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THE RUSTENBURG TEST
HIGH NOON AT THE CONSTITUTIONAL COURT

Z Sidumo & Congress of South African Trade Unions v Rustenburg Platinum Mines & Others

We arranged for one of our professional staff to attend at the Constitutional Court earlier today, when the Highest Court in the land gave judgment in the Rustenburg Platinum Mines matter.

Readers will recall that the Supreme Court of Appeal, in a carefully reasoned (and fully supported) decision, had determined two issues of immense import to those engaged in the labour law field.

In the first instance, the SCA determined that commissioners must exercise caution in determining whether a disciplinary sanction imposed by an employer is fair. Arbitrators must apply "….a measure of deference …." to the employer's sanction because it is primarily the function of the employer to determine the proper sanction. This was widely interpreted as cementing a "reasonable employer" test into our law. In terms of which, it was only those decisions that fell beyond a broad range (or "band") of possible reasonable decisions that could be interfered with.

In the second instance, the SCA found that the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA), applied to a review of decisions of CCMA commissioners. The importance of this element was that the PAJA provides far more extended grounds of review.

In its outcome delivered this morning, the Constitutional Court has rejected the "fair employer test" determined in the Rustenburg case, and reverted back to the test that the plain wording of the LRA itself seems to imply – the commissioner decides.

The Constitutional Court has determined that in approaching a dismissal dispute, a commissioner must do so impartially. The commissioner must take account of "….the totality of circumstances". But, in terms of the LRA, it is the commissioner who must 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 or not. 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." (our emphasis)

The Constitutional Court also determined that the Promotion of Administrative Justice Act did not apply to the review of arbitration awards made in terms of the Labour Relations Act.

The Constitutional Court outcome does have implications for employers. In terms of the earlier Supreme Court of Appeal decision, which was rapidly interpreted as a restatement of the reasonable employer test within South African labour law, employers were comforted by a broad test that contemplated a range (or "band") within which their decisions might fall, before a CCMA commissioner could interfere. By the same token, the Constitutional Court outcome does not signal a reversion to administrative terror for employers. Whilst the CCMA commissioner will now be required to determine whether employers decision was fair, he or she must do so against a proper consideration of relevant circumstances and as an "impartial adjudicator". The Constitutional Court judgment will provide some guidance in this regard, as will a more focused consideration of both the terms (and stated purpose) of the Labour Relations Act and the Code of Good Practice on Dismissal.

So ultimately, it is the commissioner's sense of fairness that will now prevail, not the employers view. We are back to the third umpire, in keeping with the quick and easy process that forms the cornerstone of dispute resolution under the "new" Labour Relations Act.

Should you require a copy of the Constitutional Court judgment, would you kindly e-mail Su Huggett at our Sandton office at su@elaw.co.za.

R R PERROTT
5 OCTOBER 2007


 

October 2007
Edition 9

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Z Sidumo & Congress of South African Trade Unions v Rustenburg Platinum Mines & Others



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