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In Rustenburg Platinum Mines Ltd v Commissioner for Conciliation, Mediation and Arbitration 2007(1) SA 276 (SCA, the Supreme Court of Appeal held that the discretion to impose a sanction for misconduct belongs in the first instance to the employer and that a CCMA commissioner should approach a dismissal ‘with a measure of deference’ because it is primarily the function of the employer to decide on a proper sanction in disciplinary matters.

This approach has now, in no uncertain terms, been overruled by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC). The CC made it clear that there is nothing in the Constitution or the Labour Relations Act 66 of 1995 suggesting that, in determining the fairness of a dismissal, a CCMA commissioner must approach the matter from the perspective of the employer. In fact, all the indications are to the contrary. The decision to dismiss belongs to the employer, but not the determination of its fairness. Ultimately, the commissioner’s sense of fairness is what must prevail and not the employer’s view.

Section 145(1) of the Labour Relations Act stipulates that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the CCMA, may apply to the Labour Court for an order setting aside the arbitration award. According to the Constitutional Court the section is now suffused by the constitutional
standard of reasonableness. The standard is this: is the decision reached by the commissioner one that a reasonable decision-maker would not have made?

With respect, the practical implication of the CC’s judgment is that it may now be easier said than done to appeal a decision of a CCMA commissioner. As the Constitutional Court pointed out, decisionmakers acting reasonably may reach different conclusions, but as long as the CCMA commissioner’s is reconcilable with one of those conclusions a higher court will not interfere.