Specific learning points derived from the Constitutional Court case: Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) CC became regular references in labour court judgements since this Constitutional Court pronouncement in 2007.
Whereas the focus in the Sidumo-case was the parameters within which the commissioner, presiding at arbitration, has to observe in his/her scrutiny of the employer’s decision in a dismissal case, much is to be learned from this judgement in respect of decision making in internal disciplinary cases.
I have always advocated (and still do) that the more employers align their internal disciplinary processes and practices with the criteria applied in arbitration proceedings in the CCMA, the better the employer’s prospect of success will be in subsequent litigation challenging its decision.
Allow me to give you a little bit of perspective regarding the legal questions and related clarification which crystalised from the Sidumo-case:
Mr Sidumo, a security official at Rustenburg Platinum Mines, was dismissed for negligently failing to apply established and detailed individual search procedures.
After exhausting the internal disciplinary procedures, finding no joy, he referred an unfair dismissal dispute to the CCMA and after an unsuccessful conciliation attempt, the matter was referred to arbitration.
The commissioner at arbitration found Mr Sidumo guilty as charged but regarded dismissal as an inappropriate sanction in the circumstances. Mr Sidumo was reinstated with 3 months’ compensation, subject to the issuing of a written warning valid for 3 months.
The employer took the matter on review to the Labour Court (LC). The L C found that there were no reviewable irregularity and dismissed the employer’s application.
The employer appealed to the Labour Appeal Court (LAC), which found that although part of the reasoning of the commissioner at arbitration was questionable, it endorsed the LC’s finding that the employer’s decision to dismiss was too harsh. The appeal was dismissed.
The employer then appealed to the Supreme Court of Appeals (SCA), which found that the dismissal of Mr Sidumo was fair and overturned both the findings of the LC and the LAC.
Ultimately, Mr Sidumo approached the Constitutional Court (CC) for relief. It was eventually the scrutiny of the CC which established case law which commissioners at the CCMA and employers alike, will be well-advised to take cognisance of when considering or taking disciplinary related decisions, respectively.