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[2012] ZALAC 4
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National Commissioner of the South African Police Service v Myers and Others (CA 4/09) [2012] ZALAC 4; [2012] 7 BLLR 688 (LAC); (2012) 33 ILJ 1417 (LAC) (2 March 2012)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD IN CAPE TOWN
)
Case No: CA 4/09
In the matter between:
THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE SERVICE
…..............................................
Appellant
And
I MYERS
…....................................................................................
First
Respondent
THE SAFETY AND SECURITY AND
SECTORAL
…...............
Second
Respondent
BARGAINING COUNCIL
ADVOCATE C DE KOCK N.O.
…................................................
Third
Respondent
______________________________________________________________
JUDGMENT
______________________________________________________________
ZONDI AJA
Introduction
[1] This is an appeal against the
whole of the judgment and order made by Ngalwana AJ reviewing and
setting aside an arbitration
award that had been issued by the third
respondent, (“the arbitrator/commissioner”) under the
auspices of the second
respondent. The arbitration award had been
issued in terms of the Labour Relations Act 66 of 1995 (the Act) in
respect of an unfair
dismissal dispute between the appellant and the
first respondent (“Myers”).
[2] In terms of the arbitration award,
the arbitrator found that the first respondent’s dismissal was
substantively fair and
dismissed the referral. (Procedural fairness
of the dismissal was not in dispute)
[3] The appeal is with the leave of
this Court, leave having been refused by the Court
a quo
.
Factual Background:
[4] Myers had been in the South
African Police Service (“the SAPS”) for 28 years when he
was dismissed on 13 July 2007.
Before his transfer to Bishop Lavis
Police Station on 2 March 2007, Myers held a rank of a superintendent
and commanded Maitland
Dog Unit.
[5] During February 2007, the South
African Police Union (SAPU) raised the issue of malnutrition of
police dogs at the Maitland
Dog Unit with the SAPS management. What
had happened is while Myers was on leave, on the instruction of the
police management,
the daily rations for the police dogs were reduced
from 700 grams of food to 500 grams. SAPU strongly believed that a
change in
the dogs weight which became evident immediately after the
implementation of the instruction was as a result of reduction in
their
daily rations.
[6] Thereafter SAPU invited Myers to a
meeting at its offices since he was a commander of the Unit. A
certain Mr Leon Ben Lamprecht,
a journalist for “Die Burger”
newspaper was also present at the meeting. Lamprecht approached Myers
as the Unit Commander
to explain the reasons for the situation at the
Dog Unit. Myers refrained from commenting before establishing if the
issue raised
by SAPU during his absence had been addressed by the
police management.
[7] Myers was concerned that the issue
of dogs’ malnutrition had attracted the attention of the media
and he contacted the
Provincial Commander, Senior Superintendant
Visser to make him aware of his concern and asked him to take
immediate steps to prevent
the story from making headlines in the
media. The next day, the story about the dogs malnutrition made
headlines in the media.
It was inter alia reported that the police
dogs were eating their own excrement due to malnutrition. Members of
the public reacted
with shock and anger at the news of the condition
of the dogs, both in print and electronic media.
[8] As a Commander of the Unit, Myers
felt obliged to do something to take charge of the situation. On 21
February 2007, he interrupted
his leave and returned to work. On his
arrival at work he found the chief veterinarian of the SAPS and other
senior police officers.
The chief veterinarian told Myers that they
were about to hold a meeting concerning dogs malnutrition issue.
Myers requested to
be part of the meeting but his request was turned
down. He then left.
[9] On or about 23 February 2007 Myers
sent an email to “
Die Burger
” newspaper seeking to
address the issue regarding dogs malnutrition and to point out the
steps he had taken to resolve the
problem. His email appeared in “Die
Burger” under the following headlines:
‘
Maitland:
Bevelvoerder Verbreek Swye. Rompslomp laat honder ly’
[10] After giving the background of
how the dogs malnutrition came about, Myers proceeded to set out what
steps he had taken to
rectify the problem.
‘
as
the commander of the Maitland Dog Unit I have been approached by
numerous colleagues, friends and acquaintances regarding the
issue of
the dogs at the unit. Many who have criticized me for “starving”
the dogs at the unit. I have been forced
to remain silent regarding
the whole issue and as I am being criticized both publicly and
personally I feel that the whole issue
must be placed in its true
context.
The
SAPS in late 2004 tendered for dog food. The tender was awarded to
inkosi anathi for the supply of Vets Choice “premium”
an
excellent grade of dog food and in January 2005 the dogs changed over
to Vets Choice ”premium”, with an instruction
from the
dog school in Pretoria to feed the dogs 500 grams of Vets Choice per
day. Previously the dogs were being fed 800 grams
of food per day.
After the change we started to notice a slight decline in weight but
attributed this to the change over in food.’
[11] Myers’ email went on to
state:
‘
At
11h00 on 15 February the Provincial Commander as well as Dr Sarkady
and later a Director from the Provincial Office arrived at
the unit.
Attempts to explain the situation regarding the types of dog food,
which is the core of the problem, to the Director
were fruitless; his
viewpoint being that I was not an expert or a nutritionist. Suffice
to say that I grew up in a dog environment
with my father being
highly regarded and respected by the police for his expertise in
training dogs to police standards from 1963
to 1988. To say that I am
not an expert is far from the truth and alas the same director is of
the opinion that I am radical and
have a reputation, an opinion which
I am sadly sure is shared by many of his peers. Each and every
trained dog handler is an expert
in his field and is appropriately
trained to make a judgment in the condition of his/her respective dog
as they work with them
every day and know their behaviour and what
effects it. I was nevertheless instructed to resume my leave and had
to vacate the
premises.
Director
(Dr) Strydom, the head veterinarian of the SA Police Service visited
the unit on Wednesday 21 February and held a meeting
with the kennel
officials, Provincial Commander and Acting Commander of the Maitland
Dog Unit. I was excluded form the meeting
even though I was on leave
and at the unit and requested to be a party thereto
.’
[12] In conclusion he states:
‘
The
Maitland Dog Unit is one of the units in the country that has at its
disposal dedicated and committed dog handlers and kennel
officials
who place the welfare of the dogs above their own interests and the
public can be assured that no dog will die of starvation
whilst I
have such members serving under my command and that all dogs and
handlers remain uppermost in my priorities regarding
my functions and
duties. Whilst numerous calls have been made by the public willing to
donate food they can be assured that this
is most definitely not
necessary, the unit has enough food at its disposal. All dogs that
are donated to the police by the public
receive the love and care
that they as our trusted friends deserve. I trust that the above
places the issue regarding the dog unit
in perspective and that as
handlers we may have our honour and dignity restored.’
[13] On 18 June 2007 Myers was charged
with contravening Regulation 20(f) of the South African Police
Service Discipline Regulations.
It was alleged by the SAPS that Myers
by communicating with the media prejudiced the administration,
discipline or efficiency of
a department, office or institution of
the State.
[14] In the alternative, he was
charged with contravening Regulation 20 (i) in that during February
2007 he failed to carry out
a lawful order or routine instruction
without just or reasonable cause, namely Standing Order (General) 156
by making media communication.
[15] Myers pleaded not guilty to the
main charge and alternative charge. However, at the conclusion of the
disciplinary hearing
he was convicted on the main charge on the
ground that he failed to follow the right channels when he made a
media communication.
But he was acquitted on the alternative charge.
He was dismissed and ordered to pay a fine of R500-00.
[16] In justifying the appropriateness
of dismissal as a sanction the chairperson of the disciplinary
hearing had regard to Myers’
period of service and seniority
within the SAPS which in his view were indicative of the fact that
Myers was or should have been
aware of the SAPS rule regarding media
communication by members. The chairperson held that Myers had
deliberately violated the
rule. He found Myers’ insolence to
have been a factor which aggravated the misconduct. He stated that
Myers, as an employee,
was required to be obedient to his employer
and to act in good faith in the exercise of his duties.
[17] Myers appealed. On appeal the
sanction of dismissal was confirmed but the portion of the sentence
relating to the payment of
a fine was set aside.
Bargaining Council Hearing
[18] Myers thereafter referred his
dismissal to the second respondent, the Safety and Security and
Sectoral Bargaining Council (Bargaining
Council) seeking
reinstatement. Conciliation failed and the dispute was referred for
arbitration for resolution. The third respondent
presided over the
arbitration.
[19] The
Labour Relations Act permits
the commissioner to conduct the arbitration in a manner he or she
considers appropriate in order to determine the dispute fairly
and
quickly. Thus at the commencement of the arbitration hearing the
parties agreed that it was not necessary to present oral evidence
but
that the record of the disciplinary proceedings would be used as the
only material to which the arbitrator should have regard
to determine
the substantive fairness of Myers’ dismissal.
[20] The arbitrator found the
dismissal of Myers to have been substantively fair and dismissed the
referral on the ground that Myers’
action, in approaching the
media when he was aware that his superiors were already addressing
the “issue” and had been
told that he was not part of the
meeting, was completely unacceptable and indicative of disobedience.
[21] The arbitrator found Myers had
contravened both
Regulation 20(f)
and (i). In finding Myers guilty of
contravening
Regulation 20
(i) the arbitrator held that Myers had no
right to speak to the media without having first discussed the matter
with the media
liaison officer and his commander. In convicting Myers
for a contravention of
Regulation 20
(f) the arbitrator reasoned that
Myers had no right to speak to the media regarding the malnutrition
of the dogs as at that stage
the issue was being addressed by the
SAPS management. He accordingly found Myers’ statement to the
media to have been prejudicial
to the SAPS.
[22] In confirming the dismissal as an
appropriate sanction for the acts of misconduct committed by Myers,
the arbitrator had regard
to the period of service which Myers had
had with SAPS and his seniority within the SAPS which in his view
constituted aggravating
factors.
Review proceedings
[23] Myers applied to the Labour Court
to review the arbitrator’s award in terms of section 145 of the
Act. The grounds upon
which he attacked the arbitrator’s award
were, firstly that he committed misconduct in relation to his duties,
secondly that
he exceeded the powers of a commissioner, thirdly, and
that he committed gross irregularities and fourthly that the award
was improperly
obtained.
[24] To substantiate his grounds of
review Myers
inter alia
alleged that the arbitrator failed to
consider all the circumstances of the case, in particular that Myers
did not instigate the
issue of the dogs malnutrition, that the
arbitrator should not have considered evidence relating to the
alternative charge on which
he was acquitted and that the arbitrator
acted irregularly in convicting him in circumstances where the
evidence presented was
lacking in substance to sustain the charges
against him.
[25] The Court
a quo
reviewed
and set aside the award and ordered that the matter be remitted to
the second respondent for a
de novo
hearing on an urgent basis
before another commissioner. It ordered the appellant to pay Myers’
costs.
[26] The Court
a quo
did not
set aside the award specifically on the grounds contained in section
145(2) of the Act. It held that the permissible grounds
of review are
wider than those contained in section 145(2). It further held that,
for the applicant to succeed in the review application,
it must be
proven that the commissioner’s decision is irrational (in the
sense that it does not accord with the reasoning
on which it is
premised or the reasoning is flawed as to elicit a sense of
incredulity) and is unjustifiable in relation to the
reasons given
for it. For its reasoning it placed reliance on
Crown Chickens
(Pty) Ltd t/a Rocklands Poultry v Kapp No
(2002) 23
ILJ
863 (LAC) at para 19;
Shoprite Checkers (Pty) Ltd v Ramdaw NO and
Others
(2001) 22
ILJ
1603 (LAC) at para 26;
Carephone
(Pty) Ltd v Marcus No and Others
(1989) 19
ILJ
1425 (LAC)
at para 37 and
Pharmaceutical Manufacturers Association of SA and
Another; In re ex parte President of the RSA and Others
[2000] ZACC 1
;
2000 (3)
BCLR
241
(CC).
[27] Notably, the
test for review propounded by the Court
a
quo
is
slightly different to the one formulated by the Constitutional Court
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
1
namely whether the
decision reached by the commissioner is one that a reasonable
decision-maker could not reach (‘the reasonableness
test”).
[28] The Court
a
quo
proceeded
to hold that the proper approach is not to ask whether the
arbitrator’s decision is one that a reasonable decision-maker
could not reach, but rather whether in the light of the evidence
advanced, having regard to considerations of equity; the decision
is
one that could properly be said to be reasonable. At para 24 of the
judgment the Court
a
quo
reasoned
that an irrational and/or unjustifiable decision “must
pari
passu
be
unreasonable”.
[29] Notably, the
Court
a
quo
did
not set aside the award on the basis of the test as formulated by
itself. It, however, did so on the basis of numerous misdirections
that it found in the manner in which the arbitrator approached the
issues before him.
[30] It held that the arbitrator had
misdirected himself in three respects. First, by analysing the
evidentiary material, which
was before him on the basis that the
charge sheet had been incorrectly drawn up, secondly, by failing to
consider Myers’
previous infractions and sanctions in arriving
at his decision and thirdly, in finding that Myers’ conduct
evinced a clear
disregard for the authority, which finding was not an
essential element of the misconduct of which he was found guilty.
[31] The Court
a
quo
reviewed
and set aside the award because of these misdirections.
Proceedings in this Court:
[32] In his heads and in argument
before this Court, Mr De Villiers-Jansen submitted on behalf of the
appellant that the Court
a quo
erred in its application of the
rationality test and in redefining the test laid down in
Sidumo
supra and, further, that in light of the findings and reasons
advanced by the arbitrator, it cannot be said that the arbitrator’s
decision is one which a reasonable decision maker could not reach.
[33] I disagree with Mr De
Villiers-Jansen’s contention. The Court
a quo
did not
set aside the arbitrator’s award on the basis of irrationality
or the standard it propounded. But it did so on the
basis of various
instances of misdirections which it found the arbitrator to have
made.
[34] It is clear upon a proper
analysis of the Court
a quo’s
judgment that it applied
the reasonableness test in reviewing the arbitrator’s award. At
para 31 of its judgment, the Court
a quo
held that in
determining the appropriate sanction in relation to the main charge,
it was imperative for the commissioner to ascertain
whether Myers had
previously been disciplined on the same charge and consider the
seriousness of his conduct. It reasoned that
the commissioner’s
failure to have regard to these factors was something which (“in
the language of the Constitutional
Court in
Sidumo
”) a
reasonable decision-maker could not have done.
[35] The other
ground upon which the appellant seeks to attack the Court
a
quo’s
judgment
is that the instances of misdirections which it found and on the
basis of which it set aside the award were not advanced
by the first
respondent either in his founding affidavit or in oral argument.
Counsel for the appellant argued that the Court
a
quo
erred
in determining the review application on the basis of the
misdirections which were never advanced by the first respondent
in
support of his case and secondly, in not affording the appellant an
opportunity to deal with these misdirections either during
or after
the hearing in the form of supplementary written submissions. For
this proposition the appellant relied on the judgment
of this Court
in
Palaborwa
Mining Co. Ltd v Cheetham and Others
.
2
[36] I disagree
with the appellant’s contention. Although the instances of
misdirections found and relied upon by the Court
a
quo
as
the basis for setting aside the award were not pertinently raised by
the first respondent as grounds of review, it is, however,
apparent
on a proper analysis of the pleadings that they are nevertheless
foreshadowed in paragraphs 23, 24, 46 and 47 of the first
respondent’s founding affidavit. In response to the averments
made in these paragraphs, the appellant deliberately declined
to
answer them on the ground that the averments constituted legal
arguments. It is therefore not correct to contend that the instances
of misdirections relied upon by the Court in setting aside the award
were not advanced by the first respondent in his case or that
the
appellant was not afforded an opportunity to deal with them.
[37] In determining
whether the arbitrator’s award should have been reviewed and
set aside, I will apply the reasonableness
test as propounded by the
Constitutional Court in
Sidumo
supra
and as explained
and clarified by this Court in
Fidelity
Cash Management Services v Commissioner for Conciliation, Mediation
and Arbitration and Others
3
and by the Supreme
Court of Appeal in
Edcon
Ltd v Pillemer NO and Others
.
4
[38] In
Sidumo
, the
Constitutional Court in explaining the reasons for departure from the
Carephone
test said at paras 105 – 108:
“
[105]
As stated earlier, s 3 of the LRA provides, inter alia, that its
provisions must be interpreted in compliance with the Constitution.
Section 145 therefore must be read to ensure that administrative
action by the CCMA is lawful, reasonable and procedurally fair.
[106]
The
Carephone
test, which was substantive and involved greater scrutiny than the
rationality test set out in Pharmaceutical Manufacturers, was
formulated on the basis of the wording of the administrative justice
provisions of the Constitution at the time, more particularly,
that
an award must be justifiable in relation to the reasons given for it.
Section 33(1) of the Constitution presently states that
everyone has
the right to administrative action that is lawful, reasonable and
procedurally fair. The reasonableness standard should
now suffuse s
145 of the LRA.
[107]
The reasonableness standard was dealt with in
Bato
Star
. In the context of s 6(2) (h)
of PAJA, O'Regan J said the following: '[A]n administrative decision
will be reviewable if, in Lord
Cooke's words, it is one that a
reasonable decision-maker could not reach.'
[108]
This court recognized that scrutiny of a decision based on
reasonableness introduced a substantive ingredient into review
proceedings. In judging a decision for reasonableness, it is often
impossible to separate the merits from scrutiny. However, the
distinction between appeals and reviews continues to be significant.’
[39] In conclusion it held at
paragraph 110:
‘…
Carephone
held
that section 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision
should be
justifiable in relation to the reasons given for it. The better
approach is that section 145 is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato
Star
:
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair.’
[40] In
Edcon Ltd
supra
the
Court had this to say at regarding the reasonableness test:
It
is therefore the reasonableness of the award that becomes the focal
point of the enquiry and in determining this one focuses
not only on
the conclusion arrived at but also on the material that was before
the Commissioner when making the award…’
5
[41] It should be
noted, however, that the standard of review as formulated by the
Constitutional Court in
Sidumo
does not replace
the grounds of review contained in section 145(2) of the LRA. The
grounds of review referred to in section 145(2)
still remain
relevant.
[42] During
argument, Counsel for both parties spent a great deal of time
debating whether or not it was proper at the arbitration
hearing for
the arbitrator in determining the fairness of dismissal to have had
regard to the evidence relating to the alternative
charge on which
Myers was acquitted at the disciplinary enquiry. The debate on this
issue was in my view unnecessary as the law
regarding the form of the
proceedings before the arbitrator is clear. The legal position is
that the proceedings before the commissioner
take the form of a
hearing
de
novo
.
The findings of an earlier disciplinary enquiry are irrelevant and
not binding on the commissioner who is called upon to arbitrate
the
dispute.
6
[43] The question
is whether the Court
a
quo
was
correct in holding that the decision or conclusion reached by the
arbitrator was one that a reasonable decision-maker could
not reach
on the material that had been placed before him when he arbitrated
the dispute.
[44] In order to answer this question,
it is necessary to comment on the charges which Myers faced and,
secondly, on the arbitrator’s
findings. As stated earlier, the
aspect relating to the procedural fairness of dismissal was not an
issue before the arbitrator
and does not have to be considered in
this appeal.
[45] Myers appeared before the
appellant’s disciplinary hearing facing a main charge of
contravening Regulation 20 (f) and
an alternative charge of
contravening Regulation 20 (i).
[46] Generally,
Regulation 20 provides for misconduct. Regulation 20 (f) and (i)
states that an employee will be guilty of misconduct
if he or she
amongst other things
:-
‘
(f)
prejudices the administration, discipline or efficiency of a
department, office or institution of the State.
…
fails
to carry out a lawful order or routine instruction without just or
reasonable cause.’
[47] The main charge under Regulation
20 (f) alleged that Myers, by communicating with the media,
prejudiced the administration,
discipline or efficiency of a
department, office or institution of the State.
[48] The alternative charge alleged
that Myers contravened Regulation 20 (i) in that he, by making a
media communication, “failed
to carry out a lawful order or
clear instruction without just or reasonable cause, namely Standing
Order General 156.” In
other words, the instruction which he
was alleged to have disobeyed is one contained in Standing Order 156
of the SAPS. He was
convicted on the main charge and acquitted on the
alternative charge.
[49] In determining whether Myers’
dismissal was substantively fair, the arbitrator had regard to the
record of the disciplinary
proceedings which was before him. The
arbitrator started by pointing out that it was clear from the
chairperson’s reasoning
that in convicting Myers on the main
charge he referred and relied on the evidence which had been
presented in support of the allegations
of misconduct on the
alternative charge. The arbitrator, however, held that there was
nothing wrong with that approach.
[50] In justifying his conclusion the
arbitrator pointed out as follows:
‘
It
is clear from a reading of his finding that the chairperson was faced
with a dilemma regarding what he should find the applicant
guilty of
based on the evidence placed before him, as there was a main charge
and an alternative to the main charge. He then found
that the
applicant was guilty of the main charge but, in doing so, he
incorporated the alternative charge into the main charge,
i.e. the
applicant’s failure to comply with procedures regarding
communication with the media.
I
do not believe that this technicality should affect the fact that the
applicant was clearly charged with both prejudicing the
SAPS and with
not complying with the policies and procedures. The one charge is
very much intertwined with the other. I do not
believe further that
there ought to have been an alternative charge to the main charge.
The applicant ought to have been charged
with failing to comply with
policies and procedures regarding media communication and he should
have been charged with having prejudiced
the SAPS in terms of the
contents of his communication with the media. It is clear from the
disciplinary hearing record that both
issues were sufficiently
canvassed during the course of the hearing and that the applicant was
further given a more than reasonable
opportunity to respond to and to
state his case in response to both issues.’
[51] Having considered the allegations
made in the main and alternative charges and the evidence which had
been presented in support
thereof, the arbitrator then proceeded to
enquire whether Myers had contravened Regulation 20 (i). After
analysing evidence relating
to the alternative charge (under
Regulation 20 (i)), the arbitrator concluded that on the evidence
before him, Myers had no right
to speak to the media without having
discussed the matter with the media liaison officer and his
commander. He held that Myers
was in breach of the Standing Order 156
(clauses 3(14) and 4(4) and found Myers guilty of contravening
Regulation 20 (i). The arbitrator
further found that Myers had also
contravened Regulation 20 (f) and convicted him accordingly.
[52] Generally, the Standing Order
(General) 156 deals with media communication in the SAPS. It embodies
a policy which should be
observed by the SAPS members when
communicating with the media. The policy is in a form of an
instruction and its objective is
to seek to balance the
constitutional right to freedom of expression with the constitutional
obligation of the SAPS to achieve
certain objectives.
[53] Clause 3(14) enjoins a member of
the SAPS to consult with the relevant media liaison official before
making on his own initiative,
official statements to the media to
ensure that SAPS receives the maximum benefit from the exposure.
[54] In terms of clause 4(4), no
member may, on his own initiative or that of another member, approach
or entertain any media for
the purpose of media coverage without the
prior authorisation of his commanders.
[55] Mr Nortje, who appeared for
Myers, advanced various grounds upon which he submitted that the
arbitrator’s finding that
Myers dismissal was substantively
fair was a decision which a reasonable decision maker could not make.
[56] First, he submitted that the
arbitrator misdirected himself by failing to conduct a
de novo
hearing on all the material that was before him. He argued that
the arbitrator dealt with the matter as if it were an appeal. He
rejected the suggestion by the appellant that at the commencement of
the arbitration the parties had agreed that it would not be
necessary
to present oral evidence for the purposes of determining the fairness
of the dismissal but that the record of the disciplinary
proceedings
together with the closing arguments on behalf of the parties would be
used for that purpose.
[57] I find Myers’ denial of the
agreement on procedure extremely disturbing in view of the fact that
it is the first time
that it is raised. In fact, in his reply to the
appellant’s answering affidavit, Myers admitted that at the
arbitration hearing
the parties agreed on how proceedings were to be
conducted. It is surprising that he is now denying the existence of
the agreement.
For these reasons I reject Mr Nortje’s first
contention.
[58] Secondly, it was submitted on
behalf of Myers that the arbitrator acted unreasonably in finding him
guilty of a contravention
of regulation 20 (f) in the absence of
proof of actual prejudice to the SAPS caused by his conduct.
[59] Mr Nortje
argued on authority of
Midi
Television (Pty) Ltd t/a E-TV v DPP, Western Cape
7
and
Gazidis
v Minister Public Administration
8
that a
communication will be unlawful and thus susceptible to prohibition
only if the prejudice that it might cause to the administration
of
justice is demonstrable and substantial. He pointed out that the
evidence of prejudice relied upon by the appellant in convicting
Myers was lacking in substance.
[60] I disagree with Mr Nortje’s
contention for two reasons. First, Myers’ media statement in
effect significantly undermined
the appellant’s efforts to
properly deal with the negative publicity concerning the police dogs
starvation issue. Myers’
explanation for sending a statement to
the media (to set a record straight because the police’s
response to the media was
not truthful) does not take his case any
further because he was or should have been aware of what avenues to
follow if he felt
that the position of his Unit on the issue had not
been clearly articulated by the task team.
[61] Secondly, Myers did not have
authority to send his statement on the police dogs starvation to the
media for publication before
consulting with the relevant liaison
official.
[62] Prior to the referral of the
proposed media statement for comment by the relevant liaison
official, it was important in the
instant matter, in view of the fact
that a misleading suggestion was going to be made in the newspaper
article, that the appellant
had muzzled Myers from commenting on the
issue and that the appellant’s bureaucracy was responsible for
dogs starvation.
For instance the article reports: “Rompslomp
laat honde ly” and “Die bevelvoerder van die
Maitland-honde-eenheid
het sy stilswye verbreek en sy mond uitgespoel
oor die situasie by die eenheid”.
[63] Myers, by releasing his statement
for publication in the media without having first consulted with the
relevant media liaison
police official, clearly breached Regulation
20(i) and as such he was properly found to have committed misconduct
of contravening
Regulation 20 (i).
[64] In my view, upon a consideration
of all the circumstances of the case it was unreasonable for Myers to
send to the media for
publication a statement which created an
impression that he was deliberately being silenced when there was no
evidence to this
effect and which in turn could only have the effect
of undermining the SAPS and thereby prejudicing its administration
and the
discipline. In the circumstances, I find that Myers was
correctly convicted of contravening Regulation 20 (f).
[65] Furthermore Mr
Nortje’s reliance on
Midi
Television
supra
is
misplaced and the case is no authority for the contention he sought
to advance.
Midi
Television
dealt
with pre-publication bans and the nature of prejudice which an
applicant must establish in order to succeed to prevent an
intended
communication from being published in the media. In the instant case,
there is demonstrable and substantial evidence of
prejudice caused to
the appellant by Myers’ media communication. It was
Superintendant Jones’ evidence that before
publication of
Myers’ statement in the media, people appointed by the
appellant to handle the police dogs starvation issue
had succeeded in
containing negative publicity about the issue but after Myers’
communication made headlines, the task team
had to start all over
again.
[66] There is also no merit in the
first respondent’s contention that his media statement could
not prejudice the appellant
because he had a right and obligation to
restore not only his good name but also that of the Dog Unit and the
SAPS by informing
the public about the real reason for the starvation
of the dogs. The statement that the appellant’s “Rompslomp”
was responsible for the dogs’ starvation was, however, not
factually correct.
[67] Thirdly, it was submitted on
Myers’ behalf that the arbitrator acted unreasonably in
entertaining the alternative charge
on which Myers was acquitted at
the disciplinary hearing. It was argued that the arbitrator, by
entertaining the alternative charge
and formulating his own charge
sheet, acted beyond his powers. The arbitrator was unreasonable, so
Myers’ counsel argued,
to adjudicate the matter on the basis of
the new charge sheet without first affording the first respondent an
opportunity to respond
to the new charge sheet.
[68] I disagree with the first
respondent’s contention for two reasons. Firstly, it was not
irregular for the arbitrator to
have considered the alternative
charge in an attempt to identify the real dispute between the
parties. In fact section 138 (1)
of the LRA empowers the commissioner
to do so. It provides:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.’
[69] The
proceedings before the commissioner take the form of a hearing
de
novo
9
and the findings of
an earlier disciplinary enquiry are irrelevant and not binding on the
commissioner who is called upon to arbitrate
the dispute
10
[70] As correctly
held by Ngcobo J in
CUSA
v Tao Ying Metal Industries and Others
:
11
‘
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that the parties attach to a dispute cannot
change its underlying nature. A commissioner is required
to take all
the facts into consideration including the description of the nature
of the dispute, the outcome requested by the union
and the evidence
presented during the arbitration … The dispute between the
parties only emerges once all the evidence is
in.’
[71] The real dispute between the
parties was whether the first respondent (Myers) had been authorised
to make a media communication
relating to the starvation of the
police dogs at the Maitland Police Station and whether the first
respondent’s conduct in
communicating with the media prejudiced
the administration, discipline or efficiency of the SAPS. The fact
that if the above contravention(s)
are proven, it gave rise to
contraventions of different sub-regulation is not relevant, nor does
it necessarily equate to separate
charges simply because the wrong
complained of falls into more than one sub-regulation.
[72] For these reasons, I hold that it
was appropriate for the arbitrator in the instant matter to have had
regard to all the material
properly placed before him in ascertaining
the real dispute between the parties, as long as he acted fairly to
the parties in doing
so.
[73] Secondly, the suggestion that the
arbitrator adjudicated the matter on the basis of the new charge
sheet without first having
afforded the first respondent an
opportunity to respond to it is rejected. It is clear from the first
respondent’s heads
of argument that the propriety of the
arbitrator’s decision to consider allegations of misconduct
relating to the alternative
charge was raised and extensively argued
at the arbitration hearing.
[74] In the heads of argument, which
the first respondent had presented, he dealt with his defence to the
alternative charge. His
main defence was that he had a right to do
what he did because the Standing Order did not forbid him from
communicating with the
media and he cited clause 3 (1) of the
Standing Order as providing source of authority.
[75] In the alternative it was argued
on behalf of the first respondent that the Standing Order did not
forbid members of the SAPS
from communicating with the media when
they are approached for comment by the media. It only forbids them
from approaching the
media. All of his defences were carefully
considered by the arbitrator before he rejected them.
[76] The Court
a quo
found that
the arbitrator misdirected himself in analysing the evidential
material before him on the basis of his finding that
the charge sheet
had been incorrectly drawn up. It held that the arbitrator’s
approach constituted misdirection. It then
reviewed and set aside the
award on the ground thereof.
[77] In my view, the instance of
misdirection relied upon by the Court
a quo
as a ground for
setting aside the award is misconceived and the decision to review
and set aside the award was wrong. The arbitrator
was entitled to
have regard to the evidence properly before him in the process of
identifying the real dispute between the parties.
The arbitrator’s
approach to the dispute was in my view consistent with the statutory
duty which a commissioner must carry
out in determining the dispute,
namely to deal with the substantial merits of the dispute with the
minimum of legal formalities
and to do so fairly and quickly.
[78] To sum up, I hold that the
allegations of misconduct on the part of Myers were properly
established and that he was correctly
found to have contravened both
Regulation 20(f) and (i). [79] I now turn to consider how the
arbitrator analysed the evidential
material before him and his
approach in determining the appropriateness of dismissal as a
sanction. Before doing so, I need to
emphasise that although Myers
contravened two sub-regulations, it was one act of misconduct and as
such it constituted a single
contravention. The arbitrator did not
lose sight of this. In determining the appropriate sanction the
arbitrator correctly considered
Myers to have committed a single
misconduct.
[80] The arbitrator found that a
sanction of dismissal was appropriate in the instant matter because
by virtue of his long service
record, seniority within the SAPS and
his position as a Commander of the Maitland Dog Unit Myers should
have led by example; secondly
his seniority rendered the misconduct
serious, and thirdly the first respondent should not have approached
the media regarding
the police dogs starvation issue in circumstances
where he knew he should not have done so as he was aware that a task
team had
been established “to address the previous bad
publicity.”
[81] Section 182 of the LRA enjoins a
person considering the fairness or unfairness of the dismissal to
take into account provisions
of the Code of Good Practice. In the
context of this matter, the relevant Code of Good Practice is
contained in Schedule 8 of the
LRA.
[82] In
Sidumo
, supra the
Constitutional Court had this to say at paragraph 78 regarding what
the commissioner must do when considering the fairness
or unfairness
of the dismissal as a sanction:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal
.
There are other factors that will require consideration. For example,
the harm caused by the employee's conduct, whether additional
training and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list.’
[83] Item 3(3) of the Code of Good
Practice
inter alia
provides:
‘
Repeated
misconduct will warrant warnings, which themselves may be graded
according to degrees of severity. More serious infringements
or
repeated misconduct may call for a final warning or other action
short of dismissal. Dismissal should be reserved for cases
of serious
misconduct or repeated offences.’
[84] Item 3(4) provides that
generally, it is not appropriate to dismiss an employee for a first
offence, except if the misconduct
is serious and of such gravity that
it makes a continued employment relationship intolerable.
[85] The question is whether dismissal
as a sanction was fair. In the
Sidumo
judgment, the
Constitutional Court decided that the reasonable employer test must
not be applied and there should be no deference
to the employer’s
choice of a sanction when a commissioner or arbitrator decides
whether dismissal as a sanction is fair
in a particular case. The
commissioner or arbitrator must decide that issue in accordance with
his or her sense of fairness.
[86] Turning to the facts of the
present matter, Commissioner Strydom testified at the disciplinary
hearing that a decision to dismiss
Myers was taken because of his
poor disciplinary record. He testified that in January 2007, Myers
was charged with and convicted
of insubordination. A sanction of
dismissal was imposed but it was suspended for six months on
condition that he was not convicted
of insubordination, insolence,
disobeying instruction committed during the period of suspension.
Myers appealed against the sentence
and the appeal is still pending.
Commissioner Strydom further testified that Myers acted irresponsibly
in disobeying instruction
when he was aware that he was still serving
a suspended sentence for disobeying lawful instruction. He
characterised Myers as a
very ill-disciplined member of the SAPS and
he formed the view that Myers’ ill-discipline had completely
destroyed the trust
relationship between him and the SAPS.
[87] The arbitrator determined that
the sanction of dismissal was appropriate in the present matter
because Myers’ actions
“were completely unacceptable”
and showed “a clear disregard of authority”. According to
the arbitrator
it was completely unacceptable for Myers to have
approached the media when he was aware that the police management was
already
addressing the issue and that he had been told that he was
not to be part of the meeting. Myers’ actions, the arbitrator
found, showed “a clear disregard of authority”.
[88] While it is clear from the
evidence that Myers was aware that the police management was already
addressing the police dogs
malnutrition issue, there is, however, no
evidence to suggest that he was aware or should have been aware of
how the police management
had resolved to handle the issue. In
particular, there is no evidence to indicate that Myers was aware
that the police management
had instructed him not to communicate with
the media on this issue. He was on leave when the dogs’
malnutrition became an
issue and he did not attend the meeting of 21
February 2007 which had been called to discuss the issue. Jones, who
attended the
meeting held on 21 February 2007, confirmed during cross
examination that he was not aware of such instruction having been
given
to Myers.
[89] In the circumstances, it is clear
that there is no evidence to support the arbitrator’s finding
that Myers’ action,
in communicating with the media when he was
aware that he was not allowed to do so, showed a clear disregard of
authority. In the
result, the arbitrator’s conclusion that
Myers disregarded authority was incorrect. It was based on erroneous
factual findings
and it is a conclusion which a reasonable
decision–maker could not have reached. This amounted to gross
misdirection and
for this reason this court is entitled to interfere
with the sanction.
[90] In my view the sanction of
dismissal was too harsh and therefore rendered the dismissal unfair.
There is no doubt in my mind
that Myers acted in contravention of
Regulation 20 (i) and (f) by releasing his statement for publication
by the media without
having first consulted with the relevant media
liaison police official. But in my opinion his conduct did not amount
to disobedience
in the absence of evidence that he had been
instructed not to do so. His conduct remains serious but it is not of
such gravity
that it makes a continued employment relationship
between him and his employer or superiors intolerable. In the
circumstances,
the sanction of dismissal should be set aside and be
replaced with an appropriate one.
[91] In reaching the conclusion to
replace a sanction, I have also considered the fact that at the time
of his dismissal Myers had
been with the appellant for about 28 years
and he held a senior rank. Shortly before the appellant instituted
disciplinary proceedings
against Myers, it transferred Myers to
Bishop Lavis Police Station to assist in its management because of
his impressive ability
and leadership skills. Bishop Lavis Police
Station had a number of capacity-related challenges.
[92] In the result, I would set aside
a sanction of dismissal and replace it with a final written warning
valid for 12 months from
the date of this judgment and order that
Myers be reinstated in his position with backpay calculated at Myers’
rate of pay
on the date of the dismissal.
12
In light of the conclusion I have
reached it becomes unnecessary to consider the cross appeal.
[93] To sum up, the arbitrator was
correct in finding Myers guilty of contravening Regulation 20 (f) and
(i). But it is the sanction
which he imposed which renders the
dismissal unfair. Therefore the court
a
quo’s
decision to
review and set aside the award on the ground that it was not clear on
which of the two charges Myers was found guilty,
was wrong. In the
circumstances the appeal should succeed.
[94] As far as costs are concerned,
the Court
a quo’s
award of costs in favour of Myers
should be set aside in light of substantial and significant success
achieved by the appellant
in this appeal. In view of the fact that
both parties are partly successful and also of the fact that costs in
this Court are awarded
according to the requirements of the law and
fairness, I am of the view that it is only fair that each party be
ordered to pay
its own costs.
The Order
[95] In the result I would make the
following order:
1. the appeal succeeds and the
judgment and orders of the Court
a quo
are set aside and
replaced with the following:
1.1 the first respondent’s
dismissal is declared to have been substantively unfair;
1.2 the appellant is ordered to
reinstate the first respondent to the position he held in its
employment before the first respondent’s
dismissal;
1.3 the order in 1.2 above is to
operate with retrospective effect to the date of dismissal;
1.4 the first respondent is given a
final written warning valid for a period of 12 (twelve) months from
the date of this order;
1.5 no order is made as to costs.
2. Each party is ordered to pay its
own costs.
_______________
ZONDI, AJA
WAGLAY DJP
[97] I have had the pleasure of
reading the judgment prepared by my brother Zondi AJA in this matter.
While I agree that there is
no basis to interfere with the finding of
the arbitrator that Myers had committed the misconduct complained of,
I am of the view
that there is also no basis to interfere with the
sanction of dismissal upheld by the arbitrator.
[98] Before dealing with the issue of
sanction, I need to reemphasise that an employer is not and cannot be
expected to frame a
charge sheet in respect of a misconduct committed
by an employee as one would prepare a charge sheet in a criminal
matter. The
importance of a so- called charge sheet in a misconduct
enquiry is to set out the allegation that constitutes the misconduct
so
that the employee is aware of the case to which he or she is
required to answer. Also of little consequence is the employer’s
averment that the allegations constitute a number of counts of
misconduct or a single count. It is the allegations that constitute
the misconduct which must be considered and a conclusion arrived
thereon
[99] Turning to the issue of sanction,
my brother Zondi AJA, in paragraphs [81] to [83], sets out the ground
rules which guide the
imposition of an appropriate sanction in cases
of misconduct. The important considerations that a review Court must
take into account
when deciding whether or not the sanction imposed
by the arbitrator is reviewable is to test whether- (i) the sanction
is that
of the arbitrator (the sanction must be one that the
arbitrator him/herself has decided or upheld as being appropriate);
and whether,
(ii) on the evidence presented at the arbitration and on
the facts and circumstances properly made available to the
arbitrator,
the sanction is one that could reasonably be imposed or
upheld.
[100] In this matter, clearly the
misconduct must be viewed as serious. A media statement by an
employee that undermines his/her
employer cannot go unpunished, but
where the employer serves the public and is expected to maintain a
high degree of discipline
within its ranks, then, a media statement
that undermines the employer displays a lack of respect for
authority. This is what Myers’
misconduct amounts to.
[101] Further, we are not dealing with
a junior officer, but one of 28 years standing. Added thereto, he is
an official who occupies
a very senior position within the SAPS; he
commands a unit. If persons in such a position fail to follow
internal rules and regulations,
how are they to implement the rules
and regulations and demand that their juniors respect them?
[102] As against the above, one must
also be mindful of the fact that it is his unit which was the focus
of attention. Would he
not therefore have been best suited to be in
the team to deal with the issue that became a public concern? It is
however, not for
this Court to prescribe to the SAPS how it should
deal with issues that confront it, but, the fact that Myers was
excluded from
the team looking to address the issue relating to the
health of the police dogs in the unit that was under his control must
serve
as a mitigating factor. Added thereto is the fact that Myers
only has 6 years’ service until his retirement. In these
circumstances,
questions can be raised about the appropriateness of
dismissal as a fair sanction.
[103] Whatever one’s personal
view may be, the test as set out in
Sidumo
13
and as stated above, is whether or not
the arbitrator’s decision that dismissal is an appropriate
sanction is a decision that
a reasonable decision-maker could reach.
[104] A consideration of all the
relevant facts and circumstances, including the evidence presented at
the arbitration in the form
of a record, also leads to the
conclusion, that Myers, although aware of the fact that the SAPS
management was addressing the concerns
raised about the diet of the
dogs and despite being told that he could not be involved with the
management in addressing the problem,
sought to challenge their
authority without any regard to the rules that regulate his conduct
at the workplace. In these circumstances
I cannot accept that the
arbitrator’s decision fell outside of the band of decisions to
which reasonable people could come.
While it is a harsh sanction, it
is not so unreasonable that it stands to be reviewed and set-aside.
[105] Finally, the first respondent
cross-appealed against the order of the Court
a
quo
which required the
matter to be heard afresh by the Bargaining Council. In his
cross-appeal he also sought the relief he prayed
in his notice of
motion. Having regard to the view I have arrived at in respect of the
appeal, the cross-appeal must fail. As regards
costs in respect of
the cross-appeal I believe it is equitable to make no order in
respect thereof.
[106] In the circumstances I make the
following order:
(i) The appeal is upheld with costs.
(ii) The order of the court a quo is
set aside and replaced with the following order:
“
The
application for review is dismissed with costs.”
(iii) The cross-appeal is dismissed,
with no order as to costs
_________________________
WAGLAY DJP
I agree with the judgement of WAGLAY
DJP,
__________________________
MOLEMELA AJA
APPEARANCES.
For the Applicant : Adv. E A DE
VILLIERS-JANSEN
Instructed by : State Attorney, Cape
Town
For the first Respondent : Adv. J A
Nortje
Instructed by : Wynand du Plessis
Date of Judgment : 2 March 2012
1
[2007]
28 ILJ 2405 (CC).
2
[2008]
29 ILJ 306 (LAC).
3
[2008]
3 BLLR 197
(LAC) at para 92.
4
(
2009)
30 ILJ 2646 (SCA).
5
Edcorn
Ltd
supra
para 16
6
See
in this regard
County Fair
Foods (Pty) Ltd v Commissioner for Conciliation, Mediation and
Arbitration and Others
(1999)
20 ILJ 1701 (LAC);
Tshishonga
v Minister of Justice and Constitional Development and Another
[2005] ZALC 25
;
[2006] 6 BLLR 601
(LC).
7
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) at para 19.
8
(A2050/04)
(24 March
2006) TPD.
9
See
County Fair Foods (Pty) Ltd
supra at para 11.
10
Tshishonga
supra at para 14.
11
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at para 66.
12
In
this regard see
Republican
Press (Pty) Ltd v CEPPWAWU and Others
2008(1)
SA 404 (SCA) para 19.)
13
See
para 82 of the judgment of Zondi AJA