Abstract
Ph.D.
This study concerned an investigation into efficacy in the application of the “reasonable
commissioner’s approach”, in terms of the Sidumo doctrine, on sanction for dishonest
conduct. The Constitutional Court decision in Sidumo introduced the “reasonable
commissioner’s approach” which formulated the Sidumo doctrine as a test to determine
the fairness of sanction. The aim of the study was to analyse the exercise of value
judgment by CCMA commissioners in order to identify decisions that do not meet the
reasonableness criterion and develop a model for effective application of the “reasonable
commissioner’s approach”. A detailed literature review was undertaken to evaluate the
international and South African perspectives on determination of sanction. The study
evaluated International Labour Organisation prescripts, norms and standards on sanction,
and also considered European Union directives, decisions of the Court of Justice of the
European Union and the provisions of Southern African Development Community Social
Charter. The South African perspective involved the Labour Appeal Court zero tolerance
approach to dishonesty adopted in the eighties, the Constitutional Court decision in
Sidumo & others v Rustenburg Platinum Mines (CC) (2007), and subsequent court
decisions.
A mixed-method approach was followed by applying both quantitative and qualitative
methods of investigation. A quantitative enquiry was followed up with qualitative
interviews. Data was collected from three CCMA regional offices in the Gauteng Province.
A total of 58 questionnaires were completed and returned by respondents. Information
attained from the quantitative data that needed further clarification was followed up by
interviewing five participants, comprising of CCMA commissioners from junior to senior
levels A and B.
The results of the mixed method were interpreted and synthesized. Both quantitative and
qualitative findings were triangulated to determine the extent to which the methods
corroborated and complemented each other. The findings of the mixed methods were
found to be corroborative and complementary, and confirmed the accuracy of the
quantitative and qualitative methods that were used. The factors involved in the exercise of
value judgment indicated that “the role of mitigating factors on sanction” yielded
contrasting and inconclusive results. This aspect has been recommended for further
research. The study developed a supplementary toolkit model which is intended to...