It seems clear to me that an arbitrator or judge in determining if a disciplinary sanction if fair is making a value or normative judgment. I believe that this is what is meant when the constitutional court in Sidumo said a commissioner in undertaking this function must exercise his or her own sense of fairness. However these words, ‘ his own sense of fairness’ have been fundamentally misunderstood by judges and arbitrators alike. The prevalent interpretation of how a decision maker should go about making this value judgment endorses a subjectivist or parochial approach to the exercise of value judgments. I submit that this is an incorrect interpretation of how this value judgment should be exercised
Firstly let me explain what I mean by the parochial approach. The statement “in deciding the fairness of a disciplinary sanction, the employer must exercise his own sense of fairness’ can be interpreted in at least two ways. Firstly it could mean that the evaluation of the fairness of the sanction must take place relative to that particular decision maker’s personal values. For example, on this approach a commissioner evaluating a employer’s decision to dismiss for stealing a pie would look for a fit with his or her personal values. If the commissioner believes that dismissal for petty theft is unfair, on this view, the commissioner must find that the employer’s sanction is unfair. Secondly, exercising one’s own sense of fairness could mean that it is the commissioner that must exercise this value judgment but that it must be objectively exercised in that a sanction must be evaluated in relation to values which are generally accepted by our society as a whole whether or not the individual commissioner subscribes to those values or not. Using the above example, an employer’s decision to dismiss for theft could only be judged to be unfair if such an action would be inconsistent with the public values of the society on whose behalf he exercises his judgment . On the parochial approach, the yardstick is personal mores whereas on an objective approach the yardstick is bona mores or pubic values.
I believe that there are strong arguments against the parochial approach.
Firstly the nature of the office of an arbitrator or commissioner. The commissioner or arbitrator is a public function. The South African public has through the Nedlac process which resulted in the Labour Relations Act, given CCMA arbitrators the power to resolve disputes on their behalf. It cannot be the case that “we” have asked these arbitrators to impose their own personal values on “us”.
Secondly, one of the functions of the law is to give guidance to the public in general as to what is permissible or what is not. The law can only serve this function if the outcome of any particular dispute is predictable. That is to say the law can only serve this purpose if we can predict with reasonable certainty what legal consequences attach to a certain action. If it is permissible for arbitrators to impose their own values in determining the fairness of a disciplinary sanction, the outcome becomes largely unpredictable and the law ceases to be able to achieve one of its chief functions. Lastly, moral theorists often associate correct moral decision making with objectivity. It is true that unlike making a factual or empirical judgment such as “the employee arrived late for work”, a value judgment like “it is fair to give the employee who arrived late to work a written warning”, cannot said to be true or false. However many philosophers (such as John Rawls and Ronald Dworkin) argue that value judgments are objectively justifiable and some judgments can be accepted or rejected on an objective basis. For example Rawls this objective justification consists in its “reflective equilibrium” or lack thereof with our fundamental moral convictions. For Dworkin, justification consists in an integration with the principals of dignity. On objective approach to evaluating the fairness of a disciplinary sanction encourages moral justification and leads to greater scrutiny and better decision making.
When the Constitutional Court says a commissioner must exercise his or her own sense of fairness, it does not mean that the commissioner must impose his or her own values but rather that it is the commissioners function to make this judgment, as opposed to any of the parties to the dispute but must do so in accordance with publicly acceptable values. We have these values. They are contained in the constitution. The arbitrator in evaluating the fairness of an employer’s decision to dismiss or sanction an employee, the arbitrator must look for a fit with values generally accepted by the South African public. One way to achieve this would be to ask, would a reasonable member of the South African public, imbued with these public values, upon a consideration of all of the relevant circumstances consider this sanction to be fair? If yes, then the sanction should adjudged to be fair irrespective of whether the arbitrator in his personal capacity would not have decided likewise. This would result in more consistent and better decision making.
