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[2018] ZALAC 42
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National Commissioner of South African Police Service and Another v Mphalele N.O. and Another (CA15/2017) [2018] ZALAC 42; [2019] 4 BLLR 357 (LAC); (2019) 40 ILJ 806 (LAC) (11 December 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA15/2017
In
the matter between:
NATIONAL
COMMISSIONER OF THE SOUTH AFRICAN
POLICE
SERVICE
First
Appellant
SOUTH
AFRICAN POLICE SERVICE
Second
Appellant
and
M.A.
MPHALELE
N.O.
First Respondent
POPCRU
obo A.
MEZICHEL
Second Respondent
Held:
15 November 2018
Delivered:
11 December 2018
Summary:
Review of the disciplinary sanction imposed by employer’s
appeal authority – appeal authority reversing sanction
of
dismissal against employee – court finding that appeal
authority’s decision irrational and unreasonable in light
of
the employee’s conduct.
Held
that evidence demonstrates indisputably that employee had succumbed
to his personal difficulties and had acted fraudulently
in a manner
that made him wholly unreliable as a police officer, a lawyer and an
employee in whom the station commander needed
to repose considerable
trust. Appeal upheld and Labour Court’s judgment set aside –
appeal authority’s decision
is substituted with a finding
upholding the sanction of the disciplinary hearing.
Coram:
Sutherland JA, Murphy and Kathree-Setiloane AJJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against a judgment of the Labour Court (Gush J)
dismissing the appellants’ application in terms section
158(1)(h) of the Labour Relations Act
[1]
(“the LRA”) seeking review of the disciplinary sanction
imposed by the first respondent (“the appeal authority”)
in respect of Mr. Ashley Mezichel (“Mezichel”), a member
of the second appellant, the South African Police Service
(“SAPS”).
Section 158(1)(h) of the LRA provides that the Labour Court “may
review any decision taken or any act
performed by the State in its
capacity as employer, on such grounds as are permissible in law”.
[2]
[2]
Mezichel was employed at SAPS in Kraaifontein as a legal advisor. He
held the rank of Warrant Officer. It is common cause that
he had a
drinking problem which resulted in emotional difficulties and erratic
work attendance.
[3]
Members of SAPS are generally required to record their attendance at
work in the SAPS Z8 Register by entering the time they
report for and
leave work each day. The SAPS suspected Mezichel of having falsified
attendance records on previous occasions. As
a result, he was
required, on arrival at and leaving work, to report to Captain
Barlow, with whom he shared an office, and Colonel
Vanto, his direct
supervisor.
[4]
On 4 September 2013, Mezichel signed on for duty in the Z8 Register
at 07h30 and left work without permission and without signing
off in
the Z8 Register. On 5 and 6 September 2013 he failed to report for
duty. On those days, senior officers (Lt-Col Philander,
Captain
Barlow and Captain Du Toit) searched the premises of the police
station to ascertain Mezichel’s whereabouts, to no
avail.
Mezichel also did not report to Captain Barlow on that day.
[5]
On 10 September 2013, Mezichel did not report for work. Again, on
that day, Lt-Col Philander and Captain Du Toit searched the
premises
of the police station but also went to his home. They were told by
his brother that he had left home at approximately
09h00 that
morning, supposedly to go to work. No entry was made by him in the Z8
Register that day.
[6]
On 11 September 2013, Mezichel again did not report for duty or
report to Captain Barlow. Lt-Col Philander and Captain Du Toit
again
went to look for him at his home. This time he was present. Lt-Col
Philander asked him to produce a sick certificate, which
he was
unable to do. Lt-Col Philander warned him to report on the following
day, failing which his salary would be stopped for
being absent from
work without permission.
[7]
In light of his suspicions about Mezichel having previously falsified
entries in the Z8 Register, Lt Col Philander photocopied
the register
on 11 September 2013 with a view to having concrete proof of
Mezichel’s unauthorised absence for the days in
question.
[8]
On 12 September 2013, Mezichel arrived at work but did not attend the
morning parade at 07h30, which was chaired by Lt-Col Philander.
After
the parade, Lt-Col Philander saw Mezichel on the premises and
immediately went with Col du Toit to check whether Mezichel
had
booked on for duty in the Z8 Register. They discovered that Mezichel
had made entries in the Z8 Register reflecting that he
had booked
himself off on 4 September 2013, and despite his absences on 5, 6, 10
and 11 September 2013 had made entries reflecting
that he had booked
himself on and off on those days. Lt Col Philander made another copy
of the Z8 Register reflecting the changes.
[9]
After further investigation and the gathering of evidence, on 25
October 2013 Mezichel was issued with the notice to appear
at a
disciplinary hearing on 6 November 2013 to face various charges. The
disciplinary hearing was held from 6 November 2013 to
23 January
2014.
[10]
On 29 January 2014, Mezichel was found guilty by the disciplinary
tribunal of contravening various provisions of the SAPS Discipline
Regulations for: i) making false entries in the Z8 Register regarding
his attendance on 4, 5, and 10 September 2013; ii) absenting
himself
from work without reason or permission on 5 and 6 September 2013;
iii) failing to carry out a lawful order or a team instruction
by not
handing in a sick certificate; and iv) failing to report on duty in
the Z8 Register on 12 September 2013 and to attend the
morning
parade.
[11]
In relation to sanction, Mezichel put forward various mitigating
factors, namely: i) his wife had instituted divorce proceedings
against him in June 2013; ii) he had developed a drinking problem and
went for psychological treatment in June 2013 and was admitted
to a
rehabilitation centre from which he was discharged in August 2013, a
few weeks before his misconduct; iii) his condition deteriorated
and
he suffered from depression and stress at the time of the misconduct;
iv) he was receiving psychiatric treatment; v) his condition
caused
him to make bad decisions; and vi) his girlfriend was pregnant.
[12]
Against that were the aggravating factors put up by the employer,
namely: i) the misconduct involved dishonesty; ii) the misconduct
was
committed after he left the rehabilitation centre; iii) he showed no
remorse; iv) previous attempts to solve the problem by
introducing
reporting requirements had not worked; v) he had a written warning
that was imposed in January 2013 for absence from
duty; and vi) as
Brigadier van Niekerk, the employee’s station commander,
testified, the trust relationship had broken down.
[13]
On 4 February 2014, the disciplinary tribunal imposed the sanctions
of dismissal in respect of the charge related to the false
entries in
the Z8 Register and final written warnings in respect of the other
charges.
[14]
On 4 June 2014, the second respondent, POPCRU, noted an appeal on
behalf of Mezichel. On 27 November 2014, the appeal authority
confirmed the verdict of guilty on all the main charges and was
satisfied that the case against Mezichel had been proved on balance
of probabilities.
[3]
However, it
chose to reverse the sanction of dismissal in respect of the first
charge and replaced it with dismissal suspended
for a period of six
months. It also reversed the three final written warnings in respect
of the remaining charges, combined them
for the purposes of sanction,
and imposed a combined fine of R500.
[15]
The appeal authority was not convinced that the misconduct warranted
a sanction of dismissal for three reasons: i) there were
unfair
delays in the disciplinary process; ii) insufficient weight was given
to mitigating factors; and iii) the evidence did not
establish that
the employment relationship had irretrievably broken down.
[16]
The appeal authority’s reasoning on the question of sanction
was as follows:
‘
Although
the Appellant has been convicted on a serious act of misconduct,
namely charge number one, for falsifying records of his
presence at
work and of knocking off from duty, I am still not convinced that
such misconduct warrants a sanction of dismissal
taking into
consideration the delay and the mitigation provided by the Appellant
during the hearing, which it (sic) has been totally
ignored by the
employer. Although a Brigadier was called to testify in aggravation
of the case, I am still not convinced that the
employment
relationship is broken down irreparable so (sic).’
[17]
In their founding affidavit, the appellants submitted that the appeal
authority unreasonably and irrationally failed to take
proper account
of the evidence regarding the breakdown of the employment
relationship. The station commander testified convincingly
that the
falsification of records by a police officer upon whom she relied for
legal advice made the continuation of the employment
relationship
intolerable. Part of Mezichel’s responsibility was to give
guidance and advice on disciplinary issues. His demonstrated
lack of
integrity inevitably would impact negatively on the trustworthiness
of any advice he might offer on ethical and legal issues
in the
workplace. Moreover, his misconduct most likely constituted the crime
of fraud or forgery and such was intolerable behaviour
on the part of
a police officer and a lawyer. Accordingly, the appellants submitted,
the appeal authority irrationally failed to
appreciate and take into
account the seriousness of this kind of misconduct by someone in the
position of Mezichel.
[18]
The Labour Court in its judgment failed entirely to deal with this
important contention. It merely stated that consideration
of the
appeal finding demonstrated a rational connection with the material
before the appeal authority, which was taken into account.
[19]
We agree with the appellants that the Labour Court erred in this
respect. The evidence demonstrates indisputably that Mezichel
had
succumbed to his personal difficulties and had acted fraudulently in
a manner that made him wholly unreliable as a police officer,
a
lawyer and an employee in whom the station commander needed to repose
considerable trust. Such an employee is required to observe
the
highest standard of integrity, good faith, honesty and reliability.
Police officers and lawyers should always (not only in
the discharge
of their official duties) act honourably in a manner befitting their
office, free from fraud, deceit and falsehood,
and be virtuous in
their behaviour. A police officer must maintain high standards of
rectitude in private as well as in public
life. A police officer, who
in fulfilment of his duties is required to act against fraud, when he
practices such in his or her
own life, is a hypocrite. This
inevitably will result in a total loss of confidence in the officer
concerned, which could rub off
on the SAPS more generally, adding to
a loss of public confidence in SAPS. Brigadier van Niekerk correctly
made that point in her
testimony. The appeal authority unreasonably
failed to make the connection between that evidence and the purpose
of the disciplinary
measures.
[20]
Mezichel’s failings and devious behaviour therefore
self-evidently destroyed confidence in him, making the restoration
of
trust virtually impossible. The aggravating factors attending his
misconduct outweighed the mitigating factors. Counsel’s
submission that Mezichel had acted opportunistically when falsifying
the register on the spur of the moment, is unconvincing when
gauged
against his obvious unreliability and lack of integrity as evidenced
in the pattern of his absenteeism.
[21]
In the premises, dismissal was the only sensible and rational
operational response in the circumstances. Both the appeal authority
and the Labour Court erred in this respect. There was no rational
connection between the purpose of the SAPS Discipline Regulations
pertaining to dishonesty, the evidence before the appeal authority
and the reasons given by it for reducing the sanction. The decision
was accordingly irrational and must be set aside on review for that
reason alone.
[22]
The appeal authority was possibly influenced by three procedural
delays in reaching its conclusion that the sanction of dismissal
was
unfair. Firstly, the most serious misconduct was discovered on 12
September 2013 and notice of the disciplinary hearing was
given to
the Mezichel on 25 October 2013. There was thus a delay of around a
month and a half between the misconduct and the employee
being
charged. That is not an unreasonable period for the employer such as
the SAPS to contemplate its options. Mezichel suffered
no prejudice
from that delay; and the employer’s conduct cannot be construed
as a waiver of the right to discipline or as
impacting on the
substantive fairness of the ultimate decision.
[23]
Secondly, the chairperson of the disciplinary hearing submitted his
report on 3 June 2014 after handing down his sanction on
4 April
2014. In terms of Regulation 16 of the SAPS Discipline Regulations,
he was supposed to have submitted that report to the
National
Commissioner within five days of imposing his sanction. That delay
too was inconsequential given that the National Commissioner
did not
seek to vary the sanction. In so far as the lapse may have delayed an
appeal by a month or two and caused the period of
suspension to
endure longer, such does not impact on the fairness of the sanction
of dismissal. The same is true of the delay in
compiling the
transcript, although it is not clear that the appeal authority took
this delay into account in reaching its decision.
In any event that
delay did not bear upon the sanction of dismissal and at most merely
extended the period of suspension, the fairness
of which is not in
issue before us.
[24]
The appeal accordingly must be upheld, the decision of the Labour
Court reversed and the decision of the appeal authority set
aside on
the grounds of irrationality. The nature and gravity of the
misconduct here are such that dismissal is a foregone conclusion.
Thus remitting it to another appeal authority would merely
prejudicially delay the inevitable. The decision of the appeal
authority,
therefore, must be substituted with one upholding the
decision of the disciplinary tribunal.
[25]
As regards costs, POPCRU opted to defend a decision of the appeal
authority which was in favour of its member and on that basis
assumed
naturally enough that there was merit in his case. The defence was
not unreasonable or frivolous. It is justifiable in
the circumstances
not to make an award of costs.
[26]
In the premises, the following orders are made:
26.1
The appeal is upheld and the order of the Labour Court is set aside.
26.2
The decision of the appeal authority dated 27 November 2014 is set
aside and is substituted with a decision upholding the decision
of
the disciplinary tribunal made on 4 February 2014.
JR
Murphy
Acting
Judge of Appeal
I
agree
R
Sutherland
Judge
of Appeal
I
agree
F
Kathree-Setiloane
Acting
Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT:
Adv EA De Villiers-Jansen
Instructed
by the State Attorney
FOR
THE RESPONDENT:
Adv CS Bosch
Instructed
by Marais Muller Hendricks Inc
[1]
Act 66 of 1995
[2]
The
grounds permissible in law are (i) those listed in the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”),
provided
the decision constitutes administrative action; (ii) in terms of the
common
law in relation to domestic or contractual disciplinary proceedings;
or (iii) the constitutional principle of legality
-
Hendricks v
Overstrand Municipality and Another
(2015) 36 ILJ 163 (LAC).
[3]
Mezichel has not challenged this
finding.