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[2011] ZALCJHB 261
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Lubbe v Roop NO and Others (JR1303/09) [2011] ZALCJHB 261 (13 May 2011)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: JR 1303/09
In
the matter between:
Frederick
henry Lubbe
Applicant
PRAHASH
ROOP (
N.O.
)
First
Respondent
SAPS
Second
Respondent
SAFETY
AND SECURITY BARGAINING
COUNCIL
Third
Respondent
JUDGMENT
HEAD
NOTE: (review-unfair dismissal- reinstatement as a remedy-long delay)
LAGRANGE,
J
Background
[1]
This matter has a long history. This is the
second occasion when the matter of the applicant's dismissal has been
the subject of
review proceedings.
[2]
In January 1975, the applicant started his
employment with the South African Police Services, the second
respondent. In 2002 the
applicant was charged with 20 counts of
misconduct. At the conclusion of the disciplinary proceedings which
ended on 6 February
2004, nearly 20 months after they started, the
applicant was found guilty of seven of the charges. Penalties in the
form of fines
were levied for each act of misconduct amounting in the
aggregate to R700.
[3]
The applicant appealed against the findings
that he was guilty of the seven charges in question. When the appeal
was considered
in 20 December 2004 the chairperson overturned the
sanction of the disciplinary enquiry and dismissed the applicant. In
the course
of arriving at this drastically different outcome the
chairperson of the appeal hearing also found the applicant guilty on
three
additional charges. No cross-appeal had been launched by the
employer against the findings or sanction of the chairperson of the
disciplinary enquiry.
[4]
The applicant referred an unfair dismissal
dispute to the Safety and Security Sectoral Bargaining Council. On 2
November 2006, the
arbitrator decided that the findings of the
chairperson of the appeal hearing were invalid and set aside the
applicant's dismissal.
The second respondent then successfully
applied to review the arbitrator's award. The matter was sent back
for a fresh hearing
before another arbitrator on 20 March 2007.
[5]
The second arbitration hearing commenced
before the first respondent on 31 May 2007 and the presentation of
evidence was only concluded
on 21 June 2008. The second arbitration
award was handed down on 28 July 2009. These proceedings according to
the arbitrator ran
for 49 days. He somewhat wearily records in his
award that the annexures filled up two lever arch files, and his own
handwritten
notes filled 22 examination pads. On this occasion, the
arbitrator found that the applicant was guilty of only four of the
seven
charges on which he had originally been found guilty of in the
disciplinary enquiry in 2004.
[6]
It should be mentioned at this point that
the applicant chose not to transcribe all the proceedings. Instead he
presented only that
portion of the proceedings that might have been
relied on as evidence relevant to the question of whether or not he
ought to have
been reinstated. In its answering affidavit, the second
respondent's legal administration officer states:
"If the entire
record is not dispatched and the applicant takes no issue with that
and does not compel the third respondent
to file the entire record,
it is assumed that the applicant has elected to proceed with review
on the basis of that which is before
the Court and will not make
issue with that which is not before the Court. The second respondent
files this answering affidavit
on the presumption that the applicant
relies only on the part of the record which has been dispatched to
the Registrar this Court.”
[7]
Rule 7A(5) of the Labour Court rules does
not require a party to reproduce the whole record of the arbitration
proceedings when
bringing a review application. The rule speaks of
the applicant making “...copies of such portions of the record
as may be necessary for the purposes
of the review ....” (emphasis added). Obviously, where it
is not necessary to reproduce the whole record an applicant
must
nonetheless reproduce those portions which both support and tend to
contradict its case on review. If a respondent believes
the record
produced is inadequate, it should indicate this in its replying
affidavit, so any deficiencies in the record for the
purposes of a
proper consideration of the application may be remedied.
The
charges
[8]
The sake of completeness, it will be useful
to summarise the charges of which he was found guilty in the second
arbitration. The
first charge related to the loss of a case docket in
Vryburg. The arbitrator found that the only charge of which he was
guilty
in relation to this docket was of keeping the docket in his
desk rather than in his safe to prevent it being lost. Accordingly he
was negligent in losing the docket.
[9]
The second charge in respect of which the
applicant was found guilty was the failure to record certain
allegedly stolen wheels as
exhibits, which he should have done. The
next charge which the arbitrator upheld was one in which the
applicant was accused of
failing to initiate disciplinary steps
against another SAPS member after he became aware of the member’s
alleged misconduct
in respect of missing money. The last charge was
one of assault relating not to the exercise of any physical violence
as such by
the applicant but arising from an utterance he made to 2
individuals in the following terms: "Hoe ry julle, julle ry kak,
julle gaan kak, Ek sal jou doodbliksem.”
The
appropriate sanction
[10]
In evaluating the appropriate sanction for
these different acts of misconduct, the arbitrator said the
following:
“
I
must also take into account that the charges are not related to each
other, and that they, in some cases, were only prosecuted
long after
the occurrences, and also that a number of the other charges
preferred against Lubbe were far from convincing and appear
to be a
waste of time.
The first of these
charges relates to his negligence losing a docket, but in the
circumstances of how the docket went missing with
two other dockets
for which he was not charged for, and with this an almost daily
occurrence in SAPS, will, at best, normally attract
a serious
sanction of a warning or more, but not of dismissal.
As regards the second
of these charges, the misconduct relates to Lubbe's failure to have
booked wheels into the SAPS, but he provides
a reason for such
failure and attempted to keep it in a safe place, which will again,
at best, attract a less serious sanction
such as a warning or more,
but not dismissal.
In respect of the
third of these charges, the misconduct once again relates to Lubbe's
failure to have taken disciplinary action
against Botha for Botha's
alleged misconduct, and will again, at best, attract a less serious
sanction such as a warning or more,
but not dismissal.
As regards the fourth
of these charges, the misconduct in this instance was of a more
serious nature, as the position of the occupied
at the time was that
of such high office that he was to prevent the occurrence of such
instances on behalf of the greater community
he served, which is more
serious than the other three charges. However, his conduct was
restricted to a threat but which he did
not follow by the use of any
force, which lessens its severity somewhat. I believe you should have
received a final written warning
or more serious sanction this
misconduct such as suspension without pay, but not of dismissal.
I therefore find that
the sanction of dismissal of Lubbe, on the charges for which he is
guilty of, was unfair."
(
sic
)
[11]
The arbitrator then considered whether the
applicant should be reinstated having found that his dismissal was
substantively unfair.
He set out his reasoning on this question as
follows:
“
However,
in considering what relief he is entitled to, I do not believe
reinstatement is even remotely an option in this instance.
Firstly,
the manner in which Burger, representing the views of Lubbe,
constantly made the refrain that Lubbe was the object of
a well
orchestrated vendetta involving a number of very senior members of
SAPS in order to rid the SAPS of Lubbe, and if the light
of, the
request for reinstatement is very puzzling. Secondly, the very period
between the dismissal of labour and the finalisation
of this
arbitration is roughly 7 years, a period during which the SAPS did
undergo many changes must reflect a workplace very different
to that
which Lubbe left in 2002, and it is inconceivable that he could
simply go back and that it would be business as usual.
I therefore
find Compensation choose to to be the most appropriate form of relief
in this matter. When considering the quantum
of relief Lubbe is
entitled to, I must take into account that he's been found guilty of
four charges, three of which are less serious
but the fourth a more
serious nature.”
(
sic
)
Grounds
of review
[12]
The applicant only takes issue with two
matters arising from the award. Firstly, he contends that the
arbitrator failed to determine
whether or not the chairperson of the
appeal hearing had the authority to impose a more severe sanction
than the chairperson of
the disciplinary enquiry. Secondly, he takes
issue with the arbitrator's conclusion that he was not entitled to
reinstatement,
which is the primary remedy for a substantively unfair
dismissal. For the reasons which follow it is not necessary for me to
determine
the first issue.
Did
the arbitrator commit a reviewable error in not reinstating the
applicant?
[13]
The question here is whether the arbitrator
committed a reviewable error in awarding compensation instead of
reinstatement as appropriate
relief for the applicant’s unfair
dismissal. In arriving at his conclusion that compensation would be
more appropriate than
reinstatement, the arbitrator provided two
reasons. Firstly, he concluded that submissions made by the
applicant’s representative
that there was a well orchestrated
vendetta by a number of senior members of the SAPS to rid SAPS of the
applicant was at odds
with his claim for reinstatement. Implicit in
this conclusion is an inference that the allegation amounted to a
statement that
the employment relationship had broken down and could
not be restored.
[14]
The applicant contends that there was no
evidence from the employer itself to the effect that the relationship
had broken down and
that he could not be reinstated. Consequently, he
argues there was no basis for the arbitrator to deny him the primary
remedy of
reinstatement. He nonetheless transcribed the only evidence
which he believes might have been considered relevant to this
question
by the arbitrator. It is interesting to note that the second
respondent itself makes no reference to any of this transcribed
evidence
in support of its contention that the arbitrator’s
conclusion on the breakdown of trust is unassailable. The second
respondent’s
answering affidavit defends the arbitrator’s
finding on the remedy as one that was determined after a judicious
exercise
of his discretion, after taking into account the factors he
considered.
[15]
The
Labour Appeal Court and the Supreme Court of Appeal have, in recent
times, grappled with the circumstances in which an arbitrator
would
be entitled to conclude that an employment relationship had
irretrievably broken down. In upholding the decision of the LAC
in
Edcon
Ltd v Pillemer NO & others
(2008)
29
ILJ
614 (LAC)
,
the SCA stated in
Edcon
v Pillemer NO & others
(2009)
30
ILJ
2642 (SCA)
:
”
[22]
Pillemer [the arbitrator] was entitled and in fact expected, in the
scheme of things, to explore if there was evidence by Edcon
and/or on
record before her showing that dismissal was the appropriate sanction
under the circumstances. This was because Edcon's
decision was
underpinned by its view that the trust relationship had been
destroyed. She could find no evidence suggestive of the
alleged
breakdown and specifically mentioned this as one of her reasons for
concluding that Reddy's dismissal was inappropriate.
A reading of the
award further reveals that in addition to this finding Pillemer also
found that in the context of that matter
Reddy's long and unblemished
track record was also an important consideration in determining the
appropriateness of her dismissal.[23]
It is inevitable that courts,
in determining the reasonableness of an award, have to make a value
judgment as to whether a commissioner's
conclusion is rationally
connected to his/her reasons taking account of the material before
him/her. That this is the correct approach
has been stated on a
number of occasions by the LAC, this court in the Sidumo matter as
well as the Constitutional Court in the
same matter. In my view,
Pillemer's finding that Edcon had led no evidence showing the alleged
breakdown in the trust relationship
is beyond reproach. In the
absence of evidence showing the damage Edcon asserts in its trust
relationship with Reddy, the decision
to dismiss her was correctly
found to be unfair. She cannot be faulted on any basis and her
conclusion is clearly rationally connected
to the reasons she gave,
based on the material available to her. She did not stray from what
was expected of her in the execution
of her duties as a CCMA
arbitrator. The challenge, therefore, to Pillemer's award on this
basis is without merit. I have no hesitation
in concluding that the
award issued by her is properly compliant with the constitutional
standard of reasonableness propounded
in Sidumo.
”
[1]
[16]
On the basis of this authority, it is now
clear that it will normally not be sufficient for an employer simply
to make submissions
that there has been an irretrievable breakdown in
the relationship unless a clear basis has been laid in evidence to
justify such
a conclusion. It is also evident that such a conclusion
will not be easily drawn simply because of the nature of the
misconduct
at issue in the case. The facts in the
Edcon
matter as summarised by the LAC illustrate this point:
“
[3] In
accordance with the applicant's policy, the third respondent, then
CTM quality controller, was entitled
to a company car, which she
received in April 2003. There were terms and conditions. It is
common cause that in the event
of an accident involving the
vehicle, she would be required to -
•
report
the accident within 24 hours to the SA Police Service and obtain a
case number;
•
to
report any accident to the appellant and to the relevant insurance
company;
•
to
complete and sign the relevant motor accident claim form;
•
not
to carry out any repairs without the approval of the insurance
company.
[4] On
8 June 2003, the vehicle was involved in an accident while being
driven by her son. She did not report the
accident to the police nor
to the appellant. She did not meet the other requirements set out in
para 3 hereof. Her husband repaired
the vehicle in his panel beating
workshop at his own cost. It transpired later that the reason for
non-compliance
was that she was under
the impression that her son was precluded from driving the vehicle in
terms of the car policy. It turned
out later that the impression was
wrong.
[5] After
about six months from the date of the accident, the appellant got to
know about the accident. When confronted
in regard thereto,
the third respondent initially denied the vehicle had been
involved in an accident, she also denied that her son was driving.
She
eventually admitted the accident but she still told an untruth as
to where it occurred and under what circumstances.
[6] On
being questioned further, she made a clean breast of everything. She
was suspended and charged in an internal
enquiry. The charge against
her was as follows: Failure to be honest and act with integrity in
that -
'[y]ou committed an
act, which has affected the trust relationship between the
company and the employee in that on 6 June 2003 you failed to
report an accident of a company vehicle (reg no ND 95403, Toyota
Corolla
GLE, grey in colour) which your son was driving on the day of
the accident (8 June 2003) and this resulted in a breach of trust
between yourself and the company ' (emphasis added).
[7] She
pleaded guilty and was found guilty. The real issue for determination
was whether the misconduct committed
resulted in a breach of trust
between the third respondent and the appellant or whether the
sanction of dismissal was fair in the
circumstances of the case. It
will be noted that the element of breach of trust relied upon was the
failure to report the accident.
The allegations against the third
respondent do not rely on the continuing lies by her after the
accident was discovered.
”
[2]
[17]
What emerges from this extract is that the
very offence which the applicant was charged with, related to the
trust relationship,
yet the LAC and the SCA both found that the
employer should have led direct evidence on how the employee’s
conduct had irretrievably
destroyed the trust relationship. It should
be noted that in
Edcon
,
there was also hearsay evidence, which was properly admitted, that
gave rise to an inference that there had not been a breakdown
in the
relationship and that the employer had treated another employee in
similar circumstances more leniently.
[18]
In
this instance, the only evidence relied on by the arbitrator is the
applicant's own representative’s contentions that senior
members of the SAPS had conspired against him. If an employee who was
unfairly dismissed contends that his employer sought to get
rid of
him for improper reasons, does that necessarily entail a breakdown in
the trust relationship of the type which justifies
not reinstating
him? It would be somewhat perverse if an employer wishing to assert
that the employment relationship had been rendered
intolerable, on
the basis that its own bad faith in dismissing the employee had
instilled distrust of it in the employee, were
able to avoid an order
of reinstatement on that basis
[3]
.
Equally, there is no basis for permitting an employer to avoid an
order of reinstatement merely because the employee’s
representative accuses it of acting in bad faith. In this case
the ‘evidence’ of a breakdown of trust are merely
allegations of bad faith made by the employee’s representative.
[19]
It is also clear that the applicant
never abandoned his claim for reinstatement. In this regard the
remarks of Cameron JA, in the
case of
NCBAWU
& another v MF Woodcraft (Pty) Ltd
[1997] 1
BLLR
43
(LAC)
are
apposite
:
“
The
third reason the Industrial Court gave for denying reinstatement was
that an “enforced” working relationship would
not be
tolerable “to either side”. This reason was in my view
also mistaken. That the respondent regarded a future
working
relationship with the appellant as intolerable was clear. That is why
it tried three times to dismiss him. Its attitude,
although relevant,
cannot be determinative of whether there is “reason to refuse
reinstatement”. The reasons it gave,
namely fraudulent conduct
and disruptiveness, were held to lack substance. What of
tolerableness from the second appellant’s
point of view? He may
safely be assumed to be a resilient individual, whose sensitivities
will survive the slight of having been
unjustly dismissed three
times. His persistence in seeking reinstatement indicates that he,
certainly, will not find the future
working relationship
intolerable.”
[4]
[20]
Albeit that the
Woodcraft
case was an appeal under the previous Labour Relations Act, the LAC
was seized with considering the same issue of circumstances
in which
reinstatement would be intolerable.
[21]
The only evidence on the record emanating
from the employer about the possible future working relationship that
would prevail if
the applicant was reinstated, is that of the
employer’s representative, who did not work with the applicant
and only came
to know him in the course of the proceedings. Given
that this was the second time this dismissal case had been processed
through
the arbitration mill, at considerable length, it is difficult
to comprehend that the employer could not have found someone with
more direct knowledge of the applicant and his operational working
environment to testify as to the intolerability of reinstating
him.
[22]
In the circumstances, I think there was an
insufficient evidentiary basis for the arbitrator to reasonably
conclude that it would
be intolerable to reinstate the applicant.
Length
of absence from the workplace
[23]
The second reason relied upon by the
arbitrator was his conclusion that, after seven years, the workplace
of the SAPS had changed
so much that he would be incapable of fitting
into the new environment. The applicant contends that there was no
evidence tendered
in the arbitration on which the respondent could
base this conclusion. The second respondent does take issue with this
contention.
In the circumstances, there was no reason for the
applicant to have provided the entire transcript of the proceedings
to demonstrate
this point. In view of the absence of any material
dispute on this question, it seems reasonable to conclude that the
arbitrator
was probably more influenced by simply the length of
the lapse of time between the applicant's dismissal and the outcome
of the award than by any objective finding supported by
evidence that the nature of the workplace had altered so dramatically
that it would not be practical to reinstate the applicant.
[24]
It is unfortunate it has taken so long to
reach this point, but if one considers the history, it is simply due
to the parties not
being able to settle the matter and choosing to
litigate at every stage. Obviously, an employer must be alive to the
fact that
reinstatement always remains a possibility if the ultimate
decision goes against it and it cannot rely solely on a long delay in
finalising the litigation as a reason for denying the remedy the
employee was entitled to in the first place.
[25]
The SCA has also held that
Republican
Press (Pty) Ltd v CEPPWAWU & Gumede & others
[2007] 11 BLLR
1001
(SCA)
,
at [21]-[22], that a delay in finalising a matter does not in and of
itself justify awarding compensation instead of reinstatement.
In
that case the court did substitute an award of reinstatement with one
of compensation, but there had been a delay of approximately
six
years between the dismissal of the employees and the reactivation of
the case in the Labour Court, which was the fault of the
union.
Moreover, there had been further retrenchments since the dismissal of
the affected employees who had been retrenched in
that matter.
[26]
In this
instance the arbitrator simply assumed, without hearing evidence on
the issue, that the workplace will have changed to an
extent that the
applicant would be unable to adjust to it.
[27]
There is also nothing in the award to
indicate that the arbitrator gave any consideration to the
applicant’s 30 odd years’
of service at the time of his
dismissal or weighed up the relative impact of an award of
compensation or reinstatement on someone
who was close to retirement.
Conclusion
[28]
I am satisfied that in denying the
applicant the primary remedy of reinstatement for his substantively
unfair dismissal, the arbitrator
reached conclusions that could not
reasonably be reached on the evidence before him, even to the extent
that there was no evidence
before him to justify his conclusion that
it would be intolerable to reinstate the applicant. He also failed to
consider relevant
factors such as the applicant’s length of
service. Accordingly his award of compensation as an appropriate form
of relief
must be set aside
Order
[29]
In view of the reasoning above:
a.
The First respondent’s finding that
compensation of 10 months’ remuneration is an appropriate form
of relief is reviewed
and set aside.
b.
The first respondents’ finding on the
appropriate relief for the applicant’s unfair dismissal is
substituted with an
order that the second respondent must reinstate
the applicant with retrospective effect including backpay until the
date of his
dismissal on 20 December 2004.
c.
The applicant must be issued with a written
warning in respect of each of the charges 2,7 and 10 on his return to
work.
d.
The applicant must be issued with a final
written warning in respect of charge 12 on his return to work.
e.
The applicant must be reinstated by 6
February 2012.
f.
The second respondent must pay the
applicant’s costs.
ROBERT
LAGRANGEJUDGE OF THE LABOUR COURT
Date
of judgment: 20 January 2012
Date
of hearing: 13 May 2011
Appearances:
For
the applicant: E Louw
For
the respondent: W R Mokhari SC, instructed by the State Attorney.
[1]
At
2652
[2]
At
616-617
[3]
This
issue was considered in a different, but arguably analogous, context
of determining the legality of the dismissal of the
Director of the
National Intelligence Agency by the President. The court
a
quo
in
Masetlha
v President of the Republic of South Africa and Another
(2007)
28
ILJ
1013
(T)
held, per Du Plessis J, that
:
“I accept, however, that the reason for a breakdown in the
relationship of trust between a president and a head of an
intelligence service may be relevant to determine the legality of
the dismissal of such head of intelligence. For instance,
if a
president in bad faith caused the breakdown of trust in order to get
rid of the head of intelligence, the dismissal may
not pass
constitutional muster.
”
(at 1021D-F), a comment that was endorsed by the majority of the
court in the Constitutional Court case in the same matter.
Moseneke
DCJ, writing for the majority in (
Masetlha
v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA
566
(CC)
held: “
[82]
Reverting to the present case, I agree with the High Court that
ordinarily a dismissal of a head of an intelligence service
on the
basis of irretrievable loss of trust on the part of his principal,
in this case the President, would not be arbitrary
or irrational. Of
course, the facts in a particular case may demonstrate
irrationality, arbitrariness or bad faith on the part
of the person
who makes the dismissal decision. In this case, nothing suggests
that the President acted arbitrarily or
without sufficient
reason”
,
at 595.
[4]
At
50