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[2014] ZALAC 114
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POTGIETER V TUBATSE FERROCHROME & Others (JA 71/12) [2014] ZALAC 114 (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 and 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,
[8]
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.
[9]
[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”
[10]
and “being adversely affected in respect of his or her
employment, profession or office, including employment opportunities
and work security”
[11]
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.
[12]
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.
[13]
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
[14]
are
found to exist. In
Mediterranean
Textile Mills v SACTWU and Others,
[15]
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,
[16]
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.
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.