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[2005] ZALAC 5
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Kroukam v SA Airlink (Pty) Limited (JA3/2003) [2005] ZALAC 5; (2005) 26 ILJ 2153 (LAC); [2005] 12 BLLR 1172 (LAC) (26 September 2005)
113
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No: JA3/2003
In the matter between
Ignatius Petrus Kroukam Appellant
And
SA Airlink (Pty) Limited Respondent
__________________________________________________________
JUDGMENT
ZONDO JP
Introduction
[1]
I have had the opportunity of
reading the judgment prepared by my Colleague, Davis AJA, in this
matter. I agree with him that the
appellantâs dismissal was
automatically unfair and that the respondent should be ordered to
reinstate him. However, I do not share
the approach and reasoning
that lead Davis AJA to that conclusion nor do I share the extent of
the retrospective operation of the
reinstatement order that he
proposes. I also do not share the construction that he places upon
sec 193 of the Labour Relations Act,
1995 (Act No 66 of 1995) (âthe
Actâ) with regard to the extent of retrospective operation of a
reinstatement order that can competently
be made under sec 193 of the
Act. Accordingly, it is necessary for me to set out the approach and
reasoning that has led me to the
conclusion I have reached in this
matter. I do so below.
[2] The appellant was employed by the respondent as a
pilot in 1994. He was dismissed from the respondentâs employment
with effect
from the 11
th
May 2001 after he had been found guilty of two alleged acts of
misconduct in a disciplinary inquiry. For some time before his
dismissal
and at the time of dismissal, the appellant was chairman of
the Airlink Pilotsâ Association which was the branch based at the
respondentâs
operations of a registered trade union called Airline
Pilotsâ Association. In this judgment I shall refer to the branch
as â
the union
â.
The appellant took the view that his dismissal was automatically
unfair as contemplated in sec 187(1)(d) of the Act in that,
as far as
he was concerned, he had been dismissed for the active role that he
had played as chairman of the union in the unionâs
dealings with
the respondent and the role he played in the litigation that he had
brought against the company on behalf of the union
in March 2001. The
respondent disputed this and maintained that the reason for the
appellantâs dismissal was that he had committed
two acts of
misconduct of which he had been found guilty. These were that he had
been grossly insubordinate to the respondent and
had been disruptive
influence to the orderly operation of the respondent. A dispute then
arose between the parties concerning whether
or not the dismissal was
automatically unfair.
[3] In due course the dispute was referred to the Labour
Court for adjudication. The appellant maintained that, for the
reasons referred
to above, his dismissal was automatically unfair. He
did not seek to make out a case that, even if his dismissal was not
automatically
unfair, it was, nevertheless, unfair for one or other
reason. The respondent defended the action and maintained its stance
referred
to above. The Labour Court found that there was no basis for
the appellantâs contention that he had been dismissed for the
reasons
that he had advanced and, therefore, that his dismissal was
automatically unfair. It dismissed the appellantâs claim but made
no
order as to costs. As it was not part of the appellantâs case
that, even if his dismissal was not automatically unfair, it was
nevertheless ordinarily unfair, the Labour Court did not make any
finding about whether the dismissal was unfair on any other basis.
The appellant subsequently applied for leave to appeal to this Court
against the order of the Labour Court. The Labour Court granted
the
application for leave to appeal. This, then, is the appeal against
the judgment of the Labour Court. Before the appeal can be
considered, it is necessary to set out the factual background to the
dispute between the parties.
Factual background
[4] There are certain incidents which feature
prominently in the factual background to the dismissal of the
appellant which, it seems
to me, would be helpful to set out because
the charges brought against the appellant were either based on some
or all of those incidents
or those incidents may throw light on the
reason(s) for the appellantâs dismissal. These are:
the Swazi cabin attendant incident;
the interdict proceedings;
the memorandum titled: the blessing that became the
curse;
the lunch incident and the contempt of court
proceedings;
the threat letter;
the psychologistâs report incident;
the failure to meet flying target;
the CEOâs lecture to the appellant;
the disciplinary inquiry and appeal;
Captain Van Schalkwykâs memorandum of the 17
th
April 2001
The Swazi cabin attendant incident
[5] The respondent and the Government of Swaziland
established a business partnership. In terms of the arrangements
between the two,
the respondent could utilise Swazi flight attendants
on its plane on routes between Swaziland and South Africa. In
September 2000
the appellant off-loaded a Swazi cabin attendant from
an aircraft in which he was a pilot. He did this because apparently
the Swazi
flight attendant failed to produce a work permit when, as
the pilot of the aircraft, he asked for it. This was in September
2000.
The respondentâs management took the view that the appellant
did this in order to undermine their authority. The appellant was
charged with misconduct and was found guilty. The chairman of the
disciplinary inquiry recommended that the appellant be dismissed
but
the respondentâs management rejected this recommendation and gave
the appellant a final warning which was to be valid for six
months
from the date of the incident. The warning was given in November
2000.
The interdict proceedings
[6] In March 2001 the union brought an urgent
application in the Labour Court for an order interdicting the
respondent from acting
in breach of a collective agreement existing
between the union and the respondent with regard to the recruitment
of pilots. The appellant
was the union official who signed the
founding affidavit on behalf of the union. The respondent opposed
that application. The Labour
Court granted the required order
interdicting the respondent from recruiting pilots in breach of such
collective agreement.
The memorandum titled: âthe blessing that became
a curse.â
[7] Another feature of the background to the dismissal
dispute between the parties is a certain memorandum which bore the
title: â
The blessing that became a curse
â
which Captain Van Schalkwyk, the respondentâs client pilot,
addressed to the cockpit crew and copied to Capt Roger Foster, the
respondentâs chief executive offices, and Captain Moorosi, the
operations director. The memorandum was dated the 24
th
March 2001. In the first paragraph Captain Van Schalkwyk stated that
he was writing the memorandum in his capacity as Chief Pilot.
Operations and Standards of the respondent. He explained therein that
his â
mission
â was
to inform the pilots â
of the current state
of affairs, and to show you that you need to take action in order for
you to have a fair opportunity to fly the
ERJ (operated by SAAR
(Metavia) and to have a prosperous future at SA Airlink
.â.
[8] Captain Van Schalkwyk divided his memorandum into a
number of sections. He gave one section the heading: â
Costly
for Everyone.
â In the first paragraph under
this heading he referred to the events of the previous week which he
said had been exhausting for
everyone. The previous week must have
been the one in which the union had brought an urgent application in
the Labour Court against
the respondent for an interdict. In the
memorandum Captain Van Schalkwyk assured all the pilots that he knew
that they were all worried
about their future at the respondent
âand
whether you will have an opportunity to fly the amazing new ERJ 135
operated by SAAR (Meta via).
â He called
upon the pilots to believe that he and the rest of the management
were committed to offering the pilots â
a
prosperous future at SA Airlink
.â He said:
â
We have proved before, that we were able to
negotiate acceptable terms with SAAR (Metavia) to be offered an
opportunity to fly the
ERJâ.
[9] In the next two paragraphs Captain Van Schalkwyk
wrote the following which may be relevant to some aspects of this
matter:
â
SA Airlink top management has a responsibility to
the SA Airline shareholders, which demand proper management of huge
amounts of money.
Their first focus must be to ensure a profitable
and professional new business venture. I have no grounds to question
their business
decisions, as they see a much larger picture than I
(or any other individual) see.
The
labour issue of the past few weeks absorbed most of their energy and
time with the result that their ability to plan the future
has been
compromised severely.
This has a
direct impact on all the employees of SA Airlink.
This labour issue is getting too costly for you, and
me, and the top management of this company
!â
(Underlining supplied).
The lunch incident and
the contempt of court proceedings
[10] It is convenient to deal with the lunch incident
simultaneously with the contempt of court application. Subsequent to
the granting
of the order referred to above, the appellant had a
discussion with one Captain Moorosi and another member of the
respondentâs
management about the matter which was the subject of
the order of the Labour Court. Such discussion took place in the
cafeteria within
the company during lunch time. Captain Moorosi had
insisted that such discussion be on an off â the record basis and
the appellant
had agreed to such condition and the discussion had
then taken place on the basis of such agreement.
[11] Later, the union brought a contempt of court
application against the respondent, Captain Moorosi, and Captain
Forster. The order
sought by the union was for the committal to jail
of the members of the management of the respondent cited. The
appellant was the
one who deposed to the founding affidavit in that
application. In the affidavit he mentioned that there had been a
discussion or
meeting between himself and Captain Moorosi at
lunch-time in the cafeteria on the day in question. He also said that
he had asked
Captain Moorosi that they should discuss the matter
which was the subject of the then existing order of the Labour Court.
He stated
in the affidavit that Captain Moorosiâs reply was that
there was nothing to discuss.
[12] When Captain Moorosi saw the appellantâs
affidavit, he took the view that the appellant had acted in breach of
the agreement
in terms of which the discussion had been
off-the-record. Capt Moorosi regarded such conduct as constituting
insubordination. He
later decided that the appellant should be
charged with misconduct for such conduct. At least part of the
insubordination with which
the appellant was charged which led to his
dismissal was based on the appellantâs alleged breach of the
agreement to treat the
discussion or meeting concerned as
off-the-record. The contempt of court application had been prompted
by the fact that the respondent
was continuing to recruit pilots
which the union believed the respondent was contractually precluded
from recruiting and which the
union maintained the respondent was
precluded by the order previously granted by the Labour Court from
recruiting.
The threat letter
[13] On 28 March 2001 the contempt of court application
came before the Labour Court. The appellant and the respondentâs
attorney
had a discussion within the premises of the Labour Court
which, according to the respondentâs attorney, resulted in an
agreement
between the two that the contempt of court application
would be settled on a certain basis. However, subsequently the
respondentâs
attorney understood the appellant to have reneged from
such agreement. Accordingly, the respondentâs attorney wrote a
letter to
the unionâs attorneys in which he stated, among other
things, that the appellantâs conduct in this regard would not be
â
forgotten
â.
During the trial the respondentâs attorney took the witness stand
to explain what he meant by this. He explained that what
he meant was
that in his dealings with the appellant in the future, he would not
forget that the appellant had previously gone back
on his word.
The psychologistâs report incident
[14] Another incident is one relating to the appellant
being required to submit a psychologistâs report. At some point
either towards
the end of March or early in April but prior to 11
April 2001 the appellant undertook to supply Captain Van Schalkwyk
with a psychologistâs
report relating to his health. Such report
was important to the respondentâs management because they could not
allow the appellant
to fly an aircraft unless they were certain that
he was fit to do so. For some time the appellant failed to submit the
psychologistâs
report. Captain Van Schalkwyk was getting frustrated
by the appellantâs failure to submit the report. He grounded the
appellant
pending the submission of the report. When, despite Capt
Van Schalkwykâs specific instructions to the appellant to submit
the report
by a certain Monday or Tuesday, the appellant still failed
to submit it, Capt Van Schalkwyk decided to take disciplinary action
against
the appellant because he regarded such conduct on the
appellantâs part as insubordination. This incident was one of the
incidents
upon which the first charge in the disciplinary inquiry
which later followed was based.
The failure to meet flying target
[15] It also needs to be stated that during the
previous year or the 12 months preceding the appellant being charged
with misconduct
in April 2001, the appellant had flown less than 950
hours. This is relevant to the second charge that the appellant faced
in the
disciplinary inquiry that will be referred to shortly.
Apparently in any airline the normal number of hours that a pilot may
fly
in any 12 months is 1000 but the respondent had fixed the target
at 950 hours per 12 months. It is common cause that the appellant
had
flown less than the required target. However, it was also common
cause that there were other pilots who had also flown less than
the
target. In other words those pilots were also in the same position as
the appellant. It was also common cause that they were
not charged
with misconduct for this whereas the appellant was charged with
misconduct for this. It was said by the respondent to
fall under the
second charge in the disciplinary inquiry of April 2001.
The CEOâs lecture to the appellant
[16] On the 12
th
April 2001 the appellant was called and told that he was going to be
charged with misconduct. The appellant was accompanied by a
Captain
Paul Smith, a colleague of his, to the office where he was going to
be handed a notice calling him to a disciplinary inquiry
to face
certain allegations of misconduct. Such notice would be an equivalent
of a charge sheet in a criminal matter. When the appellant
arrived,
Captain Foster gave him a long lecture before giving him the notice
to attend a disciplinary inquiry. The appellant testified
thus about
that lecture: â
The CEO presented us with
information pertaining to the vision and the goals of the company
also pointing out what damage the litigation
and the contempt of
court proceedings and that, this
was
lack of respect for the CEO
and that
this forced them to take, the words he used, his eye off the ball.â
(Underlining supplied). The appellant was then asked whether those
were the CEOâs exact words. He answered in the positive and
went on
to add the following as part of what the CEO had said on that
occasion:
âAnd thereby losing crucial
deadlines pertaining to the license application for certain routes.â
The appellant stated that, after the CEO had
completed the presentation, he was then served with the â
charge
sheet
â. He said that the presentation went
on for about 30 or 40 minutes, or even longer.
The
disciplinary inquiry and appeal
[17] As
already stated the charges which were brought against the appellant
were gross insubordination and being a disruptive influence
to the
orderly operation of the organisation. In due course the inquiry was
held. Captain Roger Foster played the role of a complainant.
The
chairman of the inquiry was an official from an employersâ
organisation of which the respondent was a member. Evidence was
led.
The minutes of the disciplinary inquiry in the record are written in
an illegible handwriting. They have not been transcribed.
A note has
been made by the transcribers that they are not easily transcribable.
No explanation has been given why the author thereof
could not have
been asked to read his/her handwriting to the transcriber. That
should have been done. It is unacceptable that it
was not done. The
appellant was found guilty of the two acts of misconduct with which
he had been charged and was dismissed. The
appellant noted an
internal appeal. The appeal was dismissed and the finding and
decision of the chairman of the disciplinary inquiry
on sanction were
confirmed.
Captain Van Schalkwykâs
memorandum of 17 April 2001
[18] Another feature of the background to this matter is
a memorandum which Captain Van Schalkwyk addressed to â
all
cockpit crew
â on the 17
th
April 2001. This memorandum was written after the appellant had been
given notice of the disciplinary inquiry but before the disciplinary
inquiry could start. Captain Van Schalkwyk began that memorandum with
the words: â
As you are, I am tired of
litigation and legalisms (sic) â¦â
A
reading of the memorandum reveals that Captain Van Schalkwykâs
evidence that through this memorandum he was trying to appeal to
the
pilots to co-operate with the management and to commit themselves to
the company is probably true. As one reads the memorandum
one can see
the frustration that the management was feeling as a result of the
litigation. In this regard reference can be made to
some paragraphs
in that memorandum. Two of the paragraphs read thus:-
â
Even
with the New Hope of a somewhat restored relationship between the
pilots and the SA Airlink management, we have lost a lot in
the past
few weeks and the Microject project has suffered some setback.
The Court order issued due to the APA litigation,
prohibits the implementation of the Business Plan as conceived by the
Board of Directors,
for the utilization of the ERJâs. This is no
small matter, as this project can only be viable if our group
qualifies for certain
Tax Incentives. As matters are standing (sic),
due to the declariters (sic) within the Court order the group will
not qualify for
the incentives. Should the order be irreversible
(with the pending appeal, or APA negotiations) then the ERJ project
in its current
form will probably be revoked.â
Captain Van Schalkwyk went on to say, among other
things, that the respondent had missed a licensing council hearing
which had been
scheduled for the 2
nd
April. He blamed this on what he referred to as the â
APA
litigation
â which he said had distracted
the respondentâs management and absorbed their attention. He said
that the result thereof was that
the respondent had missed the
â
Bulawayo route
â
as a start up and that â
Ndola/Livingstone
â
would have to be a joint venture.
[19] As already stated the appellant subsequently
referred a dispute concerning his dismissal to the Labour Court for
adjudication.
As also already stated, the Labour Court dismissed his
claim but made no order as to costs.
The appeal
Was the appellantâs dismissal automatically
unfair?
[20] The fundamental question that must be answered in
this matter is whether the appellantâs dismissal was automatically
unfair.
If, as the Court a quo found, the answer is that the
dismissal was not automatically unfair, the appeal must fail. If,
however, the
answer is that the dismissal was automatically unfair,
the next issue for determination will be the relief that should be
granted
to the appellant if any should be granted to all. The
determination of the question whether or not the dismissal was
automatically
unfair depends upon what the reason for the appellantâs
dismissal was. Sec 187(1)(d) of the Act provides that a dismissal is
automatically
unfair if the employer, in dismissing the employee,
acts contrary to sec 5 or, if the reason for the dismissal is â
â
(a)
â (c) â¦
(d) that the employee took action, or indicated an
intention to take action, against the employer by â
(i) exercising
any right conferred by this Act; or
(ii) participating in any proceedings in terms of
this Act;â
What was the reason for the
appellantâs dismissal?
[21] The appellantâs case both in his statement of
claim and in his evidence included an allegation that the reason why
he was dismissed
was the active role that he played in representing
the interests of the union and its members in his dealings with the
respondent
and in the litigation which the union initiated against
the respondent in March 2001. In support of this allegation the
appellant
referred to the presentation that Captain Foster had made
to him on the occasion of the delivery of the â
charge
sheet
â to him, the fact that Captain Van
Schalkwyk had repeatedly suggested to him that he should resign or
consider resigning as chairperson
of the union as well as to the
letter from the respondentâs attorney to him informing him that his
conduct would not be forgotten.
[22] The respondentâs stance has always been that the
appellant was dismissed for the misconduct of gross insubordination
and for
being a disruptive influence to the orderly operation of the
respondent. When one has regard to the respondentâs stance, it all
sounds very legitimate and innocuous. However, it is necessary to
delve deep into it in order to understand the precise nature of
the
conduct on the part of the appellant which the respondent covers when
it says that the appellant was guilty of gross insubordination
and of
being a disruptive influence to its orderly operation. In other words
it is necessary to inquire into the precise nature of
the conduct on
the appellantâs part that the respondent regarded as misconduct
taking the form of gross insubordination and being
a disruptive
influence to its orderly operation.
[23] Before I can consider what the respondentâs
witnesses said in their oral evidence which may reveal what the
respondent meant
when it said that the appellant was dismissed for
gross insubordination and being a disruptive influence to the orderly
operation
of the organisation, it is necessary to consider what was
said in the disciplinary inquiry and the internal appeal by
representatives
of the respondent and by the chairmen of the
disciplinary inquiry and the internal appeal because what they said
in those fora may
throw light on what the respondent meant and,
therefore, on the true reasons for the appellantâs dismissal. It
will also be necessary
to have regard to what the appellant alleged
in his statement of claim and what the respondentâs response to
that statement was
in so far as these may throw light on what the
respondent understood to constitute gross insubordination and being a
disruptive influence.
What was said by the
respondentâs representatives in the disciplinary inquiry?
[24] In the respondentâs written closing argument,
which had been prepared by Miss Jean Lubbe, the respondentâs human
resources
manager, but which, it seems, was presented to the inquiry
by Captain Foster, the respondent made, inter alia, the following
points:
- that the appellant had admitted that he had agreed to
treat the discussion of the lunch incident with Capt Moorosi as off -
the
record and yet he had referred to it as a meeting in his
affidavit which, continued the closing argument, was an act of gross
insubordination.
- that
the appellant had admitted that he had undertaken to Captain Van
Schalkwyk to submit the psychologistâs report but, when
he was
asked on the 10
th
April about the report, he claimed to have said that he would be
taking advice as to whether or not to submit it but Capt Van
Schalkwykâs
version was that the appellant had refused to present
the report and had said that he would take advice on the matter. It
was contended
that the appellantâs conduct constituted an act of
gross insubordination.
- that the appellant had admitted that his work
performance, which was said to be 697 hours of flight time in the
previous 12 months
and 48 hours during the month of March 2001 fell
far short of the respondentâs productivity efficiency targets of
950 hours per
year and 86 hours per month; it was argued that this
poor performance was disruptive of the operation of the respondent.
- that neither the appellant nor his representative had
challenged the statements that on several occasions the appellant had
â
shown no confidence (sic) and a breakdown
in trust in management â he had on several occasions called for the
resignation of key
personnel including the operations director, the
chief pilot and he had required the arrest and detention of his
operations director
and his chief executive
.â
The argument went on to say that the appellantâs ground of
justification for all of these was that he had acted in his capacity
as a shopsteward.
- that
the appellant had admitted that a requirement for the resignation of
the chief pilot after only four months in office â
during
a time of dynamic change requiring intense management of the change
process was entirely unreasonable, and that Captain Van
Schalkwyk had
done an excellent job in the circumstances.â
The
particular paragraph in the written argument concluded with a
statement to the effect that such irrationality demonstrated
a
âbreakdown in
trust without reason and disruption without reason
.â
[25] There is also a document in the record bearing the
heading: Heads of Argument. The document is dated Monday, 23 April
2001. It
also reflects that it was prepared for use at or in
connection with the disciplinary hearing of the appellant. It does
not bear anyoneâs
name. The document contains matters or points
which Captain Moorosi apparently submitted in support of the charge
of gross insubordination
as well as those apparently submitted by
Captain Van Schalkwyk in support of that charge. The document also
contains matters or points
under a heading relating to the charge of
being â
disruptive influence to the orderly
operation of the organisationâ.
[26] In the first bullet point under that heading it is
stated: â
Insubordination is in (sic) its own
right a disruptive influence to the orderly operation of the
organization.
â The significance of this
statement is that even alleged acts of insubordination were seen as
disruptive of the orderly operation
of the organisation. Along
another bullet point it was stated in the document that on at least
three occasions the appellant had
â
called
for a vote of no confidence in, or for the resignation of
management
.â It went on to state that
between July and November 2000 the appellant had â
voted
no confidence (sic) in Capt Smith, then a training captain and Mr
Moorosi and called for the resignation of the executive manager
of
human resources
.â It went on to say that
the appellant had
âpublicly announced this
view which had caused disunity and degradation of morale within the
company which has been disruptive
to the orderly operation of the
organization
.â
Along
the next bullet point it was stated in the document that the
appellant had â
recently called for the
arrest and detention of both the Operations Director and the CEO.
This action caused disunity and degradation
of morale within the
company, which has been disruptive to the orderly operation of the
organization.â
[27]
During
the trial there was some confusion as to who the author of the
document referred to in the preceding paragraph was. It is clear
from
its contents that whoever prepared it purported to do so on behalf of
the respondent. Its contents are either the same points
that have
been made in some or other document of the respondent or the points
it makes are consistent with the respondentâs case
against the
appellant as documented in various documents or as testified to by
some of the respondentâs witnesses. There is no
doubt that the
document sought to present the respondentâs case against the
appellant. In fact its contents are in line with the
respondentâs
case.
[28] In due course the chairman of the disciplinary
inquiry delivered his ruling âwhich he called a judgment. He found
the appellant
guilty of the two charges of misconduct with which he
had been charged. In what can only be regarded as an explanation of
how he
reached his findings, the chairman wrote thus in part in the
document containing his ruling:
â
The complainant stated that the above offences
were committed by Captain Kroukam. He submitted that any of the above
offences were
committed under the banner of the Airline Pilotâs
Association Union as the accused was therefore acting in his capacity
as chairman
of the organisation and therefore the shopsteward of the
organisation.â
[29] In the second page of the document containing his
ruling and what he purported to advance as reasons for his finding,
the chairman
of the disciplinary inquiry wrote in part:
â
Captain Kroukam has on several occasions requested
the resignations of several key employees. I have to agree that
Captain Kroukam
is first most (sic) an employee of the company
therefore(sic) the company (sic) has become disruptive to the
companyâs operation.
On a balance of evidence (sic) presented I therefore
find Captain Kroukam guilty as per the above charges.â
The reference to â
the company
has become disruptive
â is obviously an
error. What the chairman meant was that the appellant had become
disruptive to companyâs operation. It is clear
from the part of the
chairmanâs reasons for his finding quoted above that he regarded
the fact that the appellant had called for
the resignation of certain
key personnel of the respondent â allegedly on several occasions â
as part of the conduct on the appellantâs
part with which he was
charged under the second charge of being a disruptive influence to
the orderly operation of the respondent.
Otherwise, his mentioning
that the appellant had on several occasions called for the
resignation of certain key personnel of the
respondent and then
immediately saying that the appellant had become a disruptive
influence to the companyâs operations would make
no sense.
[30] If one considers the chairmanâs reasons or
motivation for his findings, it is clear that he did not mention the
appellantâs
failure to submit the psychologistâs report that was
presented as part of the conduct which was covered by the charge of
gross
insubordination. However, the chairman did refer to the
appellantâs alleged breach of the off â the record agreement in
regard
to the lunch incident. He dealt with the second charge as
well. After the chairman had found the appellant guilty of all the
allegations
of misconduct that he had faced in the inquiry, he
invited the parties to submit mitigating and aggravating
circumstances.
[31] A document containing argument in mitigation was
submitted to the chairman on behalf of the appellant. A document
containing
argument in regard to aggravating factors was submitted to
the chairman by Ms Lubbe on behalf of the respondent. The first point
made on behalf of the respondent in such document was that the
appellantâs conduct was not an isolated event but was part of an
ongoing strategy to disrupt. The second point was that
â(o)n
numerous occasions [the appellant] questions and challenges
management which makes orderly operations extremely difficult
.â
This provides a reflection that, when the respondent talked about the
appellant being a disruptive influence to its orderly operations
or
when the respondent preferred the second charge against the
appellant, namely, that he was a disruptive influence to the orderly
operation of the organisation, what it meant included the appellantâs
alleged conduct of challenging and questioning the respondentâs
management. Another point made was that the result was a breakdown
of the relationship between the two parties.
[32] It was also pointed out in the document dealing
with aggravating circumstances that the appellant had continuously
disobeyed
instructions regarding company procedures and policies.
Another point made was that there was a â
complete
and mutual breakdown in the trust relationship which is essential in
any employment relationship and more specifically in
this position of
line captain
.â The last point made in the
document was that
â(i)n the light of his
previous final written warning, on the same offence not even six
months prior to this event, we believe that
in terms of progressive
discipline, we are of the opinion that the chairman has no
alternative but to recommend summary dismissal.â
What the chairman of
the disciplinary inquiry said and ruled
[33] In due course the chairman issued his ruling on
sanction. In the document containing the ruling he recorded the
mitigating factors
submitted by the appellant and the aggravating
factors submitted by the respondent including the factors referred to
above as having
been submitted on behalf of the respondent as
aggravating factors. They included the one to the effect that on
numerous occasions
the appellant had challenged and questioned
management which was said to make orderly operations extremely
difficult. The chairman
said that he took into account all the
mitigating and aggravating factors that had been presented to him.
This also means, in my
view, that the fact that the appellant was
challenging and questioning the respondentâs management was taken
into account against
him as well.
[34] The chairman also took into account the final
written warning. He said: â
Captain Kroukam
has a previous final written warning for the same offence less than
six months ago
.â He then stated that he
found that the only way to rectify the situation was to recommend the
dismissal of the appellant with
immediate effect and without notice.
It later transpired that the final written warning had expired. It
appears that the chairman
of the disciplinary inquiry recommended a
dismissal and the respondentâs management had power to accept or
reject the chairmanâs
recommendation.
T
he internal appeal
[35] There
was an internal appeal hearing. The appeal chairman confirmed the
finding and sanction given by the chairman of the disciplinary
inquiry. There is no specific statement by the chairman of the
internal appeal that needs consideration.
Certain statements made in
the pleadings
[36] In
due course the appellant referred the dispute to the Labour Court for
adjudication. One of the sections of the appellantâs
statement of
claim had as its heading â
background to the
[appellantâs] dismissal]â.
It consists of
paragraphs 8 to 15 of the statement of claim. In it the appellant
begins the background by stating that in March 2001
the union and the
respondent had entered into â
a protracted
and highly acrimonious dispute over what the [union] alleged to be
the unilateral change to the terms and conditions
of employment of
its membersâ.
It goes on to allege that the
appellant as chairperson of the union played a pivotal role in
representing the union and its membersâ
interests during the
dispute.
[37] In the above regard it is stated in the statement
of claim that, among other things, the appellant:
- represented the union in meetings with the
respondent;
- instructed attorneys on behalf of the union and its
members to interdict the respondent;
- signed
all affidavits in the proceedings before the Labour Court;
- represented
the union and its members at court;
- chaired
meetings of the union members during the course of the dispute;
- in
general acted on behalf of the union and its members.
The appellant also refers to the bringing of the
contempt of court proceedings against the respondent and some of its
management personnel
and the fact that in those proceedings he was
the one who instructed the attorneys and signed affidavits on behalf
of the union.
Those proceedings, he alleges, ended on the basis that
the original order of the Labour Court in the interdict proceedings
was varied
by agreement between the parties and, thereafter, the
underlying dispute was settled through the process of mediation.
[38] In paragraph 23 of his statement of claim the
appellant contended that his dismissal was automatically unfair by
virtue of sec
187(1)(d) of the Act. Sec 187 (1)(d) of the Act
provides that a dismissal is automatically unfair if the employer, in
dismissing
the employee, acts contrary to sec 5 of the Act or, if the
reason for the dismissal of the employee is that â
the
employee took action, or indicated an intention to take action,
against the employer by
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of
this Act
;â
Thereafter the appellant set out what he alleged the
respondent had done. He alleged that the respondent:
â
23.1 acted contrary to the provisions of section
5(1) in that it has discriminated against the [appellant] for
exercising rights conferred
by the LRA;
prejudiced the [appellant] because:
of the [appellantâs] membership of the
association;
of the [appellantâs] participation in the lawful
activities of the association
he has disclosed information that the [appellant]
is lawfully entitled to disclose;
he had exercised rights conferred by the LRA
he participated in proceedings under the LRAâ
The appellant further alleged as follows in paragraphs
23.3 to 23.5:
â
23.3.
Further,
the Respondent has interfered with the
[appellantâs] right to participate in the lawful activities
of the
association;
The Respondent has interfered in the [appellantâs]
right to hold office of the association;
The Respondent has interfered with the
[appellantâs] right to carry out the functions of a trade union
representative in terms
of the Act and the collective agreement
between the [respondent] and the association.â
[39] The respondent delivered its response to the
appellantâs statement of claim. In its response the respondent
admitted that a
dispute arose between the union and itself in March
2001 concerning what it called structural changes but denied that
there was any
â
acrimonyâ
on its part or that it exhibited any acrimony towards the union or
the appellant. However, the respondent alleged that at the time
of
the dispute the appellant had appeared to take it personally and
â
appeared exceedingly hostile and aggressive
towards the respondent and its personnel
.â
With regard to the contempt of court proceedings, the respondent
alleged that the Labour Court had made no finding on the contempt
of
court application and the matter had been settled amicably.
[40] The respondent alleged among other things that
there was simply no issue between the parties resulting from or
pertaining to
the appellantâs membership of the union. The
respondent went on to allege that in fact one of the proposals made
by itself to the
union as part of an attempt to resolve the
underlying dispute between itself and the union was that a
recognition agreement be concluded
between the union and the other
company involved in the dispute with the union, namely, SA Airlink
Regional and this was accepted
by the union and such agreement was
concluded. The respondent also alleged that as a matter of fact it
had no dispute with, or complaint
against, or, any issue with, the
union or any of its members or representatives resulting from
membership or activities of the union.
It alleged that in fact it
welcomed the membership of and the activities in, the union which it
further alleged was always made clear
to all parties.
[41] Under paragraph 14 of its response to the
appellantâs statement of claim, the respondent stated that it was
imperative to state
the circumstances which had given rise to the
appellantâs suspension and charges and then set them out in
paragraphs 14.2.1 to
14.3. The respondent made the allegation in par
14.2.1. that during the dispute the appellant had dealt with the
matter as a personal
attack on him and had been â
extremely
hostile and aggressive towards the respondentâs management, and
grossly insubordinate
â. In par 14.2.2 the
respondent acknowledged that the appellant had been a representative
of the union and that, as such, he had
been both entitled to and
required to engage the respondent and in fact âdo battleâ with
the respondent on such basis. However,
the respondent alleged that
this did not entitle the appellant â
to
commit misconduct and be grossly insubordinate.â
In par 14.2.3 the respondent alleged that the appellant had
represented to the respondentâs management that he wanted â
an
off-the record
â discussion, he had enticed
the management into a meeting and thereafter had used the content of
such meeting in litigation against
the respondent. The respondent
also referred to the appellantâs failure to fly 950 hours in the
previous 12 months prior to March
2001. It also stated that the
appellant had been subject to a final written warning on a related
issue.
[42] Of further particular significance in the
respondentâs response to the appellantâs statement of claim are
paragraphs 14.2.7,
14.2.8, 14.2.10, and 14.3. They read thus:
â
14.2.7
The
[appellant], on several occasions in meetings with the respondentâs
management, stated that he had no confidence and trust in
the
respondentâs management. The [appellant] himself in fact indicated
that there was no trust relationship between himself and
the
respondentâs management. It is clear that on this issue alone, a
continued employment relationship was clearly completely untenable.
14.2.8 The
[appellant], with regular occurrence, demanded the resignation of
senior personnel of the respondent, in particular the
Chief Pilot and
Operations Director, without any proper reason or basis. These are
the persons with whom the applicant must deal
on a day to day basis,
not only in his capacity as representative of the Association, but
also in the fulfilment of his normal duties.
To continue a normal
employment relationship, under these circumstances, is simply
impossible;
14.2.9 â¦
14.2.10 The [appellant] in fact embarked upon a
deliberate campaign [of] harassment and challenge of the respondentâs
management,
not as union representative; but in pursuit of a personal
vendetta;
14.3 The [appellant] in fact abused his position as
Association chairperson, to pursue his own agenda. The applicant
should in fact
set an example to his fellow members. This is clearly
reprehensible conduct
.â
[43] Under paragraph 21 of the respondentâs response
to the appellantâs statement of claim the respondent denied having
ever acted
contrary to the provisions of sec 5 of the Act nor to have
ever discriminated against or acted against or prejudiced the
appellant
as a result of his exercise of his rights provided for in
the Act. The denial by the respondent gives rise to the question: How
does
one reconcile this denial by the respondent with:
the fact that part of its case against the appellant as
set out in its response to the statement of claim and in the written
closing
argument in the disciplinary inquiry was that the appellant
had:
expressed a vote of no confidence in the respondentâs
management;
challenged and questioned the respondentâs
managementâs decisions, and
had sought the arrest and detention of certain members
of the management of the respondent including its chief executive
officer
(which was a reference to the appellantâs role in
bringing contempt of Court application on behalf of the union
against the
respondent and certain of its officials).
[44] It seems to me that the answer is either that the
respondent did not think that the appellant had a right to do any of
those
things even as a union representative or the respondent
accepted that he did have a right to do all of those things as a
union representative
but its view might have been that, when he did
those things, he was not acting in his capacity as a union
representative but was
pursuing a personal vendetta.
[45] It is necessary even at this stage to make the
point that in the trial the respondent did not present any reasons
upon which
a finding can be made that the appellant was acting in
pursuit of his own personal goals when he allegedly challenged the
management,
called for the resignation of certain members of the
respondentâs management or personnel, expressed a vote of no
confidence in
certain members of the management or personnel of the
respondent and when he played the role he did with regard to the
litigation
of March 2001 including the contempt of court application.
It may be that he was acting in his personal capacity on one or two
occasions
in regard to some or other incident but there can simply be
no doubt that most of the time he would have been acting in his
representative
capacity when he did most of those things.
[46] When one has regard to what representatives of the
respondent said in the disciplinary inquiry, what the chairman of the
disciplinary
inquiry said in his reasons for his finding of guilt and
in his reasons for the sanction that he recommended, as well as what
the
respondent said in its response to the appellantâs statement of
claim, it seems to me that, what the respondent regarded as
misconduct
and the conduct with which the appellant was charged in
the disciplinary inquiry either by way of the charge that he was
grossly
insubordinate or that he was a disruptive influence to the
orderly operation of the organisation included the allegations that
the
appellant had:
(i) challenged and questioned decisions made by the
respondentâs management
(ii) had
expressed a vote of no confidence in the respondentâs management;
called for the resignation of certain personnel of the
respondent or of certain members of the respondentâs management;
through the role that he played in the bringing of the
contempt of court application on behalf of the union against the
respondent,
and some of the members its management, including its
chief executive officer, sought the arrest and detention of its
chief pilot
and the chief executive officer.
[47] I now turn to consider the oral evidence given by
the respondentâs witnesses to determine what their understanding
was of the
objectionable conduct with which the appellant was charged
under the two charges in the disciplinary inquiry and which led to
his
dismissal.
[48] In this regard
Captain Van Schalkwyk gave evidence of what the appellant had done
which fell under the charge of gross insubordination.
It is necessary
to have regard to that evidence and the evidence of others which may
reveal the nature of the conduct of the appellant
which, as far as
the respondent was concerned, constituted gross insubordination and
being a disruptive influence to its orderly
operation.
[49] Captain Van Schalkwyk gave the following incidents
or acts by the appellant as falling under the charge of gross
insubordination:
(a) he said that the appellant had refused to execute an
instruction from management. This was a reference to the appellantâs
conduct
as alleged by the respondent that the appellant refused to
submit his psychologistâs report; later he said that the relevant
conduct
in this regard on the appellantâs part was the appellantâs
refusal to go to another psychologist when he, i.e. Captain Van
Schalkwyk,
had instructed him to.
(b) he
referred to a meeting in January/February 2001 in which there was a
discussion on the shortage of air crew which existed at
the time
where, according to Captain Van Schalkwyk, the meeting became very
heated and the appellant â
ended being very,
very aggressive with, with a finger pointed in my face, and I slowed
the meeting down and I adjourned the meeting;â
when Captain Van Schalkwyk was asked whether the act of
insubordination was the appellantâs alleged waiving of his finger
in his
face, Captain Van Schalkwyk replied: â
and
yelling at me
.â He could not remember
exactly what the appellant had said to him when he yelled but did
remember that the tone of the voice was
not an acceptable one.
Captain Van Schalkwyk was asked why he had not charged the appellant
with misconduct soon after this incident
and he replied that it was
still early days after his appointment to the position of chief
pilot. He added that that incident was
not enough on its own to
warrant charging the appellant with misconduct.
(c) he
referred to â(
t)he fact that [the appellant]
had ⦠called for the resignation or a no confidence vote for six of
the executive management of the
respondent where he challenged and
just (inaudible) the whole of the executive management of the
Company
â. Captain Van Schalkwyk testified
that the first time when the appellant had called for the resignation
of certain management personnel
was in 1998/9; when Counsel for the
appellant expressed surprise that the appellant was charged in 2001
with something that had happened
in 1998/9, Capt Van Schalkwyk gave a
long-winded comment which made no sense in relation to the question
asked.
(d) he referred to the appellantâs conduct in
off-loading a Swazi cabin attendant from an aircraft in September
2001; later Capt
Van Schalkwyk seemed to say that the appellant was
not charged with misconduct in regard to that incident in the April
2001 disciplinary
inquiry but that his conduct in such incident was,
nevertheless, a factor;
(e) he stated that the appellant had become difficult to
manage. It was put to Capt Van Schalkwyk that that somebody was
difficult
to manage did not constitute insubordination. In reply Capt
Van Schalkwyk said there was a point where â
one
decides that I cannot manage this person anymore
.â
Capt Van Schalkwyk was then asked whether, when that point was
reached, that person could be said to be grossly insubordinate.
Capt
Van Schalkwyk answered: â
Then we wanted to
bring an end to the interaction and the interaction being gross
insubordination.
â
(f) he
referred to a â
conversation in response to
Captain Abriâs ⦠issue where I was telephoned, yelled at, called
and sworn at
â; he also referred to foul
language of a lavatorial nature that he said the appellant had used
to him to say something had to stop.
In regard to this occasion, Capt
Van Schalkwyk conceded that the appellant had been acting in his
capacity as the leader of the union
but, continued Capt Van
Schalkwyk, â
I still do not expect an
employee of the company to yell to the executive manager or chief
pilot swearing using swearing language
.â
[50] It is necessary to point out that to a question as
to what it was that had led to the appellant being charged, Capt Van
Schalkwykâs
answer was that he thought it was a history of
â
aggression, challenging management, being
impossible to manageâ¦â.
In other words,
according to Capt Van Schalkwyk, the appellantâs conduct which the
respondent was objecting to and which it regarded
as the being basis
for his being charged with gross insubordination and could provide a
basis for the appellantâs dismissal was
conduct that the respondent
labelled as â
a history of aggression,
challenging management and being impossible to manageâ¦â
It was after Captain Van Schalkwyk had given this answer that he was
asked to specify the incidents which were meant to be covered
or
which were covered by the charge of gross insubordination and he gave
the incidents referred to above
[51] Apart from Capt Van Schalkwykâs understanding of
the incidents which fell under the charge of gross insubordination,
reference
can also be made to Capt Roger Fosterâs own understanding
of the incidents that fell under that charge. What Captain Foster
regarded
as conduct or incidents that fell under the charge of gross
insubordination can be found in the document containing the
respondentâs
closing argument in the disciplinary inquiry which has
been referred to above already. Under cross-examination Captain
Foster did
concede that the matters or incidents that he referred to
in the document related to the guilt or otherwise of the appellant,
although
at other points of the cross-examination he said that such
incidents or matters were â
aggravating
factors
â and did not relate to the question
whether or not the appellant was guilty of gross insubordination. Be
that as it may, the fact
of the matter is that, as was pointed out by
Counsel for the appellant in the trial and conceded by Capt Foster
during the latterâs
cross-examination, the document which contained
aggravating factors and the document which contained closing argument
and contained
various incidents were two separate documents.
[52] The matters or incidents contained in the document
on which Captain Foster relied to seek a finding by the chairman of
the disciplinary
inquiry that the appellant was guilty of, I think,
gross insubordination, were the following:
(a) the appellantâs alleged breach of the off-the
record agreement;
(b) the
appellantâs alleged refusal to submit a psychologistâs report
(c) the appellantâs conduct that â
on
several occasions [he had] shown no confidence and a breakdown in
trust in management.â
[
53
]
Captain
Foster wrote in the document that the appellant had on several
occasions called for the resignation of key personnel including
the
operations director, the chief pilot and that he had â
required
the arrest and detention of his operations
director and his chief executive
.â Captain
Foster wrote that the appellantâs justification for these
â
disruptive actionsâ
was that he had acted in his capacity as shopsteward. In his capacity
as complainant in the disciplinary inquiry Captain Foster sought
to
illustrate that as the appellantâs affidavit had been signed in
both his capacity as employee and in his capacity as a shopstward,
it
had been difficult to separate these two roles and differentiate
which disruptive actions were attributable to which persona.
Captain
Foster further wrote that Captain Kroukam had admitted that a
requirement for the resignation of the chief pilot, after only
four
months in office during a time of dynamic change requiring intense
management of the change process, was entirely unreasonable,
and that
Capt Van Schalkwyk had done an excellent job in the circumstances.
Captain Foster said that this â
irrationality
â
demonstrated a breakdown in trust without reason and disruption
â
without reason
.â
[54] When one has regard to the incidents which both
Captain Van Schalkwyk and Captain Foster regarded as covered by the
one or other
charge that the appellant faced, it is clear that
included in Captain Van Schalkwykâs list are the allegation that
the appellant
had called for a vote of no confidence in certain
members of the management of the respondent, that he had also called
for the resignation
of certain members of the respondentâs
management and that he had challenged and questioned the whole of the
executive management.
When one has regard to Captain Fosterâs list
of conduct or incidents which he said were covered by one or other of
the charges
of misconduct, it is clear that the appellantâs call
for the resignation of certain personnel, the institution of the
contempt
of court proceedings against the respondent and some of the
respondentâs management were some of the incidents, as far as
Captain
Foster was concerned, which were covered by one or other of
the two charges that the appellant faced in the disciplinary inquiry.
[55] In his written closing argument in the disciplinary
inquiry Captain Foster wrote that the appellant had â
required
the arrest and detention of his operations director and his chief
executive officer
â and described these as
â
disruptive actions
â.
Captain Fosterâs description of the appellantâs conduct in
calling for the resignation of certain personnel of the respondent
and in â
requiring
â
the â
arrest and detention
â
of the â
operations director and
chief executive officer
â
as â
disruptive actions
â
coincides with the second charge that the appellant faced in the
disciplinary inquiry, namely, that he was a disruptive influence
to
the orderly operation of the respondent as an organisation. It is
therefore clear that the appellantâs role in the litigation
was
seen as part of what the appellant had done wrong.
[56] Immediately after the passage referred to in the
preceding paragraph is another paragraph in Capt Fosterâs document
containing
written closing argument in the disciplinary inquiry
which, in my view, reveals exactly what the appellantâs conduct
referred to
earlier in that document was which the respondent meant
to fall within charge of gross insubordination that the appellant was
facing.
He wrote in that paragraph that the appellant had sought to
justify his actions on the basis that they were done in his capacity
as a shopsteward. In the next two sentences of that paragraph Capt
Foster went on to say:
â
It
is clear that
all
counts
of insubordination and
disruption, which are the subject of this and previous complaints
have been in his capacity as employee. The
shopsteward was not
employed to pilot the aircraft from which Capt Kroukam had dismissed
a cabin attendant in 2000, nor in the
illustrations
of insubordination and disruption [referred to] herein above.â
(Underlining supplied)
It is clear from the last portion of the last sentence
in this paragraph that Captain Foster was saying that the incidents
or behaviour
or conduct on the part of the appellant that he had
referred to earlier in that document constituted illustrations of the
insubordination
and disruption with which the appellant had been
charged in the disciplinary inquiry. Those illustrations include the
fact that the
appellant had expressed lack of confidence in certain
members of the management, that he had called for the resignation of
certain
members of the management and that he had â
required
the arrest and detention of his operations director and his chief
executive
.â
[57] It seems quite clear from the above that both Capt
Van Schalkwyk and Capt Foster considered that the alleged acts of
misconduct
with which the appellant had been charged included his
conduct in expressing a vote of no confidence in certain members of
the management,
in calling for the resignation of some of the members
of the management and in seeking to have the operations director and
the chief
executive officer of the respondent arrested and detained.
The latter obviously refers to the contempt of court application. Now
that the respondentâs understanding of the conduct or incidents
with which the appellant was charged in the disciplinary inquiry
which led to his dismissal, has been established, it is now necessary
to determine what the reason(s) the appellantâs dismissal
was or
were.
What were the reasons for the
appellantâs dismissal?
[58] The chairman of the disciplinary inquiry was not
called to testify in the Court a quo. Accordingly, one is denied the
benefit
of the evidence of the person who made the decision relating
to the guilt of the appellant. However, the document containing his
ruling does give one more than an idea of what weighed with him.
[59] In that document the chairman recorded that
evidence had been led by the complainant as well as by the
appellantâs representative.
He also recorded that closing
statements had been submitted to him by the complainant or his
representative as well as by the appellantâs
representative. He
wrote that he took into account the â
above
evidence as well as evidence led in the inquiry.
â
I think the reference to the â
above
evidence
â probably referred to statements
and closing statements because thereafter he referred to evidence led
in the inquiry. He also
referred to the lunch incident as well as the
appellantâs failure to fly 950 hours in the previous 12 months to
March 2001. Then
the chairman wrote: â
Captain
Kroukam has on several occasions requested the resignation of several
key employees
.â This means that one of the
factors which the chairman considered had rendered the appellant
guilty of one or both of the charges
that he was facing was that he
had on several occasions called for the resignation of certain key
personnel in the respondent.
[60] After the chairman had found the appellant guilty
of the charges of misconduct with which he had been charged, he
invited both
sides to make submissions on mitigating and aggravating
circumstances before he could decide on the sanction. In a document
which
Ms Lubbe, submitted on behalf of the respondent to the chairman
of the disciplinary inquiry dealing with aggravating factors, the
second aggravating factor that she gave in her list was that
â(o)n
numerous occasions [the appellant]
questions
and challenges
management which makes
orderly operations extremely difficult.â
This tied in with Capt Van Schalkwykâs evidence under
cross-examination that the appellantâs conduct which led to him
being charged
was a â
history of aggression,
challenging management â¦â
In the document
containing his ruling on the sanction, the chairman of the
disciplinary inquiry recorded both the mitigating and the
aggravating
circumstances which both sides had submitted to him. These included
the statement that the appellant questioned and challenged
the
respondentâs management. The chairman stated in the document that
he had considered all the mitigating and aggravating factors
submitted to him before deciding upon the sanction.
[61] Among other things Captain Van Schalkwyk testified
that
â(t)he issues that are crisp and the
issues that are listed as being the cause for the dismissal was (sic)
not union matters; did
not refer to the court case ⦠it was purely
a matter of managing the [appellant]. I found it and obviously from
the court document
it shows that other people as well found it very
difficult to manage the [appellant]. I found him
aggressive
and
challenging
,
yelling disrespectfully which is not the end of the world, but this
was disruptive to the point where one ends up not being able
to
conclude a conversation with the [appellant] being
aggressive
and
challenging
â.
So the theme of the appellantâs â
sin
â,
that is, that he was â
aggressive
â
and was challenging managementâs decisions, reared its head again.
When, thereafter, Capt Van Schalkwyk was asked to describe
the
appellantâs attitude towards the respondentâs management, he
stated that â
there was friction between the
[appellant] and management, where management
is
challenged
at
all
times, all decisions are challenged
,
individuals are challenged, the
requests are made for resignations,
probably five, six people in the company.â
(Underlining
supplied).
[62] Earlier on I referred to the fact that in the
document containing his closing argument in the disciplinary inquiry,
Captain Foster
referred to the appellant as having sought the arrest
and detention of the Operations Director, Captain Moorosi and
himself, the
chief executive officer. As already stated, this was a
reference to the contempt of court application against, among others
the respondent
and the chief executive officer. In his evidence Capt
Van Schalkwyk testified that the bringing of the contempt of court
proceedings
against the respondent and some members of the
respondentâs management represented a â
crescendo
or the pinnacle of the pressure and the dealings with the company and
the Airlink Pilotsâ association
.â
[63] Captain Van Schalkwyk testified that, when the
appellant refused â
on the Tuesday
â
to submit the psychologistâs report or when he said that he would
seek advice, he, i.e. Capt Van Schalkwyk, realised that he
could not
manage the appellant. Capt Van Schalkwyk said that he realised that:
â
I have difficulty in working with him,
there is a history of him taking matters in his own hands⦠then I
just reached the point
on that after that meeting ⦠that I cannot
manage this man anymore and we need to bring a stop to it
.â
[64] At some stage Capt Van Schalkwyk was asked under
cross -examination whether his evidence was that the respondentâs
attitude
was that, if a union official called for an official of the
respondent to resign because, for example, he was not sensitive to
the
needs of the union, that constituted an act of gross
insubordination. In response Capt Van Schalkwyk said that he would
have to give
the question some thought. He went on to answer by
asking why there was a history of one person â
consistently
saying resignation, resignation, resignation, when that person is not
part of the equation, nothing like that is ever
said. So it might be
a person using the cloak of his union trying to make statements.â
In effect Capt Van Schalkwyk did not answer the question.
[65] Another matter that must be considered in the
determination of the reason for the dismissal of the appellant is the
presentation
that Captain Foster made to the appellant on the
occasion of the handing over to the appellant of the notice calling
him to the disciplinary
inquiry. It is clear from Captain Fosterâs
own evidence about the content of that presentation that he was very
unhappy about the
fact that there had been the litigation that there
had been between the union and the respondent. That litigation
included the contempt
of Court application. Captain Foster felt that
the litigation had interfered very significantly with the
managementâs work. He
felt that the respondentâs management or
its business had been severely compromised. It is also clear from his
evidence and that
of the appellant that in that presentation Captain
Foster was expressing to the appellant his disapproval of the
litigation.
[66] With regard to the presentation by Captain Foster
to the appellant, Captain Foster was asked under cross-examination
why he considered
the occasion of the handing over of the
disciplinary notice to the appellant an appropriate forum to make a
presentation to him about
how much damage the litigation had caused
to the respondent. Capt Foster replied that â
we
â,
by which he might have meant the respondentâs management or both
the respondentâs management and the union, â
had
been in a process which from a strategic point of view compromised
the company. This was seen as on-going difficulties from a
labour
point of view not related, but obviously following on and still
causing the company difficulties
.â He went
on to say: â
And we wanted to high-light you
know what harm gets done when industrial disputes are at play in the
form that it had taken through
that dispute, and try and discourage
this type of taken (sic) the law into their own hands.â
[67] What emerges quite clearly from Capt Fosterâs
answer to the question is that one of the things he sought to do by
making the
presentation that he made to the appellant was to convey
to the appellant his disapproval of the litigation and, in his words
to
â
discourage it.â
In my view what Captain Foster was doing through making that
presentation to the appellant was in effect to say to the appellant:
You have hurt us very badly through this litigation. Now it is our
turn!
[68] Captain Foster was asked under cross-examination
what had â
taken the law into their own
handsâ.
This was a reference to what he had
said earlier as quoted at the end of the last quotation of his
evidence in the paragraph immediately
before the paragraph preceding
this one. Captain Fosterâs answer was that they had â
just
been in this whole process of litigation with the pilot union and
despite that we get to agreements in a casual forum that is
off the
record completely and then whatever gets discussed and said in off
record forum gets used as evidence. I think that is also
the reason
why one had to highlight the significance of the legal proceedings in
that forum.â
I wish to pause here and say
this. I cannot make head or tail of this answer by Captain Foster to
answer the question that had been
asked, namely, what had â
taken
the law into own hands
â.
[69] Captain Foster was then asked to explain in effect
the link between the charge of gross insubordination and his â
eye
off the ball
â statement in the
presentation. His answer was that the â
eye
off the ball
â statement â
came
more to do with the intensity of the litigation.â
He said that the respondent had embarked upon a strategy for rolling
out a plan for Africa
â⦠and the
liberalization aspects of that were not coming through at the pace at
which we had expected them to â¦
â He then
went on to say: â
And any form of labour
dispute, insubordination, disharmony in the company takes
managementâs eye off that ball. It was an intense
time. SA Airlink
is a small company and it requires direct hands on involvement by all
of its â¦(inaudible) to be spending time
on the tedious type issues
is not spending time on strategic progress.â
[70] If one has regard to the fact that the respondentâs
management thought that through his role in the contempt of court
application
the appellant had wanted the arrest and detention of
certain key personnel and that the respondentâs management had
perceived such
conduct on the appellantâs part as an act of gross
insubordination and as conduct that was disruptive of the orderly
operation
of the respondent, one is left in no doubt that the
presentation was intended at least in part to demonstrate to the
appellant that
the respondentâs management was then responding to
the appellantâs act of spearheading the litigation on behalf of the
union.
In this regard it is significant that such presentation was
made only to the appellant (except for the person who was with him at
the time) and was not made to more people in the union. The appellant
was the one who had played a leading role in the litigation
on both
occasions and he was the one to whom the presentation had to be made.
[71] Another matter that must be taken into account is
the fact that the appellant was charged with misconduct relating to
the second
charge because he had failed to fly 950 hours in the 12
months preceding March 2001 and yet by the admission of the
respondentâs
own witnesses there were other pilots who had flown
less than 950 hours during the same period who were not charged with
misconduct.
All the respondentâs witnesses conceded under
cross-examination that failure to fly 950 hours did not constitute
misconduct. Captains
Van Schalkwyk and Foster either could not give
any explanation as to why the appellant was charged with misconduct
for this when
others in the same position were not or they suggested
that the question be put to the disciplinary officer, Ms Lubbe.
[72] When Ms Lubbe testified, she, too, conceded that
such conduct did not constitute a disciplinary matter but said that
it was a
matter of poor performance. However, she did not explain why
the appellant was charged with this as misconduct when other pilots
in the same position were not charged. In my view the respondentâs
management used this conduct to charge the appellant because
they
were fed up with him because of his alleged aggressiveness and the
fact that, as far as the respondent was concerned, he was
challenging
too many of their decisions and was ever expressing a vote of no
confidence in the management and, when he was not calling
for their
resignation, he was seeking their arrest and detention.
[73] It is now necessary to have regard to at least some
of the evidence which emerged when the appellant gave his evidence.
Before
dealing with the appellantâs evidence it is necessary to
make two observations. The first one is the fact that part of the
case
that the appellant had pleaded in his statement of claim and,
therefore, the case that the respondent came to answer in the court
below was that the respondent had dismissed him because of his
exercise of his rights conferred upon him by the Act and that the
respondentâs conduct in this regard was a violation of sec 5 of the
Act. Of course, all of this was directed at seeking the ultimate
finding that the dismissal was an automatically unfair one. The
second observation is that the respondent was the party that began
with the leading of evidence and the appellant only testified after
the appellantâs witnesses had testified and the respondent
had
closed its case. Part of the significance hereof is that, when the
respondent led its evidence, the case that it sought to meet
was that
which was set out in the appellantâs statement of claim and in the
pre-trial minute.
[74] Under cross-examination the appellant specifically
referred to Capt Van Schalkwykâs memorandum of the 17
th
April where among other things Captain Van Schalkwyk said that the
appellant had recently called for the arrest and detention of
both
the operations director and the chief executive officer and further
said that such action had caused â
disunity
and degradation of morale
â within the
company which had been disruptive to the orderly operation of the
organisation. The appellant also testified that what
Captain Van
Schalkwyk was saying in that memorandum in this regard was something
about which evidence had been led in the disciplinary
inquiry. The
appellant was asked as to who had given such evidence in the
disciplinary inquiry. He answered that Capt Foster had
done so. He
was then asked whether he was saying that Captain Foster had said in
the disciplinary inquiry that because the appellant
had asked for him
to be committed to jail for contempt, he should be dismissed for
that. In reply the appellant said that, if his
memory served him
well, â
the way it was put was that in the
context that the company sees that as gross insubordination and lack
of respect to the CEO
â He went on to say
that Captain Foster had said that the company could not allow that to
happen. The appellant added that that
was â
the
essence of the case.
â
[75] After this the respondentâs attorney asked the
appellant whether what he had just said was Capt Fosterâs evidence
in the
disciplinary inquiry was an important factor in his case. The
appellant answered in the affirmative. The respondentâs attorney
then pointed out that the appellant had not included that factor in
his evidence in chief and had not mentioned it under
cross-examination
the previous day. He also pointed out to the
appellant that he, that is the appellant, had taken the bundle of
documents â I assume
that that was the bundle of documents being
used in Court â home the previous night to read them, and that
prior to that he had
never mentioned this factor.
[76] The appellant answered that he was not
â
volunteering
â the
information after he had read the bundle as suggested by the
respondentâs attorney. He said that that information â
has
been I cannot call it common cause, but certainly very open as you
have quite rightly read it from our papers to the pleadings
â.
He said it was â
an element
â
of his case all the time. The appellant then said that that evidence
was â
covered in the disciplinary inquiry as
I said
.â
[77] With regard to the respondentâs attorneyâs
complaint to the appellant that he had never before mentioned that
part of the
reason for his dismissal was that he had sought the
committal to jail of the CEO for contempt, the appellant must have
been correct
when he said that in the disciplinary inquiry the
respondent had relied on, among other things, the fact that on behalf
of the union
he had through the contempt of court application sought
the committal to jail of, among others, the Chief Executive Officer.
I say
this because in the document containing closing arguments in
the disciplinary inquiry prepared by or presented by Captain Foster
dated 25 April 2001 it was stated, among other things, â
Neither
Capt Kroukam nor his legal representative challenged
statements
that he had on several occasions
showed no confidence and a breakdown in trust in management â he
had on several occasions called
for the resignation of key personnel
including the operations director, the chief pilot and he had
required the arrest and detention
of his operations director and his
chief executive
.â
[78] In fact the respondentâs attorney was mistaken
when he put it to the appellant that Captain Foster had not been
asked about
this issue under cross â examination. He was. First,
the appellantâs Counsel asked him whether, when the respondent
considered
the appellantâs actions in April 2001 in terms of the
trust relationship between the appellant and respondent, the incident
of
September 2000 was taken into account. Captain Fosterâs answer
was that â
all factors must have a bearing
and six months is not a long period of time within which trust can be
restored
.
So my answer
to that question would be yes, it was a factor.â
He was then asked what he meant by the statements in the relevant
bullet point in the document where it says that neither the appellant
nor his legal representatives had challenged certain statements. This
was a reference to the portion of Capt Fosterâs closing argument
in
the disciplinary inquiry which is quoted in bold at the bottom of the
paragraph immediately before this one. Captain Foster said
he was
referring to the fact that in several interactions that he had had
with the appellant, the latter had made statements that
he had no
confidence in the trust relationship and in the management capability
of the leadership of the flight operations department
of the
respondent. Capt Foster also stated that in particular the appellant
had asked for the resignation of Captain Moorosi.
[79] In case the respondentâs attorneyâs putting of
certain things to the appellant about the contempt of Court
application suggesting
that he or the respondent was being taken by
surprise with the appellantâs evidence that his case included a
complaint that his
role in the contempt of court application was a
factor in the respondentâs decision to dismiss him, that is put to
rest by the
fact that a reading of the record where the respondentâs
attorney led Capt Van Schalkwykâs evidence in chief reveals that
the
respondentâs attorney knew this to be the appellantâs case.
He reminded Captain Van Schalkwyk that in March 2001 there had been
â
court action
â
between the union and the respondent. He then reminded him that â
it
is also common cause from the pre-trial minute that the [appellant]
was the one who drove that process on behalf of the trade union
and
who signed all of the Court documents in this regard.
â
He then said that â
the inference that the
pleadings [and] the pre-trial minute seeks to achieve is that that
was an instrumental cause, being the subsequent
dismissal. Can you
give us your comment on?â
Captain Van
Schalkwyk denied that allegation and said that the cause for the
dismissal had nothing to do with union matters. He said
that the
problem was managing the appellant. He said that he found him
â
aggressive and challenging, yelling
disrespectful â¦â
He said that the
appellant was â
disruptive to the point where
one ends up not being able to conclude a conversation with the
[appellant] being aggressive and challenging
.â
Soon thereafter Captain Van Schalkwyk, while answering a question
relating to the settlement of the underlying dispute, said
that the
dispute went to the Labour Court. He said that there was â
ambiguity
on the interpretation of the findings of the Court
.
An urgent interdict was filed against the
company at which stage it was really the crescendo or the pinnacle of
the pressure and the
dealings with the company and the Airlink
Pilotsâ Association.â
[80] In this evidence in chief the appellant testified
that he had made statements to the effect that he had no confidence
in the
management of the respondent but stated that he had done so as
chairman of the union after deliberations with the unionâs
committee.
He said that those statements were made in regard to the
technical staff. He denied having called for the resignation of the
chief
pilot, Capt Van Schalkwyk. He was asked whether he had ever
called for the resignation of the operations director and his answer
was: â
Not in my personal capacity
.â
When he was asked to elaborate, he referred to administrative
arrangements that had apparently been made very inefficiently in
connection with a trip overseas for training where members of the
union had found, for example, that certain hotel arrangements had
not
been made with the result that in one instance a female pilot had
been expected to share a room with a male pilot. He suggested
that
the call for the resignation of the operations director was made
against this background of dissatisfaction with his work and
was made
in his official capacity as chairman of the union after the unionâs
committee had deliberated upon the matter.
[81] To prove that he was dismissed for his union
activities, in his evidence the appellant also relied on the fact
that Captain Van
Schalkwyk suggested to him on a few occasions that
he should consider resigning as chairman of the union. Captain Van
Schalkwyk testified
that such suggestions were on considerations of
the appellantâs own health and were only made after the appellant
had himself suggested
that, maybe, he should consider resigning as
chairman of the union. The appellant conceded that, prior to such
suggestions by Capt
Van Schalkwyk, he had suggested that maybe he
should resign. He started thinking about the option of resigning as
chairman of the
union because he was under tremendous pressure. In
fact he testified that he went as far as putting the suggestion to
the union leadership
but it was not accepted. There is no basis for
rejecting Captain Van Schalkwykâs evidence that he had made those
suggestions out
of concern for the appellantâs health. Accordingly,
Captain Van Schalkwykâs explanation must be accepted.
[82] In support of his claim that his dismissal was
based on his union activities and the role that he played in the
litigation of
March 2001 against the respondent, the appellant also
referred to the respondentâs attorneyâs letter in which a
statement was
made to the effect that his actions or conduct would
not be forgotten. The appellant testified that this was a threat that
some action
would be taken against him because he had denied that he
had concluded an agreement with the respondentâs attorney with
regard
to the contempt of court application or the training of new
pilots on the 28
th
March. When Captain Foster was asked about whether the respondentâs
attorney had been acting on the respondentâs instructions
when he
wrote that letter to the appellant or the union, he answered in the
affirmative but, when the respondentâs attorney took
the witness
stand and testified about this letter, he said that he had acted on
his own when he wrote that letter and that the respondent
had nothing
to do with it.
[83] Although the appellantâs Counsel seems to have
disputed the respondentâs attorneyâs explanation or evidence in
this regard,
whatever he said provided no effective challenge of the
respondentâs attorneyâs explanation in this regard. There is no
sufficient
basis to reject the explanation even though it does leave
one with some question mark, particularly because the respondentâs
attorney
said that the appellant was denying an agreement that the
two of them had reached, yet a reading of the respondentâs own
evidence
suggests that no agreement had been reached, as the
appellant had apparently said that he would take the matter to the
union. Accordingly,
the appellantâs reliance upon that statement in
the letter is not supported by the evidence and must be rejected.
[84] It seems to me that, by the 12
th
April 2001 the respondentâs management had had enough of the
appellant and wanted him out of the company. They were fed up with
him because, as far as management was concerned, he had expressed a
vote of no confidence in some members of the management, had
called
for the resignation of some of the members of the management, had, on
behalf of the union, instituted litigation that had
compromised
certain plans of the respondent and litigation which could have
resulted in the arrest and detention of some members
of the senior
management of the respondent, had been â
aggressive
â
towards management and was challenging all the decisions that the
management were seeking to make in the interests of the respondent.
[85] A consideration of all of the evidence I have
referred to above leads me to the conclusion that at least some of
the reasons
why the appellant was dismissed were that as far as the
respondentâs management was concerned he had:-
(a) challenged and questioned too many of the decisions
made by the respondentâs management;
(b) called
for the resignation of certain personnel of the respondent;
(c) expressed
a vote of no confidence in certain members of the respondentâs
management; and
(d) played
a key role in the bringing of a contempt of court application against
the respondent and, among others, the respondentâs
chief executive
officer.
I am not prepared to go so far as to say that all the
reasons or the only reason why the appellant was dismissed is
reason(s) or are
the reasons that would render his dismissal
automatically unfair. This is because out of the various incidents
upon which the respondent
seemed to rely to justify the dismissal,
there was, in my view, conduct which an employer could legitimately,
even if wrongly or
unfairly, rely upon to charge an employee with
misconduct and which could legitimately albeit unfairly lead to a
dismissal. In such
a case the reason for dismissal would be
legitimate even if one would not be able to say, as we were urged by
Counsel for the appellant
to say, that the employerâs case against
the employee was so weak that it would be justified to infer that the
employee was dismissed
for his union activities rather than for such
behaviour.
[86] In my view a court should be slow to infer that the
reason why an employer has brought disciplinary charges against an
employee
or the reason why an employer has dismissed an employee is
or are illegitimate reason(s) such as union activities unless there
is
sufficient evidence to justify such a conclusion. A court should
be even slower to come to that conclusion in a case where it does
seem that the employer may have had a basis to bring disciplinary
charges against an employee even if the court would not have done
the
same had it been in the employerâs shoes. Obviously, in a case
where a proper basis exists for a Court to make such an inference,
the Court should not hesitate to make it.
[87] In this case one of the respondentâs complaint is
that, with regard to the lunch/cafeteria meeting, the appellant and
Captain
Moorosi had agreed that the discussion would be off - the
record but that, subsequently, the appellant disclosed in an
affidavit
used in the contempt of court application something that he
alleged Captain Moorosi had said at the meeting. In paragraph 6.7 of
that affidavit the appellant wrote: â
Later
in the course of the same day, I also approached Moorosi in the
canteen at SA Airlink. I said to him that I hoped that the parties
could put the litigation aside and talk about the issues so that a
resolution of them could be reached. Moorosi replied, as he had
done
to Quantrill, that there was nothing to discuss.
â
If, as is the case, the two parties had agreed that their discussion
was off the record, neither the appellant nor Captain Moorosi
was at
liberty to disclose the content of such discussion in an affidavit.
By saying that Captain Moorosi had said that there was
nothing to
discuss, the appellant disclosed part of what was said in the meeting
and, in so doing, he acted in breach of the off-the
record agreement.
[88] In my view the respondent was justified in feeling
aggrieved in this regard. The statement that the appellant attributed
to Captain
Moorosi in paragraph 6.7 of the affidavit might have given
the impression of rigidity or inflexibility on the part of the
respondent
or Captain Moorosi when approached for a discussion of a
possible settlement of the matter which might not put the respondent
or
Captain Moorosi in a good light. However, I must point out that,
even though I take the view that Captain Moorosi had a legitimate
cause for complaint in this regard, I do not necessarily say that
this was the type of conduct for which it was competent in law
for
the respondent to bring a charge of misconduct against the appellant.
Maybe it was. Maybe it was not. It is not necessary for
me to decide
that issue.
[89] Captain Van Schalkwyk also testified that there was
no trust left between the respondent and the appellant. It may be
that this
was said in support of a contention to the effect that the
appellantâs dismissal was not automatically unfair or it may have
been
said for the purpose of persuading the Court below, and,
therefore, this Court as well that, even if the dismissal were found
to
have been automatically unfair, the Court should not order the
respondent to reinstate the appellant. Assuming that there is no
longer
any trust relationship between the appellant and the
respondent, it would be important to examine what the reason therefor
is because,
if the reason is an illegitimate reason, the matter may
warrant to be approached in a certain manner which may be different
from
the manner in which it would be approached if the position is
that the reason for the loss of trust is simply a bona fide and
legitimate
one. So, let me deal with the issue of what the reason for
the loss of trust would be if there were such loss of trust.
[90] In the light of all of the evidence I find that the
principal or dominant reason for the appellantâs dismissal was that
the
respondent was not happy with the role that he was playing in
seeking to represent the interests of the union and its members in
his or the unionâs dealings with the respondent as well as with the
role that he played in bringing the interdict application and
the
contempt of Court application on behalf of the union in March 2001.
The respondent took the appellant seeking â
the
arrest and detention
â of the operations
director and chief executive officer of the respondent when he played
the role that he did in the contempt application.
It seems that the
breach by the appellant of the off-the record agreement in regard to
the lunch meeting was also a factor. Indeed,
it seems that there were
also occasions when the appellant used swear words or abusive
language in speaking to members of the management
and this, too, had
irritated, exasperated or even angered some members of the
respondentâs management.
[91] Despite such incidents, I am of the view that, when
all the circumstances are taken into account, the principal or
dominant reason
for the appellantâs dismissal is the one I have
given above. I am of the view that, where, as in this case, the
reason or reasons
for the dismissal of an employee comprise one or
more reasons that would render the dismissal automatically unfair and
one or more
reasons that would not render the dismissal automatically
unfair but the reason or reasons that would render the dismissal
automatically
unfair can be said to be the dominant reason or
reasons, the dismissal is automatically unfair.
[92] In this case there is, in my view, no doubt that
the reasons that would render the appellantâs dismissal
automatically unfair
such as that he was challenging and questioning
the managementâs decisions, that he was expressing a vote of no
confidence in certain
personnel and certain members of the management
of the respondent, the role he played in the litigation including the
contempt of
court application and his calling for the resignation of
certain personnel of the respondent constituted the dominant or
principal
reasons for the appellantâs dismissal.
[93] It seems to me, therefore that, if there is or was
no trust relationship between the parties, such trust relationship
would have
been destroyed by the respondentâs unacceptable and
illegitimate reaction to the appellantâs exercise of his rights as
a union
official or representative and his exercise of his rights to
play the role that he played in the bringing of contempt of court
proceedings
against the respondent and some senior members of the
respondentâs management when he believed that the respondent and
its senior
members of management.
[94] In my view it would undermine the protection that
the Constitution and the Act seek to confer on union officials or
representatives
and employees against victimisation for the exercise
of their constitutional and statutory rights to accept a proposition
the effect
of which would be that an employer may destroy a trust
relationship by victimising an employee and then benefit from such
illegitimate
and unlawful conduct. The proposition that even if the
Court concluded that the employee was indeed dismissed for an
illegitimate
and unlawful or unconstitutional reason, he must still
lose his job because the illegitimate conduct of the employer has
destroyed
such trust relationship is, in my view, unacceptable as a
matter of policy. An employer who acts in breach of such fundamental
rights
must, as a matter of policy, not be allowed to benefit from
his unacceptable conduct. An approach of a Court which allows such
conduct
to prevail may itself be in conflict with some of the values
and principles which make up the foundation of our post-apartheid
society.
[95] In any event I do not think that there is
sufficient evidence to support the contention that there is no longer
any trust between
the parties. What the respondentâs senior
management found unacceptable on the part of the appellant was
partly, if not mainly,
that, according to the management, he was
challenging their decisions all the time. In this regard he was doing
his job as a union
representative and, if the respondentâs managers
of the time could not handle or manage a union official who
challenged managementâs
decisions all the time, then, maybe, the
respondent should either bring in advisors who will help its
management on how to deal with
or manage such union officials or
otherwise the respondent may well have to consider employing managers
who have the expertise and
skill to handle and manage such union
officials. Obviously, the union and its members will at all times be
constantly looking at
their representatives to determine whether they
are the best people to represent their interests. But as long as the
union or its
members believe that a particular official
satisfactorily represents their interests, the employer cannot force
a change of representatives
by dismissing those whose style or
approach causes him discomfort or inconvenience.
Did the
reason(s) for the appellantâs dismissal as found above render the
appellantâs dismissal automatically unfair?
[96] The next question is whether the main or principal
reason or reasons for the appellantâs dismissal rendered the
appellantâs
dismissal automatically unfair. At this stage of the
judgment it is necessary to identify the statutory provisions which
conferred
on the appellant the rights that he would have sought to
exercise when, according to the respondent, he challenged and
questioned
the respondentâs management, expressed a vote of no
confidence in some members of the respondentâs management or other
personnel,
called for the resignation of some members of the
respondentâs management, brought an application to the Labour Court
to interdict
the respondent from acting in breach of a collective
agreement and initiated on behalf of the union the contempt of court
proceedings
against the respondent and some members of the senior
management of the respondent. In this regard it must be borne in mind
that
the appellant was a shopsteward. He may have been called an
association representative in terms of the recognition agreement
between
the union and the respondent. What matters is that he was an
official representative of the union and its members employed by the
respondent.
[97] In terms of the recognition agreement, concluded
prior to the current Act, between the respondent and the Airline
Pilotsâ Association
â
as represented by the
Airlink Pilots Association (APA) Branch
â
the respondent undertook to â
ensure that no
employee shall be victimised or prejudiced or intimidated in his
employment in any way by virtue of his election or
appointment as an
association representative or his membership of the Association or
his participating in lawful association activities
.â
(Clause 5.2) Clause 5.5 read thus: â
The
Company recognises the associationâs rights and responsibility
to
conduct its own affairs
in accordance
with its constitution
as well as the
associationâs role to represent the interests of its members and to
work for improved conditions of employment.â
In terms of clause 5.6 the union recognised â
that
the company has, and shall continue to have, the right to conduct its
normal managerial functions subject to the provisions of
this and
previous written agreements.
â (Underlining
supplied).
[98] Clause 2.5 of the recognition agreement defined an
association official as meaning â
any person
whether or not he is a member of ALPA â SA, elected, co-opted or
appointed to the National Executive Branch Committee,
Portfolio
Committee or any Subcommittee of ALPA â SA in terms of its
constitution, or any of its constitutions, or any full time
employee
of ALPA â SA.â
Association representative
was defined in clause 2.6 of the recognition agreement as meaning
â
any association official mandated by AJPA â
SA or any branch formed in terms of its constitution to represent it
at a negotiating
forum or any other dealings between the Company and
the association
.â The word â
association
â
was defined as meaning â
the Airline Pilotsâ
Association â South Africa as represented by the Airline Pilotsâ
Association (APA) branch, constituted in
terms of the relevant clause
of its constitution.â
[99] Although the appellant based his claim that his
dismissal was automatically unfair on sec 187(1)(d) read with sec 5
of the Act,
it is appropriate to first refer to certain provisions of
the Constitution that are relevant to his claim. Sec 23(1) of the
Constitution
(â
the Constitution
â)
provides that
â(e)veryone has a right to
fair labour practices.â
Sec 23(2)(a) and
(b) of the Constitution provide, respectively, that
â(e)very
worker has the right to form and join a trade union and to
participate in the activities and programmes of a trade union
.â
Sec 23(4)(a) and (b), respectively, provide that
â(e)very
trade union and every employersâ organisation has the right to
determine its own administration, programmes and activitiesâ
and
âto organise
â.
[100] In the Act reference can be made to sec 5(1),
(2)(c)(iii) and (vii).
Section
5(1) precludes discrimination against an employee for exercising any
right conferred by this Act. Sec 5(2)(c) precludes an
employer from
prejudicing an employee because of past or present or anticipated
â
participation in the lawful activities of a
trade unionâ
. Section 5(2)(c)(vi) precludes
an employer from prejudicing an employee because of past, present or
anticipated exercise of any right
conferred by the Act. Sec
5(2)(c)(vii) precludes an employer from prejudicing an employee
because of past, present or anticipated
participation in any
proceedings in terms of this Act. Reference can also be made to
organisational rights provided for in chapter
III of the Act.
[101] Section 187(1) of the Act provides that
â(a)
dismissal is automatically unfair if the employer in dismissing the
employee acts
contrary to section
5
or, if the reason for the dismissal is
â and
thereafter eight reasons are listed. The fourth one, listed under sec
187(1)(d), is that a dismissal is automatically unfair
if the reason
for the dismissal is â
that an employee took
action or indicated an intention to take action, against the employer
by
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of
this Act
.â
It
needs to be pointed out that the interdict proceedings that the union
brought against the respondent were brought in terms of
sec 64 of the
Act. Accordingly in playing the role that he played, the appellant
was exercising a right which is conferred on him
as a union
representative â in fact as an employee as well. In playing the
role that he played in the bringing of the contempt
of court
application, the appellant was exercising a right which sec 163 of
the Act confers on a party in whose favour an order of
the Labour
Court has been granted and who seeks to enforce it by way of contempt
of court proceedings. Section 163 is headed: â
service
and enforcement of orders of Labour Court.
â
It then provides: â
Any decision, judgment or
order of the Labour Court may be served and executed as if it were a
decision, judgment or order of the
High Court.â
[102] Having regard to the reason(s) that I have found
to have been the dominant or principal reason(s) for the appellantâs
dismissal
and the provisions of the Act that I have referred to above
which I have found the respondent to have breached, in dismissing the
appellant, I am satisfied that the appellantâs dismissal was
automatically unfair. In my judgement, there was ample evidence upon
which the Court a quo could and should have found the appellantâs
dismissal to have been dominantly or principally for prohibited
reasons that rendered the dismissal automatically unfair.
[103] However, even if the reasons that I have found to
constitute the dominant or principal or reason or reasons for the
dismissal
did not constitute the principal or dominant reasons for
the appellantâs dismissal, I would still find that the dismissal
was automatically
unfair if such reasons nevertheless played a
significant role in the decision to dismiss the appellant. In my view
for policy considerations,
where such reasons have influenced the
decision to dismiss to a significant degree, the dismissal should be
dealt with as an automatically
unfair dismissal in order to deter as
many employers as possible from entertaining such illegitimate
matters as, for example, racism
and the exercise of rights conferred
by the Act as factors in their decisions to dismiss employees.
How the Court a quo dealt
with the matter
[104] The judgment of the Labour Court is 97 pages long.
In the first 77 pages the learned judge summarised the evidence of
each witness
who gave evidence and covered most of the essential
aspects of each witnessâ evidence. Towards the bottom of page 77 of
the judgment
he set out what the issues were before him. In this
regard he stated that the question was whether or not the appellantâs
dismissal
was automatically unfair by reason of two grounds upon
which he said the appellant had relied. From about the middle of page
78 of
the judgment he began a discussion of the issue of onus. In the
course of such discussion he emphasised once again what the
appellantâs
case before him was, and what it was not. This
discussion went up to the top of page 82 of the judgment. It is only
from the middle
of page 82 of the judgment that the learned judge
began an analysis of the evidence and arguments presented in the
matter. Accordingly,
it is the last 15 pages of the judgment that
should reveal the reasons why the Court a quo reached the conclusion
that it reached.
[105] The Court a quo stated that the appellant relied
on two grounds to support his case that his dismissal was
automatically unfair.
The one was that he was an active chairperson
of the union and was, in essence, â
the face
of the union.â
The other one was the role
that he played in the litigation that the union brought against the
respondent in March 2001. The Court
a quo further stated that it was
not the appellantâs case that he was dismissed for his union
membership or for the mere fact that
he held the position of chairman
of the union. The Court a quo also recorded that it was not the
appellantâs case that the respondent
was trying to eliminate the
union.
[106] The Court a quo dealt at some length with the
issue of onus. Indeed, during argument before us quite some time was
devoted to
that issue. However, in the view I take of this matter,
not much really depends upon that issue. In my view there is
sufficient evidence
proving that the appellantâs dismissal was
principally due to the active role he played as chairman of the union
and the role he
played in the union initiating litigation against the
respondent and some of its high ranking officials.
[107] I now turn to consider some aspects of the
judgment of the Court a quo on the merits. With regard to the
respondentâs complaint
that the appellant acted in breach of the
off-the record agreement when he made certain statements in his
affidavit, the Court a
quo found that Capt Moorosi had conceded under
cross-examination that the relevant paragraph in the affidavit did
not deal with the
contents of the discussion that had taken place. It
seems to me that the Court a quo misconstrued Captain Moorosiâs
evidence under
cross-examination. He made no such concession. He
specifically referred to the last sentence of paragraph 6.7 of the
relevant affidavit.
In that sentence the appellant specifically
disclosed what Captain Moorosi had said, or had allegedly said,
namely, that there was
nothing to discuss. The disclosure thereof was
clearly in breach of the off - the record agreement to which the
appellant was party.
[108] Furthermore, the Court a quo had no regard
whatsoever to the fact that part of the respondentâs case, not only
in the disciplinary
inquiry, the internal appeal but also in the
trial was that the appellant was guilty of gross insubordination
and/or of being a disruptive
influence in that he had challenged
managementâs decisions, he had expressed a vote of no confidence in
some members of the management,
had called for the resignation of
certain members of the respondentâs management and, through the
contempt of Court application,
had sought the arrest and detention of
certain members of the management. All of these are things that the
appellant would most of
the time have done in the course and scope of
his functions as a union representative. These things would have
qualified either as
union activities or as the exercise by the
appellant of rights conferred upon him by the Act as he claimed in
his statement of claim.
The Court a quo did not take into account the
fact that the respondentâs management felt very strongly about the
effect of the
litigation upon the operations of the respondent or
upon its ERJ strategy. The Court a quo also did not have regard to
the question
why Captain Foster had chosen to make the presentation
that he made to the appellant on the occasion of the handing over of
the disciplinary
notice to the appellant.
[109] The Court a quo also took no account of what the
chairman of the disciplinary inquiry said about the appellantâs
(alleged)
call for certain members of management to resign. The Court
a quo also overlooked the question as to why the appellant was
charged
with misconduct for failing to meet the flying time of 950
hours target when the respondentâs own witnesses, including the
chief
executive officer and the chief pilot, conceded one after the
other under cross-examination that failure to meet such flying target
did not constitute misconduct and when the respondentâs witnesses
conceded that there were other pilots who had failed to achieve
that
same target but who had not been charged with misconduct. This is
particularly important because, once the concession had been
made at
the trial by one or more of the witnesses of the respondent that
there had been other pilots who had also failed to achieve
the 950
hours flying target, the situation called for the respondent to
provide a witness who would advance an explanation or justification
for its decision to charge only the appellant with misconduct and not
charge the others as well. The respondent elected not to provide
such
explanation or justification. In those circumstances the absence of
an explanation or justification gives credence to the contention
that
the reason why the appellant was charged and others were not charged
is that the respondent wanted to get rid of the appellant
because it
was fed up with him for, among other reasons at least, his active
role as chairman of the union and his role in the litigation
of March
2001. In my view the Court a quo erred in not taking all of these
factors into account in determining the reason(s) for
the appellantâs
dismissal.
Relief
[110] The next question that needs to be dealt with is
the relief that should be granted, if any should be granted at all.
The appellant
seeks an order of reinstatement. The respondent opposed
the request for an order of reinstatement. In this regard, even
before I
consider the basis upon which the respondent opposes the
appellantâs reinstatement, it is necessary to bear in mind that in
our
law reinstatement is the preferred remedy where there has been an
unfair dismissal. In terms of sec 193(2) of the Act the Labour
Court,
and, therefore, this Court as well, sitting in judgment of the Labour
Court in an appeal from that Court, â
must
require the employer to reinstate or re-employ the employeeâ
unless one or more of the situations set out in paragraphs (a) to (d)
of sec 193(2) exists. Those situations are where:
â
(a) the employee does not wish to be reinstated or
re-employed;
the circumstances surrounding the dismissal are such
that continued employment relationship would be intolerable;
it is not reasonably practicable for the employer to
reinstate or re-employ the employee; or
the dismissal is unfair only because the employer
did not follow a fair procedure.â
[111] Paragraph (a) does not apply because the appellant
does wish to be reinstated nor does par (e) because procedural
fairness was
not an issue in this matter. In my judgement paragraphs
(b) and (c) also do not apply because there is no evidence upon which
it
could properly be said that a continued employment relationship
between the appellant and the respondent would be intolerable or
that
it is not reasonably practicable to reinstate the appellant. The
evidence led by the respondent as to why the appellant should
not be
reinstated was that his reinstatement would entail that he should be
sent overseas for a certain training because he would
not have been
flying for a long time. It was said that such training would be very
costly. Although there seemed to be no certainty
about what the cost
would be, evidence suggested that it would be under R 100 000 00.
However, it transpired during the cross-examination
of the witness
who gave that evidence that the appellant would have been sent to
that kind of training overseas anyway even if he
had not been
dismissed. In any event such cost would not, it seems to me, provide
circumstances that are such that a continued employment
relationship
would be intolerable nor would such cost render it not reasonably
practicable for the respondent to reinstate the appellant.
[112] Another piece of evidence led in support of the
respondentâs opposition to the appellantâs request for
reinstatement was
in effect that, if the appellant was reinstated, he
would go around boasting that he â
beat the
management in their own game
â. That is
absolutely no basis to deny an employee the important remedy of
reinstatement in a case where he otherwise should be
reinstated. I am
also aware that a long period has lapsed since the appellant was
dismissed. He was dismissed in May 2001. This means
that a period of
four years has lapsed since he was dismissed. The judgment of the
Labour Court was delivered in November 2002. None
of the delay can be
attributed either to the appellant or the respondent.
[113] On appeal this Court must, generally speaking,
make such decision as it thinks the Labour Court should have made on
the evidence
before it at the time that it made its decision. In this
case that was in November 2002. Generally speaking, it cannot make an
order
that the Labour Court could not have made at that time but
which, maybe, it can make now. I put this as a general rule. I do not
rule out the possibility that there may be exceptions to this general
rule. However, I do not have to decide that because there are
definitely no circumstances in this case which would justify a
departure from that general rule.
[114] None of the situations set out in sec 193(2)(a) â
(d) exists in this matter. That being the case this Court is enjoined
by
sec 193(2) to grant the appellant an order of reinstatement. In
this regard it is important to emphasise that the language of sec
193(2) is such that, if none of the situations set out in paras (a)
to (d), exists, the Labour Court, and, therefore, this Court,
or, an
arbitrator, has no discretion whether or not to grant reinstatement.
In the words of sec 193(2) the Labour Court or the arbitrator
âmust
require the employer to reinstate or re-employ the employeeâ whose
dismissal has been found to have been unfair. That embraces
both
dismissals which have been found to be automatically unfair and those
which have been found to be, shall I say, ordinarily unfair.
Ordinarily unfair dismissal in this context does not include those
which have been found to be unfair solely because the employer
did
not follow a fair procedure because those fall under the exception in
paragraph (d). It refers to those dismissals which are
not
automatically unfair but nevertheless lack a fair reason.
[115] The statement that the Labour Court or this Court
or an arbitrator has no discretion in regard to whether or not to
grant reinstatement
where none of the situations set out in sec
193(2)(a) to (d) applies, must be understood against the background
that this was part
of a deal which was concluded by organised
business, labour and Government at NEDLAC when the Bill which later
became the
Labour Relations Act, 1995
was deliberated upon. In that
forum organised labour, organised business and Government considered,
debated and deliberated upon
the question of what kind of a labour
relations regeme they thought was the most appropriate for South
Africa, bearing in mind the
problems that had been experienced under
the Labour Relations Act, 1956. That included the question of the
dispute resolution dispensation
for labour disputes. They reached an
agreement on what later became the
Labour Relations Act, 1995
. Courts
and other tribunals which are involved in one way or another at
different levels in the resolution of labour and employment
disputes
must, generally speaking, seek to uphold the deal concluded in that
forum as reflected in the Act and be slow to adopt any
interpretation
that may undermine that deal.
[116] The absence of a discretion on the part of the
Labour Court or an arbitrator to deny reinstatement to an unfairly
dismissed
employee in the absence of anyone of the situations set out
in sec 193(2) must be understood against the background that
reinstatement
was made a statutory primary remedy in unfair dismissal
disputes in return for organised labourâs agreement that there
should be
a capping of compensation that could be awarded to unfairly
dismissed employees which was a huge concession and sacrifice on the
part of organised labour and workers. In the explanatory memorandum
((1995) 16 ILJ 278) which accompanied the Labour Relations Bill,
before the Bill was passed into the present Act, the following is
part of what the drafters of the Bill had to say at 316 about the
problems regarding remedies which existed under the old regeme:
â
There are also problems concerning the courtsâ
decisions regarding remedies. The courts have on numerous occasions
shown a reluctance
to reinstate workers who have been unfairly
dismissed because of the period of time that has passed between the
date of dismissal
and the date of the court order. This is a cause of
dissatisfaction among workers and undermines the legitimacy of the
adjudication
process as an alternative to industrial action. It also
creates problems for employers. Reinstatement orders have on occasion
been
granted years after the dismissals occurred. For the employer,
who in the interim has engaged an alternative labour force in an
endeavour
to maintain production, the consequences of such an order,
particularly in the case of mass dismissals, are self-evident. The
alternative
of compensatory awards presents its own difficulties. In
the absence of statutory guidelines or caps on compensation, which
are the
norm in other countries, the courts have used tests applied
in personal injury claims to assess losses. Awards have become
open-ended
and, in the case of the dismissal of executives, sometimes
amount to hundreds of thousands of rands.
[
117
]
At
320 of the explanatory memorandum it is stated that the Bill gave
statutory support for reinstatement as a primary remedy where
the
dismissal is found to be unfair. It is then said that this is
appropriate when adjudication takes place shortly after the
dismissal.
It went on to set out â
a number
of benefits in providing for reinstatement as a primary remedy.â
In the second of seven bullet points against which the benefits were
set out, the benefit set out was:
â
it allows for legislative capping of compensation
awards. Without reinstatement, compensation must be open-ended and
calculated on
a delictual damages basis. Because the draft Bill
offers reinstatement as a primary remedy, it caps compensation
awards.â
[118] In the light of the above it, therefore, seems to
me that, with regard to what remedies courts and other tribunals
would have
power to make in regard to dismissals that are found to be
unfair, the main objection on the part of organised labour was that
courts
and other tribunals must ensure that, except in certain
specified situations, workers were given their jobs back when they
have been
dismissed unfairly, whereas one of organised businessâ
objectives was that Courts and other tribunals should not have power
to
make huge awards of compensation against employers and that,
therefore, the compensation that they can award should be capped. The
deal arrived at, as reflected in sec 193(2) and sec 194, was that
workers should be reinstated and the courts and other tribunals
should not have any discretion to deny an unfairly dismissed employee
reinstatement except in specified situations and that there
should be
a limitation on the amount of compensation that Courts and other
tribunals could award to employees. In the light of all
the above I
consider that the appellant should be granted an order of
reinstatement.
[119] The next question is whether the order of
reinstatement should operate retrospectively and, if so, up to what
date retrospectively
and whether the respondent should be ordered to
pay any compensation to the appellant. During argument on these
questions, other
questions arose. These related to the meaning of an
order of reinstatement or its effect, the meaning of a retrospective
order of
reinstatement or its effect and the meaning of compensation
under sec 194. There was also the question whether a reinstatement
order
can operate retrospectively for longer than 24 months in the
case of an automatically unfair dismissal and 12 months in the case
of an ordinarily unfair dismissal.
[120] These questions arose because Counsel for the
appellant and the respondentâs attorney were seeking to deal with
the question
of what order the Court could make if it sought to
ensure that the appellant was paid backpay and the amount of backpay
that could
be ordered by the Court. The one source of confusion was
whether, if an order of reinstatement operated retrospectively, that
would
have the effect that the employer was ordered to pay the
employee the remuneration that the employee would have been paid for
the
period covered by the retrospective operation of such order.
Another question was whether, if that is so, that would mean that,
where
an order of reinstatement has been granted, it is not competent
for a court or an arbitrator to award compensation to the employee
in
terms of sec 194 of the Act or whether both orders can be made in the
same case. Yet another question was whether, if an order
of
reinstatement was made which did not operate retrospectively to the
date of dismissal, that would mean that the employeeâs service
with
that employer has been interrupted but from the date of the operation
of such order he is to receive all the rights, benefits
and
privileges which he used to enjoy before he was dismissed. This also
raised the question of how different that scenario is to
a scenario
where the order is that of re-employment to the same post as the
employee occupied before dismissal.
[121] Counsel for the appellant submitted that, if an
order of reinstatement was made, it should operate with retrospective
effect
to the date of the appellantâs dismissal, namely, the 11
th
May 2001. From that date to the 17
th
October 2002, which was the date of the delivery of the judgment of
the Court a quo, it is just over seventeen months. As that period
is
below 24 months, the question whether it is competent to make a
reinstatement order that operates with retrospective effect for
a
period longer than 24 months in the case of an automatically unfair
dismissal and for a period longer than 12 months in all other
unfair
dismissal cases does not arise. The reference to 24 months and 12
months arises out of the fact that in terms of sec 194 of
the Act
compensation that is awardable to an employee whose dismissal has
been found to be automatically unfair is capped at an amount
equivalent to 24 monthsâ remuneration and that of an employee whose
dismissal has been found to be unfair for lack of a fair reason
or
because no fair procedure was followed in the employeeâs dismissal
is limited to a maximum of 12 months remuneration.
[122] Davis AJA has expressed the view in his separate
judgment that it is competent for the Court to make an order of
reinstatement
that operates with retrospective effect up to the date
of dismissal even if that goes beyond 24 months or 12 months
retrospectively,
as the case may be, because, particularly in a case
such as the present one, the Court may wish to ensure in effect that
an employer
who has dismissed an employee for a reason that renders
the dismissal automatically unfair is dealt with firmly to show that
such
conduct will not be tolerated by the Court. I am unable to agree
with this reasoning. This proposition ignores the fact that, if
one
has regard to sec 194 of the Act, provision has already been made in
the Act for an employer who is found to have dismissed an
employee
for a reason that renders the dismissal automatically unfair to be
ordered to pay double the amount of compensation that
an employer who
has unfairly dismissed an employee but not for such a reason may be
ordered to pay.
[123] It can be argued that backpay which an unfairly
dismissed employee gets paid when an order has been made for his
reinstatement
with retrospective effect constitutes in effect
compensation for unfair dismissal in the same way as compensation
provided for under
sec 194 of the Act constitutes compensation for
unfair dismissal to an unfairly dismissed employee who is awarded
compensation under
sec 194 of the Act. If that is so, thus would run
the argument, a reinstatement order of the retrospective operation of
which goes
beyond 24 months or 12 months, as the case may be, would
amount to an award of compensation for unfair dismissal which exceeds
the
relevant maximum prescribed by sec 194. The argument would be
that such a retrospective operation of an order of reinstatement
would
undermine the capping of compensation prescribed by sec 194 of
the Act.
[124] It would further seem that the construction that
the only limitation on the extent of the retrospective operation of
an order
of reinstatement is the date of dismissal ignores the
purpose of sec 194. The purpose of sec 194 is to limit the financial
risk that
an employer has when involved in an unfair dismissal claim.
To secure organised labourâs agreement to the limitation of such
financial
risk, employers made a concession at NEDLAC when the Labour
Relations Bill was negotiated, that reinstatement would be the
primary
remedy in unfair dismissal cases. As already stated above,
sec 193 gives effect to that agreement as far as reinstatement being
the
primary remedy in unfair dismissal cases is concerned. Sec 194
gives effect to that agreement in so far as it relates to ensuring
that the employerâs financial risk in terms of payment to the
employee is limited to either 24 monthsâ remuneration or 12 monthsâ
remuneration, as the case may be.
[125] If it is accepted, as I think it should be, that
at least part of what the retrospective operation of a reinstatement
order
means is that the employer must pay the employee backpay for
the period covered by such retrospective operation and that in a case
where the arbitrator or the Court awards a dismissed employee
compensation under sec 194, such compensation is or at least part of
such compensation is backpay, then the proposition that an order of
reinstatement can operate retrospectively to the date of dismissal
even if this goes beyond 24 months or 12 months retrospectively, as
the case may be, would not only undermine but would also defeat
the
whole purpose of sec 194 of the Act. I am unable to see what purpose
of the Act would be served by a construction to the effect
that, if
an employee is granted reinstatement, there is no limitation to the
employerâs financial risk in terms of backpay, but,
if the same
employee is awarded compensation and is not granted reinstatement,
the employerâs financial risk is limited to 24 months
remuneration
or 12 monthsâ remuneration, as the case may be. I prefer the view
that the employerâs financial risk is limited
in either case.
[126] One way in which sec 194 would be undermined if an
order of reinstatement which operates with retrospective effect
beyond 24
months or 12 months, as the case may be, was made would be
this one. An employee who no longer wants to be reinstated but only
wants
to be paid compensation would indicate that he wants to be
reinstated with retrospective effect to the date of dismissal which
would
go beyond 24 months or 12 months, as the case may be. After the
Court has granted him a reinstatement order with such retrospective
effect and he has been paid his backpay covering the period of
retrospectivity going beyond 24 months or 12 months, he would resign.
In that way he would have been able to get paid what in effect would
be compensation for unfair dismissal that would be in excess
of the
relevant maximum prescribed by sec 194. it seems to me that sec 193
should be construed to mean that an order of reinstatement
can
operate retrospectively to the date of dismissal or up to 24 months
or 12 months backwards, as the case may be, whichever is
the earlier.
This construction will harmonise the provisions of sec 193 and 194.
It would seem to me that that is the correct construction
of sec 193.
The two sections must be construed in such a way that the one does
not undermine the other or defeat the purpose of the
other.
[127] I do not think that sec 195 of the Act changes any
of the above. Sec 195 of the Act reads: â
An
order or award of compensation made in terms of this chapter is in
addition to, and not a substitute for, any other amount to which
the
employee is entitled in terms of any law, collective agreement or
contract of employmentâ
It seems to me that
the backpay which flows from the retrospective operation of an order
or award of reinstatement does not constitute
an amount that such
employee can be said to be entitled to in terms of any law,
collective agreement or contract of employment as
provided for in sec
195. In our law an employee is not entitled to have the Labour Court
or an arbitrator order that the reinstatement
order (in his favour)
operate with retrospective. There is no such right. Once the Labour
Court or an arbitrator has decided to order
the employeeâs
reinstatement, it or he has a discretion whether to order that the
reinstatement order operate with retrospective
effect. In the
exercise of that discretion, the Court or the arbitrator may decide
that such reinstatement order should or should
not operate with
retrospective effect to the date of dismissal or might order a
limited retrospective operation of the reinstatement
order or might
order no retrospective operation of the reinstatement order at all.
[128] In the light of all this it seems to me that,
prior to the Court or an arbitrator ordering that a reinstatement
order made in
favour of an employee shall operate with retrospective
effect in favour of the employee, the employee has
no
right
to, and therefore, cannot be said to be
entitled
to, any
amount in that regard in terms of any law, collective agreement or
contract of employment. what the employee is entitled to
is to make
an application to the Court or the arbitrator to exercise its or his
discretion in favour of ordering that the reinstatement
be with
retrospective effect. Once an order has been made, the employee
becomes
entitled to
such amount in terms of an order of court or an arbitration award and
not
in terms
of any
law, collective agreement or contract of employment as contemplated
by sec 195 of the Act. I am accordingly inclined to think
that any
backpay that an unfairly dismissed employee gets paid when there has
been an unfair dismissal claim gets paid such amount
not because he
is entitled to it in terms of any law or any collective agreement or
contract of employment but because he is entitled
to it in terms of
an order of Court or an arbitration award made in the exercise of a
discretion.
[129] In the light of the above it would therefore seem
that backpay flowing from the retrospective operation of an order of
reinstatement
made under sec 193 of the Act does not constitute an
â
amount to which the employee is entitled in
terms of any law, collective agreement or contract of employment
â
as contemplated by sec 195 of the Act. It seems that the â
amount
that the employee is entitled to in terms of any law, collective
agreement or contract of employment
â that
sec 195 refers to does not include an amount that the employee is
entitled to in terms of an order of court or in terms of
an
arbitration award. It seems to relate to amounts such as unpaid wages
for the period prior to the dismissal, notice pay, severance
pay,
pension or provident fund or amounts in terms of the unemployment
insurance Act, 1996.
[130] The view I have expressed above on the
relationship between sec 193 and sec 194 is no more than a prima
facie view that I hold.
For purposes of this case it is not necessary
to decide the issue. For that reason I refrain from expressing a
definitive view on
it. The reason why it is not necessary to decide
the issue is that the period from the date of the appellantâs
dismissal to the
date of the delivery of the judgment of the Court a
quo is less than the 24 months contemplated in sec 194. The appellant
has asked
for an order of reinstatement that operates with
retrospective effect from the date of his dismissal. As that date is
within 24 months
from the date of the delivery of the judgment of the
Court a quo, it is competent. Accordingly, the question whether an
order of
reinstatement can be made retrospective beyond 24 months
where the dismissal has been found to be automatically unfair does
not arise.
The next question is whether the reinstatement should
operate with retrospective effect to the date of dismissal or to any
date or
whether it should not be retrospective at all. This Court
must decide this question in the way it thinks the Court a quo should
have
decided it when it delivered its judgment on the 17
th
October 2002 or would have been required to decide it if it had
concluded that the dismissal was automatically unfair.
[131] In this matter I would ordinarily have been
inclined to order that reinstatement operate with retrospective
effect to the appellantâs
date of dismissal. However, there are, in
my view, two matters that must be taken into account against the
appellant and in favour
of the respondent in this regard. One is
that, subsequent to his dismissal, the appellant worked for Intensive
Air for five months
earning about R 18 000, 00 per month. That would
amount to R 90 000, 00. In his heads of argument the respondentâs
attorney submitted
that the remuneration that the appellant earned
during this period of five months should be deducted from whatever
compensation or
backpay the Court may order the respondent to pay to
the appellant. Counsel for the appellant did not submit to the
contrary in their
heads of argument on this issue nor did they do so
during oral argument. I can see no reason why it should not be taken
into account
and shall, accordingly, take it into account.
[132] Another matter is the appellantâs conduct in not
taking up a job offer that he testified was made to him which would
have
paid him either the same or even a better salary than the salary
that the respondent used to pay him. The respondentâs attorney
submitted in his heads of argument that this conduct by the appellant
must be taken into account against him with regard to the
determination
of compensation or backpay that the Court may consider
ordering the respondent to pay. By his own admission, the appellant
had been
made an offer of employment by another airline which would
have paid him remuneration that would have been above his
remuneration
at the respondent and all he had to do to get this job
was to say: â
I want the jobâ
and yet he did not take the job. The appellant conceded that, had he
taken that job, he would still have been working for that company
at
the time of the trial in this matter. In re-examination the issue was
not dealt with.
[133] The only reason that the appellant gave for not
taking up the offer made to him by the company concerned was that, in
his words,
âI could not entertain under the
circumstances of [these] proceedings taking place.â
There was no clarification of what he meant. It is not clear why he
could not take up such job and make suitable arrangements with
such
employer to attend court when the trial in this matter began or make
suitable arrangements necessary to enable him to attend
such
consultations as he may have needed to have with his lawyers in order
to prepare for the trial in this matter. The Court was
not told what
difficulties or problems he envisaged he could encounter if he took
that job and still pursued the litigation in this
matter if he still
wanted to pursue it either to get reinstatement at the respondent or
to get compensation. This is not to suggest
that the appellant should
have abandoned his claim for reinstatement in the respondentâs
employ simply because another company
had made him a competitive
offer or even a better offer of employment. The suggestion is that,
as he was unemployed at the time while
waiting for the trial in this
matter, he should have taken that job. If he was successful in this
litigation, he could then choose
whether he would stay with such
employer or would go back to the respondentâs employment. The point
is that in the meantime he
would not have suffered any loss of income
from the time he took up employment with such company to the date of
the delivery of the
judgment of the Court a quo. In fact he would
have earned a higher income. His decision not to take such job broke
the causal connection
between his financial loss and the respondentâs
conduct in dismissing him as it did. With regard to such loss the
appellant can
be said to be the author of his own misfortune. The
respondent cannot be held liable for that part of the loss because it
was within
the appellantâs control to prevent it. The appellant did
not testify to the effect that he knew that the prospective employer
had
or would have had an objection to him attending his trial in due
course or taking time off to consult with his lawyers. It would
be
wrong to assume that such employer would have had objections when no
evidence was adduced to this effect.
[134] I note that in his judgement Davis AJA does not
take the view that this conduct on the part of the appellant
disentitles him
to certain retrospectivity of the reinstatement
order. He says this is because it is not clear what the terms of such
employment
would have been. In my view it is not permissible to adopt
that approach because it has never at any stage been the appellantâs
case that his conduct in this regard should not be taken into account
because the terms of such employment were not clear. At any
rate the
terms of employment would be relevant if there was an indication that
they may have been or were less favourable to the
appellant than
those he enjoyed in the respondentâs employ prior to the dismissal.
There was no such evidence. On the contrary,
all indications are that
the terms and conditions of employment with such company would have
been better in terms of remuneration.
I have no doubt that, if the
terms and conditions of employment with such employer would have been
worse off than those which had
governed the appellantâs employment
prior to his dismissal by the respondent, he would have said so in
his evidence. He did not.
The reason he did not is because that was
not a factor in his decision. Furthermore, Davis AJA offers another
reason why he disregards
this conduct on the appellantâs part. He
says he wants to bring about finality in the matter. I do not think
that it is permissible
in law to not take into account a legitimate
factor that should be taken into account for reasons of finality. A
factor is either
legitimate or illegitimate. If it is legitimate, it
must be taken into account. If it is not, it must be ignored but not
the other
way round.
[135] The question of when the appellant would have
commenced duty with the company that made him the offer that he did
not take does
not appear to have been canvassed at any stage with the
appellant during the trial. However, his evidence was that for the
first
seven months after his dismissal he did not get a job.
Calculating from the 11
th
May 2001 when he was dismissed, seven months would go up to November
or thereabout. So, for that period, he was not employed despite
the
fact that he was looking for employment. He testified that after the
period of seven months, he got a job as a pilot with a company
called
Intensive Air. That employment went for five months. He was paid R 18
000,00 per month. That would total R 90 000,00. After
five months,
that employment came to an end because Intensive Air was liquidatd.
The period of five months would have stretched from
about December
2001 or early in 2002 to about the middle of 2002. The trial took
place from the 12
th
to the 16
th
August
2002. It would seem that the offer of another job that would have
paid the appellant better than he had been paid by the respondent
must have occurred sometime after he had lost his job with Intensive
Air and the trial. It seems that whatever the appellant would
have
earned in such employment before the trial or the delivery of the
judgment of the Court a quo would have been a salary for a
period of
between two and five months, depending on whether one uses the trial
dates or the date of the delivery of the judgement.
It therefore
seems to me that a retrospectivity of a reinstatement order that
operates with retrospective effect for a period of
seven months,
which is the period that he was unemployed before he got a job with
Intensive Air would also be as close as possible
to a fair and
equitable order.
[136] With regard to costs I am of the view that the
appellant has been substantially successful. Furthermore, this was a
case where
the litigation was sparked by conduct on the part of the
respondent that is offensive and repugnant to what our Constitution
and
the Act envisage for the workplace. Legal costs incurred by a
victim of such conduct in order to affirm his fundamental rights
should
be recovered from the perpetrator of such conduct. In my view
the requirements of law and fairness dictate that the respondent
should
pay the appellantâs costs.
[137] In the premises the order that I would make would
be the following:
The appeal is upheld with costs.
The order of the Labour Court is hereby set aside and
replaced with the following order:
â
(a) The applicantâs dismissal by the respondent
is hereby declared to have been automatically unfair
as contemplated by
sec 187(1)(d)
of the
Labour
Relations Act, 1995
;
The respondent is ordered to reinstate the
applicant to the position he held in its employment immediately
before his dismissal
on the 11
th
May 2001.
The order in (b) above is to operate with
retrospective effect to the 17
th
March 2002.
The respondent is ordered to pay the applicantâs
costs.â
_______________
ZONDO JP
Appearances:
For the appellant : Adv K.S Tip SC (with Adv C. Orr)
Instructed by : Cheadle Thompson & Haysom
For
the respondent : Mr S. Snyman
Instructed
by : Snyman Attorneys
Date
of Judgement : 16 September 2005
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Case No. JA 3/03
IGNATIUS
PETRUS KROUKAM
Appellant
And
S A
AIRLINK (PTY) LIMITED
Respondent
JUDGMENT
DAVIS
AJA
Introduction:
[1] Appellant was employed by respondent as a pilot. He was
dismissed on 11 May 2001 after he had been found guilty of
insubordination
and constituting a disruptive influence to the
operations of respondent. At the time of his dismissal he was the
chairperson of
the Airlines Pilot Association (âthe unionâ).
Appellant contended that his termination of employment constituted an
automatically
unfair dismissal in terms of section 187(1)(d) of the
Labour Relations Act 66 of 1995 (âthe Actâ) in that he had been
dismissed
for union activities as well as initiating litigation
against respondent and on behalf of the union. On 31 May 2001
appellant referred
the dispute concerning his dismissal to the
Commission for Conciliation, Mediation Arbitration (âCCMAâ).
However the CCMA failed
to conciliate the dispute within the time
period contemplated in terms of section 191(5) of the Act, and the
dispute was thus referred
to the Labour Court for adjudication.
[2] After
a careful and comprehensive analysis of all the evidence
Francis J
found that the allegation made by appellant that he had been
dismissed for union activities was âclearly without meritâ. The
applicant
âdid not produce any evidence in this regard other than
his personal feelings and perceptions. This is simply not good
enoughâ.
With the leave of the court
a quo
, the
appellant appeals to this Court.
[3] I have
had the considerable privilege of reading the meticulous judgment of
my brother
Zondo JP
. After anxious consideration, I have set
out my own reasoning and order that I would grant. I have done this
because I adopt a
different approach both to the manner in which an
automatically unfair dismissal should be considered by this Court and
in respect
of the relief to be granted in such a case. With regard to
the first issue, I prefer to deal with the evidence on the basis of
the
onus of proof as provided for in the Act. In respect to the
issue of relief, there is, in my view, a need to interrogate the
meaning
of sections 193-195 before turning to the facts in this
dispute. The structure of these sections holds the key to the nature
of
the relief to be granted in this case.
Factual Background.
[4] Since 1994 appellant was employed as a pilot by respondent. He
held the rank of captain and was the third most senior pilot
employed by respondent. From 1997 until the date of his dismissal on
11 May 2001 appellant held the position either of chairperson
or
deputy chairperson of the union.
[5] In
February 2001 the union and respondent became involved in a dispute
over the crewing of certain Embraer jets which had been
purchased by
respondent. The union considered that these jets had to be crewed
and the pilots trained in accordance with the collective
agreement
between respondent and the union which provided that all such
appointments were to be made on the base of seniority of
the pilots.
Seniority was measured from the time that the pilot joined an
airline. According to appellant this constituted the
global norm for
the determination of advancement in the airline industry.
[6] Respondent
maintained that the jets had been purchased by an entity known as
Metavia Airlines (Pty) Ltd and would be operated
under the name SA
Airlink Regional. On this basis, respondent contended that Metavia
was not bound by any agreement which had been
entered into between
respondent and the union and that accordingly Metavia was entitled to
select which of respondentâs employees
it preferred to offer
employment. Any pilot who wished to fly the jets had to then resign
from the employment of respondent and
assume employment with Metavia.
[7] The
union disputed the contentions advanced by respondent and launched an
urgent application on 13 March 2001. Appellant was
the deponent to
the founding affidavit. The union obtained an order that the
requirement that pilots resign from the employment
of the respondent
in order to fly the jets was a device being used by respondent to
avoid its obligations in terms of the collective
agreement entered
into between respondent and the union. The Court declared this
requirement to be a unilateral challenge to the
terms and conditions
of employment of the union members and interdicted respondent from
proceeding with the selection scheme for
the period set out in terms
of section 64(1)(a) of the Act. An order was granted on 19 March.
Respondent filed an application for
leave to appeal on the following
day and undertook that the application for leave to appeal would not
suspend the effect of the order.
[8] Office-bearers
of the union including appellant attempted to engage respondent in
discussions about ways in which to resolve
the dispute but these
initiatives proved to be unsuccessful.
[9] On 26
March 2001 the union launched a further urgent application. The
appellant was again the deponent to the founding affidavit
in which
he referred to the fact that he had discussions on 22 March 2001 with
Duke Moorosi, the respondentâs operations director
and Oupa
Lintveldt, respondentâs chief training pilot. In this application
the union sought the committal of Roger Foster, respondentâs
chief
executive officer, and Moorosi for contempt of the order granted on
19 March, 2001, alternatively a variation of the order
granted which
clarified that its effect was to prevent the recruitment of pilots
for the jets on any basis other than in accordance
with the
collective agreements between respondent and the union,
[10] The
contempt application was settled in terms of an agreement pursuant to
which the issue of the crewing of the jets would be
mediated. The
agreement was concluded on 30 March 2001.
[11] On 29
March 2001 Lintveldt booked off the appellant from flying duties for
the day on account of stress. Appellant saw a psychologist
and was
again booked off until 3 April by his general medical practitioner.
Appellant attempted to fly again as from 1 April and
indeed did so
until 6 April when Willem van Schalkwyk respondentâs chief pilot
grounded him.
[12] On 12
April 2001 appellant received a notice to attend a disciplinary
hearing on charges of gross insubordination as well as
constituting a
disruptive influence to the orderly operations of the organization.
A notice was given to the appellant by Mr Foster
who, before handing
over the notice, gave a presentation on the extent to which the
earlier litigation had damaged respondentâs
business. A
disciplinary hearing took place on 19 April. Appellant was found
guilty on both charges and dismissed. An appeal was
heard on 24 May
2001 which confirmed the earlier decision.
Appellantâs Case.
[13] Appellantâs case turned on an attack upon the key
factual findings of the
court a quo.
In summary,
Francis
J
found that the litigation in March 2001 against the
respondent âhad nothing to do with the applicantâs dismissalâ¦..By
the time that the applicant was called to a disciplinary hearing on
12 April 2001, the litigation had already in fact been settledâ¦.â.
Francis J
held that the only evidence upon which appellant
could rely for his contention that union activities lay at the heart
of the dismissal
was the lecture given by Foster about the
consequences of the litigation. In any event, âall the parties
understood that it was
in fact the union that was litigating against
the respondentâ. Accepting that the onus was borne by the employer
(respondent)
to prove that the dismissal was not automatically
unfair,
Francis J
held that sufficient evidence existed to
conclude that the appellant was dismissed on the grounds of gross
insubordination and of
being a disruptive influence to the orderly
operation of the organization.
Mr Tip,
who appeared together with Mr Orr on behalf of appellant,
concentrated his argument on the manner in which the charges brought
against appellant were never properly described nor motivated by
respondent. Appellant was charged with gross insubordination and
with being a disruptive influence on the ordinary operation of the
organization but according to Mr Tip, respondent had consistently
failed to provide clear justification for these charges.
[14] It
appeared from the evidence that appellant had been charged with being
a disruptive influence because he had failed to fly
950 hours during
a calendar year. In the judgment of the disciplinary inquiry the
charge is described thus:
âHe is
described in the charge as a disruptive influence. When looking at
the time sheets as well as the evidence presented by
the complainant,
he falls short in terms of the productivity efficiency in that in the
past 12 months only 697 hours have been worked
out of the target of
950, which means by 27%.â
[15] Mr
Tip referred to the evidence of Captain Van Schalkwyk, who was the
chief pilot of respondent. Van Schalkwyk was asked to
explain the
nature of the charge that appellant was a disruptive influence. In
this connection the following passage of his testimony
is
particularly illustrative:
âWell,
again if I am unfair on you please tell me, I know you obviously did
not attend the entire disciplinary inquiry, but it
was quite apparent
at the disciplinary inquiry that the issue under this charge was the
fact that Captain had flown less than 950
hours in the 12 months
preceding the inquiry. Do you recall anything of that nature?
---Yes, I
recall that as part of the explanation.
All
right, now do you agree, is that the issue in terms of being a
disruptive influence, was it one of the issues? --- I probably,
it
contributes to it, yes.
Contributes
to it. --- Yes.
All
right, now is that a disciplinary issue or is it an issue of capacity
and is it misconduct to fly less than 950 hours? --- No,
although
pilots have a certain amount of freedom to manipulate their own
flying schedule. Once a roster is issued pilots can request
changes
and swop flights and change their schedules, swop their schedules
with other pilots.
But what
I am saying is it an act of misconduct to fly les than 950 hours? ---
No it is not a misconduct. It shows the effort that
the pilot makes
to contribute as hard as the rest.â
[16] Mr
Tip submitted that the evidence of respondentâs chief executive
officer, Mr Foster, proved to be equally unsatisfactory.
Mr Foster
was also asked about the charge of being disruptive. He conceded that
Captain Van Schalkwyk was correct that flying less
than 950 hours
âcould never be a disciplinary issue unless someone had refused to
take flightsâ. He was then asked the following:
âWhy did you
charge my client with this ostensible, which we now agree could never
be an act of misconduct as an ostensible act
of misconduct?â He
replied âI think we would need to put that question with respect
to the disciplinary officerâ.
[17] A
similar set of questions was put to Mr Lubbe, the human resources
manager of respondent. He described the failure of appellant
to fly
950 hours as âpoor work performanceâ. When he was asked directly
âdid you see it as a misconductâ, he replied âNoâ.
[18] Mr
Tip referred to further evidence given by Mr Foster which clearly
showed that he was present at a meeting at which appellant
had been
given the charge sheet. The following passage of evidence, in Mr
Tipâs view, is of particular relevance:
âIs it
correct that at that meeting you did a lengthy presentation to my
client, where you indicated how much trouble the litigation
of March
2001 had caused the company, that it caused you to take your eye off
the ball is the term my client recalls. --- I think
that that was
common knowledge through the company at the time, there is quite
substantial documentation both from my desk as well
as from the desk
of the chief pilot and the desk of the executive manager, so to have
elaborated on that point I think would have
been appropriate at the
forum. So I would not deny that.
Why would
it be appropriate the forum when you are charging my client with
gross insubordination to talk about how the litigation
had caused so
much damage to the company? --- We had been in a process which from a
strategic point of view compromised the company.
This was to some
extent seen as being ongoing difficulties from a labour point of view
not related, but obviously following on and
still causing the company
difficulties.
Yes? ---
And we wanted to highlight the importance of harmony, highlight you
know what harm gets done when industrial disputes are
at play in the
form that it had taken through that dispute, and try and discourage
this type of taken the law into their own hands.
But how
did the act of gross insubordination cause you to take your eye off
the ball? --- I think the eye off the ball statement
came more to do
with the intensity of the litigation; the company was embarked on a
strategy for rolling out a plan for Africa, for
dealing with Africaâ¦
and the liberalization aspects of that were not coming through at the
pace at which we had expected them to
and in particular whereas our
Africa strategy had been launched on the basis of the Swaziland
model, we had not put that in place
as a contingency for what happens
if liberalization of air transportation through Africa did not
materialize as quickly as what had
been promised. And any form of
labour dispute, insubordination, disharmony in the company takes
managementâs eye off that ball.
It was an intense time. SA Airlink
is a small company and it requires direct hands-on involvement by all
of its (inaudible)â¦.
to be spending time on the tedious type issues
is not spending time on strategic progress.â
[19] A
letter written on 24 March 2001 by Captain Van Schalkwyk to the
âCockpit Crewâ , echoed Fosterâs concern expressed during
his
presentation, particularly in the following passage: âSA Airlink
top management has the responsibility to the SA Airlink shareholders
which demand proper management of huge amounts of money. Their
first focus must be to ensure a profitable and professional new
business venture. I have no grounds to question their business
decisions, as they see a much larger picture than I (or any other
individual) see. The labour issue of the past few weeks absorbed
most of their energy and time, with the result that their ability
to
plan the future has been compromised severely. This has a direct
impact on all employees of SA Airlinkâ
[20] Clearly,
appellant had not proved to be particularly popular , neither with
respondentâs executives nor with respondentâs
attorney. On 29
March 2001 Mr Snyman, respondentâs attorney wrote to appellantâs
attorney and said
inter alia
â⦠the writer wishes
to state his disappointment at the attitude and behavior of Mr
Kroukam of your client (sic) which the writer
is firmly of the view
is in breach of âa gentlemenâs agreementâ at Court in order to
facilitate and motivate the settlement
discussions then agreed upon
to be held between the parties. To this writer, this is a clear
indication of
your clientâs true attitude towards our client,
and it will not be forgottenâ
(my emphasis).
[21] Mr
Tip also referred to the considerable lack of clarity as to the
nature of the charge of gross insubordination. It appeared
that this
charge related essentially to a discussion between the appellant ,
Duke Moorosi who, at the relevant time was the operations
director of
respondent and Captain Lindveldt. The discussion took place on 22
March 2001. The meeting was of an informal nature
in that the
appellant, Lindveldt and Moorosi met in the cafeteria of respondent.
A discussion ensued which was described as being
âoff the recordâ
and appeared to turn on the issue as to whether members of
respondent might have been in contempt of the court
order which had
been granted by the Labour Court on 19 March 2001.
[22] Moorosi
testified that he informed appellant that: âWe are comfortable
with the stand that we are not in contempt of Court,
we are going
ahead with hiring pilots for the sister companyâ. Moorosi then
testified that these decisions had been taken pursuant
to legal
advice received by the respondent. Moorosiâs complaint was based
upon the founding affidavit deposed to by appellant
in support of the
unionâs application that respondent was in contempt of the court
order of 19 March 2001, in which the following
passage appeared in
that affidavit. âLater in the course of the same day I also
approached Moorosi in the canteen at SA Airlink.
I said to him that
I hoped that the parties could put the litigation aside and talk
about the issue so that a resolution of them
could be reached.
Moorosi replied as he had done to Quantrill that there was nothing
to discussâ. In an earlier paragraph in
the affidavit, appellant
made mention of the discussion which had taken place between Moorosi
and Quantrill in which he alleged
that Moorosi had stated that
respondent âcould do exactly what it liked, as it was a separate
companyâ. Thus it could employ
anyone it so chose, âto take up
positions on the Embraer jetsâ.
[23] According
to Mr Tip , it was significant that this charge of gross
insubordination, based upon the meeting at the cafeteria,
was brought
seventeen days later and only then after the underlying dispute had
been settled. Mr Tip contended further that there
was very little
further evidence to justify the charge of insubordination. The two
charges were, in effect, inexplicably intertwined.
In Mr Tipâs
view, the real motivation for the charges having been brought against
appellant was contained in the heads of argument
which had been
prepared for a disciplinary hearing by Mr Foster and in which the
following appeared: âCaptain Kroukam has over
the years appeared
before several disciplinary commissions. It appears that Captain
Kroukam has become bitter and vindictive towards
the company
especially after the disciplinary action taken by the company in
October 2000. Clearly the relationship with Captain
Kroukam and the
company has become irreconcilableâ.
[24] In summary, Mr Tip contested the conclusion reached by
Francis
J
concerning the important part that appellantâs
union activities had played in respondentâs decision to dismiss
him.
In his view, the evidence presented to the
court a quo
could not sustain the charges of gross insubordination or of
being a disruptive influence to the ordinary operations of the
organization.
Appellantâs case was that the clear inference to be
drawn from the evidence was that his union activities had been
the reason
for his dismissal.
Evaluation.
[25] In argument before this
Court, the key issues were the determination of the onus of proof,
and the inferences which could
legitimately be drawn from the
evidence. According to Mr Snyman, who appeared on behalf of the
respondent, an employee must prove
the existence of the dismissal and
in the present case must prove the existence of an automatic unfair
dismissal. The employee bears
the onus of proving an automatic
unfair dismissal. In Mr Snymanâs view, this proposition was
clearly contemplated in the provisions
of section 192(1), read with
the definition of dismissal in section 186 and the provisions of
section 187(1) of the Act. Once the
employee had proved the
existence of an automatic unfair dismissal, the issues would be
resolved. The employer would be unable to
rely upon section 188 to
prove that the dismissal was fair. To require the employer to
disprove the existence of an automatic unfair
dismissal was clearly
not contemplated by the Act.
[26] Mr
Snyman placed considerable emphasis upon the judgment of this Court
in
SA Chemical Workers Union and Others v Afrox Ltd
1999(20)
ILJ 1718 (LAC) at paras 32 where
Froneman DJP
set out an
approach in respect of an enquiry relating to an automatically unfair
dismissal in terms of section 187(1)(a) of the Act
as follows:
âThe enquiry into the reason for the dismissal is an objective one,
where the employerâs motive for the dismissal will merely
be one of
a number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I
can see no reason
why the usual two fold approach to causation, applied in other fields
of law should not also be utilized here (compare
S v Mokgethi &
Others
1990(1) SA 32 (A) at 39D â 41A;
Minister of Police v
Skosana
1977(1) SA 31 (A) at 34). The first step is to determine
factual
causation: was participation or support, or intended
participation or support, of the protected strike a sine qua non (or
prerequisite)
for the dismissal? Put another way, would the
dismissal have occurred if there was no participation or support of
the strike? If
the answer is yes, then the dismissal was not
automatically unfair. If the answer is no, that does not
immediately render the dismissal
automatically unfair; the next issue
is one of
legal
causation, namely whether such participation
or conduct was the âmainâ or âdominantâ, or âproximateâ,
or âmost likelyâ
cause of the dismissal. There are no hard and
fast rules to determine the question of legal causation (compare
S
v Mokgethi
at 40). I would respectfully venture to suggest that
the most practical way of approaching the issue would be to determine
what
the most probable inference is that may be drawn from the
established facts as a cause of the dismissal, in much the same way
as
the most probable or plausible inference is drawn from
circumstantial evidence in civil cases. It is important to remember
that
at this stage the fairness of the dismissal is not yet an issue
⦠Only if this test of legal causation also shows that the most
probable cause for the dismissal was only participation or support of
the protected strike, can it be said that the dismissal was
automatically unfair in terms of s 187(1)(a). If that probable
inference cannot be drawn at this stage, the enquiry proceeds a step
further.â
[27] The
question in the present dispute concerned the application of this
test. The starting point of any enquiry is to be found
in Chapter
VIII of the Act. Thus, if an employee simply alleges an unfair
dismissal, the employer must show that it was fair for
a reason
permitted by s 188. If the employee alleges that she was dismissed
for a prohibited reason, for example pregnancy, then
it would seem
that the employee must, in addition to making the allegation, at
least prove that the employer was aware that the employee
was
pregnant and that the dismissal was possibly based on this condition.
Some guidance as to the nature of the evidence required
is to be
found in
Maund v Penwith District Council
[1984] ICR
143
, where Lord Justice Griffiths of the Court of Appeal held at 149
that:
â
[1}t is not for the employee to prove the reason for his
dismissal, but merely to produce evidence sufficient to raise the
issue or,
to put it another way, that raises some doubt about the
reason for the dismissal. Once this evidential burden is discharged,
the
onus remains upon the employer to prove the reason for the
dismissal.â
[28] In my view, section 187 imposes an evidential burden upon the
employee to produce evidence which is sufficient to raise a
credible
possibility that an automatically unfair dismissal has taken place.
It then behoves the employer to prove to the contrary,
that is to
produce evidence to show that the reason for the dismissal did not
fall within the circumstance envisaged in s 187 for
constituting an
automatically unfair dismissal.
[29] The
further question then arises as to the approach to the evidence led
by the respective parties. The answer can be illustrated
by way of
the following example: Assume that an employee can show that she was
pregnant and dismissed upon the employer gaining
knowledge thereof.
The court would examine whether, upon an evaluation of all the
evidence, pregnancy was the âdominantâ or
most likely cause of
the dismissal. Within the framework of this approach , it is now
possible to return to the facts of this case
and the key finding of
the court
a quo
, that the argument that appellant was
dismissed for union activities was completely without merit.
[30] The
appellant was charged with two offences, namely gross insubordination
and being a disruptive influence toward the operation
of the
organization. At the time of his dismissal he had almost twelve
yearsâ service, held the rank of Captain and was the third
most
senior pilot employed by respondent. At all material times he had
been a member of the union, had for a period been its chairperson
and
played a pivotal role in representing the union and members
interests during disputes between the union and respondent.
[31] The
evidence indicated that the litigation of March 2001 had culminated
in the union attempting to obtain the committal of members
of
respondentâs management including the executive officer for
contempt of court. Clearly no previous dispute between the union
and
respondent had generated anywhere near this level of emotion.
Respondentâs attorney recorded that the attitude of appellant
would
not be forgotten. This letter had been written on the instructions of
Mr Foster. When appellant was given a copy of the disciplinary
charges, Mr Foster engaged appellant in a lengthy discourse
concerning the damage that the litigation of March 2001 had
inflicted
upon respondent, including compromising respondentâs
expansion plans.
[32] In
heads of argument which had been prepared by Mr Foster for the
appellantâs disciplinary hearing, the following was stated:
âNeither Captain Kroukam nor his legal representative challenged
the statements that he made on several occasions show no confidence
in the breakdown and trust in management â he had on several
occasions called for the resignation of key personnel including the
operations director, the chief pilot and he required the arrest and
detention of his operations director and his chief executive.
His
justification for these disruptive actions was that he had acted in
his capacity as shop steward. The complainant illustrated
that, as
Captain Kroukamâs affidavit had been signed in both his capacities
as an employee and in his capacity as shop steward,
it had been
difficult to separate these roles and differentiate which disruptive
actions were attributable to his persona. Captain
Kroukam further
admitted that a requirement for the resignation of chief pilot, after
only four months in office during the time
of dynamic change
requiring intense management of the change process, was entirely
unreasonable and that Captain Van Schalkwyk had
done an excellent job
in the circumstances. This irrationality demonstrates a breakdown of
trust without reason and disruption without
reason.â
[33] This
claim by Mr Foster read in the context of the disputes between the
union and respondent raises a credible possibility that
the reason
that respondent wished to dismiss appellant had far more to do with
appellantâs leadership of the union and the role
that he had played
in the litigation in March 2001 than with any aspect of his personal
work performance.
[34] This
conclusion is supported by the absence of any credible evidence, save
for one oblique paragraph in the founding affidavit
deposed to during
the contempt application, to support the charge of gross
insubordination. None of the key witnesses, including
Captain Van
Schalkwyk and Mr Foster, were able to present specific details about
the reasons for appellantâs dismissal on the
grounds of his
constituting a disruptive influence. As Mr Tip correctly noted, had
Mr Foster come to the view that he could no longer
work with
appellant then he should have said so and the true basis for
dismissal could have been tested in court.
[35] Mr
Foster sought to substantiate the charge of appellant being a
disruptive influence by reference to his work performance.
This
contention was adequately reflected in the closing argument made by
Mr Foster at the disciplinary hearing:
âHe
(appellant) agreed that his work performance, at 697 hours over the
past 12 months and 48 hours during the month of March fell
far short
of the company productivity efficiency targets of 950 and 86 hours
respectively by 27% and 44% respectively, as well as
far short of the
company averages. He justifies this poor performance on the basis of
sick leave taken as a consequence of stress
suffered whilst dealing
with union activities, and on the basis of requiring time to attend
to the recent litigation lead by APA
on the company. As Capt Kroukam
is foremost an employee of the company, this poor work performance is
clearly disruptive to the
companies operation.â
[36] However respondentâs disciplinary officer, Ms Lubbe, denied
that this allegation of poor performance constituted misconduct
and
that allegations of the former should be dealt with in the same
manner as the latter.
[37] Mr
Snyman contended that appellant was in effect an employee âfrom
hellâ, who had a history of acrimonious behaviour towards
his
colleagues. He had breached a confidence with the Operations Director
and the Chief Pilot. He had a serious conflict with Capt
Van
Schalkwyk regarding a psychological report which the latter had
requested from appellant. His work performance was poor. The
cumulative weight of all these factors justified respondentâs
action in charging appellant with gross insubordination and being
a
disruptive influence to the ordinary operation of the organization.
[38] The
difficulty with this submission is that, when the evidence relating
to his dismissal is read as a whole, the conduct of
appellant as an
employee appears to have been of far less importance than his role as
a union official in the litigation against
respondent. In summary,
the letter of warning from Mr Snyman of 29 March 2001 to the effect
that appellantâs âtrue attitude towards
our clients⦠will not
be forgottenâ, the lecture given by Mr Foster to appellant
concerning the disruption caused by the unionâs
litigation and the
very thrust of Mr Fosterâs argument at the disciplinary hearing all
point in the direction of a clear justifiable
inference: that the
cause of appellantâs dismissal was his union activity and the
central role he played in the litigation in
March 2001. This
inference is supported by the inability of respondentâs witnesses
to provide an alternative, coherent explanation
as to the evidential
grounds upon which the charges were based. Viewed holistically the
evidence supports the conclusion that the
dominant cause of
appellantâs dismissal was his union activities. Accordingly, the
dismissal falls within the scope of s 187(1)(d)
of the Act and is
automatically unfair.
Relief.
[39] Mr Snyman submitted that, even were it to be found that the
appellantâs dismissal was fair, the award of reinstatement would
be
a wholly inappropriate order. The working relationship between
respondent and appellant had been finally severed. A range of
legitimate safety concerns had vexed respondent. In particular, Mr
Snyman submitted that appellant had been unable to procure
positions with at least two other airlines, solely as a result of
psychometric results. Given the stressful working environment
in
which pilots operated, it could not be expected that the respondent
should reemploy the appellant as a pilot. Furthermore, Mr
Snyman
submitted that, were appellant to be reinstated, it would cause the
respondent to incur more than R100 000 in costs of retraining
appellant.
[40] As Mr
Tip observed, had appellant remained in the employ of respondent he
would, in any event, have had to be retrained annually.
There was no
evidence to gainsay appellantâs contention that he had been an
exemplary employee and a proficient pilot. The relationship
between
the executives of respondent and appellant had broken down, as the
findings above indicate, primarily as a result of the
activities
undertaken by appellant on behalf of the union.
[41] To
accept an argument that reinstatement was an inappropriate remedy
because of a broken working relationship, would, in the
circumstances
of this case, work significantly to the prejudice of appellant who
had been automatically unfairly dismissed. No
compelling reasons,
other than a broken relationship caused by factors which did not
relate to appellantâs proficiency as a pilot,
were offered by
respondent as to why this Court should not order reinstatement. In
short, on the evidence, the working relationship
had broken down
because of activities of appellant which are statutorily protected in
terms of s 187 of the Act; hence reinstatement
was clearly an
appropriate remedy in this case.
[42] Mr
Tip submitted that the appellant should be reinstated with full
retrospectivity to the date of dismissal. By contrast, Mr
Snyman
submitted that the order of reinstatement should not exceed twelve
months and that accordingly any compensation which the
appellant
received should be limited to an amount not exceeding twelve monthsâ
salary.
[43] Under
the Actâs predecessor, the Labour Relations Act 28 of 1956 and in
particular S 46(9) thereof, it was permissible for
a court to order
reinstatement and compensation in the same case so long as it was
deemed reasonable and fair to both parties. See
Chevron
Engineering (Pty) Ltd v Nkambule and Others
(2004) 3 BLLR 214
(SCA) at para 30 and the authorities cited therein.
[44] However,
the present dispute must be determined under a different legal
framework. It is thus necessary to examine sections 193,
194 and 195
of the Act.
The
relevant provisions of section 193 read as follows:
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a
dismissal is unfair, the Court or the arbitrator may-
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
order the employer to re-employ the employee, either in the work in
which the employee was employed before the dismissal or in
other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
order the employer to pay compensation to the employee.
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless â
the employee does not wish to be reinstated or re-employed;
the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
the dismissal is unfair only because the employer did not follow a
fair procedure.
(3) If a
dismissal
is automatically unfair or, if a
dismissal
based on the employerâs
operational requirements
is found
to be unfair, the Labour Court in addition may make any other order
that it considers appropriate in the circumstances.
The relevant provisions of section 194 read as follows:
The compensation awarded to an employee whose dismissal is found to
be unfair either because the employer did not prove that the
reason
for dismissal was a fair reason relating to the employeeâs conduct
or capacity or the employerâs operational requirements
or the
employer did not follow a fair procedure, or both, must be just and
equitable in all the circumstances, but may not be more
than the
equivalent of 12 monthsâ remuneration calculated at the employeeâs
rate of remuneration on the date of dismissal
The compensation awarded to an employee whose dismissal is
automatically unfair must be just and equitable in all the
circumstances,
but not more than the equivalent of 24 monthsâ
remuneration calculated at the employeeâs rate of remuneration on
the date of
dismissal
Section 195 provides as follows:
An order or award of compensation made in terms of this Chapter is in
addition to, and not a substitute for, any other amount to
which the
employee is entitled in terms of any law, collective agreement or
contract of employment..
[45] Mr Snyman submitted that, where a court order provides for
retrospective reinstatement only without compensation, the
status
quo ante
is restored, meaning that the employee returns to his or
her same position on the same terms of employment without any
interruption
in service. However, no payment for any remuneration
for the interim period between the dismissal and the reinstatement
order should
be made. According to Mr Snyman, where the court order
provides for compensation only without reinstatement, the court then
determines
an amount of compensation based upon the employeeâs
remuneration by exercising its discretion. There is, however, no
restoration
to the
status quo ante
. Where the court orders
reinstatement and compensation, the reinstatement is not accompanied
by any payment or remuneration for
the period between the dismissal
and the reinstatement Compensation paid is dependant upon the
exercise by the Court of its discretion
provided that both the
reinstatement and compensation could not be made earlier than the
actual date of the dismissal.
[46] Based
on this analysis, Mr Snyman submitted that, where a court finds an
unfair dismissal to exist and wishes to award both reinstatement
and
compensation, an appropriate order would be to provide for
retrospective reinstatement from the date of dismissal and
compensation
equal to the period that the employee was unemployed.
[47] Mr
Snyman submitted that, were this interpretation to be rejected, and
retrospective reinstatement and compensation were to be
treated as
mutually exclusive, the employee, who did not seek reinstatement as
specifically envisaged in section 193(2)(a) of the
Act, would
automatically be in a less favourable position than the employee who
desired reinstatement merely on the basis that reinstatement
per
se
was sought. An employee who sought reinstatement could
then feasibly receive limitless back pay while the employee who did
not apply
for reinstatement could only receive twelve monthsâ
remuneration and compensation in terms of section 194(1) of the Act
or 24 monthsâ
compensation in terms of section 194(3) of the Act.
[48] As
noted, Mr Tip contended for reinstatement with full retrospectivity.
In support of this form of relief, he submitted that,
on an ordinary
interpretation of section 193, the use by the legislature of the word
âorâ between section 193(1)(b) and section
193(1)(c) supported
the interpretation that an âorâ should also be included between
section 193(1)(a) and section 193(1)(b).
Thus, the available remedies
were cast in the alternative, being reinstatement, re-employment or
compensation.
On this
reading of s 193, it follows that for âordinaryâ dismissals,
there was a clear expression for the principle of alternative
remedies. If the literal meaning of these provisions defined the
field in relation to all dismissals, the question of compensation
would not arise at all in the present dispute, since the appellant
sought reinstatement. He stood to fall within the ambit of section
193(2).
[49] Respondent
sought to invoke s 193(2)(b) and (c) in support of the contention
that appellant should not be reinstated. On this
line of argument,
Mr Tip contended that this Court would then need to decide the
effective date of the reinstatement and the extent
of the back-pay
which formed part of that reinstatement. The only limitation in this
regard would be that the reinstatement could
not be fixed at a date
earlier than the date of the dismissal: (section 193(1)(a)). For
this purpose the Court exercises a discretionary
power. See
NUMSA
& Others v Fibre Flair CC
t/a
Kango Canopies
(2000) 6
BLLR 631
(LAC) at 633 B-E.
[50] This
submission finds support in Martin Brassey
Commentary on the
Labour Relations
Act Volume 3 at A8: 65: âReinstatement and
re-employment are mutually exclusive and, since both cannot be
awarded it is reasonable
to conclude that the three remedies
available in terms of section 193(1) are available only in the
alternative. As a result, compensation
cannot be awarded when
reinstatement or reemployment is ordered and the employee must then
be content with the money that flows from
the back-dating of such an
orderâ.
[51] The
further question then arises as to whether section 193(3) confers a
power upon a court to order reinstatement together with
compensation.
As Mr Tip correctly noted, the policy considerations underlying
section 193(3) do not readily emerge from the express
wording of the
provision. The section confines itself to two kinds of dismissals:
those that are automatically unfair and those arising
for operational
reasons. There would appear to be no policy equivalence or parity of
moral judgment between an automatically unfair
dismissal and an
unfair retrenchment, for example on the basis of a procedural
omission. But no distinction is drawn between these
two forms of
dismissal in section 193(3). There does not appear to be any
statutory basis for a distinction in this regard between
an
automatically unfair dismissal and other forms of unfair dismissal.
Indeed as noted, s193(1) applies to all dismissals, whether
ordinary
dismissals heard by an arbitrator or automatically unfair dismissals
and dismissals for operational reasons heard in the
Labour Court. In
addition, section 193(1) clearly envisages that a court will be
confronted by a primary election, namely which category
of relief is
appropriate to the applicable facts. Section 193(3) thus
contemplates that an order may be granted which is ancillary
to the
main relief granted (i.e one of the three alternatives) in terms of
section 193(1).
[52] Once
a distinction is drawn between reinstatement and compensation, the
meaning and scope of section 194(3) becomes clear. This
provision
caps the award of compensation, not the amount which may be awarded
pursuant to the alternative order of reinstatement,
as envisaged in
section 193(1).
[53] This
distinction was appreciated by this Court in
CEPPWAWU and Another
v Glass and Aluminium 2000 CC
[2002] 5BLLR 399 (LAC) where at
para 50
Nicholson JA
said âthe amount of compensation that
is awarded to an employee whose dismissal has been found to be
automatically unfair must
reflect an appreciation of the fact that,
save in exceptional circumstances, such employee would be the most
deserving of an order
of reinstatement with full retrospective effect
to the date of dismissal so as to place the employee in the same
position he would
have been in had he not been dismissed, but also to
penalize the employer for dismissing the employee for a prohibited
reasonâ.
[54]
Nicholson
JA
went on to say: âThis is because I would have had no
hesitation in ordering his reinstatement with full retrospective
effect
to the date of his dismissal, had he elected to seek
reinstatement. The purpose of such order would have been to ensure
that the
employee was placed, as far as it is possible, in the
position in which he would have been in had he not been dismissed.
It would
also have been imperative to send a clear message to all
employers, who may be tempted to dismiss employees for any of the
prohibited
reasons, that such conduct is totally unacceptable and
would be met with severe disapproval by this Court. This is because
I would
have had no hesitation in ordering his reinstatement with
full retrospective effect to the date of his dismissal, had he
elected
to seek reinstatement. The purpose of such order would have
been to ensure that the employee was placed, as far as it is
possible,
in the position in which he would have been in had he not
been dismissed. It would also have been imperative to send a clear
message
to all employers, who may be tempted to dismiss employees for
any of the prohibited reasons, that such conduct is totally
unacceptable
and would be met with severe disapproval by this Court.â
(at para 52).
[55] In my
view, section 194(3) relates to compensation only and has no bearing
on an order for reinstatement. Once respondentâs
contention is
rejected, namely that reinstatement is not an appropriate remedy in
that a continued employment relationship would
be intolerable and
thus such relief is impracticable, then reinstatement is clearly the
competent remedy in terms of s 193(1).
[56] There
is one further section that needs to be considered, in the present
dispute. Section 195 provides thus:
âAn
order or award of compensation made in terms of this Chapter is in
addition to, and not a substitute for, any other amount
to which the
employee is entitled in terms of any law, collective agreement or
contract of employmentâ.
The
question thus arises: To what extent does this section justify an
award of compensation in addition to an amount which may flow
pursuant to reinstatement?
[57] On
the basis of the analysis employed regarding the relationship between
sections 193(1) and 193(3), section 195 could not open
the way to an
order of both reinstatement and compensation. In the first place, it
would run counter to the requirement of the choice
which must be made
between the three alternatives provided in section 193(1). Secondly,
regard must be had to the fact that section
195 is not confined to a
particular class of dismissal. If section 195 were to mean that
compensation could be awarded as an additional
form of relief in the
case of an automatically unfair dismissal, it should have precisely
the same result in respect of any other
dismissal.
[58]
For section 195 to be read as permitting compensation as well as
reinstatement, it would require the phrase â
any other amount to
which the employee is entitledâ
to be read as being at least
partly equivalent to an order of reinstatement. The difficulty with
this approach is to be found
when section 195 is considered not in
relation to a reinstatement order but in relation to the alternative
of re-employment. In
that event, there would arise a
de novo
contract and there would be no amount to which the employee would be
entitled.
[59] If an
order of reinstatement is made, then the contract is restored and any
amount due would necessarily be part of the employeeâs
entitlement.
If a lesser period than reinstatement to the date of dismissal
were ordered, that would be exhaustive of the extent
of the
employeeâs relief. It would surely be untenable to read section
195 as importing a capacity to recover a reinstatement
portion which
the Labour Court has decided should not be awarded.
[60] The
scope of section 195 should be confined to the situation of
compensation where reinstatement or re-employment are not applicable.
This would be consistent with the analysis of the Supreme Court of
Appeal in
Fedlife Assurance Ltd v Wolfaardt
[2001} 12 BLLR
1301
(SCA) at paras 24 â 25. As
Nugent AJA
(as he then was)
held, section 195 would permit an employee who receives compensation
under the Act to pursue, in addition, common
law or other statutory
claims.
[61] In
summary, the wording of section 193(1)(a) supports appellantâs
contention that the Court has a discretion in respect of
the
retrospectivity of a reinstatement award. In exercising this
discretion, a court can address
inter
alia
the time period between the dismissal and the trial . The Court can
accordingly ensure that an employer is not unjustly financially
burdened if reinstatement is ordered.
[62] There
was some suggestion that appellant could have obtained other
employment after dismissal. There is considerable uncertainty
as to
possible terms and conditions that might have been so concluded and
hence the monetary effect of such alternative employment.
There is
also evidence from appellant that the possibility of contract flying
positions could not be taken up due to the trial before
the court
a
quo
.
[63] Two
further considerations must be taken into account in the framing of
the relief, being:
(i) the
delay in finalizing the dispute;
(ii) employment
undertaken by appellant after dismissal.
Appellant
was dismissed on 11 May 2001. The dispute came before the court
a
quo
on 17 October 2002. . Clearly, delays through the courts
cannot be blamed on respondent. The reinstatement order must take
account of these delays. It is also common cause that after
dismissal, appellant was employed for 5 months during which period
he
earned R18,000 per month.
[64] Accordingly,
the order to be made must take account of these delays and the
remuneration that appellant earned (and might
have earned )
during the period from dismissal to reinstatement . But the order
should also bring finality to these proceedings.
For this reason , I
consider that , given all these factors , a backdated period of
reinstatement of twelve months from the
date of this judgement
constitutes a just and equitable order.
[65] In
the circumstances, the appeal succeeds and the following order is
made:
The order
of
Francis J
of 17 October 2002 is set aside and replaced with
the following order:
1. The dismissal of the appellant on 11 May 2001 is declared to be
automatically unfair in terms of section 187(1)(d) of the Act.
2. The
appellant is reinstated in his employment with respondent with effect
from 9 September 2004.
3. Respondent
is ordered to pay the costs incurred by appellant, including the
costs of two counsel.
_______________
DAVIS AJA
WILLIS
JA:
[66] I have had the inestimable privilege of reading the various
drafts prepared in this difficult matter by my learned brothers
Zondo
JP and Davis AJA.
[67] Both
Zondo JP and Davis AJA arrive, by somewhat different routes, at the
same factual conclusion: that the appellant was dismissed
primarily
as a result of the activities undertaken by him on behalf of the
union. I agree with this factual finding. As long as
we all arrive
at the same destination on the questions of fact, I think it
irrelevant for me to indicate which route I prefer. It
will be of no
assistance to anybody. If, for example, I arrive in Cape Town for a
specific purpose, how I did so is irrelevant and
of no interest to
anyone, save the idly curious. Certainly, I cannot say that either of
Zondo JP or Davis AJA is incorrect in following
the route which he
does. Whether one travels to Cape Town via the Garden Route or the
Karroo, each journey will have its own charms.
Questions of law are a
different matter. On such questions the reasons of judges do matter,
not only in the particular case but also
for those that may come
afterwards.
[68]
We all agree that, having come to this particular conclusion, it
follows, as a matter of law, that the dismissal is automatically
unfair in terms of section 187 (1) (d) of the LRA. This follows from
a plain reading of that subsection (read together with subsection
4(2) (a)). I need say no more.
[69] We
all agree, that on the facts of this particular case, the Court was
obliged to reinstate the appellant. This follows from
a plain reading
of section 193 (2) of the LRA. Again, I need say no more.
[70] As
the author of the unanimous judgment in
NUMSA & Others v Fibre
Flair CC
t/a
Kango Canopies
1
to which Davis AJA refers in his judgment above, I should imagine
it comes as no surprise that I agree with the opinion and reasons
expressed in that judgment that the Court has an equitable discretion
as to the date from when which reinstatement takes effect provided,
however, that reinstatement may not be ordered from a date prior to
the actual date of dismissal. Zondo JP, Davis AJA and I all agree
on
this aspect. In my opinion, for the purposes of this case, nothing
more needs to be said concerning the principle.
[71] All
that remains to be determined is the date of reinstatement.
[72]
Having regard to all the facts of this case and, in particular, the
pressing need for finality, I adopt, as my own, the reasons
of Davis
AJA given in paragraphs [61] to [64] of his judgment. I therefore
prefer the order proposed by Davis AJA and cast my vote
accordingly.
_______________
WILLIS JA
1
(2000)
21 ILJ 1079 (LAC);
[2000] 6 BLLR 631
(LAC
Date of
judgment 26 September 2005