In our law, dismissals must be fair.  More precisely, they must be both procedurally and substantively fair.  One of the key elements of substantive fairness is that the sanction imposed must be appropriate, ‘the punishment must fit the crime’, so to speak.

This concept of appropriate sanction, more often than not, relates to claims of substantive fairness on grounds that the sanction is inappropriate due to the choice of dismissal as a sanction being too harsh.  Lesser sanctions, such as warnings and final warnings, can similarly be grounds for substantive unfairness claims.

The point of departure in sanction selection is that dismissal is a sanction of last resort, and dismissal for single acts of misconduct must be so gross as to warrant dismissal, giving due consideration to all prevailing mitigating factors.

From time to time, the Labour Court is charged with the adjudication of reviews in which, normally an employer, contends that dismissal was an appropriate sanction in certain circumstances, notwithstanding the fact that a prior arbitration award has held that dismissal was too harsh a sanction.  In cases of this nature, a Commissioner at arbitration may reverse a dismissal and replace it with a lesser sanction, such as final written warning.

This is precisely what occurred in the Labour Court judgment of Top Security Pty Ltd v CCMA & others (case number JR519/09).

In this case, the employee, a security officer, was dismissed for misconduct related to hooting at a site in the early hours of the morning, thereby purportedly disturbing the peace, and insolence toward a member of the public when also threatening violence towards him.

The version of the applicant was that a resident was awoken at 3.30am by repeated and persistent hooting near his home.  On investigating this, he found that the hooting was from a motor vehicle driven by an employee of a security company.  There was an exchange of words between the employee and the member of the public.  The employee took exception to the manner in which the member of the public was talking to him regarding the noise created by his hooting, after which he informed this person that it was “bloody well unacceptable.”

The member of the public apparently then stated to the employee “then stop behaving like one.”  This was in response to the employee accusing the member of the public of talking to him like a child.

The employee continued that the member of the public asked him what he was doing, called him bloody stupid and a bloody idiot.  When he apologised to the member of the public, this person continued that “you bloody black don’t deserve to be in this neighborhood.”  The employee apologised a second time.   Then the employee told him to stop swearing at him, and stated that if he did not do so, he would “moer you.”

The employee alleged that this member of the public continued that “your mind is black therefore you can’t think.”

The employee was then disciplined by the employer and dismissed.

At the arbitration hearing, the Commissioner held that the sanction of dismissal was too harsh by virtue of the fact that, amongst other things, there had been racial slurs directed toward the employee, and this constituted significant provocation.

In the Labour Court review, the employer sought to have the award set aside on grounds that the Arbitrating Commissioner totally disregarded the evidence led and failed to appreciate that the employee committed a serious offence.

The Court acknowledged that the arbitration award found the employee guilty of bringing the name of the employer into disrepute, and held further that the employee did use the word “moer” which was unwarranted.

The Court continued that “it is now well established in our jurisprudence that the test to apply in review is that of a reasonable decision maker.  In applying the test of reasonable decision maker, the Court seating in review has to determine whether the outcome reached by the Commissioner falls within the range of acceptable and reasonable outcomes.  The review court does not concern itself with the correctness of the outcome but its reasonableness.”

The Court held that the Commissioner’s award was reasonable, and the application to review the decision of the Commissioner was dismissed.

It was further noted by the Court that whilst “the Commissioner may well be wrong in his conclusion, that is not the test.  The test is reasonableness, having regard to the circumstances and the totality of the matter or facts which where before the Commissioner.”   The Commissioner’s decision was deemed reasonable, and therefore did not want interference by the Court.