A case study in determining fairness of dismissal as a sanction for misconduct in South Africa

Abstract

In determining whether a dismissal based on misconduct is fair, all the facts surrounding the
misconduct must be considered. The Commission for Conciliation, Mediation and Arbitration (CCMA)
commissioner had to determine whether or not a misconduct dismissal was fair. CCMA unfair
dismissals arbitration proceedings constituted hearings DE NOVO which meant that the CCMA
commissioner had to make his finding, as to the fairness of the dismissal, not on the basis only of
evidence led at the internal disciplinary hearing, but on the basis of all evidence led at the CCMA
arbitration proceedings, including evidence led that had not been led at the internal disciplinary
hearing. The Constitutional Court had to decide whether a commissioner at CCMA arbitration was
performing an administrative function. The Court concluded that the commissioner’s arbitration was an
administrative action but that Promotion of Administrative Justice Act No. 3 of 2000 is not applicable to
CCMA arbitration awards.