THE POWERS OF CCMA COMMISSIONERS

The Commissioner ’s duty is to facilitate the process of conciliation in the workplace. The aim of CCMA is to reach a fair and just result for both parties and therefore the Commissioner fills an important role in the process.

The Labour Relations Act (LRA) gives CCMA commissioners a number of powers including the power, in respect of any dispute the commissioner is attempting to resolve, to:

• Subpoena witnesses and documents

• On authorisation, enter and inspect any premises on which any relevant document or other object is to be found

• On authorisation, remove and inspect any relevant document or other object

• Take from persons on the premises any statement relevant to the matter

• Make a finding that a person is in contempt of the CCMA

• Attempt to assist employers/ employer’s organisations and employees/trade unions to arrive a mutually satisfactory settlement to any dispute recognised by the LRA

• Hear evidence at arbitration hearings

• Issue arbitration awards

• Award employee’s reinstatement or compensation in respect of disputes that the LRA allows the

CCMA to arbitrate

• Dismiss applications lodged with the CCMA

• Make default awards against employers who fail to attend arbitration hearings

Make rulings on matters such as:

• The jurisdiction of the CCMA to hear specific matters • The right of parties to be represented at conciliation and arbitration hearings

• Applications for variation or rescission (cancellation) of an arbitration award

Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. In deciding whether a dismissal is fair the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This means that,

even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate.

In the light of this power conferred by the LRA for commissioners to decide on the appropriateness of the dismissal sanction employers, trade unions, employees and other interested parties have become confused by the recent finding of the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Limited vs CCMA and Others (SCA case number 598/05 as reported in CLL Vol.16 No. 4 November 2006). In this case a Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the several reasons that the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.

The Supreme Court of Appeal found that:

• Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal;

• CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings;

• CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.

The meaning of this finding was not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision prevents commissioners from overturning dismissals merely because, in their opinion, another sanction could have been fairer.

Instead, if the arbitrator is going to find that dismissal was inappropriate, he/she will have to show that there was no objectively rational basis for the sanction of dismissal.

While employers hailed this decision as a victory the Constitutional Court overturned this judgement largely because it believed that the employer had not sufficiently taken into account the employee’s years of service and the fact that he had ‘not received sufficient training in carrying out the duty of searching those exiting the gate’. This shocking decision shows that arbitrators do have the power to overturn well-reasoned dismissal decisions of employers and that employers have to protect themselves by going many extra miles so as to be able to prove conclusively the fairness of disciplinary action taken against employees.