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A dismissal may be determined to be fair if it relates to the employee’s conduct, incapacity, or the employer’s operational requirements. What happens should our courier driver lose his driver’s license because of reckless and negligent driving? Does one retrench this employee, or is this a case of incapacity? The Commissioner was tasked to determine the real legal basis for the dismissal and whether it was substantively and procedurally unfair. ARMSCOR contended at the arbitration that, Joubert was dismissed fairly for the purposes of the LRA, and his dismissal was a dismissal for incapacity. ARMSCOR referred the Commissioner to case law when it argued that incapacity can arise from any condition that prevents an employee from performing his work (my emphasis) and that an employer may legitimately dismiss an employee incapable of performing his obligations arising from the employment contract. Effectively, the reason for the dismissal related to one of incapacity. Had ARMSCOR followed the retrenchment route, it would have had to pay him for those years of service as a result. The Commissioner refused to accept that the employee had been dismissed as a result of a 'legal incapacity' to perform his duties. Rather, the Commissioner found the that dismissal was based on FNB's operational requirements. Essentially the Court found the reason for the dismissal related to the employees’ incapability rather than the employer’s need to restructure its business. A Commissioner will ask at arbitration, is the employee’s incapacity the real reason for the dismissal? A significant retrenchment package would have been necessary to terminate his services had the real reason for the dismissal been due to a restructure at FNB. There are, however, circumstances where an employer may, as an external party, have an interest in these internal conflicts, especially where this hampers bargaining between the employer and employees or if this results in its employees being effectively unrepresented. Both factions claimed to be elected in terms of SAMWU’s Constitution and both continued to elect new national office bearers to represent each faction. This divide resulted in the City of Johannesburg, as an employer of employees represented by SAMWU, seeking a declaratory order to determine which faction is duly authorised to deal with the employer on a day to day basis. It held that any purported meeting or resolution passed by the disbanded members will be of no force and effect as the disbanded members were themselves not appointed in terms of the Constitution, thus all subsequent actions and resolutions passed by them would be and void and of no effect. It is the trade union itself who should initiate legal proceedings to resolve any internal disputes. Employers, despite having an interest in the effective running of the trade union, should tread carefully not to enter litigation where it, as a third party, does not have locus standi. After receiving an anonymous tip-off the City discovered that the employee had failed to declare his involvement with three entities. Another was owned by his brother and had traded with the City for an amount totalling some R285 000 over a period exceeding two years. As the City had clear rules in regard to the duty on employees to disclose their outside business interests and to avoid a conflict of interest at all times, the employee was charged with six counts of gross dishonesty. The employee was dismissed following a disciplinary enquiry and he subsequently referred an unfair dismissal dispute to the CCMA. At the CCMA, the arbitrator found that the employee had indeed failed to disclose his involvement in the three entities and had made himself guilty of gross dishonesty as charged.