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Was the Labour Court’s Decision to Remit a Misconduct Case to the CCMA Justified?

Sick note fake


In a recent appeal, the Labour Appeal Court was faced with a significant question regarding the appropriateness of a sanction in a case of employee misconduct involving gross dishonesty. This blog explores the judicial scrutiny of the sanction imposed for serious misconduct and the implications of remitting the matter back to the Commission for Conciliation, Mediation and Arbitration (CCMA).


Facts of the Case

The core of the dispute arose from the Labour Court’s decision to review and set aside an arbitration award by a commissioner, which initially found the dismissal of employees for submitting fraudulent sick notes substantively fair. The Labour Court’s intervention focused particularly on the sanction imposed, prompting a re-evaluation of the case by the CCMA with a different commissioner.


Issue at Hand

The pivotal issue in this appeal was whether the Labour Court erred in its decision to remit the matter to the CCMA for a fresh look at the sanction. The Labour Court had determined that the original commissioner adopted a “one size fits all” approach and neglected to consider individual circumstances and mitigating factors, such as lack of prior misconduct or potential remorse.



The original commissioner based his decision on the severity of the misconduct and the employees’ lack of remorse, leading to the conclusion that the dismissal was justified. However, the Labour Court criticized this approach for its failure to incorporate mitigating factors into the sanctioning process, a step considered crucial in ensuring fairness in disciplinary actions.


Labour Appeal Court’s Analysis

The Labour Appeal Court scrutinized the Labour Court’s rationale and found that the original commissioner’s decision was within the “bounds of reasonableness,” primarily due to the seriousness of the misconduct and the clear breach of trust, which are often deemed sufficient to warrant dismissal. The appellate court noted that the zero-tolerance policy towards fraud and dishonesty at the workplace supported the commissioner’s harsher approach to sanction.


Findings and Order

The appeal was upheld, with the Labour Appeal Court ruling that the Labour Court had indeed erred in its decision to remit the matter for re-arbitration. The appellate court restored the original arbitration award, affirming the dismissal’s substantive fairness.


Implications for Employment Law

This case underscores the importance of the trust relationship between employer and employee, especially in contexts where integrity is paramount. It also highlights the judiciary’s role in balancing the need for individualized sanctions with the employer’s policies and the severity of misconduct.



The Labour Appeal Court’s decision reaffirms that while individual circumstances and mitigating factors are essential, they must be weighed against the nature of the misconduct and the expectations of honesty in the workplace. This case serves as a critical reminder of the limits of judicial intervention in arbitral decisions, particularly when it comes to evaluating the reasonableness of imposed sanctions.



  1. What does “substantively fair” mean in employment law? Substantively fair refers to the fairness of the reason for dismissal; it must be justified based on the misconduct or performance of the employee.

  2. What are mitigating factors in employment disciplinary actions? Mitigating factors may include the employee’s past disciplinary record, the nature of the job, personal circumstances, remorse, and any other aspect that might reduce the severity of the sanction.

  3. What is the significance of the ‘trust relationship’ in employment? The trust relationship is fundamental in employment, particularly in roles requiring honesty and integrity. Breach of this trust, especially through acts of dishonesty, can justify dismissal.

  4. Can a dismissal be overturned for being too harsh? Yes, if a sanction, such as dismissal, is found disproportionately harsh considering the employee’s misconduct and mitigating factors, it can be overturned or modified on review.

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