What Factors Do Arbitrators Consider When Determining Whether A Sanction Is Appropriate?

In an Arbitration relating to misconduct, a Presiding Commissioner must ultimately determine whether the sanction issued at the disciplinary hearing was fair and appropriate.

The Guidelines on Misconduct Proceedings, published by the Commission for Conciliation, Mediation and Arbitration (CCMA), state the following:

"The test is whether the Employer could fairly have imposed the sanction of dismissal in the circumstances, either because the misconduct on its own rendered the continued employment relationship intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct.

The Arbitrator must make a value judgment regarding the fairness of the Employer's decision, considering all relevant circumstances. This must be a balanced and equitable assessment considering the interests of both the Employer and the Employee. In making this assessment, the Arbitrator must give serious consideration to and seek to