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[2012] ZASCA 185
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Myers v National Commissioner of the South African Police Services and Others (425/2012) [2012] ZASCA 185; (2013) 34 ILJ 1729 (SCA) (29 November 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 425/2012
Reportable
In the matter between:
IVAN MYERS
.............................................................................
APPELLANT
and
THE NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE
SERVICE
.....................................................................
FIRST
RESPONDENT
THE SAFETY AND SECURITY
SECTORAL BARGAINING COUNCIL
............
SECOND RESPONDENT
ADVOCATE COEN de KOCK (N.O)
.....................
THIRD RESPONDENT
Neutral citation:
Myers
v National Commissioner of the SAPS
(425/2012)
[2012] ZASCA 185
(29 November 2012)
Coram:
Mthiyane DP,
Mhlantla and Pillay JJA and Plasket and Swain AJJA
Heard: 5 November 2012
Delivered: 29 November 2012
Summary: Policeman ─
holding rank of Superintendent ─ with 28 years unbroken service
with the South African Police Service
─ dismissed from employ
for misconduct relating to issuing a media statement in breach of a
Standing Order ─ whether
dismissal reasonable in the
circumstances.
_____________________________________________________________________
ORDER
On appeal from:
Labour
Appeal Court, (Waglay DJP, Molemela and Zondi AJJA sitting as court
of appeal):
1. The appeal succeeds with
costs.
2. The order of the Labour Appeal
Court is set aside and replaced with the following:
‘
(i) The
first respondent’s dismissal is declared to have been
substantively unfair;
(ii) The appellant is ordered to
reinstate the first respondent to the position he held before the
first respondent’s dismissal;
(iii) The order in (ii) above is
to operate with retrospective effect to the date of dismissal;
(iv) The first respondent is
given a final written warning valid for a period of 12 (twelve)
months from the date of this order;
(v) No order is made as to
costs.’
3. The order referred to in (iv)
above shall come into effect on the date of this order.
4. Each party is ordered to pay
its own costs in the Labour Appeal Court.
___________________________________________________________
JUDGMENT
MTHIYANE DP (MHLANTLA, PILLAY
JJA, PLASKET AND SWAIN AJJA CONCURRING):
[1] The appellant,
Ivan
Myers was a superintendent in the South African Police Service (SAPS)
and the Unit Commander of Maitland Dog Unit with 28 years
unbroken
service in the SAPS before his dismissal. On 18 June 2007 he was
charged with misconduct following a media communication
he made to
‘Die Burger’ newspaper concerning the condition of police
dogs in his unit,
without
having first obtained authorisation from his commander or media
liaison official. Consequently he stood accused of having
contravened
the standing orders and regulations of the SAPS. It was alleged that
the communication prejudiced the administration,
discipline and
efficiency of the SAPS as contemplated in regulations 20(
f
)
and (
i
)
of the Regulations for the South African Police Service.
1
At a subsequent disciplinary
hearing presided over by Commissioner Strydom the appellant was found
guilty of misconduct as charged
and dismissed from his employment
with the SAPS with effect from 13 July 2007. He was also ordered to
pay a fine of R500. The referral
of the dismissal to the second
respondent, the Safety and Security Sectoral Bargaining Council,
for arbitration did not yield a
different result.
[2] The appellant then referred
the dispute to the Labour Court to review and set aside the decision
dismissing him from his employment
and ordering him to pay a fine of
R500. He sought retrospective reinstatement in his employment as Unit
Commander: Maitland Dog
Unit with the full benefits that he would
have received had he not been dismissed on 12 July 2007. The matter
came before Ngalwana
AJ who granted the application and made an order
(a) reviewing and setting aside the appellant’s dismissal; but
(b) remitted
the matter to the second respondent for a de novo
hearing on an urgent basis before a commissioner other than the third
respondent.
The Labour Court found that the commissioner had
misdirected himself in a number of respects during the disciplinary
proceedings.
Amongst others the chairperson had relied on ‘insolence
. . . impudence, cheekiness, disrespect and rudeness’ even
though the appellant had not been charged with contravening
regulation 20
(s)
which deals with insolence and disrespect.
[3] The first respondent appealed
to the Labour Appeal Court with leave granted by that Court, against
the judgment and order of
the Labour Court reviewing and setting
aside the arbitration award. In terms of the arbitration award the
third respondent had
found that the appellant’s dismissal was
substantively fair and dismissed the referral. Procedural fairness of
the dismissal
was not in dispute.
[4] The background facts leading
up to the proceedings in both the Labour Court and the Labour Appeal
Court are the following. As
already stated the appellant was a
Superintendent and Commander of the Dog Unit in Maitland with 28
years unbroken service in the
SAPS and was only six years away from
becoming eligible for early retirement when he was dismissed on 12
July 2007.
[5] During February 2007, the
South African Police Union (SAPU) raised the issue of malnutrition of
police dogs at Maitland Dog
Unit with the SAPS management. While the
appellant was on leave the daily rations for the police dogs in his
unit were reduced
from 700 grams of food to 500 grams on the
instructions of the police management. The dogs noticeably lost
weight and SAPU strongly
believed that a change in the dogs’
weight, which became evident immediately after the implementation of
the instruction,
was as a result of the reduction in their daily
rations.
[6] Thereafter SAPU invited the
appellant to a meeting at its offices since he was the Commander of
the Unit. A journalist of ‘Die
Burger’ newspaper who was
also present at the meeting approached the appellant as the Unit
Commander and invited him to explain
the reasons for the situation at
the Dog Unit. The appellant refused to comment before establishing if
the issue raised by SAPU
during his absence had been addressed by the
police management.
[7] The appellant was concerned
about the unfavourable media attention that the issue of dog
malnutrition was attracting. He raised
his concern with the
Provincial Commander, Senior Superintendent Visser, and asked him to
take immediate steps to prevent the story
from making headlines in
the media. The next day the story made headlines. It was inter alia
reported that the situation was so
bad that the police dogs were
eating their own excrement. Members of the public reacted with shock
and anger to the news of the
condition of the dogs, both in print and
electronic media.
[8] As Commander of the Unit
concerned the appellant felt obliged to do something about the
situation. On 21 February 2007, he interrupted
his leave and returned
to work. On his arrival he found the chief veterinarian of the SAPS
and other senior police officers. The
chief veterinarian told the
appellant that they were about to hold a meeting concerning the dogs
issue. The appellant asked to
be part of the meeting but his request
was turned down. He then left.
[9] Two days later, on 23
February 2007, he sent an e-mail to ‘Die Burger’
newspaper seeking to address the dogs issue
and to point out steps he
had taken to resolve the problem. His article appeared in ‘Die
Burger’ newspaper under the
following headline:
‘
Maitland:
Bevelvoerder Verbreek Swye: Rompslomp laat honde ly’ (loosely
translated the headline meant: ‘Maitland: Commander
Breaks
Silence. Redtape allows dogs to suffer’).
[10] The SAPS management did not
take kindly to the article. The appellant was charged with
contravening regulation 20
(f)
of the regulations in that he
had by issuing the media statement, prejudiced the administration,
discipline and efficiency of the
SAPS.
[11] In the alternative, he was
charged with contravening regulation 20
(i)
in that he had
failed to carry out a lawful order or routine instruction without
just or reasonable cause. Paragraph 4(4) of the
relevant Standing
Order 156 forbids communication with the media without the prior
authorisation of a member’s commander
or a media liaison
official in the SAPS. It reads thus:
‘
(4)
No member may,
on
his or her own initiative or that of another member, approach or
entertain any media for purpose of media coverage without the
prior
authorization of his or her commander.’
[12] Despite the appellant’s
plea of not guilty on both the main and the alternative charge, he
was convicted on the main
charge in that he had failed to follow the
right channels when he issued the media statement. He was, however,
acquitted on the
alternative charge. The sanction imposed was one of
dismissal with effect from 13 July 2007 and payment of a fine of
R500.
[13] The appellant then
approached the Labour Court to review and set aside his conviction
and dismissal. The application was partially
successful. As already
indicated the Labour Court found that the arbitrator had committed ‘a
number of fundamental misdirections’.
Amongst others it found
that the arbitrator had conflated the main and the alternative
charge. The judge found that the two charges
under regulations 20
(f)
and
(i)
were not ‘very much intertwined’ as found
by the arbitrator. The judge also found that the arbitrator had in
the determination
of the matter had regard to the appellant’s
conduct during the hearing, which the arbitrator described as
evincing ‘insolence
. . . impudence, cheekiness, disrespect and
rudeness’. The judge noted, correctly in my view, that the
appellant had not
been charged with contravention of regulation 20
(
s
)
which deals with insolence and disrespect.
[14] In the light of the above
misdirections, amongst others, the judge considered himself at large
to review and set aside the
arbitration award and replace it with
what he considered to be an appropriate order. Accordingly he made an
order (a) reviewing
and setting aside the arbitration award; (b)
remitting the matter to the second respondent, the Safety and
Security Sectorial Bargaining
Council, and (c) directing the first
respondent to pay costs.
[15] The first respondent
successfully appealed to the Labour Appeal Court. By a majority
(Waglay DJP with Molemela AJA concurring
and Zondi AJA dissenting),
the appeal was upheld with costs and the order of the Labour Court
(Ngalwana AJ) was set aside and replaced
with an order dismissing the
appellant’s application for review and setting aside of the
arbitration award. The appellant’s
cross-appeal was dismissed
with no order as to costs.
[16] In a minority judgment,
Zondi AJA found that the arbitrator was correct in finding the
appellant guilty of misconduct in contravention
of regulations 20
(f)
and
(i)
(with which the majority agreed) but that the sanction
of dismissal was unfair and fell to be set aside (with which the
majority
disagreed). He held that the Labour Court’s decision
to review and set aside the award on the ground that it was not clear
on which of the two charges the appellant was found guilty was wrong.
In the result, he proposed the following order:
‘
1.
The appeal succeeds and the judgment and orders of the Court a quo
are set aside and replaced with the following:
1.1 the first
respondent’s [the appellant’s] dismissal is declared to
have been substantively unfair;
1.2 the appellant
[the first respondent] is ordered to reinstate the first respondent
[the appellant] to the position he held in
its employment before the
first respondent’s [the appellant’s] dismissal;
1.3 the order in 1.2
above is to operate with retrospective effect to the date of
dismissal;
1.4 the first
respondent [the appellant] is given a final written warning valid for
a period of 12 (twelve) months from the date
of this order;
1.5 no order is made
as to costs.
2. Each party is
ordered to pay its own costs.’
[17] The appeal to this court,
with leave granted by this court, in essence raises two issues. The
first is whether the appellant
was correctly convicted of misconduct.
The second is whether the dismissal was fair. The two issues will be
dealt with in turn.
[18] As pointed out, the Labour
Appeal Court upheld the finding of the third respondent that the
appellant had contravened the provisions
of regulations 20
(f)
and
(i)
. Regulation 20
(f)
provides that an employee
will be guilty of misconduct if he or she:
‘
(f)
prejudices the administration discipline or efficiency of a
department, office or institution of the State.’
[19] The Labour Appeal Court
found that the appellant had been correctly convicted of contravening
regulation 20
(f)
because ‘it was unreasonable for Myers
to send to the media for publication a statement which created an
impression that
he was deliberately being silenced when there was no
evidence to this effect and which in turn could only have the effect
of undermining
the SAPS and thereby prejudicing its administration
and discipline’. As regards regulation 20
(i)
the Labour
Appeal Court found that ‘Myers, by releasing his statement for
publication in the media without having first consulted
with the
relevant media liaison official, clearly breached regulation 29
(i)
and as such he was properly found to have committed misconduct of
contravening regulation 20
(i)
’.
[20] In my view, both the
majority and the minority judgments in the Labour Appeal Court were,
for these reasons, correct in their
conclusion that both charges were
proved. The appellant’s excuse that he was not aware of the
relevant standing order requiring
that he obtain prior approval
before making his statement in the newspaper, is far from convincing.
[21] I turn to consider the
question of the dismissal. In dealing with the question of the
appropriate sanction the majority in
the court a quo found that the
misconduct of which the appellant was convicted was serious. It
correctly found that a media statement
by an employee that undermines
his or her employer cannot go unpunished. The court continued that
where the employer serves the
public and is expected to maintain a
high degree of discipline within its ranks, then a media statement
that undermines the employer
displays a lack of respect for
authority.
[22] The majority of the court
also had regard to the fact that it was not dealing with a junior
officer, but one who had been in
service for 28 years and who
occupied a very senior position as a commander of a unit. The court
quite rightly remarked rhetorically
that if persons in such positions
fail to follow the rules and regulations, they cannot implement the
rules and regulations and
demand that their juniors respect them.
[23] In mitigation the majority
accepted the fact that it was the appellant’s unit that was the
focus of attention and that
he was probably best suited to be in the
team to deal with the issues that were of public concern at the time
and yet he was excluded.
Having taken note of this valid observation
the majority did not follow through and give recognition to it. It
back tracked somewhat
by stating that it was not for it to prescribe
to the SAPS how it should deal with the issues that confront it. I do
not agree.
The majority was under a duty to have regard to this
factor in mitigation of sanction just as it took into account the
fact that
the appellant had only had six years’ service left
before he was eligible for early retirement.
[24] There is also the question
of absence of evidence that the relationship between the appellant
and the SAPS had broken down
to such an extent that continued
employment was out of the question or no longer possible. In fact the
majority suggested, implicitly,
that the appellant was best suited to
deal with the dogs issue because it was his unit that was the focus
of public attention.
[25] In aggravation the majority
noted that although the appellant was aware that the SAPS management
was addressing the concerns
raised about the diet of the dogs, and
despite being told that he could not be involved with the management
in addressing the problem,
he sought to challenge their authority
without any regard for the rules that regulate his conduct at the
workplace. The majority
concluded that in this regard it could not
accept that the arbitrator’s decision fell outside the band of
decisions to which
reasonable decision makers could come. It
concluded that while the dismissal was a harsh sentence it was not so
unreasonable that
it stood to be reviewed and set aside.
[26] In the minority judgment
Zondi AJA took a different view. He held that the sanction of
dismissal was too harsh and therefore
unfair. The learned judge
accepted that the appellant had contravened regulations 20
(f)
and
(i)
, by submitting his statement for publication by the
media without first consulting with the relevant media liaison police
official.
He accepted that the appellant’s conduct remained
serious but found that it was not of such gravity that it made a
continued
employment relationship between him and his employer or
superiors intolerable. He concluded that in the circumstances the
dismissal
should be set aside and be replaced with an appropriate
sanction.
[27] In my view there is a lot to
be said for the approach adopted by Zondi AJA. The fairness of the
decision of the SAPS dismissing
the appellant from his employment
must be tested against the review standard laid down by the
Constitutional Court in
Sidumo & another v Rustenburg Platinum
Mines Ltd & others
2008 (2) SA 24
(CC) para 110. The test was
formulated as follows:
‘
(I)s
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
Explaining the standard, the
court said applying it would ‘give 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’.
[28] It must therefore follow
that to survive scrutiny the decision to dismiss must be ‘reasonable’
and reasonableness
must be tested in the light of the facts and
circumstances of a given case. In its judgment the majority in the
Labour Appeal Court
correctly recognised (in para 103) that the test
for dismissal was the one set out in
Sidumo
. In my view,
however, it erred in its application of the test to the facts in the
present matter. In para 104 the majority accepted
that the sanction
imposed on the appellant was ‘a harsh sanction’ but then
added that ‘it is not so unreasonable
that it stands to be
reviewed and set aside’. The majority of the Labour Appeal
Court, appears to have accepted that the
decision was unreasonable,
but not sufficiently unreasonable to warrant interference. This seems
to be an application of the ‘gross
unreasonableness’ test
of the pre-1994 era. By adopting such a standard the court
inadvertently imported a higher standard
than that contemplated in
Sidumo
. Were this to be the test, it would mean that a
dismissed employee seeking to set aside a dismissal would have to
show not only
that the decision-maker’s decision is
unreasonable but that it is ‘so unreasonable’ that it
falls to be reviewed
and set aside. That cannot be the test.
[29] Turning to the arbitration
award I have already indicated that the application of the test
requires one to look at the decision
and how the decision-maker came
to the conclusion to which he or she did. Of course it is important
to bear in mind at all times
that one is not dealing with an appeal
but a review. One is concerned with how the decision was arrived at
rather than the conclusion.
[30] In imposing the sanction
that he did during the disciplinary hearing Commissioner Strydom had
little or no regard to the mitigating
factors. As observed by
Ngalwana AJ in the Labour Court, he regarded as an aggravating factor
what he described as an element of
‘insolence . . . impudence,
cheekiness, disrespect and rudeness’, which was an irrelevant
consideration in that the
appellant was not even charged with
contravening regulation 20(s) which deals with insolence.
Significantly the majority in the
Labour Appeal Court does not even
refer to this misdirection in its judgment, which was pivotal to the
imposition of the sanction
of dismissal, because the Commissioner
stated unequivocally that he regarded it as an aggravating factor.
[31] While the Commissioner had
regard to the appellant’s unbroken service of 28 years in the
SAPS as proof that he knew the
rules he violated, he omitted to make
reference to this factor as equally relevant in the consideration of
mitigating factors.
[32] Having regard to all of the
above and the test in
Sidumo
a reasonable decision-maker would
have had regard to all of the above factors and could not have come
to the conclusion that the
dismissal of the appellant was the
appropriate sanction.
[33] In the result the following
order is made:
1. The appeal succeeds with
costs.
2. The order of the Labour Appeal
Court is set aside and replaced with the following:
‘
(i) the
first respondent’s dismissal is declared to have been
substantively unfair;
(ii) the appellant is ordered to
reinstate the first respondent to the position he held before the
first respondent’s dismissal;
(iii) the order in (ii) above is
to operate with retrospective effect to the date of dismissal;
(iv) the first respondent is
given a final written warning valid for a period of 12 (twelve)
months from the date of this order;
(v) no order is made as to
costs.’
3. The order referred to in (iv)
above shall come into effect on the date of this order.
4. Each party is ordered to pay
its own costs in the Labour Appeal Court.
____________________
K K MTHIYANE
DEPUTY PRESIDENT
APPEARANCES
For Appellant: A A Oosthuizen SC
(with him J A Nortje)
Instructed by:
Wynand du Plessis Attorneys, Cape
Town
Claude Reid Attorneys,
Bloemfontein
For Respondent: E A de
Villiers-Jansen
Instructed by:
The State Attorney, Cape Town
The State Attorney, Bloemfontein
1
Published
in GN R643,
GG
28985, 3 July 2006.