Sidumo v Rustenburg Platinum Mines Ltd and Others (Case CCT 85/06 Decided on 05 October 2007)
The standard to be applied when deciding on a review is as follows: "Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?"
In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.
The case involved the dismissal of an employee, more than seven years before this case reached the Constitutional Court. The employee was employed to patrol the Mine's high security facility where precious metals are separated from lower grade concentrate. He was dismissed for failing to apply established search procedures. He contested his dismissal and referred his dismissal dispute to the CCMA in terms of the compulsory arbitration provisions of the LRA. The commissioner found that he was guilty of misconduct but found that no dishonesty was involved and took into account his clean service record of 15 years and consequently reinstated him with three months' compensation subject to a written warning valid for three months. The employer applied to the Labour Court to review and set aside the award. The Labour Court dismissed the application. The Mine unsuccessfully appealed against the decision to the Labour Appeal Court. The Mine then appealed against that decision to the Supreme Court of Appeal (SCA) where it was successful. The SCA held that the dismissal was fair. The employee, in turn, applied to the Constitutional Court for leave to appeal against that decision.
A key finding of the SCA was that in deciding unfair dismissal disputes commissioners of the CCMA should approach the employer's sanction in relation to misconduct with a measure of deference because it is the employer's function in the first place to impose a sanction.
The Constitutional Court held that the SCA decision must be overturned. They are unanimous that, in deciding a dismissal dispute, a commissioner is not required to defer to the decision of the employer. The commissioner is, however, not given the power to consider afresh what he or she would do but to decide whether what the employer did was fair. In reaching a decision the commissioner must have regard to all relevant circumstances.
The majority of the court agreed with the SCA that compulsory arbitration proceedings undertaken by the CCMA constituted administrative action, but held that it was not subject to the provisions of the Promotion of Administrative Justice Act. The majority held that in accordance with the requirements of section 33 of the Constitution, which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and considering the purpose of the review provisions of the LRA, the standard to be applied when a decision by a commissioner on a dismissal dispute is sought to be reviewed is the following: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?
In applying this standard to the facts of the case the majority accepted that there had been no evidence that loss had been suffered by the employer as a result of the employee's misconduct. It considered that the commissioner erred in describing the misconduct as a mistake or as unintentional. It held, however, that the commissioner was correct to find that the absence of dishonesty was significant. It took the view that the employee's failure to own up to his misconduct should count against him. It balanced this against his clean and lengthy service record and concluded that having regard to the reasoning of the commissioner, based on the material before him, it could be said that his conclusion was one that a reasonable decision-maker could reach. The facts were such that decision-makers acting reasonably may reach different conclusions.
Extract from the judgment:
 The statutory scheme requires a commissioner to determine whether a disputed dismissal was fair. In terms of section 138 of the LRA, a commissioner should do so fairly and quickly. First, he or she has to determine whether or not misconduct was committed on which the employer's decision to dismiss was based. This involves an inquiry into whether there was a workplace rule in existence and whether the employee breached that rule. This is a conventional process of factual adjudication in which the commissioner makes a determination on the issue of misconduct. This determination and the assessment of fairness, which will be discussed later, is not limited to what occurred at the internal disciplinary inquiry.
 The Supreme Court of Appeal placed undue reliance on item 7(b)(iv) of the Code which requires the commissioner to consider whether dismissal was "an" appropriate sanction. The use of the indefinite article is not decisive. As indicated earlier the Code derives from NEDLAC and is a guide. In any event it can hardly take precedence over the Constitution and the clear provisions of the LRA.
 There is nothing in the constitutional and statutory scheme that suggests that, in determining the fairness of a dismissal, a commissioner must approach the matter from the perspective of the employer. All the indications are to the contrary. A plain reading of all the relevant provisions compels the conclusion that the commissioner is to determine the dismissal dispute as an impartial adjudicator. Article 8 of the International Labour Organisation Convention on Termination of Employment 158 of 1982 (ILO Convention) requires the same. Any suggestion by the Supreme Court of Appeal that the deferential approach is rooted in the prescripts of the LRA cannot be sustained.
Fairness of the dismissal
 The next part of the process is that the fairness of the dismissal must be assessed. As part of this process, the reasonableness or validity of the rule allegedly breached must be considered. The Code sets out factors that ought to be considered in relation to that aspect.
 The question of an approach to the inquiry into fairness is not novel. At the time that the LRA came into force, there was already an established jurisprudence in this regard... Thus, the court is called upon as an impartial adjudicator to determine fairness...
 The dicta in the preceding paragraphs and the ILO Convention clearly illustrate the importance of holding the scales between the competing interests of employees and employers evenly in the balance...
 In deciding how commissioners should approach the task of determining the fairness of a dismissal, it is important to bear in mind that security of employment is a core value of the Constitution which has been given effect to by the LRA. This is a protection afforded to employees who are vulnerable. Their vulnerability flows from the inequality that characterises employment in modern developing economies...
 The Constitution and the LRA seek to redress the power imbalance between employees and employers. The rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organisations. Neither the Constitution nor the LRA affords any preferential status to the employer's view on the fairness of a dismissal. It is against constitutional norms and against the right to fair labour practices to give pre-eminence to the views of either party to a dispute. Dismissal disputes are often emotionally charged. It is therefore all the more important that a scrupulous even-handedness be maintained. The approach of the Supreme Court of Appeal tilts the balance against employees.
 It is a practical reality that in the first place it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. There are therefore no competing "discretions". Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third party determination on whether or not a dismissal was fair is likely to promote labour peace...
 In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
 To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.