What is the difference between the reasonable employer test and the reasonable decision-maker test and why is this of importance to, firstly, what happens at the workplace as to action taken by the employer against an employee, secondly, how the matter is to be dealt with at the CCMA or the relevant bargaining council and, thirdly, how the matter is to be dealt with on review?
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- The fundamental elements of the reasonable employer test are as follows:
- when an employer takes action against an employee, such as dismissing an employee, it uses various ‘tools’, including contractual rights and obligations and statutory rights and obligations
- when an arbitrator at the CCMA or the relevant bargaining council arbitrates the dispute, it utilises the reasonable employer test, entailing, in essence, that, if the employer reasonably dismissed the employee, the arbitrator would not intervene – the consequences are that the employer’s view of fairness prevails and this is not an enquiry de novo
- the reasonable employer test was finally rejected by the constitutional court in 2008 in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines the CCMA and Moropa NO (2008) 19 SALLR 35 (CC); 2008 (2) SA 24 (CC)
- The constitutional court in the above judgment preferred the reasonable decision-maker test which entails, inter alia, the following:
- when the CCMA (or relevant bargaining council) arbitrator arbitrates, he/she sits as the reasonable decision maker
- when executing this administrative function, the commissioner exercises his/her powers as set out in the applicable legislation
- it is the commissioner’s sense of fairness that prevails
- the aforesaid exercising of his/her administrative functions entails this being an enquiry de novo
- the result of the above is that the grounds of review are those as set out in s145 read with s158(1)(g) of the LRA, and the test on review is whether or not the arbitrator performed his/her administrative functions as a reasonable decision maker
- The ‘short test’ to determine whether or not an arbitration award is reviewable has been formulated in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC); (2014) 35 ILJ 943 (LAC) as follows:
- a determination whether or not the arbitrator considered the principal issue before him/her
- a determination as to whether or not the arbitrator evaluated the facts presented at the hearing
- a determination as to whether or not the conclusion reached by the arbitrator falls within the range of reasonable conclusions that he/she could have reached
- It is, therefore, submitted that it is apparent that a piecemeal approach to relevant factors, to determine the success or not on review, should be avoided.
- The real questions to be asked, with reference to the said Goldfields Mining judgment, are thus as follows:
- were the parties given the full opportunity to have their say with regard to the dispute?
- did the arbitrator correctly identify the dispute required to be arbitrated?
- did the arbitrator understand the nature of the dispute required to be arbitrated?
- did the arbitrator deal with the substantive merits of the dispute?
- is the decision one that another arbitrator could reasonably have arrived at based on the evidence?
- And what about flaws in reasoning, failure to apply his/her mind, reliance on irrelevant factors and ignoring material factors?
- Well, the ‘short answer’ is that the materiality of the irregularity should be determined with reference to the following questions:
- did it have a distorting effect on the arbitrator’s conception of the enquiry to be undertaken?
- did it have a distorting effect on the delineation of the issues?
- did it have a distorting effect on the ultimate outcome?
