READ THE CASE STUDY AND ANSWER THE QUESTIONS THAT FOLLOW A CASE STUDY IN DETERMINING FAIRNESS OF DISMISSAL AS A SANCTION FOR MISCONDUCT IN SOUTH AFRICA Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC): the following pertinent facts appear in this case. The applicant, Mr Sidumo, was employed by the respondent employer, Rustenburg Platinum Mines Ltd in December 1985 as part of the latters security services. In January 2000, Mr Sidumo was transferred to the Waterval Redressing Section, where he was responsible for access control, whereby he controlled the metals which were valuable and constituted the core business of Rustenburg Platinum Mines. Sidumos main duty was to safeguard the precious metals of the mine through detailed compulsory search procedures for all persons leaving the section. His duties entailed an individual search of each person in a private cubicle involving a close personal inspection plus a metal detector scan. As a consequence of a decline in its production, the employer over three days in April 2000, resorted to video surveillance at various points which revealed that of 24 specifically monitored instances, Sidumo had conducted only one search in accordance with the established procedures. On eight occasions Sidumo had conducted no search at all and on 15 other searches, he allowed persons to sign the search register without conducting any search at all. The employer charged Sidumo with the following misconduct: Negligence by not following established procedures in terms of the Protection Services Department search procedure. This caused prejudice or possible prejudice to the Company in terms of production loss. Failure to follow established procedures in terms of the Protection Services Department search procedures. Sidumo had been found guilty of negligence, not following laid down procedures, and dishonesty by the employer and dismissed on 26 June 2000. Mitigating factors were considered and the applicants internal appeal was unsuccessful he then referred an unfair dismissal dispute to the CCMA. The CCMA per Maropa C found that the applicant employee had correctly been found guilty of misconduct, but that the dismissal was not an appropriate and fair sanction and therefore reinstated the applicant employee with three months compensation and subject to a written warning valid for three months. The respondent employer tried to set the CCMA arbitration aside by appealing to the Labour Court but the court could not find any reviewable irregularity and dismissed the review application. Then the respondent employer appealed against the Labour Court judgment to the Labour Appeal Court. This court questioned the CCMA commissioners reasons for reinstating the employee but agreed with the commissioners finding that the dismissal was too harsh a sanction (Van Zyl et al., 2008). The respondent employer then appealed to the Supreme Court of Appeal against the Labour Appeal Courts judgment and that court upheld the appeal and overturned the decision of both the Labour Court and the Labour Appeal Court and substituted the CCMA commissioner with a determination 4 that the dismissal of the applicant employee was a fair dismissal. The applicant employee then applied to the Constitutional Court for leave of appeal against the Supreme Court of Appeals judgment. In determining whether a dismissal based on misconduct is fair, all the facts surrounding the misconduct must be considered (Grossett, 2002). The CCMA commissioner has to determine whether or not a misconduct dismissal was fair. Section 138 of the 1995 LRA stated that the commissioner had to do this fairly and quickly. Firstly, the commissioner has to determine whether or not misconduct on which the employers decision to dismiss has been based had been committed. There must be an inquiry into whether there had been a workplace rule in existence and whether the employees had breached the rule. A conventional process of factual adjudication in which the commissioner made a determination on the issue of misconduct, had to be evident.

QUESTIONS 1: 25 MARKS Sidumo had been found guilty of negligence, not following laid down procedures, and dishonesty by the employer and dismissed on 26 June 2000. Provide a detailed analysis of whether this dismissal was substantively and procedurally fair according to the Labour Relations Act (Section 186).

QUESTIONS 2: 25 MARKS The provided case study indicated that the CCMA found that the employee had correctly been found guilty of misconduct, but that the dismissal was not an appropriate and fair sanction and therefore reinstated the applicant. Suggest alternative disciplinary actions that could be applied in Sidumos case to motivate the employee to comply with the organisations rules and performance standards.

QUESTIONS 3: 25 MARKS Discipline does not always result in dismissal. As previously indicated, it should be the last resort. Critically examine the South African legislations that are important for all HR practitioners and line managers to comply with and implement to ensure fairness when dealing with dismissals. Further, examine some of the repercussions for organisations not complying with these legal requirements. QUESTIONS 4: 15 MARKS Critically discuss the regulations and requirements of the registration of trade unions as contained in Section 95 of the LRA by the Registrar of Labour Relations in the Department of Employment and Labour. Further, highlight the obligations and tasks that need to be performed by Trade Unions once it has been issued a registration certificate.