14 December 2023
In an arbitration concerning misconduct, the Presiding Commissioner is tasked with deciding whether the disciplinary hearing’s-imposed sanction was fair and fitting.
Guidelines
The guidelines outlined in the Commission for Conciliation, Mediation, and Arbitration (CCMA) regarding misconduct proceedings articulate the following:
“The key question is whether the employer could reasonably have justified the decision to terminate employment based on the severity of the misconduct, either because the misconduct itself made the ongoing employment relationship untenable or due to the combined impact of the misconduct when considered alongside other instances of wrongdoing.
The Arbitrator is tasked with making a fair and impartial evaluation of the Employer's decision, considering all pertinent factors. This assessment should be equitable, considering the interests of both the Employer and the Employee. In this process, the Arbitrator must carefully consider and comprehend the reasoning behind the Employer's rules and standards. Additional factors to be weighed include industry norms, the Code of Good Practice, the Guidelines of Misconduct Proceedings, and the Arbitrator's expertise.”
Case Study
In the following landmark case of Sidumo and Another v Rustenburg Mines Ltd and Others (2008) (2) SA 24 (CC), the prime factors that the arbitrators looked at were explained. In this case, the court judiciously deliberated on the pertinent factors for determining fairness in employment matters.
Employers are strongly advised to familiarise themselves with this case. The court's rationale encompassed a comprehensive examination of various elements, emphasising the intricate considerations involved in assessing fairness within the employment relationship, which are the following:
- The general vulnerability of Employees to unfair decision-making.
- The importance of the security of employment.
- The importance of the rule that was breached.
- The reasons for establishing the rule, including its reasonableness.
- The harm caused by Employee’s conduct.
- The impact that it had on the trust relationship.
- The effect of setting a precedent.
- The reason why the Employer imposed the sanction of dismissal.
- The basis of the Employee’s challenge to the dismissal.
- Whether additional training and instructions may result in the Employee not repeating the misconduct.
- The effect of the dismissal on the Employee.
- The Employee’s long service record.
- The industrial norms.
Factors to consider
It is essential to bear these considerations during the disciplinary hearing phase itself. Employers should take proactive measures to guarantee that the chairperson overseeing a disciplinary hearing comprehensively grasps the relevant factors and endeavours to apply them objectively. By instilling an understanding of these factors at the disciplinary hearing stage, employers contribute to a fair and equitable disciplinary process, fostering an environment where decisions are made judiciously and following the principles delineated in the aforementioned case.
Speak to one of our legal professionals for more information regarding arbitration and determining the appropriate sanctions.
