The Labour Relations Act (LRA) gives CCMA commissioners a number of powers including the power, in respect of any dispute the commissioner is attempting to resolve, to:

• Subpoena witnesses and documents
• On authorisation, enter and inspect any premises on which any relevant document or other object is to be found
• On authorisation, remove and inspect any relevant document or other object
• Take from persons on the premises any statement relevant to the matter
• Make a finding that a person is in contempt of the CCMA
• Attempt to assist employers/employer’s organisations and employees/trade unions to arrive a mutually satisfactory settlement to any dispute recognised by the LRA
• Hear evidence at arbitration hearings
• Issue arbitration awards
• Award employees reinstatement or compensation in respect of disputes that the LRA allows the CCMA to arbitrate
• Dismiss applications lodged with the CCMA
• Make default awards against employers who fail to attend arbitration hearings
• Make rulings on matters such as:
• The jurisdiction of the CCMA to hear specific matters
• The right of parties to be represented at conciliation and arbitration hearings
• Applications for variation or rescission (cancellation) of an arbitration award

Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. In deciding whether a dismissal is fair the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This means that, even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate.

CCMA arbitrators are not prohibited from overturning dismissals. Rather, commissioners are prevented from overturning dismissals merely because, in their opinion, another sanction could have been more fair. Instead, if the arbitrator is going to find that dismissal was inappropriate he/she will have to show that there was no objectively rational basis for the sanction of dismissal.

While employers are taking comfort from this legal point they should not interpret it to mean that they can now impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure.

To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Submitted by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011)888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.