Monday, July 09, 2007

[2006] SCA 115 (RSA)

Mike Wagener
When I studied jurisprudence, I was intrigued by the sentiment expressed by an American judge who said that he decided a case before him within the first 5 minutes and then tried his best not to be influenced by the evidence that was led throughout the rest of the trial.

Although said in jest, the saying illustrates the fact that judges often make their decisions based on instinct. They then proceed to rationalize their decision by reference to legal principles.

This insight should keep us from excessive anxiety over finding exactly the right answers to the questions posed in the Rustenburg case.

In issue was the correctness of two fundamental tests:

(1) the test to be applied on review of a CCMA award; and

(2) the primary test which the CCMA must apply to an employer’s decision to dismiss.

The facts of the case are as follows:

1. The employer mine produces platinum to which the employees have access. To control product loss, guards are employed to search employees leaving the premises after work.

2. Surveillance cameras watch the guards themselves and in this case showed that a particular guard, over a period of three days allowed eight people to pass without searching them at all. Out of the 24 persons he was meant to check, he only searched 1 properly.

3. He was subjected to a disciplinary enquiry and even though he had almost 15 years’ service with an unblemished record, he was dismissed.

4. The employee took his dismissal to the CCMA. The CCMA re-instated him and replaced the employer’s sanction with one of a written warning valid for 6 months.

5. The employer took the matter to the Labour Court which declined to interfere.

6. Undeterred, the employer went to the Labour Appeal Court which also gave no satisfaction. Still undeterred, the employer appealed to the Supreme Court of Appeal.

7. The appeal was successful and the Commissioner’s award was set aside and a finding brought out that the employer’s sanction was fair.

8. The employee, now joined by COSATU, applied for leave to appeal to the Constitutional Court. A direction was given by the Chief Justice that the application be argued together with merits. The matter was argued early in May 2007 and we are still awaiting the outcome.
In the Constitutional Court there were the traditional foes: Labour and capital with the CCMA throwing its lot in with labour.

All the parties were represented by eminent counsel.

The argument of the employee before the Constitutional Court was that the wording of the LRA itself suggested that the narrow test of review found in the Arbitration Act should apply.

The cases, the most recent example being Amalgamated Clothing & Textile Workers Union v Veldspun, show that the courts are reluctant to interfere in arbitrations. Only when there has been substantial misconduct on the part of the arbitrator or a gross irregularity do they intervene. An ordinary mistake of fact of law is not enough.

If this were the correct test, the CCMA would, by and large, have the final say in dismissal disputes. As a matter of fact, the narrow test is not currently applied. We have the rationality or justifiability test thanks to Froneman DJP in the Carephone v Marcus N.O. & another. Froneman DJP imported this test on the strength of the justifiability requirement for administrative action contained in the Constitution. This test was endorsed by the SCA in Rustenburg and came under heavy attack by COSATU in the Constitutional Court.

The outcome of the Constitutional Court case is crucial because it will decide who controls dismissals – labour or capital.

Applied in practice, the constitutional test favours the employer. It allows the Labour Court to interfere whenever it does not like the CCMA award.

The second test under the spotlight is the test which the CCMA must apply to a dismissal. In County Fair Foods v CCMA & others, the LAC gave employers the "reasonable employer" test. This test holds that there is a range of responses to the same misconduct – an ascending scale of severity.

On the Rustenburg facts, one chairman might have dismissed the employee – another might have given him a final written warning – both sanctions are arguably fair.

County Fair held, with the support of the SCA in Rustenburg, that the CCMA cannot step into the employer’s shoes and impose its own sanction.

Labour takes issue with this test. The argument is that it provides the employer with an unfair advantage not contemplated by the LRA. The well tried and successful tactic of labelling the test as an alien English import has been employed. I suspect that the argument might hold some charm for the Constitutional Court.

The correct answers are of fundamental importance to productivity and the economy. It is not an understatement to say that the decision could have a significant effect on South Africa’s future.

At one stage when preparing this paper, I was inclined to dismiss the whole debate as a sterile argument about words or semantics and then I came across the following apt quotation from Mr Justice Frankfurter, US Supreme Court judge:

"All our work, our whole life is a matter of semantics, because words are the tools with which we work, the material out of which laws are made, out of which the Constitution is written. Everything depends on our understanding of them"

If I could start with a clean slate I would be in favour of taking over ordinary criminal procedure. Misconduct and incapacity hearings, like criminal trials, have two stages, firstly to establish guilt and secondly to decide on the appropriate sanction.

A criminal appeal is a hybrid between an appeal and a review. The ordinary appeal test i.e. whether the decision is correct, applies to the merits and a different test applies to sentence. The appeal court can only interfere with the sentence where it induces a sense of shock i.e. a range of acceptable responses is recognized.