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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/7617 |
| Date | January 2011 |
| Creators | Labuschagne, Sandra |
| Publisher | North-West University |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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