Late last week the Labour Appeal Court brought farmers and farm workers into the fold of the Labour Relations Act, and impressed on farmers to be consistent in the way in which they exert discipline in the workplace and also to engage in corrective discipline where this is appropriate as opposed to dismissals. SERI represented Mr Andries Swartz in the matter. A Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU) member, Mr Swartz was dismissed in 2013 due to misconduct following a disciplinary hearing.
Mr Swartz’s dismissal followed a disciplinary hearing which found Mr Swartz guilty of misconduct and recommended his dismissal. He approached the CCMA which issued an arbitration award in his favour stating that the sanction of dismissal was too harsh and substantively unfair taking into account his clean disciplinary record. The CCMA also found that Mr Swartz's employer, Mr Rossouw, did not apply the same standard of rule to other employees involved in similar situations. Mr Swartz was ordered to report for duty on 5 August 2013 and it was ordered that he should be retrospectively re-instated from the date of the dismissal.
Mr Swartz reported for duty but was denied access to the workplace and told by Mr Rossouw to go back home. CSAAWU tried to negotiate on his behalf, even presenting Mr Rossouw with the award, but without success. Mr Rossouw took the award on review to the Labour Court, where it was dismissed. In March 2014, Mr Rossouw applied for leave to appeal against the judgment in the Labour Court, and was granted leave to appeal to the Labour Appeal Court.
The Labour Appeal Court dismissed the appeal with costs on 2 March 2017.
Effectively, this means that Mr Swartz must be reinstated immediately. In finding for Mr Swartz, the Labour Appeal Court reasoned that the CCMA’s arbitration award was not unreasonable. It found that the employer did not always dismiss employees in similar situations.