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[2010] ZALCCT 5
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South African Police Service v Safety And Security Sectoral Bargaining Council and Others (C09/2010) [2010] ZALCCT 5 (28 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
NOT
REPORTABLE
CASE
NO: C09/2010
IN
THE MATTER BETWEEN:
SOUTH
AFRICAN POLICE
SERVICE APPLICANT
AND
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL 1
ST
RESPONDENT
ADV
W F MARITZ
NO 2
ND
RESPONDENT
INSPECTOR
HATTINGH 3
RD
RESPONDENT
JUDGEMENT
CHEADLE
AJ
INTRODUCTION
[1]
The applicant seeks to review and set aside
an award made by the 2
nd
respondent (the arbitrator) to the effect that the applicant had made
continued employment intolerable for the 3
rd
respondent (Mr Hattingh) and that it failed to show that his
constructive dismissal was fair. The arbitrator awarded compensation
in an amount of R129 600 and costs.
[2]
The documentation to this application is
voluminous. There are three bundles. The first is the pleadings
bundle, which will be referred
to as PB. The second is the transcript
of the arbitration hearing, which will be referred to as TB. The
third bundle is a bundle
contains what is called the bargaining
council’s record – primarily consisting of the documents
related to the hearing.
I refer to this bundle as DP. The page
reference follows the bundle reference and, if there is a further
reference to a paragraph
or line, they follow the page number. So the
arbitrator’s background to the dispute is recorded in his award
at PB18.5 to
19.14.
CONDONATION
[3]
The applicant filed its application to review 3 weeks late. In that
application, it applied for condonation (PB 11.20-16.27).
Mr Hattingh
opposes the application but does not contest the truth of what is
stated in Mr Billet’s founding affidavit in
support of
condonation. The condonation application addresses the critical
issues, namely extent of the delay, the explanation
of the delay and
the prospects of success.
[4]
The delay is serious but not excessive. The explanation is that given
the understandable need of a national bureaucracy
to draw up a report
and recommendations, get authority and brief attorneys. This process
was expeditiously handled but because
Mr Billet who represented the
applicant in the arbitration and who drew up the report and
recommendations resides in Port Elizabeth,
as does the counsel
briefed to represent the applicant, it was necessary to transfer the
file from the State Attorneys in Cape
Town to their offices in Port
Elizabeth. As soon as the file arrived, counsel was briefed and
papers were prepared with due speed.
I accept the explanation. It is
clear that there were prospects of success from what follows.
BACKGROUND
[5]
Mr Hattingh was employed as an investigating officer at the
Laingsburg police station. During the course of his duty he
was
exposed to traumatic scenes of vehicle accidents, seriously injured
passengers trapped in wrecks and badly mutilated corpses.
He was
diagnosed with post traumatic stress disorder in September 2003. He
applied for and was granted temporary incapacity leave.
He remained
on leave until he was told to report for duty in July 2006.
[6]
On the advice of his psychiatrist, Mr Hattingh applied for ill-health
retirement. The application took almost three years
to be finalised
by the applicant and it was uncontested that the application was
inefficiently handled. The application was refused
and he was
informed of this on 26 July when he was handed a copy of a letter
from the divisional commissioner to the provincial
commissioner in
which this was stated. The letter also stated that Mr Hattingh should
tell to resume duties on or before 31 July.
[7]
Although the letter did not specifically require him to report to the
Laingsburg police station, Mr Hattingh assumed that
that was the
case. Although he was advised to report for duty by his psychiatrist,
he refused to do so because he feared that the
associations with the
police station would cause a serious regression in his condition.
[8]
Although he was offered a position in the finance section, he decided
to resign because the instruction to work at the
Laingsburg police
station, even in the finance section, made it intolerable for him to
work for the applicant – it being
a small building and yard
accommodating within its precincts the charge office, the
administrative offices, the morgue and the
area where wrecks from
accidents were investigated and stored. It was uncontested that he
had suffered a great deal from his condition
– leading to
alcohol abuse and family tension and that if he went back to work in
the environment of the Laingsburg police
station there was a high
risk of regression.
[9]
His letter of resignation was accompanied by a letter from his
attorney (the attorney of record) claiming constructive
dismissal. Mr
Hattingh then referred an unfair dismissal dispute to the 1
st
Respondent alleging that he was constructively dismissed. After
conciliation failed the dispute was referred to arbitration.
[10]Mr
Hattingh, his wife and his psychiatrist gave evidence on his behalf.
Part of a statement made by Captain Mark Collins was
admitted. The
applicant closed its case after Mr Hattingh admitted that the station
commander at Laingsburg police station offered
him a post in the
finance section on the day he tendered his resignation.
THE
ARBITRATION AWARD
[11]After
a careful summary of the evidence, the arbitrator came to his
conclusion that Mr Hattingh had been constructively and
unfairly
dismissed for the following reasons:
1.
Mr Hattingh was diagnosed with chronic
post-traumatic stress disorder, an occupational hazard in the police
service (PB24.61 &
26.69).
2.
The applicant took steps to minimise
exposure to traumatic incidents, put in place policies to treat
employees who are permanently
or temporarily incapacitated by the
disorder, and assisted Mr Hattingh by referring him to a psychiatrist
and paying his salary
in full while incapacitated (PB25.64-65).
3.
Although the letter of 26 July did not
specifically state that Mr Hattingh had to report to the Laingsburg
police station, the arbitrator
found that because he had been a
member of the staff of the station, that he had been offered a
position in the financial division
of the station and an admission in
the pre-trial minute to the effect that he was instructed to report
to that station (PB25.68).
4.
Mr Hattingh’s psychiatrist confirmed
that there was a real risk of regression if he was to return to the
Laingsburg police
station (PB26.73). In this regard, the arbitrator
improperly relies on the applicant’s appointed psychiatrist’s
report
because that report states that his assessment that there was
a risk of regression was in relation to ordinary police work –
‘soortgelyke traumatise ervarings soos wat deel van polisie
werk is’.(PB26.74)
5.
The arbitrator accordingly finds that there
was a real likelihood that Mr Hattingh’s condition would have
regressed if he
returned to work in the Laingsburg police station
even if he worked in the finance section (PB26.75).
6.
The instruction to report to Laingsburg
police station accordingly constituted a ‘strong contributor to
making his continued
employment intolerable’ (PB27.77).
7.
Mr Hattingh was not in a poor condition to
make sound decisions due to his mental state and the fact that no
further medical notes
would be accepted on his condition meant that
he would no longer be entitled to temporary disablement leave after
31 July.
8.
The arbitrator did not accept that the
employee should have raised a grievance or insisted on an alternative
placement before resigning
because of the applicant’s
inefficiency in processing Mr Hattingh’s application for
permanent disability (PB29.95 to
30.97). This finding, together with
the next, is the crux of the applicant’s review and I deal with
it in more detail below.
9.
The provincial and area commissioner did
not properly execute the instructions contained in the 21 July letter
in so far as finding
a suitable alternative placement is concerned
(PB28.84 – 89 & 29.96 - 97).
10.
The arbitrator found that the choice of
Laingsburg as an alternative post and the failure of the applicant’s
provincial and
area commissioner to properly execute the instruction
of the divisional commissioner constituted an objective basis for Mr
Hattingh’s
conclusion that his continued employment was
intolerable (PB30.98).
[12]So
much turns on the letter of 21 July 2006 (DB140-1) that it requires
careful analysis. The letter is written by the Director:
Medical
Administration in the office of the Divisional Commissioner:
Personnel Services. It is written to the provincial and area
commissioner but marked for the attention of the Provincial Head:
Personnel Services. The letter informs the provincial head that
Mr
Hattingh’s application for ill-health retirement has been
refused and with instructions on what to do as a result. Those
instructions include the following:
1.
The employee (i.e. Mr Hattingh) must resume
duties ‘
in an alternative
low-stress post …which is supportive and best suit
(sic)
his health status
’
on or before 31 July 2006;
2.
No further medical certificates for a
similar medical condition are to be accepted unless different/medical
circumstances emerge.
This means that the employee must resume duties
before 31 July unless there are different clinical or medical
circumstances emerge.
3.
The employee must be advised to continue
optimizing his treatment and if his psychiatric benefits have been
depleted, he should
apply for ex-gratia benefits.
4.
It is ‘
the
responsibility of the area commissioner in conjunction with the
office of the provincial commissioner to identify a suitable
alternative placement for the employee’
.
5.
‘
All endeavours should be made to
try to accommodate the employee’s health status
’
.
However, if this is ‘impossible a report in this regard should
be submitted...for further intervention’.
6.
‘
The employee must receive support
from Employee Support Services.
[13]It
is clear that the instructions are to identify a suitable alternative
placement for Mr Hattingh in a ‘low-stress post’
and that
in doing so ‘all endeavours’ should be made to
accommodate the employee’s health status and contemplates
further steps should the commissioners find it impossible to identify
a suitable alternative placement.
[14]Although
the arbitrator accepted that the instruction to report in the letter
of 26 July was not a final one (PB27.79), he finds
that the
instruction to report to Laingsburg police station, the failure to
consult and to endeavour to accommodate his health
status constituted
a sufficient basis for finding that the applicant had made continued
employment intolerable.
GROUNDS
OF REVIEW
[15]The
nub of the applicant’s complaint is that the arbitrator
incorrectly applied the accepted requirements for proving
constructive dismissal, namely-
1.
that the employer without reasonable and
proper cause conducted itself in a manner calculated or likely to
destroy or seriously
damage the relationship of trust between
employer and employee;
2.
that there was no reasonable alternative to
resignation; and
3.
that the assessment of the threshold of
intolerability is objective.
[16]The
applicant contends that it did not conduct itself in a manner
calculated or likely to destroy or seriously damage the relationship
of trust. The letter of 21 July indicated that he had to be placed in
a suitable post taking into account his medical status. He
had been
offered a post in the finance department in order to accommodate his
condition.
[17]The
applicant contends that Mr Hattingh had alternatives to resignation.
He could have lodged a dispute with the Public Service
Co-ordinating
Bargaining Council over the outcome of his ill-health retirement
application or filed an internal grievance or lodge
a dispute
concerning the decision to place him at the Laingsburg police
station.
[18]The
applicant contends that the arbitrator approached the matter from Mr
Hattingh’s subjective point of view. Although
not clarified on
the papers, this ground appears to be directed to the arbitrator’s
finding that Mr Hattingh made the decision
to resign when, due to his
mental state, he was in a poor condition to make sound decisions
(PB2993).
THE
FIRST GROUND: THE APPLICANT’S CONDUCT
[19]The
arbitrator in his assessment appears to take the following into
account in deciding that the employer’s conduct was
likely to
seriously damage the trust relationship:
1.
Mr Hattingh had been instructed to resume
duties at the Laingsburg police station which would have because of
its size and the nature
of its operations led to a regression in his
condition.
2.
Despite being required to identify a
suitable alternative placement taking into account his medical
condition, the commissioners
left it to the station commander to
identify the placement.
3.
Mr Hattingh had not been consulted on a
suitable placement as he should have been.
[20]Given
that the applicant did not lead any evidence, it is entirely
reasonable for the arbitrator to infer that the commissioners
failed
in their duty to identify a suitable alternative, leaving it instead
to the station commander. It is also entirely reasonable
that Mr
Hattingh ought to have been consulted on a suitable placement. It is
also reasonable to hold that the instruction to resume
employment at
the police station might lead to a regression in his condition.
[21]But
the one step in the logical ladder that is missing is the applicant’s
knowledge that a resumption of work at the police
station might have
had the effect that Mr Hattingh and his psychiatrist justifiably
feared. Of course, one reason for that ignorance
is the
commissioners’ failure to consult and properly consider where
Mr Hattingh should be placed. Nevertheless, there is
no evidence that
the applicant knew of Mr Hattingh’s justifiable fear of
returning to the police station and why the offer
to work in the
finance section was not suitable. Just as events may have turned out
differently if the area commissioner had consulted
with Mr Hattingh,
similarly they may have been different if Mr Hattingh had stated his
objections to his placement rather than
resigning.
[22]Can
it then be said that the applicant conducted itself, albeit
negligently, in a manner calculated or likely to destroy or
seriously
damage the employment relationship? Without knowledge of the
applicant’s fears, it cannot be rationally inferred
that it had
conducted itself in this manner, particularly since it had identified
what it thought was a placement that accommodated
his medical
condition. This is a failure of reasoning. I leave whether this
failure constitutes a reviewable irregularity to later.
THE
SECOND GROUND: ALTERNATIVES TO RESIGNATION
[23]The
arbitrator concluded that despite the right to file a grievance or
refer a dispute over his placement, the applicant was
justified in
not regarding those alternatives as reasonable given the applicant’s
gross mishandling of his application for
ill health retirement and
the processing of his return to work. There may be some justification
for this view but can it be said
that he had no other means to avoid
the unbearable consequences of being required to resume duties at the
Laingsburg police station?
[24]What
the arbitrator does not address is why it was necessary to resign
rather than to tender his services in any suitable placement
in which
he would not be subject to experiences that might trigger a
regression in his condition. He testified that he would have
been
prepared to accept a post provided that the stress factors were not
present (PB21.36). He or his lawyer could have conveyed
this in a
letter to the area commissioner or the station commander without him
having to report to the police station. It should
be borne in mind
that he was throughout advised by a lawyer - his letter of
resignation was accompanied by a lawyer’s letter
claiming
unfair constructive dismissal.
[25]The
decision to resign and to claim unfair constructive dismissal was his
and his lawyer’s choice but it was one that
precluded the
applicant from considering an alternative suitable position to the
placement at the station taking into account his
medical condition,
as it was required to do and to which Mr Hattingh and his lawyer had
been alerted in the letter of 21 July.
It is a failure of reasoning
not to have recognised that there was a reasonable alternative to
escape the unbearable circumstances
of the proposed placement, namely
a tender to work in a psychiatrically safe environment together with
reasons why the position
in the finance department was not a safe
environment.
THE
THIRD GROUND: THE PERSPECTIVE OF A REASONABLE PERSON
[26]The
arbitrator in his analysis of the evidence of Mr Hattingh and his
wife finds that the refusal of his application for ill
health
retirement together with the manner in which it and the instruction
to return to work was handled placed him under great
stress and in a
‘poor condition to make sound decisions’(PB29.94).
[27]There
are two issues raised by this finding. The first is that it fails to
recognise that the decision to resign was a legally
informed and
calculated decision – the letter of resignation was accompanied
by a lawyer’s letter claiming constructive
dismissal.
[28]The
second is that it is a subjective assessment of the decision to
resign. The test though is an objective one. It is not clear
quite
how the arbitrator’s assessment factors into the arbitrator’s
reasoning other than to justify his decision to
resign (PB29.93). But
to the extent that the arbitrator decided that a reasonable person in
the shoes of Mr Hattingh would have
acted in the same way, it is open
to criticism because it fails to take account of the fact that the
applicant was unaware of his
reasons for refusing to take up the
placement in the financial section of the police station.
THE
REVIEWABILITY OF THESE GROUNDS
[29]There
is a failure of reasoning in respect of each of the grounds raised by
the applicant. The question though is whether those
failures
constitute reviewable grounds. Although they may individually
constitute grounds of appeal, the question is whether they
collectively demonstrate such a failure of reasoning that justifies
interference on review.
[30]It seems to me that
central to each of the three grounds is a failure to take into
account that the applicant was not aware
of the reasons for why Mr
Hattingh could not take up the placement in the finance section of
the Laingsburg police station. Until
it was so informed, the
placement decision was not final and the prospect of the applicant
finding an alternative suitable placement
had not been closed. That
prospect not being closed, it was unreasonable of the arbitrator to
have found that his circumstances
were not so unbearable and
admitting of no reasonable alternative to escape.
Order
[31]The
following order is made:
1.
The arbitration award of the 1
st
respondent dated 28 May 2006 under case number PSSS415-06/07 is set
aside;
2.
The award is substituted with an order that
the 3
rd
respondent was not constructively dismissed;
3.
Each party to pay their own costs.
_______________
CHEADLE
AJ
Date
of Hearing : 14/04/2010
Date
of Judgment : 28/05/2010
Appearances
For
the Applicant
: Adv
N Gqamana
Instructed by
: State Attorneys
For the
Respondent
: D.C Le
Roux
Instructed
by
: Murray Fourie & Le Roux Attorneys