Abstract

In South African Revenue Services v Commission for Conciliation, Mediation & Arbitration, Kruger, the employee, called his superior a “kaffir” on more than one occasion. The employer unilaterally dismissed the employee after the chairperson of the disciplinary hearing had imposed a lesser sanction. In doing so, the employer disregarded the collective agreement which did not make provision for the sanction of the disciplinary chair to be substituted. The employee claimed that his dismissal was invalid and therefore unfair. The Commission for Conciliation Mediation and Arbitration (“CCMA”), Labour Court and Labour Appeal Court (“LAC”) agreed. However, in the Constitutional Court (“CC”) the employer no longer argued that it was entitled to substitute the sanction in the light of the breach in the trust relationship, but only alleged that reinstatement was a remedy that no reasonable decision-maker would order. The CC agreed and held that the dismissal was substantively fair but procedurally unfair. The CC did not answer questions of lawfulness, fairness and invalidity, but in Steenkamp v Edcon the CC held that employees claiming remedies for unfair dismissal in terms of the Labour Relations Act 66 of 1995 (“LRA”) should not rely on invalidity. However, employees still have the right to common-law remedies based on their employment contract. Considering the importance of collective agreements, negotiated disciplinary codes, certainty and consistency, and to avoid employers exercising unfettered power over employees, state organs should apply for a review of an unsatisfactory sanction by the disciplinary chairperson in terms of section 158(1)(h) of the LRA. Private employers could negotiate a disciplinary code which allows both the employer and employee to appeal against the decision of the disciplinary chair which should make provision that a more severe sanction can be imposed on appeal.