South Africa: What Factors Do Arbitrators Consider When Determining Whether A Sanction Is Appropriate?

In an Arbitration relating to misconduct, a Presiding Commissioner must ultimately determine whether the sanction issued at the disciplinary hearing was fair and appropriate.

The Guidelines on Misconduct Proceedings, published by the Commission for Conciliation, Mediation and Arbitration (CCMA), state the following:

"The test is whether the Employer could fairly have imposed the sanction of dismissal in the circumstances, either because the misconduct on its own rendered the continued employment relationship intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct.

The Arbitrator must make a value judgment regarding the fairness of the Employer's decision, considering all relevant circumstances. This must be a balanced and equitable assessment considering the interests of both the Employer and the Employee. In making this assessment, the Arbitrator must give serious consideration to and seek to understand the rationale for the Employer's rules and standards. Other relevant factors include the norms in the sector, the Code of Good Practice, the Guidelines of Misconduct Proceedings, and the Arbitrator's expertise."

Employers are encouraged to read the case of Sidumo and Another v Rustenburg Mines Ltd and Others 2008 (2) SA 24 (CC). The court, in this matter, reasoned that factors relevant to the determination of fairness are:

a) The general vulnerability of Employees to unfair decision-making.

b) The importance of the security of employment.

c) The importance of the rule that was breached.

d) The reasons for establishing the rule, including its reasonableness.

e) The harm caused by Employee's conduct.

f) The impact that it had on the trust relationship.

g) The effect of setting a precedent.

h) The reason why the Employer imposed the sanction of dismissal.

i) The basis of the Employee's challenge to the dismissal.

j) Whether additional training and instructions may result in the Employee not repeating the misconduct.

k) The effect of the dismissal on the Employee.

l) The Employee's long service record.

m) The industrial norms.

It is important to keep these factors in mind at the disciplinary hearing stage already. Employers must ensure that the chairperson conducting a disciplinary hearing understands the applicable factors and applies them objectively.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.