Article 31/2021

Labour Edge

In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction.  What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?

  1. the importance of the rule that had been breached (seriousness of the misconduct);
  2. the reason the employer imposed the sanction of dismissal;
  3. the explanation presented by the employee for the misconduct;
  4. the harm caused by the employee’s conduct;
  5. whether additional training and instruction may result in the employee not repeating the misconduct;
  6. the service record of the employee;
  7. the breakdown of the trust/employment relationship between the employer and employee;
  8. the existence or not of dishonesty;
  9. the possibility of progressive discipline;
  10. the existence or not of remorse;
  11. the job function of the employee; and
  12. the employer’s disciplinary code and procedure (Sidumo (supra), at paragraph [78]; National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC), at paragraph [82]; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC), at paragraphs [17]–[18]; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC), at paragraph [14]; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC), at paragraph [30]; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC), at paragraph [54]; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC), at paragraph [34]; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC), at paragraphs [37]–[38]; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraph [94]).

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.