The requirement that an employer

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1 Contemporary Labour Law Vol. 18 No. 4 November 2008 Consistency in discipline and dismissal A review of recent decisions by PAK Le Roux Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Hon.Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: The requirement that an employer must act consistently when taking disciplinary steps is a requirement that accords with most concepts of fairness. Why should one employee be dismissed if another employee was not dismissed for the same or similar act? Inconsistency of treatment can take various forms. The most common manifestation of inconsistency takes the form of the inconsistent application of disciplinary sanctions. Other forms of inconsistency occur when an employer decides to institute disciplinary action against one employee but not against another employee, or where differing disciplinary charges are brought against different employees whose alleged actions were similar in nature. In practice, the imposition of an appropriate sanction remains one of the most difficult challenges facing the chairperson of a disciplinary enquiry. Most decisions and awards adopt the approach that if an employee alleges inconsistent treatment and provides an example of alleged inconsistent treatment, it is for the employer to justify the differential treatment and to show that the employees concerned were differently situated. But when are employees similarly situated? In deciding this question the employer is supposed to take into account factors such as the seriousness of the offence, the employees length of service and their disciplinary records. This clearly involves a value judgment being made. After Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) it is the value judgment of the arbitrating commissioner which is important. A brief overview of recent decisions and awards dealing with consistency is provided below. In the decision in Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others [2008] 3 BLLR 241 Inside... Striking for shares - The right to strike over matters of mutual interest p34 Defining a commissioner's sense of fairness. Must he agree with the employer? p39 Page 31

2 (LC) the employee argued that he had been unfairly dismissed for dishonesty because another employee involved in the incident had only been given a final warning. The employer countered by arguing that the other employee s misconduct had been of a less serious nature. The Court accepted this argument and found that the other employee had been guilty of a less serious offence and that this justified the distinction drawn. The Court also regarded the gravity of the employee's misconduct as an important factor in deciding on the issue of consistency. [42]Turning to the issue of the seriousness of the offence, the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and the clean record of discipline are likely to have a minimum impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established, in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by employees damages the trust relationship which underpins the essence of the employment relationship. A similar approach was adopted in Solidarity obo Pienaar v JD Group Ltd t/a Joshua Doore (QuaQua Branch) [2008] 3 BALR 297 (CCMA). In this case a manager was dismissed for failing to comply with company procedures. An element of this offence was that he ordered a subordinate to do certain things. The arbitrator found that the employer had not acted unfairly by imposing a lesser offence on the subordinate, based on the fact that the employee was the senior person who ordered that the offence be committed. In Van der Walt v Van Staden [2007] 10 BALR 971 (CCMA) it was decided that the principle of inconsistency cannot apply where the employer did not know of the conduct of the person who was alleged to have also committed a similar disciplinary offence. The arbitrator took the same approach in Hammond and Another v CTI [2008] 7 BALR 659 (CCMA). In NUMSA obo Mangwana v Trident Steel [2008] 7 BALR 624 (MEIBC) the employee was dismissed for driving a forklift in contravention of a specific instruction not to do so. He alleged that, in the past, other drivers had driven the forklift and that the employer had acted inconsistently in not disciplining them. This argument was rejected on the basis that these incidents had occurred prior to the issuing of the specific instruction not to drive the truck and that since the issuing of that instruction no other drivers had driven the forklift in contravention of the instruction. In contrast to the above is the award in Hope v Petrologic[2007] 10 BALR 897 (MEIBC) Here, dismissal was held to be unfair on the basis that the employee had shown inconsistent conduct and the employer had not justified why other employees who had committed the same offence had not been dismissed. In SACU obo Abrahamse v Telkom [2008] 5 BALR 465 (CCMA) the dismissal of a manager for having an affair with another employee was held to be unfair because the other party was not disciplined. Some of the above decisions, with reference to the decision of the Labour Appeal Court in SACCAWU & Others v Irvin & Johnson Ltd [1999] 8 BLLR 741 (LAC), take a fairly relaxed few towards the issue of inconsistency. This is based on the following excerpt from the decision - [29] In my view too great an emphasis is quite frequently sought to be placed on to the 'principle' of disciplinary consistency, also called the parity principle (as to which see eg Grogan, Workplace Law (4ed) at 145 and Le Roux & Van Niekerk, The South African Law of Unfair Dismissal at 110). There is really no separate principle involved. Consistency is simply an element of disciplinary fairness ( The Dismissal of Strikers MSM Brassey (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & others (1991) 12 ILJ 806 (LAC) at 813H I). Discipline must not be capricious. It is really the perception of bias inherent in selective discipline Page 32

3 "Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case." SACCAWU & Others v Irvin & Johnson Ltd which makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy (as was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & others (1992) 13 ILJ 593 (LAC) at 599H 601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) at 1264). Even then I dare to say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. In NUMSA obo Rewu v Borbet SA [2008] 3 BALR 237 (MEIBC) the arbitrator accepted that if there is sufficient evidence to differentiate between employees guilty of the same conduct the parity principle does not apply. He also went further and stated that "Be that as it may, the concept of inconsistency is often incorrectly interpreted and applied. The old Industrial Court tended to hold a dismissal unfair if the employer had meted out a sanction short of dismissal and in a subsequent similar incident dismissed another employee. This rule has been developed in later years and to a great degree watered down. The current position is that, if an employee is guilty of misconduct sufficiently serious to warrant a dismissal, reliance cannot be placed on the fact that another employee on a previous occasion got off scot- free. (At 248 G-H). On the other hand in Greater Letaba Local Municipality v Mnakgabe NO and Others (2008) 29 ILJ 1167 (LC) the Labour Court emphasised the importance of the need for the employer to act consistently and preferred a liberal view of consistency to the conservative view in the following terms -. [39] What approach must be adopted on review in dealing with the wrong decision of a chair of a disciplinary enquiry? In 1999 the LAC decided that if such a decision was honestly, but incorrectly made, it should not be interfered with on review since, so the court reasoned, it cannot be said to be unfair. However, if such an incorrect decision was not an honest decision, but rather a decision induced by improper motives such as capriciousness, discriminatory policies, Page 33

4 nepotism and so on, then in such a situation interference would be warranted. This conservative approach was adopted in the case of SA Commercial Catering & Allied Workers Union & others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC). In 2000 the Labour Appeal Court expressed some reservations and somewhat watered down the above conservative approach grounded on the defensive notion that a wrong decision by the chair of the disciplinary enquiry can be nullified on review, if and only if, it was found to have been induced by improper motives. The crux of the decision boiled down to the view that it was not so much a question of improper motives, but rather substantive fairness which was a decisive consideration. A wrong decision whereby a comparatively lenient disciplinary sanction was imposed on one employee, completely unpolluted by any suggestion of improper motives, remains inherently unfair to other employees on whom comparatively harsh disciplinary sanctions were invariably imposed in connection with similar misconduct in the past. [41] This liberal approach was adopted in Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC) at 1961B-C. It reinforces the paramount importance of the principle of consistency by stressing that fairness requires that the business of imposing disciplinary sanction on delinquent employees must be consistently carried out. In aligning himself with the liberal approach Tip AJ reasoned in SRV Mill Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2004) 25 ILJ 135 (LAC) at para 26 that -... it is not part of the law on consistency that bias or ulterior purpose must be established before a disciplinary outcome can be said to be inconsistent to the point that it impacts on the requirement of fairness. One of the reasons underlying the need for consistency is that the perception of bias should be avoided. [42] I am in respectful agreement. The liberal approach is to be preferred to the conservative approach. A wrong decision of the disciplinary enquiry should not be allowed to stand on the grounds of the disciplinary chairperson s innocent motives. The noble principle of consistent discipline, as informed by substantive fairness is the hallmark of any civilized system of workplace discipline. It should not be lightly sacrificed on the alter of motives. Striking for shares The right to strike over matters of mutual intetrest by P.A.K. Le Roux Can employees of a company embark on protected strike action in support of a demand that they be given the right to acquire shares in their employer company? This is the question that the Labour Court had to decide in Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport and Allied Workers Union of South Africa (JR 44/20076 and JR 352/07). This case, decided in the context of a BEE transaction, deals with some interesting labour law issues as well as the relationship between labour law and the principles of company law. The facts The employer in this case, Itumele Bus Lines (Itumele), operated a bus service in the Bloemfontein, Botshabelo and Thaba Nchu regions. To do so it was required to obtain a permit from the relevant authorities of the Free State Province. At some stage, - the precise Page 34

5 date is unclear from the judgment - negotiations commenced between the Free State Provincial Department of Transport (Free State Government) and Itumele for the right to operate a service for a period of five years. One of the conditions set by the Free State was that certain BEE requirements be met. It required that taxi groups, small bus operators and employees be granted shares in Itumele. This led to a major financial exercise in terms of which it acquired shares from its majority shareholder. In the process of this exercise Itumele was required to comply with another requirement set by the financial institutions providing the finance for the transaction management of the Company should acquire 62 per cent of its shares. This led to a structure being created in terms of which a variety of interest groups acquired shares through various entities. This included 10 per cent of the shares being allocated to a trust through which employees could obtain shares in Itumele. In 2006 an agreement was concluded with the Free State Government in terms of which Itumele was granted the right to operate bus services for five years. A steering committee was then established to draft and agree to the trust deed. Representatives of the two unions recognized by Itumele, the Transport and Allied Workers Union (TAWU) and the South African Transport and Allied Workers Union (SATAWU) formed part of the steering committee. The initial proposal envisaged that the share trust would acquire 10 per cent of Itumele s shares. On the advice of consultants it was decided to negotiate a collective agreement with TAWU and SATAWU on this issue. A draft collective agreement was formulated. During the course of this process a demand was made that the share trust s allocation of shares should be increased to 20 per cent. This demand would clearly have affected what appears to have been a delicate balance that had been struck between the requirements set by the Free State Government and those of the financial institutions. Itumele could not, or would not, concede this demand. It seems that attempts were made to resolve the issue by giving the share trust a right of first refusal should certain other shares become available in the future. A meeting was also convened with Free State Government officials at which it was explained to the union representatives how the 10 per cent shareholding of the trust had been arrived at. It appears that Itumele then gained the impression that the issue had been resolved and that the trust could now be set up. Itumele s employees all received training on how the share trust would operate and 411 of the 450 qualifying employees purchased shares. A date was set for the signing of the collective agreement regulating the formation of the trust. This did not take place, seemingly because shop stewards of the two unions were unhappy with the 10 per cent allocation. This was because other companies in other provinces had allocated 20 per cent of their shares to share trusts for employees. Further interactions on the issue took place. Itumele took the position that, although it was not adverse to the share trust acquiring further shares, it was not in a position to make this possible. The allocation of shares was based on the requirements set by the Free State Government and was the basis on which Itumele had acquired the right to operate the bus services. In particular, the requirement that other interests such as taxi owners and the owners of smaller bus companies be accommodated was important. It pointed out that, although the 10 per cent allocated was smaller than that granted in respect of other companies it was still more advantageous to the Itumele employees because fewer employees would benefit from the trust allocation. The other shareholders had already taken up their shares and they were strongly opposed the dilution of their shareholding. A special resolution had been passed in terms of which all the company s Contemporary Labour Law is published monthly from August to July of each year. Visit our website at for further information and subscription details. Subscription Enquiries : Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. Page 35

6 profits (presumably for the financial year ending February 2007) had been paid to shareholders. SATAWU eventually signed the collective agreement but TAWU then referred a dispute to the relevant bargaining council demanding a 20 per cent allocation. Itumele challenged the Bargaining Council s jurisdiction to deal with this dispute. This point was rejected by the conciliator who ruled that the demand for a 20 per cent shareholding constituted a dispute relating to a matter of mutual interest. Itumele then approached the Labour Court for a declaratory order to the effect that the demand for an equity shareholding of 20 per cent did not constitute a lawful demand as contemplated in Chapter IV of the Labour Relations Act 66 of 1995 (LRA). It also sought a declarator to the effect that the demand for an equity shareholding does not constitute a matter of mutual interest as contemplated in the definition of a strike. It also sought orders to the effect that any strike on the issue would be unprotected and that the South African Road Passenger Bargaining Council did not have jurisdiction to entertain the dispute referred to it. A separate application was made to review the decision of the conciliator accepting jurisdiction to consider the dispute. The two applications were heard together. Definition of a strike The dispute centered round the question whether the demand made by TAWU fell within the definition of a strike set out in s 213 of the LRA. This definition reads as follows Strike means the partial or complete concerted refusal to work; or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory. In order to constitute a strike as defined, the refusal to work referred to in the definition must be - for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest between employer and employee The Court accepted that the dispute was one between employer and employee. The question was whether it was one in respect of a matter of mutual interest. After a long analysis of the arguments raised by the employer s legal representative and an analysis of the various decisions, the Court came to the conclusion that the demand did in fact relate to a matter of mutual interest. Its views are set out in the following excerpt [69] I have earlier referred to what O Regan J said in the National Union of Metalworkers of SA v Bader Bop (Pty) Ltd & another matter (supra) in relation to the right to strike and the limitation thereof. She confirmed that strike action is part and parcel of collective bargaining. Strike action is also, as O Regan J said, key to a fair industrial relations environment. This case also concerns the right to strike. What is sought to be determined is the subject matter in respect of which employees may or may not strike. In this case it involves their right to strike in support of a demand from their employer for a shareholding in the employer. The right to strike, inter alia, allows workers to protect or ensure their dignity. It provides workers with the mechanisms to seek and secure fair working circumstances and new rights, not previously enjoyed. In an ever changing and evolving employment environment, flexibility in and around collective bargaining issues can be expected and required. It will have to be anticipated and where necessary and appropriate, facilitated. As O Regan J said, with reference to the wage-work bargain, principles governing that bargain which may become obsolete or inappropriate as social and economic conditions change. [71] I believe it is irrelevant for the determination of the question whether Page 36

7 employees can go on strike in support of a demand for an equity shareholding in their employer whether the employer offered those shares first, or whether the employees first demanded an equity shareholding in their employer. This proposition is particularly true, I believe, having regard to the changes in social and economic conditions that have taken place in our country. [72] The participation by senior executives in share incentive schemes introduced by their employers have been common place. I can think of no conceivable reason why it is not a perfectly legitimate demand for employees, other than senior executives, to now also participate in an equity shareholding in their employer. If they have made such demand, and it is not met, then if need be, they must be entitled to strike in support of such demand. [73] Having considered the matter, I am therefore satisfied that if and when employees make a demand for an equity shareholding in their employer, it involves a matter of mutual interest between employer and employee. I am also satisfied that if that demand is not met, employees may go on strike in support of such demand for the purpose of remedying such grievance or resolving such dispute as may have arisen from their demand. Such interpretation does in my view not limit any fundamental rights of the parties and is to be preferred. In coming to this conclusion the Court was clearly influenced by the fact that Itumele itself was prepared to negotiate on this issue and to enter into a collective agreement on the issue. Indeed, the draft collective agreement that Itumele was prepared to enter into contained clear indications that the Company regarded the issuing of the shares was one of mutual interest. Also of importance was the injunction to interpret the LRA in such a way as to give effect to the constitutional right to strike From a labour law perspective, and subject to what is said below, the approach adopted by the Court seems arguable. However, one aspect of the reasoning adopted by the Court does require more comment. At one point the Court states that [45] I believe that in determining whether a matter is one of mutual interest between employer and employee, one will consider whether a demand may possibly create new rights and obligations between employer and employee. Will these rights be in the interests of both parties and for the common good of the enterprise. See also paragraph [51]. When read in context it appears that the Court argued that only demands relating to new terms and conditions of employment can be a matter of mutual interest. It is submitted that this cannot be correct. Disputes concerning existing rights and their enforcement can be a matter of mutual interest. Whether they may be the subject of a protected strike (ie in short hand terms a dispute of interest ) is another matter. It is when this dispute is viewed from the perspective of the interaction between labour law and company law that this decision raises questions. The labour law perspective and the idea of mutual interest (or benefit) between employer and employee is reflected in the following excerpt [53] I have earlier referred to the fact that the question to be asked is whether that which is in issue may be good for the trade. In Rand Tyre and Accessories v Industrial Council for The Motor Industry (Transvaal) (supra) it was said that (w)hatever can be fairly and reasonably regarded as calculated to promote the well-being of the trade concerned, must be of mutual interest to them. Imagine the following scenario. Employees are allowed to make a demand to acquire shares in their employer company through a properly structured share participation scheme and they become shareholders in their employer. In the first year, after the employees had now become shareholders, productivity of the company s employees is very high and it has a very successful year. That results in the share price of the company increasing and the company Page 37

8 paying out a very good dividend to all its shareholders. The following year, the company is crippled by a long strike by its employees in support of a demand for higher wages. As a result, there is a significant drop in production. As a consequence, the company s results are very poor and its board decides not to pay out any dividends whatsoever. The share price drops as well. This all has the result of showing in a very tangible manner to the employees the correlation between high productivity on their part and the financial success and wellbeing of the corporation. This in turn leads thereto that in the following years, the company s productivity continues to increase year on year. Its results are consequently continuously very good. As a result, payment of good dividends to its shareholders are made year after year whilst the employees deliver good productivity and the share price rises consistently. All the company s shareholders are very happy with the results of the company and the shares are very sought after. In my view there can be little doubt that to allow employees at all levels to participate in a share incentive scheme has every potential to promote the wellbeing of the trade concerned. Such participation in the ownership of the employer must, in my view, therefore be of mutual interest to the employer and its employees. It has the additional benefit of spreading the company s wealth created by shareholding in the employer to the previously disadvantages employees. But this decision also potentially impacts on the rights of shareholders as well as the duties of directors. It must be accepted that many disputes between a company and its employees will impact on the interests, if not the rights, of its shareholders. An ordinary wage dispute could impact on the profitability of the company and the wealth (in the form of dividends or the growth of the company) that may accrue to shareholders. But this case potentially goes further. It raises important company law issues. These cannot be dealt with in detail here but the following summararises the issues. On one interpretation, this case is about a demand that Itumele, through its directors, should allocate certain shares at its disposal in such a way as to increase the shares that would accrue to employees via the share trust. On the assumption that the Company had the ability or power to do this, it is possible to argue that this was a matter of mutual interest between employer and employee. But the problem here is that the directors of the Company, in issuing the shares, must in terms of company law principles, take into account the interests of the Company and its shareholders. In this case the Company and its directors seemed to have accepted that that the granting of 20 per cent (as opposed to 10 per cent) would be in the interests of Company and it shareholders. However, this will not necessarily always be the case. What if there are no shares at the disposal of a company to allocate? This would for example, be the case where all the shares in the company have been allocated. (There are indications in the judgment that this was indeed the case here. All the available shares had been allocated to managers and other BEE parties.) In this case there appear to be three options open to a union. It could demand that other shareholders sell shares to employees or a trust. This would be a demand against the shareholders and not the company. In effect a commercial matter. This cannot fall within the concept of a matter of mutual interest between employer and employee. The other possibility would be for the union to demand that a company issue further shares if all the issued shares have not been allocated. However, the decision to allocate shares lies with shareholders unless this power has been delegated to directors. This delegation is provided by the shareholders. If all the shares have been issued, the union would have to demand that the company increase its share capital. This decision would again require shareholder approval. Can a demand for shares or additional shares in these circumstances be regarded as lawful, especially if the demand would require the company or its directors to act contrary to the company s articles of association? Page 38

9 Could a demand that is essentially aimed at shareholders and one with which the company cannot comply be one relating to a mutual interest between employer an employee? These are issues that were not dealt with by the Court and would have to be determined in future litigation, whether in the context of BEE transactions or otherwise. PAK Le Roux Defining a commissioner s sense of fairness Must he agree with an employer? by Wayne Hutchinson In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) the Court dealt with a number of issues, including the powers of commissioners when determining the fairness of a dismissal in cases of proven misconduct. Section 185 of the Labour Relations Act, 66 of 1995 (LRA) stipulates that every employee has the right not to be unfairly dismissed. Commissioners are obliged to take into account the Code of Good Practice: Dismissal as contained in Schedule 8 to the LRA in considering whether the reason for dismissal is a fair reason. A commissioner should not approach the matter with a bias in favour of the employer, but must act as an impartial adjudicator. The scales between the parties must be evenly balanced. Nevertheless, the commissioner should respect the fact that the employer is likely to have greater knowledge of the demands of the business. Commissioners personal preference In Sidumo it was reasoned that commissioners should not approach the matter of sanction on the basis of what decision they would have made had they been the employer. A commissioner must not substitute his personal opinion for the employer s because the fairness of a dismissal must be considered against the facts and circumstances of the case an objective approach. (para 68) Although the decision to dismiss belongs to the employer, the determination of its fairness does not: In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances. (para 79) The same sentiments are echoed in the minority judgment. The commissioner does not start with a blank page and determine afresh what the appropriate sanction is. The task imposed upon the commissioner is not to ask what the appropriate sanction is, but whether the employer s decision to dismiss is fair: But it could not have been the intention of the law-maker to leave the determination of fairness to the unconstrained value judgment of the commissioner. Were that to have been the case, the outcome of a dispute could be determined by the background and perspective of the commissioner. The result may well be that a commissioner with an employer background could give a decision that is biased in favour of the employer, while a commissioner with a worker background would give a decision that is biased in favour of a worker. Yet fairness requires that regard must be had to the interests both of the workers and those of the employer. And this is crucial in achieving a balanced and equitable assessment of the fairness of the sanction. (para 180) The different roles played by chairpersons and commissioners A chairperson commencing a disciplinary enquiry would start with a blank page. An internal appeal chaired by Page 39

10 a higher level of management would focus on the correctness of the chairperson s sanction, assuming that the misconduct has been proven. Sidumo informs us that the role of the commissioner is different from that of the chairperson of the disciplinary enquiry or the chairperson of the appeal. If subjectively, the commissioner would have arrived at the same decision as the chairperson, he would in all probability find that the dismissal was for a fair reason. Difficulties are encountered where the commissioner s personal view of the sanction imposed does not necessarily coincide with that of the employer s. The commissioner may be either unsure as to whether he would have imposed the same sanction, or entertains certain reservations as to the correctness of the employer s decision. Accordingly, the question arises as to how far must the divide be between the commissioner s sense of fairness and the employer s before the former decides to interfere with the latter s decision. The following extract from the case of BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) accurately sums up the situation: The word `fair introduces a comparator, that is the reason which must be fair to both parties affected by the decision Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandatedtest. (para 9) It emerges from the above discussion that a commissioner is entitled to uphold a dismissal notwithstanding that he would not have imposed the same sanction had he been the chairperson of the disciplinary enquiry. A correctness standard is based on the subjective opinion that a commissioner would have exercised if he had substituted himself for the employer. This would amount to his own personal opinion as to what sanction the employer ought to have imposed. Commissioners to exercise restraint It is apparent that the correctness test is not identical to the fairness test. The first is subjective and the second objective. A commissioner should not automatically interfere with the sanction imposed by the employer if he would have been inclined to impose a different sanction. A commissioner should take into account some of the following factors before deciding to declare a dismissal to be unfair: It stands to reason that the employer is likely to have a better knowledge of the demands of the business than anyone else; Consideration may be given as to how other employers would respond to the misconduct in question. It is well known that in the retail industry, the sanction of dismissal is routinely imposed in the case of cash shortages and the unauthorized consumption of food;. To ensure certainty and consistency, interference with the sanction imposed should be approached with caution if a sizeable number of other commissioners especially senior commissioners regularly find dismissals fair for the same or similar transgressions. If the personal views of the commissioner do not coincide with those of the employer, the commissioner should not resort to the simple expedient of declaring that the employer has not discharged the onus of proving that the dismissal was for a fair reason. The commissioner must provide a properly reasoned explanation for his finding that the dismissal was unfair. In this regard, the Explanatory Memorandum (1995) explains that one of the purposes behind the LRA is to ensure consistency by laying down guidelines as contained in the Code of Good Practice to regulate unfair dismissals. It is essential for employers to operate in an environment of relative certainty in respect of outcomes; The risk as to the ultimate success or failure of the business resides in the employer. Conclusion A commissioner must be ever mindful that his own subjective opinion as to what the employer should have done must not cloud the objectivity of the inquiry that must be undertaken. Wayne Hutchinson Page 40