Since the Constitutional Court’s judgment in Sidumo and Another v Rustenburg Platinum Mines Ltd in2007, an arbitrator has the discretion to decide whether a dismissal is fair. There is no longer deference to the employer’s decision to dismiss. This means that the chairperson of an enquiry may no longer deal with the issue of sanction on a cursory basis.
Historically, the trust relationship was viewed as a contractual term. The employer terminated the employment relationship on the basis that the employee breached the term of its employment contract that is, for example, unauthorised possession of the employer’s things led to the breach of the relationship of trust.
Later, in Anglo American Farms t/a Boschendal Restaurant v Komjwayo the test was “… whether or not the respondent’s actions had the effect of rendering the continuation of the relationship of employment intolerable.”
This subjective test is no longer sufficient for the purposes of proving the fairness of the dismissal. Today, a decision to dismiss must be properly motivated. So, after the chairperson has found an employee guilty, evidence in mitigation and aggravation must be heard. Thereafter, a recommendation should be made with an explanation of the rationale used if the employer’s is to dismiss the employee.
How does a chairperson go about doing this because merely referring to the breakdown of the trust relationship, in an enquiry, is no longer sufficient?
In Edcon Ltd v PillemerNO the Supreme Court of Appeal held that it is not enough for an employer to state that the employment relationship has broken down.A chairperson who has found an employee guilty of the charges alleged should now consider the following:
- The importance of the rule breached;
- The harm caused by the conduct;
- Whether additional training may stop a repeat of the conduct; and
- The effect of dismissal on the employee.
Further, in the recent Labour Court decision of Timothy Gordon v Nampak Corrugated Container it was held that an employee should mitigate for a lenient sanction by showing remorse, accepting responsibility for the offending conduct and showing a willingness to be rehabilitated.
It is our suggestion that should an employee not approach the chairperson in the above regard then the chairperson should seek out the requisite information to satisfy an arbitrator that the recommendation to dismiss is fair under the circumstances.
As long as a chairperson uses the last two mentioned cases as a yardstick for the recommendation, an employer should have a better chance of justifying the dismissal before an arbitrator.