The Constitutional Court has reaffirmed that a decision reached by a commissioner in the CCMA can be set aside if it is one that a reasonable decision-maker could not reach. Applying this test gives effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.

Where an employee had made disparaging, hurtful and intentionally hateful remarks about another employee which were evidence of undisguised racism and demonstrated the worst kind of contempt, racism and insubordination, the court held that dismissal was the only proper finding and overruled an order for reinstatement of the employee. Any other award would tolerate the intolerable and perpetuate the enormous problems racism has caused and continues to cause in South Africa.

The decision by the CCMA to reinstate the employee was dismissed.

(The case is South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others)