The Labour Appeal Court passed judgment in the matter of Afrox Healthcare Ltd v the CCMA & others (Case No. JA37/09) on key dismissal decision considerations.
This case focused on the manner in which CCMA awards are to be reviewed in terms of the constitutional standard of reasonableness to be applied when determining whether, or not, a decision to dismiss is reasonable.
In this case, the applicant, together with another employee, had been charged with negligence relating to the care of a patient who had passed away whilst in their care. The specific charge against the applicant related to him having failed to supervise untrained staff, and failed to act in a reasonable manner when a suspicion of deterioration in the condition of the patient was reported.
The applicant was found guilty and dismissed. The applicant subsequently referred a claim of unfair dismissal to the CCMA.
The Commissioner at the arbitration hearing held that the dismissal of the applicant was unfair due to the fact that the employer had failed to substantiate its case of lack of supervision and unreasonable conduct leading to the death of the patient, for reasons relating primarily to the fact that the employer had not called the applicants colleague to testify at the arbitration hearing. The applicant was reinstated with 12 months compensation.
The employer sought to review the finding of the Commissioner at the arbitration that the dismissal of the employee was unfair on grounds that there was no rational connection between evidence placed before the Commissioner, and his conclusion.
The Labour Court was now required to review the Commissioners award.
The Court conceded that the employer had relied mainly on documentary evidence during the arbitration proceedings, and confirmed that it was the task of the Labour Court to “consider the award in accordance with the reasonable decision maker standard propounded by the Constitutional Court.”
The Labour Court held that the Commissioner clearly did not take proper account of the material placed before him and that he failed to conduct a proper appraisal of some critical portions of the evidence presented.
The Court concluded that the Commissioner indeed omitted to consider evidence placed at his disposal, showing that the applicant had been remiss in his supervisor responsibilities.
The Court noted that an award may be set aside if it is one that a reasonable decision maker could not reach; the reasonable decision maker yardstick crafted by the Constitutional Court is “none other than that in the absence of a rational objective basis between the decision arrived at and the material placed before the decision maker”, the relevant decision is clearly not one which a reasonable decision maker would have arrived at.
The award of the commissioner was reviewed and set aside, and the dismissal of the applicant confirmed as having being fair.
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