Sidumo Revisited: Who Really Decides Whether Dismissal Is Fair?

A commissioner must decide fairness independently, but that does not mean ignoring the employer’s operational risk. 

Case: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) 

The issue 

Few labour-law judgments have shaped South African dismissal arbitration as much as Sidumo. It is the case every employer, employee representative and commissioner eventually meets when the argument turns to sanction: was dismissal fair, and how far may an arbitrator interfere with the employer’s decision? 

The central lesson is deceptively simple. The employer decides to dismiss. The commissioner decides whether that dismissal was fair. Those are not the same function. Sidumo rejected the idea that a commissioner must approach the employer’s sanction with deference. It also rejected the opposite error: that the commissioner may simply impose whatever sanction he or she personally prefers. 

What happened 

Mr. Sidumo was employed by Rustenburg Platinum Mines in a security function at the Waterval Redressing Section, a high-security precious-metals environment. His duty was to conduct detailed searches of persons leaving the facility. Video surveillance showed serious failures: in 24 monitored instances he conducted only one proper search, failed to search on eight occasions, and performed inadequate searches on others. 

The Mine dismissed him for failing to follow established search procedures. At the CCMA, the commissioner accepted that misconduct had been proved. The commissioner nevertheless found dismissal too harsh and ordered reinstatement with limited compensation and a warning. The Labour Court and Labour Appeal Court refused to interfere, but the Supreme Court of Appeal set the award aside, taking the view that commissioners should show a measure of deference to the employer and that PAJA applied to the review. 

The Constitutional Court’s answer 

The Constitutional Court corrected the course. It held that CCMA arbitration awards are reviewed under section 145 of the Labour Relations Act, not PAJA. It further held that section 145 is suffused by the constitutional standard of reasonableness. The now-famous review question is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach. 

On sanction, the Court held that commissioners must consider dismissal fairness independently and impartially. There is no employer-side preference built into the LRA. The commissioner must consider the totality of the circumstances: the importance of the rule, the reason the employer imposed dismissal, the employee’s challenge, the harm caused, whether corrective measures could work, the effect of dismissal, and the employee’s service record. That list is not closed. 

Why this matters 

Sidumo is often used as an employee-friendly authority. That is only half true. Yes, it protects employees from rubber-stamping of employer decisions. But it also requires a disciplined enquiry into all relevant circumstances. In a proper employer case, operational risk, the nature of the rule, the employee’s role, the consequences of breach and the futility of progressive discipline may all carry decisive weight. 

The mistake is to reduce Sidumo to a slogan. It is not a license for commissioners to be soft. It is not a command to employers that dismissal must be deferred to. It is a structured fairness enquiry. 

Practical takeaways 

For employers: do not simply say the misconduct was serious. Prove why the rule matters, what risk was created, why trust or operational safety was affected, and why lesser sanctions are inappropriate. For employees: do not stop at mitigation. Show why, on the totality of circumstances, dismissal was disproportionate and correction remained possible. 

Closing thought 

Sidumo remains the constitutional compass for dismissal arbitration. The question is not whether the commissioner likes the employer’s decision. The question is whether, after weighing all relevant facts, dismissal was fair. That is a harder, more disciplined enquiry than either side sometimes wants it to be. 

This article is prepared for general labour-law discussion and professional thought leadership. It is not legal advice on any specific dispute.