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ARTICLE 12

Subsequent to the constitutional court judgment in Steenkamp and Others v Edcon,[1] does the CCMA still have jurisdiction to declare an employer’s conduct as unlawful when a finding is made that the employer was not entitled to unilaterally substitute the decision of a presiding officer with a different, harsher sanction on appeal? 

This article deals with the jurisdiction of the CCMA to declare an employer’s conduct as unlawful in the aforesaid circumstances and, furthermore, sets out the approach of the labour appeal court in Moshoeshoe v Neotel (Pty) Ltd.[2]

THE JURISDICTION OF THE CCMA TO DECLARE AN EMPLOYER’S CONDUCT AS UNLAWFUL

In Moshoeshoe v Neotel (Pty) Ltd,[3] the labour appeal court adopted the following approach:

1.       the labour appeal court, in SA Revenue Service v CCMA and Others,[4] held, inter alia, the following: 

(a)      an employer is not entitled to unilaterally substitute the decision of a presiding officer and to impose a different, harsher sanction;

(b)      once an arbitrator of the CCMA or the relevant bargaining council makes a finding that an employer could not substitute a sanction, such arbitrator is not entitled to conduct a factual finding into the merits of the dispute because the conduct of the employer, amounting to an invalid act, rendered such act unlawful; and

2.       the CCMA arbitrator in casu held the viewpoint that the constitutional court’s judgment, in Steenkamp and Others v Edcon,[5] prevented such arbitrator from declaring the substitution of the sanction by the employer as invalid and unlawful.


[1]          (2016) 37 ILJ 564 (CC)

[2]          (2017) 38 ILJ 252 (CCMA)

[3]          (2017) 38 ILJ 252 (CCMA)

[4]          (2016) 37 ILJ 655 (LAC)

[5]          Supra

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