CCMA COMMISSIONERS POWERS
In light of a legitimate concern for determining workplace issues CCMA officials have been given a wide assortment of powers including the ability to:
- Subpoena of witnesses with documents
- On authorisation, enter and investigate any premises on which any significant record or other article is to be found
- On authorisation, inspect and assess any applicable document or other object
- Take from persons on the premises any declaration significant to the matter
- Make a finding that a person is in contempt of the CCMA
- Attempt to settle labour disputes amicably
- Hear proof at intervention hearings
- Issue arbitration awards
- Award employee’s reinstatement or reparation in respect of disputes that the LRA allows the CCMA to arbitrate
- Dismiss submissions lodged with the CCMA
- Make default recompenses against employers who neglect to go to arbitration hearings
- Make decisions on matters, for example,
- The purview of the CCMA to hear particular matters
- The right of parties to be represented at conciliation and arbitration hearings
- Applications for variation or rescission (cancellation) of an arbitration award
In particular, amongst the most imperative and most frequently used powers that CCMA commissioners have are to choose whether a rejection is reasonable or not. In choosing whether a rejection is reasonable the commissioners has the ability to choose whether a dismissal for misconduct was the fitting sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This implies, even where the business demonstrates indisputably that the worker was blameworthy of the unfortunate behavior, the commissioner still has the ability to choose whether the dismissal was a fitting punishment or whether some other remedial activity was suitable.
Despite this power conferred by the LRA on commissioners to decide on the appropriateness of the dismissal sanction the Supreme Court of Appeal placed a limit on these powers. In the case of Rustenburg Platinum Mines Limited vs CCMA and Others (SCA case number 598/05 as reported in CLL Vol.16 No. 4 November 2006) Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the several reasons that the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.
The Supreme Court of Appeal found that:
- Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal;
- CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings;
- CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.
The meaning of this finding is not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision discourages commissioners from overturning dismissals without strong reasons.
While employers were hailing this decision as a victory the Constitutional Court overturned the Supreme Court’s decision. As a result employers need to understand that, while they are allowed to dismiss employees, they cannot impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure. This must include a solid rationale as to why the mitigating circumstances failed to prevent dismissal.
While managers were hailing this choice as a triumph the Constitutional Court upset the Supreme Court's choice. Therefore bosses need to comprehend that, while they are permitted to reject representatives, they can't force the release endorse however they see fit. There still must be a sound motivation to legitimize the rejection choice and also an appropriate disciplinary methodology. This must incorporate a strong basis in the matter of why the relieving circumstances neglected to counteract release.