To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?
The labour court recently, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), relied on the following approach adopted in Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC), at 2057G–I, to emphasise the requirement of an independent decision by such commissioner:
‘…The commissioner is required to come to an independent decision as to whether the employer’s decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner…’
It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest. Does this equate to a lockout notice?