This issue was dealt with in the case of National Union of Metalworkers of South Africa o.b.o Members and Others v ArcelorMittal South Africa Limited and Others, delivered on 2 September 2020.

In this matter, the Labour Court had to determine whether the dismissal of two employees were procedurally and substantively unfair in the circumstances where the employer had substituted a chairperson’s sanction to a disciplinary of a final written warning with that of dismissal.

In determining the dispute, the Labour court held that what needed to be considered was: –

  • Whether an employer is entitled to substitute the sanction of a disciplinary chairperson;
  • If so, what is the procedure to be followed.

The Labour Court then proceeded to consider a number of judgments dealing with whether or not an employer may “review” a disciplinary chairperson’s decision on sanction.

The Labour Court in the ArcelorMittal case relied on the case of Branford vs Metrorail Services (Durban) 2004 (3) BLLR (LAC). The Labour Appeal Court held that in the labour context the yardstick is fairness. Therefore, fairness would dictate whether an employer could substitute a decision of the chairperson but then only in exceptional circumstances.

The Labour Court, in the case of Samson v CCMA (2010) 31 ILJ 170 (LC), echoed similar sentiments and held that “an employer is entitled to, when it is fair to do…”.

As in Branford supra, the LAC stated that if the employer were to revisit the sanction imposed by the chairperson and was to impose a different sanction, same must be done only in circumstances where it is not ultra vires the disciplinary code and which are exceptional. There too, the LAC qualified this by stating that the employer would then have to convene a second inquiry, which would be unfair if, in the first inquiry, the merits and facts of the misconduct were manifestly dealt with.

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