CCMA+overruled+by+Judge+Edwin+Cameron,+IOL

Independent On Line, September 27 2006 at 05:45AM
='CCMA exceeded its power with reinstatement'=


 * Estelle Ellis**

In a strongly-worded judgment the Supreme Court of Appeal on Tuesday reined in the Commission for Conciliation, Mediation and Arbitration (CCMA), saying that a decision to dismiss is in the first place that of an employer.

Judge Edwin Cameron, on behalf of a full bench of the Supreme Court of Appeal, gave this judgment in an appeal brought by Rustenburg Platinum Mines Ltd against the CCMA.

The judges overturned a ruling by the Labour Appeal Court, which had refused to intervene in a decision by the CCMA to reinstate a patrolman, Zingisile Sidumo, who had been dismissed by the mine.

He took his case to the CCMA, where one of the commissioners decided that he should be reinstated with three months' compensation and a written warning that would be valid for six months.

Both the Labour Court and the Labour Appeal Court refused to interfere with this decision.

The case ended up in the Supreme Court of Appeal, which gave its ruling on Tuesday.

Sidumo was dismissed because he continuously failed to search people properly at one of the mine's plants at a time when the facility was suffering extensive losses.

The Supreme Court of Appeal said in its judgment that the labour courts must not forget that they must oversee the dismissal decisions of the CCMA. The judges added that the Labour Appeal Court seemed to have forgotten that the discretion to dismiss an employee lay with the employer and not with the CCMA.

"The CCMA enjoys no discretion in relation to sanction, but bears the duty of determining whether the employer's sanction is fair."

The court said the Labour Appeal Court should remind commissioners firmly of the limits of their power to intervene.

The judges said the CCMA must exercise a measure of deference to the employer.

The court warned the CCMA that decisions which could be described as "severe but fair" should not summarily be found to be unfair.

"Though the sanction of dismissal is undoubtedly severe, especially in its effects on the employee, it is in my view impossible to say that it is not a fair sanction.

"It certainly seems to me to fall within the range of sanctions that the employer was fairly permitted to impose. The employee should therefore have been refused the relief he sought," Judge Cameron said, confirming that the mine was right in dismissing Sidumo.


 * From: http://www.iol.co.za/index.php?set_id=1&click_id=594&art_id=vn20060927024052335C756474**

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