Abstract
In Sidumo v Rustenburg Platinum Ltd (2007 12 BLLR 1097 (CC); 2007 28 ILJ 2405 (CC); 2008 2 SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the socalled “reasonable employer” test in our law, which required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming thatarbitrators remain so obliged) held that the obligation to do so suffuses section 145 of the LRA ,and the extended review grounds of PAJA do not apply. In the present article these conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of what the test postulates; it is submitted that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or indeed at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the scope of the constitutional right to just administrative action; and further, that the labour landscape post-Sidumo is one bathed in greater uncertainty. In conclusion, the authors pose the questionwhether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
Highlights
The Constitutional Court recently delivered its judgment in the first labour matter to have passed through all the forums in which labour matters can be considered – the CCMA,[1] the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and, the Constitutional Court itself
CCMA arbitrations undertaken in terms of the LRA constitute administrative action as defined in section 1 of the Promotion of Administrative Justice Act 3 of 20005, and as such are subject to the extended review standard set under PAJA – the review criterion is
The decision in Sidumo is the most important decision of the Constitutional Court on the proper approach on how commissioners should interpret the LRA, the Code of Good Practice: Dismissal and on how to exercise their discretion when they have to determine if a dismissal was fair
Summary
In Sidumo v Rustenburg Platinum Ltd (2007 12 BLLR 1097 (CC); 2007 28 ILJ 2405 (CC); 2008 2 SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the socalled “reasonable employer” test in our law, which required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators remain so obliged) held that the obligation to do so suffuses section 145 of the LRA ,and the extended review grounds of PAJA do not apply. In the present article these conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of what the test postulates; it is submitted that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the scope of the constitutional right to just administrative action; and further, that the labour landscape post-Sidumo is one bathed in greater uncertainty. The authors pose the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law
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