An analysis of the substantive fairness in cases of dismissal for misconduct in South Africa - the need for constitutional value of dignity in determining substantive fairness.
Mshengu, Kwazikwenkosi Innocent.
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The development of labour laws in South Africa has registered major strides in regulating the employment relations. These developments have been in tandem with the political and socio-economic development of South African society. Amongst the major progressive developments in the realm of labour law is the notion of substantive fairness in cases of dismissal for misconduct. Prior to the Industrial Conciliation Amendment Act 94 of 1994, the notion of substantive fairness was virtually absent from the labour law jurisprudence. Influenced by the socio-economic developments in South Africa as well as the International Labour Organisation's recommendations, South African courts introduced the notion of substantive fairness in cases of dismissal for misconduct. The application of the novel notion of substantive fairness was first premised on the employer deference approach which was borrowed from s57(3) of the Employment Protection (Consolidation) Act of 1978 (the English Statute). The employer deference approach demanded that presiding officers must accord respect to the interest of the employers in determining substantive fairness in cases of dismissal. This approach was followed by contradictory judgements by South African courts – with some embracing the approach whilst other rejecting it. The South African approach to the notion of substantive fairness was eventually decided by the Constitutional Court in the case of Sidumo and Another v Rustenburg Platinum Mines and Others. The Constitutional Court rejected the employer deference approach and replaced it with the exercise of value judgement by presiding officers which demands balancing the interests of employers and employees in determining the substantive fairness. The court further, without being exhaustive, enumerated factors which must be taken into account in the process of establishing substantive fairness and these included the importance of the rule breached; the reason the employer imposed the sanction; the basis of the employee‟s challenge of dismissal; the harm caused by the employee‟s conduct; whether additional training may avoid repeat of the offence; the effect of dismissal on the employee and his or her record of long service. Notwithstanding the Constitutional Court judgment, the exercise of value judgment remains vulnerable to arbitrary application if it is not anchored on a specified value to be protected. This vulnerability has been apparent in certain cases that followed the Sidumo case such as that of Theewaterskloof Municipality v South African Local Government Bargaining Council (Western Cape Division and Other) and Miyambo v Commission for Conciliation, Mediation and Arbitration. In both cases, the employees were dismissed for what may be argued as inconsequential acts of misconduct. This was palpably against the spirit and purport of the precedent-setting decision in the Sidumo case. This study proposes that the exercise of value judgment should be anchored on the constitutional value of dignity which is intrinsically interwoven with the right to work security. Recognizing the importance of dignity as the right was aptly articulated by Justice O‟Regan in the case of S v Makwanyane5 that: “recognizing the right to dignity is an acknowledgment of the intrinsic work of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in the Bill of Rights.” If the right to dignity is the foundation of many rights, it stands to reason, therefore, that it should also anchor the exercise of value judgment in order to avoid arbitrary application.