May an employer alter a decision of a disciplinary tribunal constituted in terms of a disciplinary code, which is a product of a collective agreement?
This was the question before the Labour Appeal Court (LAC) in SARS v CCMA & Others (JA 06/11)  ZALAC 55 (8 December 2015) to which the Court responded in the negative. In doing so the Court emphasised that the employer does not have the power to overturn a decision of its own disciplinary tribunal, as the tribunal is an extension of its hand when it comes to matters of discipline in the workplace.
What this decision reinforces is the supremacy of collective agreements which are a product of negotiations between employers and organised labour. A deviation from an agreement in order to permit managerial prerogative, is definitely not permissable, especially in the wake of this decision. The Court found that the decision on a sanction rested with the chairperson of the disciplinary enquiry, and this in turn, invalidates any opposing decision of management, in which it seeks to interfere with the decision of the chairperson. The Court also emphasised that the enquiry into the fairness of a dismissal should not be taken any further once it has been established that the employer does not have the necessary authority to interfere with the sanction imposed by the tribunal.
There is a mechanism contained in section 158(1)(h) of the Labour Relations Act 55 of 1995 (the LRA), that enables the State, as an employer, to review the decision of its own chairperson but the court labelled this provision as one that is anomalous and the mechanism was not invoked in this case.
The LAC’s approach thus is clear that employers are bound by the disciplinary code and procedures as envisaged in the collective agreements and amendments to the agreements may only be made through collective bargaining.
This article has been written by Thando Mbili, a Senior Associate in the Employment Law Department of Garlicke & Bousfield Inc
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NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of employment law.