Fine line between fair and illegal punishment Ivan Israelstam When an employer fires an employee for dishonesty,

constant late coming, absenteeism, poor work performance or other serious infringement, the intention is normally for the employee to stay fired. This is because: No enterprise can run effectively and harmoniously with employees who break the rules, destroy the relationship of trust or perform their work badly; The employer needs to replace the errant employee and will therefore not have a post available for a dismissed employee who is reinstated; The employer wants all employees to know that if they cross the agreed line of what is acceptable they will be out of a job; and The return of a dismissed employee therefore undermines the harmony and effectiveness of the workplace and the authority of management. The employer therefore has a very strong need to know that its dismissal decision will not be interfered with. However, the Labour Relations Act (LRA) dilutes the employer's right to dismiss employees who have transgressed by: Laying down numerous and stringent criteria for deciding whether a dismissal decision should stand or not; and Giving arbitrators and judges the right to overturn dismissal decisions. It is the above provisions that have plagued many employers over the past 11 years and have resulted in many thousands of employees being reinstated. However, a brief glimmer of light in the employers' gloom appeared recently. Some years ago Rustenburg Platinum Mines dismissed a Mr Sidumo for failing in his duty as a mine security officer. Sidumo had failed to follow the required loss-prevention procedures to be utilised for searching employees employed in a high security area. Sidumo disputed the dismissal decision at the CCMA. The arbitrator accepted that Sidumo had been guilty as charged but decided that the dismissal decision was too harsh. The employer attempted to get this award overturned at the Labour Court on the grounds that, where an employee is indeed guilty of a serious offence, the CCMA should not have the right to interfere with the sanction imposed by the employer. Both the Labour Court and Labour Appeal Court dismissed this argument of the employer. Rustenburg Platinum then went on appeal to the Supreme Court of Appeal where it was decided that arbitrators should approach the sanction of the employer with some deference and should only overturn it if it is way out of kilter with what would be fair.

In other words, the court said that, even if the arbitrator believed that a sanction other than dismissal would be more fair, if the employer's decision was still within the bounds of fairness, the arbitrator should not interfere with the employer's decision and the decision to dismiss should stand. This was because it was the employer's function to impose a sanction and because the employer has the prerogative to decide, within reason, how strong its sanctions should be. This decision was hailed by employers because it supported the need for employers to be able to protect their interests from the threat of errant employees. It it represented an important swing in the pendulum towards a balance between the rights of employees to fair labour practice and the right of employers to run their businesses effectively. However, the trade union movement saw the decision as a threat to the tight hold they had achieved over the past 11 years over labour legislation. As a result the matter was taken to the Constitutional Court. In the case of Sidumo v Rustenburg Platinum Mines Ltd and others (October 2007, Skills Portal News Letter) the Constitutional Court overturned the decision of the Supreme Court of Appeal. The Constitutional Court said that arbitrators were not required to defer to employers' decisions and must instead take all relevant circumstances into account in deciding if the employer's sanction decision was fair. This decision marks the unsuccessful end of a seven-year battle waged by employers to regain their right to decide how strong their sanctions for serious offences should be and thence to preserve the employer's prerogative to run their own businesses. The Constitutional Court has decided that the law protecting the jobs of employees must remain paramount. In their disappointment, employers should not lose heart and be deterred from dismissing employees who deserve it. Instead, they must ensure that, before they discipline and dismiss employees, they consult a labour law expert. It is only fair that employees who deserve to be dismissed remain fired. Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or on labourlaw@absamail.co.za