A case study in the constitutional court judgment in the matter of:Z SIDUMO; COSATU/RUSTENBURG PLATINUM MINES& OTHERS

If you like to understand the intricacies of court judgments then read Prudence Gqoba's summary of the Constitutional Court ruling that confirms that CCMA commissioners don’t have to defer to the employer's decision on a dismissal.

The facts:Zandise Sidumo was employed by Rustenburg Platinum Mines to patrol the mine’s high security facility where precious metals are separated from lower grade concentrate.

He was dismissed by the Mine for failure to apply established search procedures. Sidumo contested his dismissal and referred the matter to the Commission for Conciliation Mediation and Arbitration (CCMA) in terms of the Labour Relations Act, 66 of 1995 (LRA).

At the CCMA Commissioner Moropa found Sidumo guilty of misconduct but not dishonesty.

In his outcome the commissioner took into consideration Sidumo’s clean record of 15 years and awarded him reinstatement with three months compensation subject to a written warning valid for three months.

The Mine took the award to the Labour Court for review and to set it aside. The Labour Court dismissed the application for review.

The Mine then appealed the Labour Court findings at the Labour Appeal Court (LAC). The appeal at the LAC was unsuccessful.

The Mine then took the matter to the Supreme Court of Appeal (SCA) where it was successful. In the SCA judgment the court held that in deciding unfair dismissal disputes, commissioners should approach the employer’s sanction in relation to the misconduct with a measure of deference because it is the employer’s function in the first place to impose a sanction.Cosatu then took Sidumo's matter to the Constitutional Court.

Here we look at the salient points of the majority judgment written by NAVSA AJ, with Moseneke DCJ; O Regan J; Madala J and Van der Westheizen J concurring.

What the majority judgment heldThe parties to the matter accepted that the case raises constitutional issues as it involves the interpretation of the LRA and the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The two statutes were enacted to give effect to these rights contained in the Constitution:* section 23 (1) provides that everyone has the right to a fair labour practice which for employees affords security of employment, and * section 33 provides that: – Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. – Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. – National legislation must be enacted to give effect to these rights, and must ­ – provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; – impose a duty on the state to give effect to the rights in subsections (1) and (2); and – promote an efficient administration.

Therefore, matters relating to the application and interpretation of statutes are constitutional matters. And so the Labour Court, LAC, the High Court and SCA are all bound by the Constitution.The majority judges held that:

* the LRA and anyone applying its provisions, like commissioners, must respect section 23 of the Constitution. (See paragraph 57 of the judgment).

* both the Constitution and LRA seek to redress the power imbalances between the employees and employers by treating the views of both parties equally.
It would be against constitutional norms of the right to a fair labour practice for a commissioner to favour one party to a dispute over another. (See paragraph 74 of the judgment).

* The employer and the commissioner each play a different role. The employer hires and fires and the decision to dismiss belongs to him.

The commissioner determines whether the dismissal is fair by examining all relevant circumstances. The commissioner’s sense of fairness is what must prevail and not the employer’s view.

PAJA and LRAThe SCA took the view that because PAJA was the national legislation passed to give effect to the constitutional right to just administrative action, it also applied to arbitration awards by commissioners.
The Constitutional Court (CC) disagreed. It said that the SCA came to the wrong conclusion because:

* it did not examine the nature of the commissioner’s function by reference to section 33 of the Constitution.

* it did not explore whether PAJA provided an exclusive statutory basis for the review of all administrative decisions. PAJA is a codification of the common law grounds for review.

However, it is not regarded as the exclusive legislative basis of review.Although the CC further held that there are similarities between the CCMA arbitrations and proceedings before a court of law, it also said that there are significant differences.

The CCMA:
* is not a court of law* does not follow a system of binding precedents,* there is no blanket legal representation and * commissioners do not have the same security of tenure as judicial officers. (See paragraph 84 – 87 of the judgment).It also said that the LRA gives commissioners a wider scope than if they fell under PAJA.

It allows arbitration awards to go to the Labour Court to be reviewed and either back to CCMA to be re-arbitrated or it can uphold or change the decision of the commissioner completely.

When an arbitration award is reviewed at the Labour Court, questions are asked about whether the commissioner applied his mind or whether he went beyond the scope of his duties as dictated to by Section 145 or 158 of the LRA.

The Labour Court was created to make matters easier and to prevent parties from "forum shopping" ie asking for CCMA arbitrations to be reviewed in the High Court. If PAJA were to apply to arbitration awards, it would limit the powers that the CCMA has been given through the LRA.

Therefore the CC found that the SCA was wrong to say that PAJA applied to arbitration awards in terms of the LRA.

Key points of the judgments:

All four different written judgments of the Constitutional Court Judges agreed that:

the SCA judgment must be overturned in deciding a dismissal dispute, a commissioner is not required to defer to the decision of the employer.

However, he or she (the commissioner) has not been given power to consider afresh what he or she would do.

The commission must just decide whether what the employer did was fair. In doing so, he or she must have regard to all relevant circumstances.

What is different from the different judgments are certain aspects of how the functioning of the commissioner is to be characterised.

To summarise:The court held that the right to a fair labour practice is in line with a right to administrative action that is lawful, reasonable and procedurally fair.

Everyone has a right to have these rights enforced before the CCMA acting as a tribunal.

In the matter before it, the court found that there was no evidence that the Mine suffered as a result of Mr Sidumo’s misconduct.

The decision/conclusion of the commissioner was one that a reasonable decision maker could reach.

Source

Numsa News