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[2021] ZALAC 7
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Booysen v Safety and Security Sectoral Bargaining Council and Others (PA12/18) [2021] ZALAC 7; (2021) 42 ILJ 1192 (LAC); [2021] 7 BLLR 659 (LAC) (30 March 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA12/18
In the matter between:
THEMBINKOSI
BOOYSEN
Appellant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER T
MALGAS-SENYE
Second Respondent
PROVINCIAL
COMMISSIONER OF SAPS
Third Respondent
NATIONAL
COMMISSIONER OF SAPS
Fourth Respondent
MINISTER
OF SAFETY & SECURITY
Fifth Respondent
Heard:
17 November 2020
Delivered:
30 March 2021
Coram:
Phatshoane ADJP Coppin JA and
Kathree-Setiloane
AJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This is an
appeal against the judgment and order of the Labour Court (Van
Niekerk J) reviewing and setting aside the arbitration
award of the
second respondent (“arbitrator”), made under the auspices
of the first respondent, the Safety and Security
Sectoral Bargaining
Council (“Bargaining Council”) in which she found the
appellant’s dismissal by the third
and fourth respondents,
collectively referred to as the South African Police Services
(SAPS),
[1]
to be substantively
and procedurally fair.
The
Background
[2]
The appellant was employed as a chef by the SAPS in Graaff-Reinet.
He
was charged with the following offences in terms of regulation 20(z)
and (q) of the South African Police Discipline Regulations
and
dismissed:
(a)
Charge 1:
Regulation 20(z):
[2]
Commits any
common law or statutory offence, by raping [“the complainant”]
on 2012-08-22 at Chris Hani Village, Umasizakhe,
Graaff-Reinet.
(b)
Charge 2:
Regulation 20(q) contravenes any prescribed
Code
of Conduct for the Service
[3]
or
Public Service whichever may be applicable to him or her - did not
protect and uphold the fundamental rights of [the complainant]
in
terms of the Code of Conduct but harmed her on 2012-08-22 at 18h35
at
Chris Hani Village, Umasizakhe, Graaff-Reinet.
[3]
T
he complainant accused the appellant of raping
her on two occasions during the course of the same afternoon in a
room at the back
of her home. The complainant had just turned 16
years old at the time and was still in school. She lived with her
mother and the
appellant was their neighbour.
[4]
The rape took place outside of the appellant’s
working hours. His defence to the charge was that he had consensual
intercourse
with the complainant on the day in question.
The
SAPS found the appellant guilty as charged at an internal
disciplinary hearing and dismissed him.
He
referred an unfair dismissal dispute to the Bargaining Council. The
arbitrator made an award upholding the appellant’s
dismissal as
substantively and procedurally fair.
The Review
[5]
The appellant challenged the arbitrator’s
award on review to the Labour Court. He sought an order reviewing and
setting aside
the arbitration award and substituting it with an order
that the dismissal was substantively unfair and that he be reinstated
with
retrospective effect.
[6]
The Labour Court found that the appellant’s dismissal was
substantively unfair as he did not rape the
complainant
as charged, and that it was more probable than not that the appellant
had consensual intercourse with the complainant
on a single occasion.
On the question of remedy, the Labour Court held
as follows:
‘
The
[appellant] seeks to be reinstated. Section 193 of the LRA requires
that in the case of a dismissal that is found to be substantively
unfair, an employer must be required to reinstate or re-employ the
employee unless the employee does not wish to be reinstated
or
employed, the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable,
or it is not
reasonably practicable for the employer to reinstate or re-employ the
employee. On his own version, the appellant
had sexual intercourse
with a 16 year old, a person barely above the age of consent.
Although the appellant is not an officer in
the SAPS, he is employed
by the SAPS at the local police college. It is reasonable to
assume in these circumstances that
the local community identifies the
[appellant] as a member of or associates him with the SAPS. What the
[appellant] did, on his
own version, is not compatible with the SAP’s
stated values and is likely to bring the SAPS into disrepute. In my
view, a
continued employment relationship would be intolerable or not
reasonably practical. An award of compensation is more one that
better
fits the requirements of s 193.’
[7]
The Labour Court, accordingly, made an order
reviewing and setting aside the arbitration award and substituted it
as follows:
‘
1.
The [appellant’s] dismissal was substantively unfair.
2.
The [appellant] is awarded compensation in the sum equivalent to 12
months remuneration,
calculated at the rate applicable on the date of
dismissal.’
[8]
The appeal
is limited to the Labour Court’s conclusion that the appellant
was not entitled to the primary relief of reinstatement
in section
193(2) of the Labour Relations Act
[4]
(“LRA”).
The
parties’ submissions
[9]
The arguments advanced on behalf of the appellant is broadly that
the
Labour Court erred for the following reasons: The appellant was
employed by the SAPS as a chef and that objectively, on the
evidence,
the trust relationship had not irretrievably broken down. There was
no evidence presented by the SAPS, in the arbitration
proceedings,
that the relationship of trust had irretrievably broken down and that
reinstatement was impracticable or inappropriate
in the
circumstances. In fact, the appellant had a long, clean service
record of nine years and was found not guilty of statutory
rape in
the criminal trial. Consistent with this finding, the Labour Court
found, on the evidence led at the arbitration, that
the appellant had
not raped the complainant but had consensual intercourse with her. As
a chef working at the local police college,
it could not be concluded
that the appellant was unfit as a police officer and that the
public’s confidence in the police
would be undermined.
[10]
The SAPS
argues to the contrary that although the appellant was not employed
as a police officer, he was required to respect and
protect the
fundamental rights of women and children as provided for in the
Constitution of the Republic of SA, 1996. By engaging
in consensual
sex with the complainant, who was barely sixteen years old at the
time and was still a child as defined in the Children’s
Act,
[5]
he brought the SAPS into disrepute. Even though the appellant
was not a police -officer, the incident itself negatively impacted
the image of the SAPS, as Graaff-Reinet is a small town where news
spreads quickly. All members of the SAPS are responsible for
protecting and upholding the rights of individuals such as the
complainant. It is, therefore, irrelevant that the appellant is
not a
police officer. The appellant was required to act within the
parameters of the employment relationship and not act in a manner
that is likely to tarnish the image of the respondents.
The
Appeal
[11]
The starting point in determining whether the Labour Court erred in
not ordering
the SAPS to reinstate the appellant, is to look at how
our courts have interpreted section 193(2) of the LRA which provides:
‘
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the
employee unless -
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ
the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair
procedure.’
[12]
In
interpreting this section, this Court has held that where an
arbitrator or the Labour Court finds the dismissal of an employee
to
be unfair then reinstatement is the primary remedy under section
193(2) of the LRA. In other words, if the exceptions to reinstatement
in section 193(2)
(a)
to
(d)
do not apply, then the Labour Court or an arbitrator is obliged to
require the employer to reinstate or re-employ the employee
as the
case maybe.
[6]
Thus, if
the employer is opposed to reinstating an employee whose dismissal is
found to be substantively unfair, then it
must demonstrate that one
of the exceptions to reinstatement applies. This would require the
employer to present evidence concerning
the question of the
appropriateness of reinstatement in anticipation of a decision by the
Labour Court or an arbitrator that the
dismissal is unfair.
[7]
[13]
It is,
however, now settled law that the dominant consideration in the
enquiry is not on “the legal onus but rather on the
underlying
notions of fairness between the parties”.
[8]
Fairness, as held by the Constitutional Court in
Equity
Aviation Services (Pty) Ltd v CCMA,
must be “assessed objectively on the facts of each case bearing
in mind that the core value of the LRA is security of employment”.
[9]
[14]
The Labour
Court or arbitrator has an unfettered discretion in terms of section
193(2)
(b)-(d)
of the
LRA to grant a remedy.
[10]
This means that in exercising its discretion in terms of section
193(2)
(b)
and
(c)
of the LRA on the question of whether a continued employment
relationship would be intolerable and/or reinstatement would be
feasible,
the Labour Court or arbitrator ultimately makes a value
judgment on the evidence and facts before it.
[11]
[15]
The SAPS did not present any evidence at the arbitration proceedings
in relation
to the appropriateness of reinstatement on any of the
bases set out in section 193(2)
(b)
and
(c)
of the LRA.
The Labour Court, however, concluded that the appellant was not
entitled to the primary remedy of reinstatement as
it is not
reasonably practical and a continued employment relationship would be
intolerable. The appellant contends that these
findings were not
based on evidence (as none was led by the employer) but rather on the
making certain factual assumptions. According
to the appellant, the
two assumptions are that: (a) although the appellant is not a police
officer in the SAPS but a chef at the
local police college in
Graaff-Reinet, the local community identifies him as a member of the
SAPS or associates him with the SAPS;
and (b) the appellant’s
conduct is not compatible with the stated values of the SAPS.
[16]
The
question that arises is whether it was open to the Labour Court to
make these factual assumptions (in the absence of evidence)
in
determining whether reinstatement was an appropriate remedy in terms
of section 193(2) of the LRA. This Court has held in
Mediterranean
Textile Mills (Pty) Ltd v SACTWU
,
[12]
that even where no specific evidence is led by the employer as to the
intolerability of a continued employment relationship or
the
impracticality of reinstatement, the Labour Court or arbitrator
is obliged “to take into account any factor which…is
relevant in the determination of whether or not such conditions
exist”. The conduct of the employee is a relevant factor
which
the Labour Court or arbitrator should take into account in this
determination.
[13]
[17]
Despite the
failure of the SAPS to lead evidence on the existence of the factors
in section 193(2)
(b)
and
(c)
respectively, there were a number of factors on the record of
evidence, presented in the arbitration proceedings, which the Labour
Court was obliged to take into consideration in determining whether
reinstatement was appropriate. These factors included that:
(a) on
the appellant’s own evidence, he had consensual intercourse
with a young girl, who had just turned 16 years old; (b)
he did so
while an employee of the SAPS at the local police college in
Graaff-Reinet; and (c) the complainant was still a child
as defined
in the Children’s Act (d) as a chef employed by the SAPS he was
bound by the Code of Conduct for Public Servants
[14]
which requires all employees in the public service to “respect
and protect every person’s dignity and his or her rights
as
contained in the Constitution”.
[15]
[18]
Thus, despite the fact that the appellant had consensual sex with the
complainant,
she was a child as defined in the Children’s Act.
The appellant was therefore obliged to protect her rights as provided
for
in section 28 of the Constitution, which include the right to be
protected from “abuse or degradation”, and to be treated
“in a manner that takes account of her age”.
[19]
“Ensuring
the safety and security of all persons” and “upholding
and safeguarding the fundamental rights of every
person as guaranteed
by Chapter 3 of the Constitution” are two core values of the
SAPS. They are expressly stated in the
preamble to the South African
Police Services Act
[16]
(“SAPS
Act”). Thus as correctly concluded by the Labour Court, by
having intercourse with the complainant who was a
minor, the
appellant’s conduct is incompatible with the stated values of
the SAPS and is likely to bring the SAPS into disrepute.
This
conclusion of the Labour Court is not based on conjecture, as
contended for on behalf of the appellant, but is founded
in law and
fact.
[20]
The Labour Court was, furthermore, entitled to draw certain
inferences or assumptions
from the proven facts. One of these is that
even though the appellant was not a police officer but a chef, his
conduct in having
intercourse with a child negatively impacted the
image of the SAPS as the local community identifies him as a member
of the SAPS
or associates him with the SAPS. This was a reasonable
assumption to make based on the evidence before him that the
appellant worked
as a chef for the SAPS at the local police college
in Graaff-Reinet, at the time of having sexual intercourse with the
complainant
who was barely over the age of consent. It is not
implausible or improbable in the circumstances for the local
community to associate
him with the SAPS.
[21]
The appellant contends that the Labour Court was obliged to reinstate
him as he was
not found guilty of statutory rape. I do not consider
this factor to be relevant to the question of remedy. What is
relevant is
that the appellant’s conduct, in having sexual
intercourse with a minor (whose rights the SAPS is obliged to
protect), is
likely to bring SAPS into disrepute,
thus
undermining the confidence of the public in the police. The
conduct
of this nature is not expected of an employee of the SAPS regardless
of rank or designation. It is, in this respect, equally
irrelevant
that the appellant was employed as a chef by the SAPS at the local
college in Graaff-Reinet, and not as a police officer.
[22]
All things considered, I am of the view that it
was fair, on the objective facts of this matter, for the Labour Court
to conclude
that the appellant’s conduct is incompatible with
the SAPS stated values and is likely to bring the SAPS into
disrepute.
By the same token, the Labour Court was justified in
concluding that the continued employment relationship with the
appellant would
be intolerable or not reasonably practical”,
and that an award of compensation as opposed to reinstatement is the
appropriate
remedy.
[23]
For these reasons, the appeal against the order of the Labour Court
must fail.
Costs
[24]
I consider this to be a matter where it is just and equitable for
each party to pay
their own costs.
Order
[25]
In the result, I make the following order:
1.
The appeal is dismissed with no order as to costs.
____________________________
F
Kathree-Setiloane AJA
Phatshoane
ADJP and Coppin JA concur.
APPEARANCES:
FOR THE APPELLANT:
Ms. E Van Staden
Instructed by: Legal Aid
SA
FOR THE THIRD TO FIFTH
RESPONDENTS:
Ms. L. AH Shene
Instructed
by: The State Attorney
(Handed
down electronically by email to the parties’ legal
representatives)
[1]
The
third, fourth and fifth respondents are collectively referred to as
the South African Police Services.
[2]
South
African Police Service Discipline Regulations (2006), GG 27983, GN
R864, 31 August 2005 (“SAPS Discipline Regulations”).
[3]
Reference
to South African Police Service
[4]
No.
66 of 1995.
[5]
No.
38 of 2005.
[6]
Adams
v Coin Security Group (Pty) Ltd
[1998]
12 BLLR 723
(LAC).
[7]
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing & Textile Workers Union
and Others
[2012]
2 BLLR 142
(LAC) at para 29.
[8]
Dunwell
Property Services CC v Sibande
[2012]
2 BLLR 131 (LAC).
[9]
Equity
Aviation Services (Pty) Ltd v CCMA
[2008]
12 BLLR 1129
(CC) at para 39.
[10]
Equity
Aviation
at
para 48.
[11]
DHL
Supply Chain (Pty) Ltd v NBCRFI
[2014] 9 BLLR 860
(LAC) at para 21.
[12]
Mediterranean
Textile Mills (Pty) Ltd v SACTWU
[2012]
2 BLLR 142
(LAC) at para 30.
[13]
Afgen
(Pty) Ltd v Ziqubu
[2019]
10 BLLR 977
(LAC) at para 25.
[14]
Code
of Conduct for Public Servants, GN R825, GG 5947 of 10 June 1997.
[15]
Article
2 of the Code of Conduct for Public Servants under the heading
“Relationship to the Public”. The South African
Police
Services Code of Conduct appears to apply to police-officers only.
It has a corresponding provision (article 3(e)) which
requires
police-officers to “uphold and protest the fundamental rights
of every person”. See: Regulations for the
South African
Police Service Relating to the Code of Conduct for Members of the
Service, GN 529, GG 27642 of 10 June 2005.
[16]
No.
68 of 1995.