What a pity Halton Cheadle’s sound advice was not followed in 1995 when the new Labour Relations Act was drafted, ironically by Halton himself. Twenty six years ago, in May 1989, Halton delivered a paper entitled “The case for contracting out” and provided a summary of his talk. In there he advocated the adoption of a new unfair labour practice definition and stated that it ought to include:
“No dismissal without a valid and fair reason. ‘Valid’ means that the reason is true and proved. In other words, the employer has to prove the truth of the reason. ‘Fair’ means that the reason is sufficient to justify dismissal. In other words, the employee’s misconduct (theft, fraud etc) or accumulated misconduct (after a sufficient number of warnings) makes the continuation of the employment relationship no longer possible. These are the words used by the ILO in its convention and recommendations on dismissal and in broad terms the tenor of past industrial court judgments”.
Invalid reason for dismissal makes fairness irrelevant refers to a judgment in the Labour Appeal Court where the distinction became very obvious – there was no truth in the reason and nor was it proved by the employer. So fairness was not in issue and nor was there any suggestion of a discretion having to be exercised concerning the fairness of the dismissal.
SCA confirms reason to terminate employment must be valid & fair, posted in October 2009, also confirmed the clear distinction between validity and fairness.
It is submitted that the distinction is very important for another reason relating to reviews by the Labour Court. It is now clear that there are two broad categories of review – those relating to jurisdictional issues and those relating to the outcome. Jurisdictional reviews require correctness. If management has to prove a ‘valid’ reason then in essence it is a jurisdictional issue and it has to be correct. It should fall into the same category as proof of employment and dismissal, except that the onus shifts to the employer to prove a valid reason related to conduct or capacity.
This point was made in Two review standards: correct and reasonable and reference was made to the Labour Appeal Court’s unreported judgment in Jonsson Uniform Solutions (Pty) Ltd v Brown (DA10/2012)  ZALCJHB 32;  JOL 32513 (13 February 2014) per Musi JA.