Legal victory for workers!Constitutional Court says a commissioner does not have to defer to the employer's decision
The Congress of South African Trade Unions is delighted at today’s judgement by the Constitutional Court in the case between Rustenburg Platinum Mines Ltd and the Commission for Conciliation, Mediation and Arbitration (CCMA). It is a major victory.
The court ruled in favour of Cosatu’s appeal against last November’s judgement of the Supreme Court of Appeal (SCA) which, if it had been upheld, would have set an extremely dangerous precedent and been a disastrous setback for workers and the trade union movement.
The case concerned Zandise Sidumo, who was dismissed as a security guard by Rustenburg Platinum in 2000.
He took an unfair dismissal dispute to the CCMA. A CCMA arbitrator ruled that Sidumo was guilty of misconduct but that dismissal was not appropriate. He ordered the company to reinstate him on a written warning and to pay him three months' back pay.
The company applied to the Labour Court to review and set aside this award, but they held that it was justifiable and dismissed the review application.
Then the company appealed to the Labour Appeal Court (LAC), but it also upheld the CCMA decision and dismissed the appeal.
The company was then granted special leave to appeal to the SCA, which in November 2006 accepted the employer’s argument that in assessing the fairness of a dismissal, CCMA commissioners should have applied the "reasonable employer" test, exercised caution when determining whether the sanction imposed by an employer is fair, and displayed a measure of deference to the employer's sanction.
The Cosatu Central Executive Committee (CEC) saw this decision as a major setback which would have severely limited the CCMA’s power to rule that a dismissal is unfair, and agreed to instruct attorneys to investigate the possibility of challenging it in the Constitutional Court.
The country’s highest court has now agreed that the CCMA can require an employer to prove that the dismissal was for "a fair reason" related to the employee's conduct or capacity, and to show that both the reason for dismissal and the procedure adopted were fair.
It has rejected the SCA view that the CCMA must show deference to the decision of the employer, effectively start with a presumption in favour of the fairness of the employer's decision and focus only on procedural aspects of the case.
Cosatu sends its congratulations to Zandise Sidumo and hopes that he will be able to either resume his job or receive appropriate compensation for seven years of unemployment as a result of what is now officially an unfair dismissal. (www.cosatu.org.za)
Comrades demonstrate in support of Simdumoat the Constitutional Court hearing.
Sidumo's long road!
2000 Sidumo dismissed by Rustenburg Platinum.
2000 CCMA commissioner finds him guilty of misconduct but says because he has a clean 15 year record he must be reinstated with three months backpay and a three month written warning.
Company applies to Labour Court (LC) to review the case and set it aside
LC rejects the company's application.
Company takes the case to the Labour Appeal Court (LAC)
LAC throws out the case.
Company gets special permission to apply to the Supreme Court of Appeal (SCA).November 2006 – SCA agrees with the company.
Cosatu takes the case to the Constitutional Court (CC).October 2007 – CC overturns the SCA decision and reinstates the first decision. A worker's right to a fair hearing from a commissioner and a higher court without being influenced by the employer's original decision is secured!
Inkantolo Yomthethosisekelo ivune abasebenziUkwesabela ukuthi ilungelo lomsebenzi lokuthethwa kwecala ngobuqotho ngukhomishina lase lihambile isinqumo seNkantolo yoMthethosisekelo sikuchithile lokho.
Inkantolo Yomthethosisekelo yavumelana noKhomishina we-CCMA ukuthi uma kunqunywa ukuthi umsebenzi uxoshwe ngeqiniso yini noma cha, asikho isidingo sokuthi ukhomishina achithe isinqumo somqashi.
Okungcono ukuthi kwakubalulekile ukuthi kugcinwe ilungelo lomthethosisekelo lomsebenzi lokuthi icala lilalelwe ngobuqotho ngokubhekela yonke imininingwane yesimo esithize somqashi. UZandisile Sidumo wayesebenza e- Rustenburg Platinum Mines ngonyaka ka-2000 ngesikhathi exoshwa. I-CCMA yamphindisela emsebenzini ngonyaka ka-2000 kodwa umqashi wakhe icala walisa kuzo zonke izinkantolo Inkantolo Enkulu Yokudlulisa Amacala yaze yavumelana nomqashi. I-Cosatu yathatha icala yalisa eNkantolo Yomthethosisekelo eyabe seyinquma ivuna uSidumo.
Konstitusionele Hof beslis ten gunste van werkersVrese dat werkers se reg tot ‘n regverdige verhoor deur ‘n kommissaris verlore was, is deur ‘n beslissing van die Konstitusionele HO (KH) die nek ingeslaan.
Die KH het met ‘n kommissaris van die KVBA saamgestem dat wanneer daar besluit moet word of ‘n werker onregverdig afgedank is, die werkgewer se besluit nie die meeste gewig hoef te dra nie.
Dit is eerder belangrik om ‘n werker se grondwetlike reg op ‘n regverdige verhoor te handhaaf deur al die detail van die werker se spesifieke situasie in ag te neem.
Zandise Sidumo het in 2000 by Rustenburg Platinummyn gewerk toe hy afgedank is. Die KVBA het hom in 2000 heraangestel, maar sy werkgewer het die saak na elke hof toe geneem totdat die Appélhof met die werkgewer saamgestem het.
Cosatu het toe hierdie saak na die Grondwetlike Hof geneem, waar daar in Sidumo se guns beslis is.
Lekgotla la Molao wa Motheo le nka qeto e tshehetsang basebetsiTshabo ya hore tokelo ya basebetsi ya ho mamelwa ha nyewe ya bona ka mokgwa o se nang leeme ke mokhomishenara e ile ya qetwa ke sephetho se nkilweng ke Lekgotla la Moalo wa Motheo.
Lekgotla la Molao wa Motheo le ile la dumellana le mokhomishenara wa CCMA hore ha ho etswa qeto ya hore na mosebetsi o tebetswe ka tsela e se nang leeme, mokhomishenara ha a tshwanela ho busetsa morao ka baka la qeto ya ramosebetsi.
Empa ho bohlokwa ho Rather it was important to latela tokelo ya mosebetsi ya semolaotheo ya ho ba le nyewe e se nang leeme ka ho ela hloko dintlha tsa boemo bo itseng ba mosebetsi.
Zandise Sidumo o ne a sebeletsa Rustenburg Platinum Mines ka 2000 ha a ne a tla tebelwa. CCMA e ile ya mo kgutlisetsa mosebetsing ka 2000 empa ramosebetsi wa hae o ile a isa nyewe eo makgotleng ohle ho fihlela Lekgotla le Phahameng la Boipiletso le dumellana le ramosebetsi.
Cosatu ya ba e isa taba ena Lekgotleng la Molao wa Motheo mme lona la etsa qeto e tshehetsang Sidumo.
Operation Mababuyiselwe helps another member!Numsa's attempts to get justice for members who were dismissed years ago continues to bring joy to affected members as Numsa's national legal officer, Booysen Mashego, reports.
Things turned sour for husband and wife team in April 2005 – Phineas Mashegoana and Johanna Pholoba – when machine operator Johanna reported to her husband that her machine was faulty. Instead of coming to attend to it immediately, Phineas went to have lunch and then went back to his work station.
His wife then picked up a cutting knife that was on the machine together with other objects and threw them at his face, injuring him on his cheek.
He then punched his wife in the face and ran away. A week later the company dismissed Johanna; it withdrew charges against Phineas and recommended that the two receive marriage counselling. Numsa took up her case and at arbitration, the arbitrator found that her dismissal was unfair.
Her company, Global Material Technologies, was ordered to reinstate Johanna on the same terms and conditions applicable to her employment prior to her dismissal and to pay her five months compensation (almost R13 000!).
However at the end of October 2005 the company filed for review (ie it said it would challenge the judgment).
But between October 2005 and October 2007 the company did nothing to take the case any further. In the middle of October 2007, Numsa's legal department challenged the company.
Judge Francis agreed with the original arbitration decision and ordered the company to pay Numsa's costs. Viva Operation Mababuyiselwe!
Source
Numsa News