Prior to the Constitutional Court's decision in the Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) lACC 22 the Commission for Conciliation Mediation and Arbitration applied the "reasonable employer"–test to determine whether a specific sanction, issued by an employer, was fair. The "reasonable employer"–test provided a lot of flexibility to employers to dismiss employees for misconduct, as employers' decisions to dismiss were "protected" from scrutiny by the CCMA. The Constitutional Court replaced the "reasonable employer"–test, which required a measure of deference to the decision of the employer, with that of the "reasonable decision maker"–test, which required an answer to the question whether the decision reached by the commissioner was one that a reasonable decision maker could not reach? This meant that in the event that the decision reached by the commissioner was one that a reasonable decision maker could not reach, that the decision of the commissioner will be overturned on review. The change in test from a "reasonable employer" to that of a "reasonable decision maker" had significant implications for employers who are instituting disciplinary action against their employees and subsequently imposing the sanction of dismissal, as commissioners are no longer allowed to "defer" to the decision imposed by employers. The Sidumo test also have implications for employers who are seeking to take decisions of the CCMA on review, as londo JP held in Fidelity Cash Management Service v CCMA 2008 29 ILJ 964 (LAC) that it will not be often that an arbitration award is found to be one that a reasonable decision maker could not have made. / Thesis (LL.M. (Labour Law))--North-West University, Potchefstroom Campus, 2011.

Prior to the Constitutional Court's decision in the Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) lACC 22 the Commission for Conciliation Mediation and Arbitration applied the "reasonable employer"–test to determine whether a specific sanction, issued by an employer, was fair. The "reasonable employer"–test provided a lot of flexibility to employers to dismiss employees for misconduct, as employers' decisions to dismiss were "protected" from scrutiny by the CCMA. The Constitutional Court replaced the "reasonable employer"–test, which required a measure of deference to the decision of the employer, with that of the "reasonable decision maker"–test, which required an answer to the question whether the decision reached by the commissioner was one that a reasonable decision maker could not reach? This meant that in the event that the decision reached by the commissioner was one that a reasonable decision maker could not reach, that the decision of the commissioner will be overturned on review. The change in test from a "reasonable employer" to that of a "reasonable decision maker" had significant implications for employers who are instituting disciplinary action against their employees and subsequently imposing the sanction of dismissal, as commissioners are no longer allowed to "defer" to the decision imposed by employers. The Sidumo test also have implications for employers who are seeking to take decisions of the CCMA on review, as londo JP held in Fidelity Cash Management Service v CCMA 2008 29 ILJ 964 (LAC) that it will not be often that an arbitration award is found to be one that a reasonable decision maker could not have made. / Thesis (LL.M. (Labour Law))--North-West University, Potchefstroom Campus, 2011.

Magister Legum - LLM / In this mini-thesis, I will present a historical development of the manner in which South African courts have tested the fairness of dismissals, for misconduct. South African Labour history has been marred by confusion and inconsistency in relation to the test to be adopted in determining the fairness of dismissals. This has been so, because there have been two dominant schools of thought, one referred to as the ‘own opinion’ approach, whereby the commissioner/court has the discretion to express his/her own view based upon value judgments on the fairness of the dismissal. The other approach is known as the reasonable employer test ( ‘ defer to the employer’ approach), whereby the commissioner had to defer to the decision of the employer, unless the dismissal is one that no reasonable employer would impose, or is so excessive that it would shock one’s sense of fairness, then the commissioner may interfere.This thesis will reveal the inconsistency that has been caused, by these two approaches, and the South African courts dissent as to the approach consistent with our law. This dissent, as shall be shown in this thesis, has led to our courts contradicting themselves as to the test consistent with the law.There will be a critical discussion on the source of the reasonable employer test and its application in South Africa during the Labour Relations Act 28 of 1956 ( old LRA ) and the Labour Relations Act 66 of 1995 ( new LRA). With a further discourse on the development of the ‘own opinion’ approach during the periods of both the old LRA and the new LRA.This will lead to me looking at the provisions of the South African Constitution, together with the meaning of the right to fair labour practice as provided in the Constitution. Based upon a critical analysis of past jurisprudence, the provisions of the ILO Convention, the provisions of the old LRA and new LRA, foreign law and the Constitutional imperatives, I will attempt to illustrate the approach most consistent with our law.This thesis will culminate with a critical analysis of the Supreme Court of Appeal’s judgment, in the case of Rustenburg Platinum Mines Ltd vs Commission for Conciliation, Mediation and Arbitration and the ruling of the Constitutional court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.The purpose of providing this historical journey, is to further highlight the rulings of past judgments, that have developed the concept of fairness, as was consistent with the Constitution. It is envisaged that the body of judgments cited in this thesis, may be used as authority, whenever the issue of determining the fairness of dismissal for misconduct arises, before a court or tribunal, such as the Commission for Conciliation Mediation and Arbitration(CCMA). It is may further be used by employers and employees, in obtaining clarity of the law in relation to the test for fairness of dismissals for misconduct.