal.
If you look at the sentence and say to yourself âthis sentence is
so excessive (or so lenient) that I cannot in all good
conscience
allow it to standâ, it is open to interference. If you think merely
that you would not have imposed the same sentence,
it is not. Unless
the sentence makes you whistle, it must stand. The general principle
underlying this approach is that a court is
reluctant to interfere on
appeal with the exercise of discretion if the only ground for the
suggested interference is its unreasonableness.
The reluctance of a
court to interfere on review (on the grounds of its unreasonableness)
with the exercise of a discretion must
therefore be at least as
strong, if not stronger.
44. Two
eminent labour law scholars recently applied their minds to this very
question. In Coetzee v Lebea NO & another (1999)
20 ILJ 129 (LC)
Cheadle AJ stressed that in reviewing an arbitration award of a CCMA
commissioner â
the best demonstration
of applying oneâs mind is whether the outcome can be sustained by
the facts found and the law applied. The
emphasis is on the range of
reasonable outcomes not on the correct oneâ.
The dispute between Computicket v Marcus NO & others reported in
(1999) 20 ILJ 342 (LC), gave Brassey AJ the opportunity to say
the
wise words quoted by my brother Ngcobo in his concurring judgement.
(See also Zaaiman v Provincial Director: CCMA Gauteng &
others
(1999) 20 ILJ 412 (LC), Federated Timbers (Pty) Ltd v Lallie NO &
others (1999) 20 ILJ 348 (LC
)â (my
underlining).
[169] Notwithstanding what Ngcobo AJP may have said
elsewhere in his judgment in County fair, it would appear that he may
have been
in agreement with what Conradie JA said in the paragraphs
quoted above. In par 27 of his judgment in County fair Ngcobo AJP
said
the following:
â27.
The constitutional requirement that
administrative action must be justifiable in relation to the reasons
given for it means no more
than that
the decision of the commissioner must be supported by the facts and
the applicable law. The reviewing court must ask itself
whether the
award can be sustained by the facts and the applicable law. If the
award can be sustained by the facts and the law, interference
with
the award is not warranted. If it cannot, interference is warranted
â(
my underlining
)
[170] This paragraph in Ngcobo AJPâs judgement in
County fair does not appear to be in agreement with some of the dicta
in the SCAâs
judgement in Rustenburg concerning the correct
approach to reviews of CCMA awards. However, a discussion of that
aspect of the Rustenburg
judgment falls outside the scope of this
judgment.
[171] It is interesting to note two statements of the
law which appear in both Conradie JAâs judgment and Ngcobo AJPâs
judgment
in the County Fair case as referred to above. In par 42
Conradie JA said in effect that in reviewing arbitration awards of
the CCMA
a Court may only consider the merits of the dispute â
to
determine whether the result reached by the decision maker was, on
the facts before him or her, justifiable.
â
Ngcobo AJP said effectively the same thing when, in par 27 of his
judgment, he said that â
the reviewing Court
must ask itself whether the award can be sustained by the facts and
the applicable law
â and that, if it can,
interference is not warranted but, if it cannot, interference is
warranted. As two of the three Judges of
Appeal who heard the County
Fair case were agreed that this was the position, that statement of
the law was a decision of this Court.
[172] I also need to point out that the Nampak judgment
was a case which was governed by the old Act. For that reason the
decisions
of the Appellate Division in Perskor and the other cases
referred to above were binding on this Court when it adopted the
reasonable
employer test in that case. Accordingly, when this Court
in Toyota rejected the reasonable employer test and in effect, by
implication,
approved the â
own opinion
â
approach, the effect of its judgment was to regulate its position to
be in line with the position as set out in by the Appellate
Division
/ the Supreme Court of Appeal in the Perskor and the other cases. It
is regrettable that this Court has been criticised
for such a
decision. I now proceed to set out the facts of this case and apply
the Rustenburg decision of the SCA in deciding the
appeal.
The facts
[173] The appellant is a registered company which
carries on business in the petroleum industry. It has its head office
in Cape Town
and other offices in different parts of the country. At
all times material to this matter it also had a depot in Nelspruit,
Mpumalanga
Province. It employs, among others, truck drivers who
drive its trucks to deliver petrol products to customers. The third
respondent
was one of the truck drivers employed by the appellant. He
was employed on 24 May 1994.
[174] On
the 29
th
July 2002
the third respondent had, like on many other days, driven a truck of
the appellant to deliver petrol products to a customer.
The
appellantâs trucks were fitted with a tachograph. The tachograph
would record the movement of the truck from the time it started
moving until it stopped. Accordingly, if a driver stopped the truck
on his journey, the tachograph would record this and the appellant
could tell this by analysing the chart of the tachograph. This helped
the appellant to see when a driver had made unauthorised stops
on his
way.
[175] It would appear that there was a rule within the
appellant providing that drivers
âmay not
switch off, remove or in any other way tamper or interfere with a
Câtrack monitoring system installed on the vehicle
.
â
That was clause 3 of the appellantâs relevant policy. The reference
to a Câtrack monitoring system is a reference to the tachograph
system that had been installed in the vehicles. Clause 4 of the same
policy or document provided that it was the driverâs duty
to
ensure, before leaving the appellantâs premises, that the
tachograph was in good condition and, if it was not, to report this
to his supervisor. Clause 4 further provided that any contravention
of this policy or this rule was
âlikelyâ
to result in the summary dismissal of the driver concerned. The third
respondent had apparently signed the appellantâs document
containing these rules.
[176] Prior to the 17
th
September 2002 the appellant had dismissed employees who had
contravened the rule against tampering with or interfering with the
tachograph. However, there is no indication as to what the full facts
of those cases were. For example it is not known how many employees
had been dismissed within, for example, the previous three to five
years. There is also no indication as to how many of them had
had
long service periods with the appellant nor do we know how their
disciplinary history looked like. In other words we do not know
whether such employees had had previous instances when they had
contravened this or other rule of the appellant.
[177] As already stated on the 17
th
of September 2002 the third respondent drove a truck of the appellant
to deliver petroleum products to a customer. He knocked off
at about
15h25. His supervisor later had reason to suspect that he had made
unauthorised stops on his trip and had tampered with
the tachograph
system. He called the third respondent to confront him with this but
the third respondent denied having had any unauthorised
stop or
having interfered with the tachograph system. The chart of the
tachograph was taken to a tachograph analyst who was independent
of
the appellant for an assessment. The tachograph analyst analysed the
chart and came to the conclusion that there had been an unauthorised
stop in the third respondentâs trip and that there had been
interference with the tachograph system.
[178] Subsequent to the appellant receiving the opinion
of the tachograph analyst, the appellant called the third respondent
to a
disciplinary hearing. The allegation that the third respondent
faced was that he had tampered with the tachograph without any
authorisation.
The third respondent denied having tampered with the
tachograph. Evidence was led and the chairperson of the disciplinary
inquiry
concluded that the third respondent had contravened the rule.
Pursuant to such finding the third respondent was dismissed.
Subsequently,
a dispute arose between the appellant and the third
respondent about the fairness of the latterâs dismissal. In due
course the
dispute was referred to the first respondent in terms of
sec 191 (5)(a) of the Act for arbitration. The first respondent
assigned
the second respondent, one of its commissioners, to
arbitrate the dispute.
Arbitration, the decision of
the commissioner and his reasons
[179] The second respondent heard evidence from the
appellantâs witnesses and from the third respondent. One of the
appellantâs
witnesses was the tachograph analyst who had analysed
the chart of the tachograph and concluded that there had been
tampering with
the tachograph. Although the third respondent
continued to deny that he had tampered with the tachograph, the
second respondent concluded
that he had. This conclusion was
justified on the evidence that was before the second respondent.
Accordingly, this matter must be
decided on the basis that that
finding by the second respondent must stand.
[180] The second respondent came to the conclusion that
the dismissal as a sanction was in the circumstances of this case too
severe
and that the appellant should have given the third respondent
a final written warning instead of a dismissal. In coming to this
conclusion
the second respondent had regard to sec 188 (2) of the Act
and the Code of Good Practice: Dismissal in schedule 8 to the Act.
Sec
188 (2) of the Act requires that any person considering whether
or not the reason for a dismissal is a fair reason must take into
account any relevant code of good practice issued in terms of the
Act. He also considered sec 185 which provides in part that every
employee has the right not to be unfairly dismissed. He also had
regard to sec 192 (2) which provides that, if the existence of a
dismissal is established, the employer must prove that the dismissal
is for a fair reason.
[181]
The
second respondent also referred to â
Schedule
8(7) of Code
â. This was meant to be a
reference to item 7(a) of Schedule 8 to the Act which is the Code of
Good Practice: Dismissal. He also
made the point that the third
respondent had not been charged with theft or stock loss. However, he
did record that one of the appellantâs
witnesses, Norris, had
testified that the appellant had suffered a loss of 295 litres of
petrol as a result, I assume, of the third
respondentâs conduct but
went on to point out that that loss carried no weight with him
because the appellantâs representative
had argued that such loss
was within acceptable limits.
[182] In paragraphs 20 and 21 of his award the second
respondent said:
â
20 It was the respondentâs testimony and
argument that the type of misconduct Mashele was charged with was so
serious that it deserved
a summary dismissal. The respondentâs
Policy stipulates the âany contravention of the rules contained in
the Policy is likely
to result in a summary dismissal of the driver
concernedâ. In my opinion the term âlikelyâ used in the policy
is not mandatory.
Schedule 8(3)(4) of the Code provides that
âgenerally it is not appropriate to dismiss an employee for a first
offence, except
if the misconduct is so serious and of such a nature
that it makes a continued employment relationship intolerable.
21. Schedule 8 (3)(5) of the Code provides that âwhen
considering whether or not to impose the penalty of dismissal, the
employer
should, in addition to the gravity of the misconduct
consider factors such as the employeeâs circumstances (including
the length
of service, previous disciplinary record and personal
circumstances), the nature of the job and the circumstances of the
infringement
itselfâ. Mashele opened the tachograph. The respondent
did not suffer any loss of product or damage to the tachograph devise
or
the truck. The respondent did not lead evidence to show what it
had suffered as a result of Masheleâs action of opening the
tachograph.â
Where in par 20 of his award, the commissioner referred
to Schedule 8(3)(4) of the Code, he meant item 3(4) of schedule 8 to
the Act.
Where he referred to schedule 8(3)5 of the Code, he meant, I
think, item 3(5) of Schedule 8 to the Act although he did not quote
item 3(5) accurately.
[183] In the end the second respondent found that
dismissal was too severe as a sanction. In paragraph 25 he ordered
the appellant
to reinstate the third respondent
âwith
effect from the date of his dismissalâ
but
in par 27 ordered that the reinstatement
âis
without back pay
.
â
In par 26 he ordered the appellant to
âgrant
[the third respondent] all the benefits that could have accrued to
him had he not been unfairly dismissed
.
â
Review proceedings and decision of the Labour
Court
[184] The appellant was aggrieved by the award issued by
the second respondent. It accordingly brought an application in the
Labour
Court to have the award reviewed and set aside. In this regard
the appellant alleged that the second respondent had committed
misconduct
in relation to his duties as an arbitrator, that he had
committed a gross irregularity in the conduct of the arbitration
proceedings
and that he had exceeded his powers. The Labour Court,
through Maya AJ, (now Maya JA of the Supreme Court of Appeal)
dismissed the
appellantâs application for a review. Subsequently,
the Labour Court granted the appellant leave to appeal to this Court.
The Appeal
[185] Against the above background it is necessary to
establish whether the decision of the commissioner that dismissal was
too harsh
as a sanction is reviewable. The commissioner found that
the third respondent had made himself guilty of tempering with the
technograph
system installed in the truck that he had driven. The
commissioner also had regard to evidence that a loss of 295 litre of
petrol
was within acceptable limits. He made the point that the third
respondent had not been charged with theft or stock loss. He also
pointed out that the respondent had a service of ten years and had a
clean record. The commissioner may have been mistaken to say
that the
third respondent had a service of ten years with the appellant. The
third respondent seems to have been employed by the
appellant on the
24
th
May 1994 and
was dismissed in September 2002. He probably had about eight years
service. It may be that not much turns upon this.
[186] In having regard to the nature of the unacceptable
conduct, the fact that the third respondent had a long service and
that he
had a clean disciplinary record, the commissioner was heeding
the injunction contained in item 3 (5) of the Code of Good Practice.
He also had regard to item 7 of the code. Mr Clarke, the expert
witness called by the appellant, testified that the most common
reason
why drivers tamper with the technograph system is simply to
disguise a stop. Accordingly, it seems to me that it could be a stop
for a variety of reasons. Having regard to all of these and other
matters and applying the â
own opinion
â
approach the commissioner found that the dismissal was substantively
unfair and ordered the third respondentsâ reinstatement.
In the
light of the judgment of the SCA with regard to the â
own
opinionâ
approach the conclusion has to be
that his decision must be reviewed and set aside.
[187] What must be done with the dispute? Must it be
referred back to the CCMA for a fresh decision or must this Court
deal with it
itself? In the light of the long period that has lapsed
since the dispute arose, the fact that we have before us all the
evidence
necessary for the resolution of the dispute and the fact
that we have the required expertise to deal with this dispute, it
seems
to me that we should not remit the matter to the CCMA but we
should determine it ourselves.
[188] The third respondent had been employed for about
eight years. He had a clean disciplinary record. Tempering with the
technograph
system is a serious act of misconduct by a driver in the
appellantâs employ. The disciplinary code applicable in the
workplace
says that an employee found guilty of this type of
misconduct is likely to be dismissed. The third respondent testified
that he knew
about the rule against tempering with the technograph
system. He also testified that he knew that if he was found guilty of
such
misconduct, he would be or was likely to be dismissed. Maybe the
third respondent should be given a second chance. But according
to
the judgment of the SCA in Rustenburg the question is whether or not
dismissal as a sanction on the circumstances of this case
can be said
to be shockingly excessive or so excessive as to shock oneâs sense
of fairness or whether no reasonable employer would
have dismissed
the employee. If dismissal is so excessive as to shock oneâs sense
of fairness or if no reasonable employer would
have dismissed the
employee, the SCA says the dismissal is unfair and can be interfered
with but, if not, it should not be interfered
with. While I
definitely do think that dismissal was excessive as a sanction in the
circumstances of this case and very unfair, I
am not able to say that
it is so excessive that it shocks my sense of fairness or that no
reasonable employer would have dismissed
the employee in all the
circumstances of this case. Because I am unable to say that, then, in
terms of the SCAâs decision in Rustenburg,
I must not interfere
with the employerâs decision to impose the sanction of dismissal.
[189] The Court a quo may well have reached the same
conclusion if it had applied the test (as I understand it) decided
upon by the
SCA in Rustenburg but that was before the Rustenburg
decision of the SCA.
[190] Before I make the order that I propose to make in
this matter, I note that in par 49 of its judgment in the Rustenburg
case
the SCA made the statement that there is â
long-standing
LAC authority
â for the proposition that an
employeeâs â
absence of remorse, and his
conduct in untruthfully denying the ambit of his duties before the
commissioner, and in persisting in
that defence in his affidavit in
the review, itself rendered his continued employment intolerable
â.
As support for this statement, the SCA referred in footnote 34 to par
25 of Conradie JAâs judgment in
De Beers
Consolidated Mines Ltd v CCMA (2000) 12 ILJ 1051 (LAC)
par 25. It seems important to point out that in saying that what
Conradie JA said in par 25 of his judgment in the De Beers matter
was
â
long-standing LAC authority
â,
the SCA was mistaken. In that matter I sat with Conradie JA and
Willis JA. All three of us gave separate judgments. Neither I
nor
Willis JA concurred in par 25 of Conradie JAâs judgment. Since par
25 of his judgment was not concurred in by anyone of us,
his judgment
is not the judgment of this Court in the matter. Accordingly, it
cannot legally be said that the statement he made in
par 25 of his
judgment is â
LAC authority
â.
I thought it necessary to clarify this because otherwise
practitioners could be misled into believing that such statement was
indeed an authoritative statement of this Court.
[191] With regard to costs I think that it accords with
the requirement of law and fairness that no order as to costs should
be made.
[192] In the premises I make the following order:
The appeal is upheld.
No order is made with regard to costs on appeal.
The order of the court a quo is set aside and replaced
with the following one:
The application is granted
No order is made as to costs
The award issued by the commissioner in this matter is
hereby reviewed and set aside and replaced with the following one:
â(i)
the applicantâs claim for unfair dismissal
is dismissed
(ii) It
is hereby declared that the applicantâs dismissal was for a fair
reason
â.
____________
Zondo
JP
I
agree
_________
Jappie AJA
I
agree
_____________
H
M Musi AJA
Appearances:
For
the appellant : Adv A.L. Cook
Instructed by : Perrot Van Niekerk & Woodhouse Inc
For the respondent : Mr Masango
Instructed
by : D M Masango Attorneys
Date
of judgment : 4 May 2007