CCT85/06

[2007] ZACC 22

2008 (2) SA 24 (CC)

2008 (2) BCLR 158 (CC)

(2007) 28 ILJ 2405 (CC)

Navsa AJ Majority judgment

O'Regan J separate judgment

Ngcobo J separate judgment

Sachs J separate judgment

5 October 2007

http://hdl.handle.net/20.500.12144/2759

Application to the Constitutional Court against a judgment ot the SCA: Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA); [2006] 11 BLLR 1021 (SCA); (2006) 27 ILJ 2076 (SCA). The case was previously heard in the Labour Appeal Court: Rustenburg Platinum Mines Ltd v CCMA & Others [2004] 1 BLLR 34 (LAC).

The case involved the dismissal of the applicant by the first respondent for failing to apply established search procedures. A key finding of the Supreme Court of Appeal was that in deciding unfair dismissal disputes commissioners of the CCMA should approach the employer's sanction in relation to misconduct with a measure of deference because it is the employer's function in the first place to impose a sanction. All four judgments in this Court agree that the Supreme Court of Appeal decision must be overturned. The commissioner is not given the power to consider afresh what he or she would do but to decide whether what the employer did was fair. In reaching a decision the commissioner must have regard to all relevant circumstances. The judgments differ, however, in respect of certain aspects of how the functioning of the commissioner is to be characterised. The majority held that compulsory arbitration in the CCMA constitutes administrative action, reviewable not in terms of PAJA but against a standard of reasonableness. Majority: Navsa AJ (Moseneke DCJ, Madala J, O'Regan J and Van der Westhuizen J concurring). Separate Concurrences: Ngcobo J (Mokgoro J, Nkabinde J and Skweyiya J concurring); O'Regan; Sachs J.