Work In Solutions

Case No. JR 1456/06

Judgement Date: 05 December 2008

Jurisdiction: Labour Court, Johannesburg

Judge: Ngalwana J

Subject: Unfair Dismissal :Procedural fairness of dismissal: Jurisdiction

Issue: Application to review and set aside decision of commissioner in arbitration. Commissioner had held dismissal of employee to be substantially and procedurally unfair.

Facts: Employee’s employment was terminated for operational reasons after ten years of service.  Employee referred dismissal to CCMA claiming that it was procedurally unfair, as he had not been consulted with regarding alternative employment to avoid retrenchment.  The commissioner held the dismissal to be procedurally as well as substantially unfair.  The Employer contended in the Labour Court that the Commissioner lacked jurisdiction to arbitrate the matter based on the judgement in Rand Water v Bracks NO and Others where it was held that only the Labour Court had jurisdiction in respect of procedural fairness in dismissals based on operational requirements.

Judgement: The court held that the Rand Water Judgement was clearly wrong in law. This Judgement was based on a statutory interpretation driven by a desire to spare CCMA Commissioners the headache or challenge of dealing with complexities arising from procedural issues. However, there was nothing in LRA which suggested that the determination of procedural fairness in s 189 dismissals was more complex than substantive fairness issues. The court held that an employee who was dismissed for operational reasons was free to refer the dispute whether founded on procedural or substantive fairness either to CCMA or Labour Court. It is for the legislature, and not the courts to decide where individual employees dismissed on operational requirements should refer disputes. The LRA gives employees a choice. The LRA has as it’s purpose to ensure that employment related disputes should be conciliated and arbitrated by CCMA with minimum legal formalities. Such disputes must be resolved expeditiously, equitably and with minimum fuss Consequently the court held that the Commissioner had jurisdiction to arbitrate the dispute. The court held that, in this case, the Employer had not consulted with the employee regarding alternative positions.  The employee had not waived her right to an alternative position because she had never been made aware that there was one. The employee might have accepted alternative position if it had been presented to her. Therefore the retrenchment was procedurally unfair. The application was dismissed with costs.