Court+returns+us+to+apartheid+workplace,+Rudi+Dicks,+B+Report

Business Report, Johannesburg, April 11, 2007
=Court ruling returns us to apartheid workplace=


 * By Rudi Dicks**

History has taught us that courts do not always favour workers. The history of the constitutional court is no exception. It now faces its fourth labour case since its inception and will be forced to make a decision on a judgment handed down by the supreme court of appeal (SCA) in relation to the powers of the labour court and the Commission for Conciliation, Mediation and Arbitration (CCMA).

Cosatu has lodged an application to the constitutional court for leave to appeal against the judgment of the SCA in the case between Rustenburg Platinum Mines and the CCMA. Cosatu believes this judgement sets a dangerous precedent that could severely weaken the country's labour laws.

While Cosatu has lodged the application, there are many sections of the labour law fraternity who share Cosatu's concerns.

Cosatu's application concerns the SCA's key findings on the powers of the labour court in reviewing CCMA arbitration awards in unfair dismissal cases and CCMA commissioners' approach to sanctions for misconduct in conducting arbitrations in cases of alleged unfair dismissal in terms of the Labour Relations Act (LRA).

A further significant impact of the ruling by the court is on the application of that Promotion of Administration Justice Act; in particular its application to the review of arbitration awards.

The limited grounds for review in the LRA will be broadened. This means that an award can be set aside if the reasoning is poor, even if the decision made by an arbitrator is correct. Cosatu believes that the SCA has significantly altered the law governing these matters.

In essence, the judgment makes a complete mockery of the CCMA's attempts to deal with workplace disputes, particularly the dismissal of employees.

In brief, the case centres on the dismissal of security guard Zandise Sidumo by Rustenburg Platinum in 2000. He referred his dismissal to the CCMA.

After conciliation, the matter was referred to arbitration, where the arbitrator found Sidumo guilty of misconduct but ruled that dismissal was not an appropriate sanction. He ordered the company to reinstate Sidumo on a written warning and to back pay him for three months.

The company applied to the labour court to set aside this award. The court agreed with the arbitrator's ruling. The mine then appealed to the labour appeal court, which held that the commissioner's reliance on Sidumo's clean disciplinary record and long service could sustain the finding that the sanction of dismissal was too harsh. The labour appeal court dismissed the firm's appeal with costs. The company was granted special leave to appeal to the SCA against the labour appeal court's decision.

The SCA accepted the firm's argument that in assessing the fairness of a dismissal, CCMA commissioners should apply the "reasonable employer" test, exercise caution when determining whether the sanction imposed by an employer is fair, and display a measure of deference to the employer's sanction.

The SCA decision questions the powers of CCMA commissioners and, ultimately, the role of the CCMA in dealing with workplace disputes. It states that the main responsibility for workplace remedies lies with the employer and thus arbitrators "must exercise caution before interfering" with the decision of an employer to dismiss a worker, irrespective of the workplace circumstance.

Clearly this decision has far-reaching consequences for workers and unions, with little recognition of promoting the purpose of the Labour Relations Act: social justice, economic development, labour peace and the promotion of the democratisation of the workplace.

First, the ruling fails to understand the challenges most South Africa workers continue to face in their workplace, 12 years into democracy. The vast majority still face low pay and poor working conditions. Workers in certain sectors of our economy face dire circumstances with very little enforcement of rights and obligations, continuous victimisation and racism.

Workers continuously face dismissals. When they are retrenched, the prospect of successfully challenging a retrenchment remains a futile exercise. The workplace is not a level playing field and never will be; power relations in the workplace will always be in favour of the employer.

While the prerogative to manage and discipline may remain with the employer, unions and workers must have a right to challenge those decisions. The CCMA was established to allow workers to question an employer's unfair decision and thus a commissioner must have the power to reverse a decision of the employer in terms of the LRA in 1995.

Yet the labour court, the labour appeal court and now the SCA continue to undermine the role of the CCMA. Despite the many challenges the CCMA faces, it has evolved into an effective dispute resolution institution, with many of its international counterparts benchmarking against the performance of the CCMA. In the past few years we have seen significant improvements in services to users, improvements in management and commissioner training and performance at the CCMA.

One of the major problems it faces are the conflicting judgments by the labour court and the labour appeal court. These judgments create a dilemma for CCMA commissioners because jurisprudence plays an important role in guiding their rulings. In addition, the test for reviewing arbitration decisions has been steadily growing.

The limited test of a defective arbitration award, such as misconduct of an arbitrator, gross irregularity, a commissioner exceeding his or her power and an award that was improperly obtained, are being replaced by a broad and flexible power by the courts to inquire into an award. This is enforced by the application of the Promotion of Administration Justice Act, thus opening up arbitration awards to all sorts of grounds for review and in essence relegating the labour court to an appeal court of arbitration awards.

For Cosatu this is problematic, as it undermines the role of the CCMA, which is underpinned by the Labour Relations Act.

The decision of the SCA also plays into the hands of some in government and business who want to eliminate specialised courts through the Superior Courts Bill.

The SCA decision certainly proves the need to retain the labour court and labour appeal court as specialised courts.

Cosatu has continuously called for the retention of these courts, while seeing the need to improve their role and the relationship between the CCMA, labour court and labour appeal court.

For millions of workers and trade unions, the SCA decision should be worrying and must be challenged. It reflects a lack of understanding of the workplace and the ever changing industrial relations environment.

For many of us in the trade union movement, this ruling would take us back to the apartheid workplace.


 * Rudi Dicks is Cosatu's labour market policy co-ordinator


 * From: http://www.busrep.co.za/index.php?fSectionId=553&fArticleId=3773718**

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