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[2014] ZALAC 32
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Potgieter v Tubaste Ferrochrome and Others (JA71/12) [2014] ZALAC 32; (2014) 35 ILJ 2419 (LAC) (12 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: JA 71/12
In the matter between:
DIRK WILLEM
POTGIETER
Appellant
and
TUBATSE FERROCHROME &
OTHERS Respondent
Heard:
04 March 2014
Delivered:
12 June 2014
Summary:
Appropriate remedy for unfair dismissal dispute- commissioner finding
that employee’s dismissal substantively unfair-
commissioner
granting compensation because employment relationship broken down
because employee publishing report in newspaper.
Labour Court
upholding arbitration award Appeal Employee report to media not in
violation of the PDA and NEMA- Commissioner overlooking
the serious
repercussions for non-compliance with NEMA and applying a narrow
approach to the PDA.
Disclosure not
rendering employment relationship intolerable. Appeal upheld with no
costs. Labour Court judgment set aside. Commissioner
award reviewed
and set aside. Employee re-instated retrospectively.
CORAM: TLALETSI DJP,
MOLEMELA AJA, SUTHERLAND AJA
JUDGMENT
MOLEMELA AJA
Introduction
[1]
The appellant appeals against the judgment of the
Labour Court (Louw AJ) dismissing an application for the review of an
award in
terms of which the arbitrator (“commissioner”)
had found that the appellant’s dismissal by his employer (the
respondent) was procedurally and substantively unfair and awarding
the appellant compensation equivalent to 12 months’
compensation.
Background facts
[2]
The respondent operates a mine. The respondent
employed the appellant, a qualified engineer, on 16 January 1989. At
the time of
his dismissal, the appellant held the title of “project
superintendent”. One of his job responsibilities was to ensure
that health and safety standards were maintained at the workplace.
[3]
On 20 August 2006, the appellant sustained a
fracture to his collarbone, as a result of which he underwent an
operation. The injury
was not sustained during the course of his
duties. A medical practitioner issued a medical certificate in terms
of which the appellant
was “booked off” until 28 August
2006. While the appellant was on sick leave, his Manager contacted
him and requested
that he work from home due to the fact that his
colleague, also a project superintendent, had resigned from the
respondent’s
employment. The appellant agreed. A report
prepared for the respondent by an independent consulting company,
termed the Golder
report, was delivered to him at his home two weeks
later. The appellant’s sick leave was extended several times,
culminating
in its extension by a specialist from 2 October 2006 to
15 October 2006.
[4]
At some point, the appellant went to the workplace
on the invitation of the respondent, in order to discuss the
situation around
his sick leave but apparently left without any
discussion having taken place due to his immediate supervisor’s
unavailability.
On 03 October 2006, the appellant received a letter
from the respondent informing him that his medical condition had been
re-evaluated
by the respondent’s resident doctor and
instructing him to return to work for “restricted duty”
with effect from
04 October 2006. The appellant did not return to
work. Another letter to the same effect was sent on 04 October
advising the appellant
to resume duty on 05 October 2006. The
appellant sent an e-mail informing the respondent that its request
was not acceptable as
he had a valid medical certificate booking him
off until 15 October 2006.
[5]
On 6 October 2006, the respondent sent an e-mail
to the appellant, informing him that by failing to return to work as
instructed,
he was failing to obey a valid instruction. He was
subsequently served with a notice of a disciplinary hearing in terms
of which
he was charged with:
(i)
Failure to obey a reasonable instruction
(ii)
Being absent without permission, and
(iii)
Insubordination.
[6]
A disciplinary hearing was held and he was found
guilty on all charges and dismissed. Subsequent to his dismissal but
before the
hearing of his appeal, the appellant released a report to
the media pursuant to which an article was subsequently published in
a publication known as
Highland
Panorama
. In that article, the
appellant was quoted as having alleged that the respondent did not
have adequate measures in place to address
the water pollution that
its mining operations had caused.
[7]
After his dismissal, the appellant referred an
unfair dismissal dispute to the Metal and Engineering Industries
Bargaining Council
(MEIBC). The commissioner who arbitrated the
dispute found the dismissal to be procedurally and substantively
unfair. With regards
to the appropriate remedy, she found that
re-instatement was impracticable and granted the appellant the
maximum compensation.
Arbitration
proceedings
[8]
The only issue raised with regards to the
commissioner’s award relates to the remedy she granted, viz
compensation, which
she granted on the basis that reinstatement was
impractical. Since the commissioner’s finding on this aspect is
central to
the appeal, it is apt to quote
verbatim
from her award in respect of the remedy she
granted:-
‘
The
applicant seeks reinstatement. However I am of the view that it is
impractical to reinstate him as the employment relationship
has been
irretrievably damaged by him disclosing the “Gerber Report”
[Golder Report] to the media after his dismissal.
The applicant’s
contention that this was a ‘protected disclosure’ made in
terms of the Protected Disclosures
Act is not plausible and probable,
in my view. In terms of the Protected Disclosures Act, the disclosure
that is being made is
protected if it is made ‘
in
good faith’
(own emphasis). It is
highly improbable that the applicant made the disclosure in good
faith, as it was only made after his dismissal,
yet it is common
cause that he had the report with him long before his dismissal. I am
of the view that it is highly probable that
the disclosure was made
by a vindictive employee who wanted to humiliate and embarrass his
employer to get even so to speak. It
is for these reasons that I find
that reinstatement would be impractical.’
Labour Court
[9]
The appellant applied to the Labour Court (the
court
a quo
)
for a review of the commissioner’s award pertaining to the
commissioner’s finding that the employment relationship
had
broken down and the resultant awarding of compensation instead of
reinstatement. The appellant sought to review the arbitration
of the
commissioner on the basis that she had exceeded her powers as her
findings in respect of the remedy were based on
“insufficient/incorrect
or no evidence at all”. He
accordingly prayed for the award to be reviewed and set aside and to
be replaced by an order reinstating
him to his previous position,
alternatively referring the matter back to the MEIBC for arbitration
by another commissioner.
[10]
The Labour Court dismissed the review application
on the basis that the commissioner’s decision was one that a
reasonable
decision-maker could reach. Regarding the commissioner’s
finding that re-instatement was impractical the court
a
quo
found that the commissioner’s
finding was justified by the fact that no evidence had been led by
the appellant to show that
he had made a protected disclosure or that
the disclosure he made was in good faith.
The appeal
[11]
The appellant has approached this court with leave
of the court
a quo.
There
is no cross-appeal. The appeal is directed at two main issues,
viz
(1) the granting of the remedy of compensation and
(2) the costs order granted in favour of the respondent.
Evaluation
[12]
The applicable test in review proceedings was laid down in the
seminal judgment of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
and there is no need to restate it in this judgment. In the case of
Heroldt
v Nedbank Ltd,
[2]
the
court provided the following explanation of how the
Sidumo
test
operates:
‘
That
the test involves the reviewing court examining the merits of the
case ‘in the round’ by determining whether, in
the light
of the issues raised by the dispute under arbitration, the outcome
reached by the arbitrator was not one that could reasonably
be
reached on the evidence and other material properly before the
arbitrator. …The reasons are still considered in order
to see
how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably be reached
by that
route.
If not, however, the court must
still consider whether, apart from those reasons, the result is one a
reasonable decision-maker
could reach in the light of the issues and
the evidence.
’
(My emphasis)
At
para 25, the court stated as follows:
‘
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all
material that was before the arbitrator. Material errors of fact
as
well as the weight and relevance to be attached to particular facts
are not in and of themselves sufficient for an award to
be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.’
[13] It is against the
background of the afore-mentioned authorities that I now proceed to
consider the merits of this matter. It
is clear from the
commissioner’s award that she concluded that the employee’s
contention that his release of information
to the media constituted a
protected disclosure was not probable. Before consideration can be
paid to the evidence on which the
commissioner relied for her
decision, it is important to consider the relevant legal framework
applicable to whistleblowing.
[14]
The fostering of a culture of disclosure is a constitutional
imperative as it is at the heart of the fundamental principles
aimed
at the achievement of a just society based on democratic values. This
constitutional imperative is in compliance with South
Africa’s
international obligations. Article 33 of the United Nations
Convention against Corruption (UNCAC)
[3]
enjoins party states to put appropriate measures in place “to
provide protection against any unjustified treatment for any
person
who reports in good faith and on reasonable grounds to the competent
authorities any facts concerning offences” established
in
accordance with that convention.
[15]
In the case of
Guja
v Moldova,
[4]
the European Court of Human Rights confirmed that whistleblowing
constitutes an exercise of an individual’s internationally
protected right of freedom of expression as contemplated in article
10 of UNCAC, which is inclusive of the right to impart information.
The court recognised that this right extends to the workplace, where
it may be curtailed only to the extent necessary in a democratic
society. In the preamble to the Protected Disclosure Act
[5]
(PDA) the relevance of the Bill of Rights is acknowledged. It is also
clear from this preamble that the PDA is aimed at overcoming
criminal
and irregular conduct in organisations. In
City
of Tshwane Metropolitan Municipality v Engineering Council of South
Africa and Another
[6]
,
the
court stated that the PDA “seeks to encourage whistle-blowers
in the interests of accountable and transparent governance
in both
the public and the private sector. That engages an important
constitutional value and it is by now well-established in
our
jurisprudence that such values must be given full weight in
interpreting legislation.”
[16]
Section 1(1)(i) of the PDA defines the term
disclosure
as follows:-
'any disclosure of
information regarding any conduct of an employer, or an employee of
that employer, made by any employee who has
reason to believe that
the information concerned shows or tends to show one or more of the
following:
(a)
That a criminal offence has been committed, is being committed or is
likely to be
committed;
(b)
that a person has failed, is failing or is likely to fail to comply
with any legal
obligation to which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring or is likely
to occur;
(d)
that the health or safety of an individual has been, is being or is
likely to be endangered;
(e)
that the environment has been, is being or is likely to be damaged;
(f)
unfair discrimination as contemplated in the Promotion of Equality
and Prevention
of Unfair Discrimination Act, 2000 (Act 4 of 2000);
or
(g)
that any matter referred to in paragraphs (a) to (f) has been, is
being or is likely
to be deliberately concealed'.
[17]
Section 1(1)(vi) of the PDA defines the term
occupational
detriment
as follows:-
‘
occupational
detriment
", in relation to the
working environment of an employee, means-
(a) being subjected to
any disciplinary action;
(b) being dismissed,
suspended, demoted, harassed or intimidated;
(c) being transferred
against his or her will;
(d) being refused
transfer or promotion;
(e) being subjected to a
term or condition of employment or retirement which is altered or
kept altered to his or her disadvantage;
(f)
being refused a
reference, or being provided with an adverse reference, from his or
her employer
;
(g)
being denied
appointment to any employment, profession or office
;
(k) being threatened with
any of the actions referred to paragraphs (a) to (g) above; or
(i) being otherwise
adversely affected in respect of his or her employment, profession or
office, including employment opportunities
and work security’.
(My emphasis)
[18]
Section 9 of the PDA reads as follows:-
‘
9.
General protected disclosure
(1)
Any disclosure made in good faith by an
employee-
(a)
Who reasonably believes that the information
disclosed and any allegation contained in it are substantially true
and
(b)
Who does not make the disclosure for personal
gain, excluding any reward payable in terms of any law, is a
protected disclosure
if-
(i)
one or more of the conditions referred to in
subsection (2) apply and
(ii)
in all the circumstances of the case it is reasonable to make the
disclosure”.
(2)
The conditions referred to in subsection (1)(i) are-
(a) that at the time the
employee who makes the disclosure has reason to believe that he or
she will be subjected to an occupational
detriment if he or she makes
a disclosure to his or her employer in accordance with section 6;
(b) that, in a case where
no person or body is prescribed for the purposes of section 8 in
relation to the relevant impropriety,
the employee making the
disclosure has reason to believe that it is likely that evidence
relating to the impropriety will be concealed
or destroyed if he or
she makes the disclosure to his or her employer;
(c)
that the employee making the disclosure has previously made a
disclosure of substantially the same information to-
(i) his or her employer;
or
(ii) a
person or body referred to in section 8, in respect of which no
action was taken within a reasonable period after the disclosure;
or
(d) that the impropriety
is of an exceptionally serious nature.
(3)….
(4)…’
[19]
Since the appellant asserted that his disclosure was also protected
by The South African National Environmental Management
Act
[7]
(NEMA), it is apposite to consider some of its provisions. Section
28(1) of NEMA provides as follows:-
‘
Every
person
who
causes, has caused or may cause significant
pollution
or
degradation of the
environment
must
take reasonable measures to prevent such pollution or degradation
from occurring, continuing or recurring, or, in so far as
such harm
to the environment is authorised by law or cannot reasonably be
avoided or stopped, to minimise and rectify such pollution
or
degradation of the environment.’
[20] Before amendment of
section 31 in 2009, section 31(1) thereof provided that:
‘…
no
person
is
civilly or criminally liable or may be dismissed, disciplined,
prejudiced or harassed on account of having disclosed any
information,
if the person in good faith reasonably believed at the
time of the disclosure that he or she was disclosing evidence of an
environmental
risk and the disclosure was made in accordance with
subsection (5)’.(My emphasis.)
[21]
It is evident from the afore-going provisions that NEMA protects
whistle-blowers
regarding disclosure of
information in the public interest and in the interest of protecting
the environment. I
t is also evident that its protection is not
afforded only to employees but to all persons, including juristic
persons. It is also
clear from section 31(2)(b) of NEMA that it is
intended to protect whistle-blowers against serious or irreparable
harm from reprisals
or to serve public interest. Among the categories
of whistle-blowers granted this protection by virtue of NEMA are
persons who
disclosed information to news media under circumstances
contemplated in the further subsections mentioned in section 31.
Section 33 of NEMA also authorises private prosecutions.
[22]
Section 34 of NEMA
inter alia
introduced strict criminal
liability to companies and extended this liability to managers,
agents and employees for environmental
transgressions committed by
their employers if they did or omitted to do an act which had been
the employer’s task to do
or refrain from doing. It is common
cause that the appellant was tasked with compliance with legal
prescripts, including NEMA.
Significantly, in terms of section 34(6),
whenever any manager, agent or employee does or omits to do an act
which it had been
his or her task to do, or to refrain from doing on
behalf of the employer an act which would be an offence for the
employer to
do or omit to do, then the manager in question shall be
guilty of the said offence as if he was the employer, if the act or
omission
occurred because of a failure to take all reasonable steps
to prevent such act or omission.
[23]
The appellant in his evidence pointed out that it was his duty to
disclose some of the respondent’s acts and omissions
relating
to compliance with NEMA. This evidence was not challenged. The
exchange on p 359 of Vol 4 line 6 to p361 line 1 to 9 of
the record
is of importance.
‘
Ms
Venter:
The submission of the report to
the newspapers is unfounded allegations that resulted in the breach
of the trust relationship.
Mr
Potgieter
: The disclosure was done in
good faith to protect the public. This is stated on the first page of
the disclosed report.
Ms
Venter
: Refer to pages 98 and 99 of the
bundle. Requested Potgieter to read out paragraphs 5 and 6 of the
article appearing on page 98.
So you agree you disclosed this
confidential information to the press?
Mr
Potgieter
: It is not confidential
information. The law states that the public must be informed by means
of public participation meetings.
Ms
Venter
: I put it to you that you
disclosed this report to the press after your dismissal because you
were upset with the respondent and
wanted revenge.
Mr
Potgieter
: That is not true, the report
had been compiled month’s before dismissal and the statement on
the first page clearly states
the purpose of the report. The
disclosure of the report was actually to the benefit of the employer
as the correct information
had been disclosed to the public and DEAT,
Department of Environmental Affairs and Tourism. The report had been
disclosed even
before the appeal hearing took place. There was no way
I could have obtained information after dismissal as the dismissal
had been
changed to a summary dismissal and I was escorted from the
premises by the security manager.
Ms
Venter
: I put it to you that the
disclosure to the press was done intentionally to harm the reputation
of the respondent and resulted
in the breach of the trust
relationship.
Mr
Potgieter
: We can read the purpose of
the disclosed report into the record, that information should be part
of the proceedings. My affidavit
to DEAT also contains information of
numerous reports submitted to management about the environmental
pollution. I believe that
I am protected by the Protected Disclosure
Act as well as NEMA the National Environmental Management Act. Some
of these acts and
omissions constitute offences and it is my duty to
disclose it.
Ms
Venter
: How can you be the only one
that’s telling the truth and everybody else is lying, how can
you be the only one that’s
right?
Mr
Potgieter
: My attorney agreed with me
that the dismissal had been unfair. You also believe the same. I’ve
overheard a telephonic conversation
between you and my attorney, you
did not know that I was present and you said that you don’t
know about the merits of this
case.
Ms
Venter
: Have you disclosed the Golder
report?
Mr
Potgieter
: No, The Golder Report was
never disclosed, it contains technical and design information. The
report that was disclosed is one
that had been compiled by myself
with the purpose to inform the public and to protect the public and
the environment. The first
page of that report clearly states the
purpose, I can make a copy available, my attorney can supply you with
a copy of that report.’
(sic)
[24]
The article that appeared in the journal was read by the respondent’s
witness into the record and stated
inter alia
as follows:
‘
This
report describes the environmental pollution caused by the smelting
concern in the Steelpoort valley. Special emphasis was
placed on Cr6+
pollution. The purpose of this report is to ensure that the public is
informed about the extent of the pollution
and the dangers involved,
to ensure that effective measures are put in place to ensure that the
public is not exposed to the Cr6+
contaminated underground water,
effective measures are put in place to prevent further contamination
and effective measures are
put in place to remove the existing
contamination, said the author of the report in his submissions to
the Highlands Panorama.
“Limited measures are planned by the
smelting concern to remove the existing pollution but are futile as
the air, soil and
water are continuously being contaminated…’
[25]
In my view, the afore-mentioned exchange, considered with the stated
purpose of the article as highlighted
in the extract above addresses
the “good faith” element of the appellant’s
disclosure, yet this did not feature
anywhere in the commissioner’s
award. No matter how poorly articulated the appellant’s
explanation might be, what is
clear from his evidence is that: (i) he
made the disclosure because he feared criminal sanctions; (ii) he had
previously made reports
to the respondent; (iii) he regarded the
release of the report as a protected disclosure, as he considered the
information disclosed
to be in the public interest.
[26] Some of the
consequences for non-compliance with legislation were acknowledged as
follows by the respondent’s human resources
manager, viz Mr
Niewoudt:-
‘
At
that stage, Mr Potgieter was involved in a few projects, one of which
was this four term management project. (Inaudible) of pollution
of
ground water. At that point, we were busy with public participation
sessions and so forth and the impact to the company is severe
if we
do not comply with the water permit, you could face a fine or jail
sentence for the GM or the business could be (inaudible).
So it is
not as if it is a small little thing that can go wrong…’
[27] Mr Blignaut, the
engineering manager for his part, testified as follows on this aspect
(p195 vol 2):-
‘
Ms
Venter
: Okay, what was Mr Potgieter’s
function in this ground water project?
Mr
Blignaut
: He was the project owner and
the executor from project execution side and also then the lead on
the owner’s team from the
project side on this project.
Ms
Venter
: Sorry, lead on…
Mr
Blignaut
: Lead on the execution of the
project for the owner’s team from the project side.
Ms
Venter
: Okay, could you explain to the
Commission why this project was so important for Samancor
[respondent]?
Mr
Blignaut
: The importance for Samancor
was that if we did not execute the project as per the plan which was
submitted to DWAF on various
occasions we would risk losing our
licence to operate on the Tubatse facility. In other words they would
close the plant down.’
[28] Given the
repercussions for non-compliance with NEMA as alluded to in the
extracts of evidence set out in the afore-going paragraphs,
I am
unable to see how it can reasonably be concluded that it is more
probable that the disclosure was motivated by vindictiveness.
The
text of the award suggests that the commissioner did not take such
consequences of non-compliance into account.
[29] In as far as the
commissioner’s reference to the “Gerber report” in
her award, all indications are that she
was referring to “the
Golder” report as none of the witnesses mentioned a Gerber
report. Nothing turns on this error.
Of importance is that while the
appellant admitted that the Golder report was confidential, he
categorically denied disclosing
the contents of the Golder report to
the media. He maintained that what he published was a report that he
had drafted.
[30]
The respondent contended that irrespective of whether it was the
Golder report or the appellant’s own report that was
published,
the fact remained that what was disclosed was information of a
sensitive nature. This seemed to imply that an employee’s
disclosure of sensitive information concerning an employer in itself
renders the employment relationship intolerable. Some extracts
of
what was reported can be gleaned from the articles that appeared in
the
Highlands
Panorama
and I have no hesitation in agreeing that what was disclosed falls in
the category of sensitive information. The definition of
whistle-blowing in the Thesaurus of the International Labour
Organisation,
[1]
is “the
reporting by employees or former employees of illegal, irregular,
dangerous or unethical practices by employer.”
The preamble to
the PDA also refers to the curbing of “criminal” and
“irregular” conduct of employers.
Given the definition of
whistle-blowing in the domestic legal framework and in terms of
international standards, as well as authorities
on whistleblowing, it
seems to me that it is indeed envisaged that the information
disclosed may well be information of a sensitive
nature concerning an
employer. While it is indeed so that not all disclosures are
protected, I am not persuaded that the
sensitivity of information
disclosed ought to, without more, deny the whistle-blower of the
protection granted by the prescripts
already alluded to. Rather, a
proper investigation of all the circumstances is warranted so as to
ensure that the disclosure that
has been made is not in contravention
of the afore-mentioned prescripts.
[31]
While
due regard must be paid to the reputational damage that an
organisation may suffer as a result of disclosure of adverse
information
which is prejudicial to its commercial interests, I am of
the view that a finding that the mere disclosure of sensitive
information
renders the employment relationship intolerable would, in
my view, seriously erode the very protection that the above-mentioned
legal framework seeks to grant to whistle-blowers. It is accepted
that public interest may, in certain instances, outweigh the
interests of protecting the reputation of an organisation. See
Heinisch
v Germany.
[2]
[32] It was also
contended on behalf of the respondent that during the
cross-examination of Mr Blignaut and Mr Niewoudt, it was
never put to
them that the appellant did not disclose the Golder Report to the
media or that the appellant would deny doing so.
I am not persuaded
by this submission. It must be borne in mind that arbitration
proceedings are not court proceedings, and the
formalities pertaining
to the presentation of evidence in court need not be strictly
enforced in arbitration proceedings. Section138
of the LRA provides
that the commissioner must deal with the substantial merits of the
dispute with a minimum of legal formalities.
Under the circumstances,
the stage at which the appellant made this assertion cannot be
decisive. Furthermore, the respondent’s
contention that the
appellant, in his evidence- in- chief, admitted disclosing the Golder
Report is not borne out by the record.
[33]
The respondent made much of the fact that the disclosure was made
after dismissal and contended that this fact justifies the
commissioner’s conclusion that the disclosure was motivated by
vindictiveness on the part of the appellant. This proposition
fails
to consider that it is not inconceivable that an occupational
detriment can take place after termination of employment hence
the
reference to “being refused a reference, or being provided with
an adverse reference”
[3]
and “being adversely affected in respect of his or her
employment, profession or office, including employment opportunities
and work security”
[4]
in
the PDA. In my view, these two subsections of the PDA clearly
contemplate that victimisation that can go beyond an existing
employment relationship.
[34] Furthermore, it is
also clear from section 31 of NEMA that its protection is not
confined to employees but to all holders of
information pertaining to
possible harm to people or the environment. From a reading of the
entire section, it can be inferred
that the criminal sanction alluded
to therein can be visited upon an employee even after termination of
employment. The critical
consideration would obviously be the time at
which the transgression occurred.
[35]
While the commissioner may not have been aware of the various
provisions of NEMA, the fact of the matter is that she did overlook
the evidence on that aspect from three witnesses, viz, the appellant,
Mr Blignaut and Mr Niewoudt who all testified about the serious
repercussions for non-compliance with NEMA. The commissioner instead
focussed on Mr Blignaut and Mr Niewoudt’s evidence
emphasizing their concern regarding the timing of the
disclosure. Given this unchallenged evidence pertaining to the
consequences
for non-compliance, the commissioner’s conclusion
that the appellant released his report to the media out of
vindictiveness
is unreasonable. In overlooking such important
evidence, the commissioner demonstrably failed to heed the warning
sounded by this
court against the adoption of a narrow approach when
interpreting the PDA.
[5]
The
narrow approach followed by the commissioner is borne out by the fact
that despite the appellant having offered to make the
full text of
the disclosed report available, that offer was not explored any
further and the commissioner was content to make her
findings based
only on excerpts of the disclosed report.
[36]
It is settled law that courts must guard against a fragmented,
piecemeal analysis of evidence as it defeats review as a process.
[6]
I am of the view that the evidence adduced in this matter, viewed in
totality and considered in the light of the applicable legal
prescripts that have already been alluded to earlier, clearly
demonstrate that the disclosure made by the appellant was, on a
balance of probabilities, made in good faith and falls into the
category of protected disclosures. The court a quo thus erred when
it
found that the appellant had not adduced evidence showing that the
disclosure he made was in good faith.
[37] I now turn to the
commissioner’s decision pertaining to the remedy. I may mention
in passing that although the commissioner
in this matter found that
re-instatement was “impracticable”, which was also
endorsed by the court
a quo
in its judgment, it is clear that
the commissioner’s finding that re-instatement was not
appropriate was based on section
193(2)(b) of the LRA on the basis
that the trust relationship was destroyed by the disclosure made by
the appellant. The parties,
in their heads of argument also seem to
have used the terms “impracticable” and “intolerable”
interchangeably.
Although in this specific matter nothing much turns
on this oversight, it ought to be noted that the terms refer to two
distinct
concepts: “impracticability” generally addresses
unfairness in terms of operational or similar grounds, while
“intolerability”
generally addresses trust relationship
issues between the employer and the employee.
[38] The respondent
contended that the commissioner’s conclusion that it was not
reasonably practicable to re-instate the
appellant was based not only
on the finding about the disclosure, “but also on the evidence
as a whole”. This proposition
is not borne out by the record
and cannot hold any water as it is a distortion of the commissioner’s
stated reasons as set
out in paragraph 8 of this judgment. It must be
borne in mind that the commissioner exonerated the appellant on all
the charges.
Clearly, the commissioner’s finding that the trust
relationship had broken down was based solely on her conclusion that
the
appellant had maliciously disclosed information that reflected
the respondent in a bad light. This court’s own views about
the
disclosure and its timing have already been expressed. Despite this,
what needs to be considered at the end of the day is whether
the
commissioner’s decision not to reinstate the appellant is one
that a reasonable decision-maker could reach in the light
of the
issues and the evidence.
[39]
It is trite that re-instatement is the primary remedy available to an
employee that has been unfairly dismissed, unless the
exceptions
listed in section 193(2) of the LRA
[7]
are found to exist. In
Mediterranean
Textile Mills v SACTWU and Others,
[8]
it
was held that the focal point and overriding consideration in an
enquiry concerning the appropriateness of re-instatement is
the
notion of fairness between the parties. In
Equity
Aviation Services Ltd v CCMA and Others,
[9]
the court held that fairness ought to be assessed objectively on the
facts of each case bearing in mind that the core value of
the LRA is
security of employment.
[40] Considering all the
circumstances mentioned above, I am of the view that the
commissioner’s finding that re-instatement
was not an
appropriate remedy on account of an irretrievable breakdown of the
trust relationship is not supported by the objective
facts. It is not
a finding that a reasonable decision-maker could have made after
consideration of all the material placed before
her and after paying
due regard to the notion of fairness between appellant and the
respondent. In so far as the court
a quo
found that this was
so, it erred.
[41] With regards to the
order of costs made by the court
a quo,
it is clear that the
order was largely motivated by the fact that the appellant was
unnecessarily prolix in the documentation that
he filed. It is indeed
so that the appellant churned out a lot of documents for his review
application and unnecessarily made such
documents part of the record.
Having stated this, regard must be paid to the fact that a lot of the
unnecessary documents were
filed by the appellant at the invitation
of the respondent’s attorneys, as they insisted that he must
file “a full
record” of the arbitration proceedings
despite him having already filed a substantial record. This request,
no doubt, set
the tone and contributed to the appellant’s
unnecessary bulky supplementary affidavits that he, as an
unrepresented litigant,
subsequently filed. The respondent is thus
not completely blameless for the bulky record that the court
a quo
and this Court had to trawl through. Under the circumstances, I am of
the view that it would be in accordance with the requirements
of the
law and fairness that each party should pay its own
costs, both with regard to the proceedings in the court
a quo
and in this Court.
Order
[42] Wherefore the
following order is made:
1.
The appeal is upheld.
2.
The order of the Labour Court is set aside
and replaced with the following:
2.1.
“
The award of the commissioner is
reviewed and set aside and replaced with the following order:
(i)
The dismissal of the employee was
substantively and procedurally unfair.
(ii)
The employee is re-instated retrospectively
into his position and must be paid the salary he would have received
had he not been
unfairly dismissed.
(iii)
No order is made as to costs”.
3.
There is no order as to costs.
[1]
ILO
Thesaurus 2005.
[2]
Application
no 28274/08 July 2011.
[3]
section
1 (f) of the PDA.
[4]
section
1(i) of the PDA.
[5]
Radebe
& 4 Others v Premier Free State & others
[2012] 12 BLLR 1246
(LAC)
[6]
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA and Others
(2012)
12 BLLR 1246
(LAC) at para 4.
[7]
In
terms of section 193(2) of the LRA, “the Labour Court or the
arbitrator must require the employer to reinstate or re-employ
the
employee unless (a)the employee does not wish to be reinstated or
re-employed; (b)the circumstances surrounding the dismissal
are such
that a continued employment relationship would be intolerable; (c)
it is not reasonably practicable for the employer
to reinstate or
re-employ the employee; or (d) the dismissal is unfair only because
the employer did not follow a fair procedure.”
[8]
[2012]
2 BLLR 142
(LAC) at para 28.
[9]
[2008]
12 BLLR 1129
(CC) at para 33.
______________
Molemela AJA
I
concur
______________
Tlaletsi DJP
I
concur
______________
Sutherland AJA
APPEARANCES:
FOR
THE APPELLANTS:
Mr Andrew Goldberg of Goldberg Attorneys
FOR
THE THIRD RESPONDENT: Advocate
L Hollander
Instructed
by Webber Wentzel Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24 (CC).
[2]
(2013)
34 ILJ 2795 (SCA) at para 12.
[3]
The
UNCAC came into force in 2005 and has been ratified by South Africa.
[4]
Application
no 14277/04 (at para 70) February 2008.
[5]
Act
26 of 2000.
[6]
(2010)
31 ILJ 322 (SCA) at para [42].
[7]
107
of 1998.
[8]
ILO
Thesaurus 2005.
[9]
Application
no 28274/08 July 2011.
[10]
section
1 (f) of the PDA.
[11]
section
1(i) of the PDA.
[12]
Radebe
& 4 Others v Premier Free State & others [2012] 12 BLLR 1246
(LAC)
[13]
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA and Others
(2012)
12 BLLR 1246
(LAC) at para 4.
[14]
In
terms of section 193(2) of the LRA, “the Labour Court or the
arbitrator must require the employer to reinstate or re-employ
the
employee unless (a)the employee does not wish to be reinstated or
re-employed; (b)the circumstances surrounding the dismissal
are such
that a continued employment relationship would be intolerable; (c)
it is not reasonably practicable for the employer
to reinstate or
re-employ the employee; or (d) the dismissal is unfair only because
the employer did not follow a fair procedure.”
[15]
[2012]
2 BLLR 142
(LAC) at para 28.
[16]
[2008]
12 BLLR 1129
(CC) at para 33.