Fairness of Dismissal as a Sanction for Misconduct in South African Labour Law

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 arbitration was an administrative action but that Promotion of Administrative Justice Act No.3 of 2000 is not applicable to CCMA arbitration awards. The fairness of dismissing an appellant from employment must be tested against the review standard laid down by the constitutional court in Sidumo.