Johannesburg — THE Constitutional Court has ruled that when the Commission for Conciliation, Mediation and Arbitration (CCMA) decides on cases about dismissal, it does not have to defer to the decision of the employer to sack workers.

The court on Friday overturned a Supreme Court of Appeal judgment which confirmed a mine employee's dismissal. This restored the CCMA commissioner's award overturning the dismissal.

The ruling clarifies the point that the CCMA, not the employer , decides whether a dismissal is fair or not.

Labour welcomed the decision, and said the previous ruling by the Supreme Court of Appeal would have left workers vulnerable to unfair dismissals.

The case involved the dismissal, more than seven years ago, of Zandise Sidumo by Rustenburg Platinum Mines.

Sidumo was employed to patrol the mine's high security facility and was dismissed for failing to apply established search procedures.

Sidumo contested his dismissal at the CCMA, where a commissioner found Sidumo was guilty of misconduct, but that no dishonesty was involved.

The commissioner took into account Sidumo's clean service record of 15 years and reinstated him with three months' compensation, subject to a written warning valid for three months.

Rustenburg Platinum Mines failed in its appeals to the Labour Court and the Labour Appeal Court. It then appealed to the Supreme Court of Appeal, which held that the dismissal was fair.

The appeal court said that in deciding on unfair dismissal disputes, commissioners should approach the employer's sanction in relation to misconduct with a measure of deference. This was because it was the employer's function in the first place to impose the sanction.

Acting Judge Mahomed Navsa said there was nothing in the statutory scheme suggesting that in determining the fairness of a dismissal, a commissioner must approach the matter from the perspective of the employer. "A plain reading of all the relevant provisions compels the conclusion that the commissioner is to determine the dismissal dispute as an impartial adjudicator," Navsa said.

The CCMA correctly submitted that the decision to dismiss belonged to the employer, but the determination of its fairness did not, he said.

"In approaching the dismissal dispute impartially, a commissioner will take into account the importance of the rule that had been breached.

"The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal."

In a separate judgment, Judge Sandile Ngcobo said commissioners were required to act fairly in the determination of unfair dismissal disputes. He said if a commissioner failed to do so, he or she would have committed a gross irregularity in the conduct of the arbitration and the ensuing award would be open to review.

Ngcobo said the ultimate test that the commissioner must apply to dismissal disputes was one of fairness.

"It is manifest from the very conception of fairness that the commissioner must hold the balance evenly between the worker and employer. And fairness to both workers and their employers means the absence of bias in favour of either," Ngcobo said.

He said in the case of Sidumo, the commissioner had to balance employment justice and the need to protect the worker from harsh and arbitrary action, with the need for the efficient operation of the employer's business and the employer's entitlement to satisfactory conduct and work performance .

Ngcobo said the commissioner could not be said to have been unfair to the employer.