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[2011] ZALCCT 43
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Baba v General Public Service Sectoral Bargaining Council and Others (C1125/2010) [2011] ZALCCT 43 (2 June 2011)

IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C1125/2010
In the matter between:
LESLIE BABA
...........................................................................................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
.......................................................
First
Respondent
MADELEINE LOYSON N.O.
...................................................................
Second
Respondent
DEPARTMENT OF HOME AFFAIRS
........................................................
Third
Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application to review an award made by the second
respondent (the arbitrator) after she had found that the applicant’s

dismissal by the third respondent was both substantively and
procedurally unfair. She ordered the third respondent to pay the
applicant twelve months compensation. The review application relates
to the award of compensation. The applicant contends that the

arbitrator should have ordered the third respondent to reinstate him.
2. The application is opposed by the third respondent. The
arbitrator’s finding that the dismissal was both substantively

and procedurally unfair is not being challenged on review. She had
found that the third respondent had failed to prove the charges

against the applicant on a balance of probabilities.
3. Since the arbitrator’s finding that the applicant’s
dismissal was both substantively and procedurally unfair,
it becomes
unnecessary to set out the facts in any great detail. The crisp
issue for determination is whether the arbitrator’s
award for
compensation as opposed to reinstatement can be sustained.
Background facts
4. The applicant was employed by the third respondent. On 10 June
2005 an incident occurred which gave rise to various charges
being
brought against him. In summary the charges involved the allegation
that he had wrongfully assisted non-South African citizens
to obtain
identity and travel documents to which they were not entitled. On 13
June 2005, the incident was reported to higher
authorities within
the third respondent. On 5 August 2005 the applicant was suspended
on other unrelated charges. No findings
have been made against him
in respect of those charges. On 8 March 2006, nine months after the
incident, the applicant was charged
with misconduct by the third
respondent. During July 2007 his disciplinary hearing took place and
he was found guilty on 9 October
2007. He immediately appealed and
his appeal was dismissed on 31 January 2008. He was on suspension at
the time. He then referred
his dismissal to the General Public
Service Sectoral Bargaining Council (GPSSBC) and an arbitration
hearing was conducted before
advocate Maritz on 4 July and 25 August
2008. An award was handed down on 8 September 2008 finding that his
dismissal was fair.
The applicant filed a review application on 13
November 2008 challenging the award on several grounds. The parties
agreed that
because of the defective record of the arbitration
proceedings, the Maritz award should be set aside and the dispute
remitted
to the GPSSBC for a
de novo
hearing before a
different arbitrator. The agreement was made an order of court on 15
April 2010.
5. The dispute was arbitrated by the arbitrator on 13 and 14
September 2010. Evidence was presented and both parties agree that

the arbitrator has accurately set out the evidence in her award. The
applicant submitted written argument. The two main points
that the
applicant argued was that the third respondent had not discharged
the onus of proving that he was guilty of the misconduct
complained
of and that the applicant’s unexplained delay in prosecuting
the charges against him rendered his dismissal
as unfair. Further
that in the absence of any evidence to the contrary, he ought to be
reinstated retrospectively to the date
of his dismissal. The third
respondent argued that the charges had been proved and that same
warranted the sanction of dismissal.
The arbitrator found that
inter
alia
that the inexplicable and shocking delay had resulted in
gross procedural unfairness and that the dismissal was substantively
and procedurally unfair.
6. The arbitrator on the question of relief relied on
Republican
Press (Pty) Ltd v CEPPWAWU & others
(2007) 28 ILJ 2503 (SCA)
and said that she shared the view expressed that there is authority
for the view that where there has
been a substantial delay in
prosecuting the dispute, the probability of resuming an employment
relationship becomes increasingly
‘not reasonably
practicable’. She ordered the third respondent to pay the
applicant compensation equivalent to twelve
months renumeration.
The grounds of review
7. The applicant felt aggrieved with the award relating to
compensation and brought this review application. The applicant

relies on the following grounds of review:
7.1. The arbitrator failed to apply appropriately or at all the
peremptory provisions of section 193(2) of the Labour Relations
Act
66 of 1995 (the Act) and accordingly exceeded her powers.
7.2. She took into account irrelevant considerations and ignored
relevant considerations when determining that reinstatement
was not
appropriate.
7.3. She committed a gross error of law in finding that
reinstatement was not appropriate.
7.4. Under all the circumstances, the arbitrator’s
determination of relief is a determination that no reasonable
arbitrator
could make.
Analysis of the facts and arguments raised
8. It is trite that the Act allows for any one three remedies to be
granted to an employee who has been unfairly dismissed: the
employer
may be ordered to reinstate the employee, or the employer may be
ordered to re-employ the employee, or the employer
may be ordered to
pay compensation. The legislatively preferred remedy is the
restoration of the employee to employment either
by reinstatement or
by re-employment. Either of those remedies may be granted except in
specified circumstances set out in section
193(2) of the Act, in
which case compensation may be ordered, but to a maximum amount
equivalent to 12 to 24 months remuneration
depending upon the nature
of the dismissal. An order for reinstatement restores the former
contract and any amount that was payable
to the employee under that
contract necessarily becomes due to the employee on that ground
alone.
9. It is common cause that the arbitrator found that the applicant’s
dismissal was both substantively and procedurally
unfair. Once an
arbitrator has found that a dismissal is substantively unfair, the
arbitrator is then enjoined to consider the
factors set out in
section 193(2) of the Act. These provide as follows:
“
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 reasonable 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.
”
10. It is clear from the evidence led that the applicant sought an
order for reinstatement. No evidence was led by the third
respondent
that the circumstances surrounding the dismissal were such that a
continued employment relationship would be intolerable.
No evidence
was led by the third respondent that it would not be reasonable
practicable for the employer to reinstate or re-employ
the
applicant. Since the arbitrator found that the dismissal was both
substantively and procedurally unfair, the arbitrator was
obliged to
consider whether there was compliance with section 193(2) and decide
whether the applicant should have been reinstated
or compensated.
11. It is trite that an employer bears the onus to prove the
existence of the exceptions contained in section 193(2) of the Act.

It has failed to do so. The arbitrator has despite the third
respondent’s failure to prove the existence of the aforesaid

exceptions, found that an order for compensation as opposed to
reinstatement was appropriate. She relied on the
Republican Press
(Pty) Ltd
matter and said the following at paragraph 6.35 of her
award:
“
Finally, there is authority for the
view that where there has been a substantial delay in prosecuting
the dispute, the probability
of resuming an employment relationship
becomes increasingly “not reasonably practicable.”
Republican Press (Pty)
Ltd v CCPPWAWU & others (2007) 28 ILJ
2503 (SCA). I share that view.”
12. The following was said in
Republican Press (Pty) Ltd
at
page 2514 at paragraphs D - H:
“
While the Act requires an order for
reinstatement or re-employment generally to be made a court or an
arbitrator may decline to
make such an order where it is ‘not
reasonably practicable’ for the employer to take the worker
back in employment.
Whether that will be so will naturally depend on
the particular circumstances, but in many cases the impracticability
of resuming
the relationship of employment will increase with the
passage of time. In my view the present case illustrates the point.
.... In the ordinary course it will clearly be progressively
prejudicial with the passage of time for an order to be made that
has that effect, both to the employer who must arrange its affairs,
and to other workers who are being prone to being selected
for
dismissal. In the present case the problem is exacerbated by the
fact that by the time the Labour Court made its order there
had been
further retrenchments and some of the company’s operations had
been restructured.
That is not to suggest that an order for reinstatement or
re-employment may not be made whenever there has been delay, nor
that
such an order may be made more than 12 months after the
dismissal. It means only that the remedies were probably provided
for
in the Act in the belief that they would be applied soon after
the dismissals had occurred, and that in a managerial fact to be

borne the mind in assessing whether any alleged impracticability if
implementing such an order is reasonable or not. In the present
case
the passage of six years from the time the workers were dismissed,
all of which followed consequential upon the failure
of the union to
pursue the claim expeditiously, was sufficient in itself to find
that it was not reasonable practicable to reinstate
or re-employ the
workers. In my view it was entirely inappropriate for such an order
to be granted.”
13. The facts
in casu
are distinguishable from those in
Republican Press (Pty) Ltd.
The appellant had contended that
the reinstatement of the 28 workers after the lapse of a period of
six years was wholly inappropriate.
It pointed out that, amongst
other things, a number of the jobs concerned had since been out
sourced, considerable business restructuring
had occurred, and there
had subsequently been further retrenchments. The arbitrator clearly
did not consider the facts of the
case that she was required to
decide on whether reinstatement was not applicable.
14. In
Equity Aviation Services (Pty) Ltd v CCMA & others
(2008) 29 ILJ 2507 (CC) it was held at page 2522 at paragraph as
follows:
“
The ordinary meaning of the word
‘reinstate’ is to put the employee back into the same
job or position he or she occupied
before the dismissal, on the same
terms and conditions. Reinstatement is the primary statutory remedy
in unfair dismissal disputes.
It is aimed at placing an employee in
the position he or she would have been but for the unfair dismissal.
It safeguards workers’
employment by restoring the employment
contract. Differently put, if employees are reinstated they resume
employment on the same
terms and conditions that prevailed at the
time of their dismissal. As the language of s 193(1)(a) indicates,
the extent of retrospectivity
is dependent upon the exercise of a
discretion by the court or arbitrator. The only limitation is that
in this regard is that
the reinstatement cannot be fixed at a date
earlier than the actual date of the dismissal. The court or
arbitrator may thus decide
the date from which the reinstatement
will run, but may not order reinstatement from a date earlier than
the date of dismissal.
The ordinary meaning of the word ‘reinstate’
means that reinstatement will not run from a date after the
arbitration
award. Ordinarily then, if a commissioner of the CCMA
orders the reinstatement of an employee that reinstatement will
operate
from the date of the award of the CCMA, unless the
commissioner decides to render the reinstatement retrospective. The
fact that
the dismissed employee has been without income during the
period since his or her dismissal must, among other things, be taken

into account in the exercise of the discretion, given that the
employee’s having been without income for that period was
as a
direct result of the employer’s conduct in dismissing him or
her unfairly.
And at page 2524 at paragraph 39:
“
The context, on the contrary, support
the view that the ordinary meaning of s 193(1)(a) does not offend
the right to fair labour
practices. 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. In this regard, it is
important to bear in mind that where a court or commissioner has
decided that
reinstatement is the appropriate remedy, it will also
have to be decided that the worker has been unfairly dismissed. The
workers
will thus have been deprived of wages, unfairly, as a result
of the conduct of the employer. The importance of security of
employment
was affirmed by this court in NEHAWU:
‘
Security of employment is a core value
of the LRA and is dealt with in chap[ter] VIII. The chapter is
headed “Unfair Dismissals”.
The opening section, s 185,
provides that “[e]very employee has the right not to be
unfairly dismissed”. This right
is essential to the
continuation of the relationship between the worker and the employer
on terms that are fair to both. Section
185 is “a foundation
upon which the ensuing sections are erected”’.
And at page 2526 at paragraph 43:
“
In the case of re-employment or
reinstatement, the statute provides two mechanism for the management
of such concerns. First,
s 193(2)(c) provides that the remedies of
reinstatement or re-employment need not be ordered if the court of
commissioner is
satisfied that it would not be ‘reasonably
practicable’ for the employer to reinstate or re-employ the
employees.
Secondly, the statute provides that a court or
commissioner has a discretion to determine the extent of the
retrospectivity of
the order of reinstatement or re-employment. In
exercising the discretion a court or an arbitrator may address,
among other things,
the period between the dismissal and the trial
as well as the fact that the dismissed employee was without income
during the
period of dismissal, ensuring however, that an employer
is not unjustly financially burdened if retrospective reinstatement
is
ordered or awarded.”
And at page 2528 at paragraph 48:
“
It is trite law that the power to grant
a remedy in s 193 is by its very nature discretionary and that the
discretion must be
exercised judicially by a court that enjoys that
unfettered discretion.
And at page 2529 at paragraph 51 and 53 - 54:
“
As to the criticism that Mr Mawele will
benefit unjustly from the delay of 19 months in proseuting the
review, it is common cause
that the delay was caused by the
unavailability of the record of the proceedings before the CCMA. The
tapes seemingly went missing.
The delay was therefore not due to any
deliberate, wilful or flagrant disregard for the express provisions
and underlying purpose
of the LRA. In the circumstances it would be
unfair to lay the blame for the delay on Mr Mawelele.
Equity argues that the order of perceived retrospectivity is
unduly harsh on its business, not least as it (Equity) has not
benefitted
from Mr Mawelele’s services in the interim period.
Equity seems to lose sight of the fact that a remedy of
reinstatement
is always granted to an employee wishing to offer his
or her services to his or her employer. There is no evidence that
Equity
offered the employee a job and no contention to that effect
has been made. Moreover, it is not suggested that there is any
evidence
which is relevant that ought to have been, but was not
included in the record.
The principle of the right of election is a fundamental one in
our law. Equity made an election not to ask Mr Mawelele to render

his services, nor did they offer him alternative employment. When
exercising an election, the law does not allow a party to blow
hot
and cold. A right of election, once exercised, is irrevocable
particularly when the volte face is prejudicial or unfair to

another. As long as an employee makes himself or herself available
to perform his or her contractual obligation in terms of the

contract of employment, he or she is entitled to payment despite the
fact that the employer did not use his or her services.
Mr Mawelele
cannot, in the circumstances, be prejudiced by reason of the manner
in which Equity exercised its election.
15. It is clear from the aforesaid that the arbitrator did not did
not exercise her discretion judicially when it related to
the issue
of reinstatement. Her award for compensation is not one that a
reasonable decision maker could have made. Her award
on compensation
stands to be reviewed and set aside.
16. All that remains to be decided is whether this Court should
refer the dispute to the first respondent for a determination
of the
issue of reinstatement. As pointed out above, the applicant was
dismissed on 31 January 2008 after he had exhausted his
internal
appeal. He referred a dispute to the GPSSBC and an arbitration
hearing took place on 4 July and 25 August 2008. An award
was handed
down on 8 September 2008 which went against him. He filed a review
application on 13 November 2008. The record of
the arbitration
proceedings were defective and the parties agreed to refer it to
arbitration. The agreement was made an order
of court on 15 April
2010. The dispute was arbitrated for a second time on 13 and 14
September 2010. An award was issued. The
applicant brought this
review application on 10 December 2010. Pleadings were exchanged and
the matter was argued on 7 June 2011.
Both reviews were prosecuted
with the necessary haste. Since the applicant was dismissed on 31
January 2008, no purpose will
be served to refer the dispute to the
GPSSBC for arbitration to consider the issue of retrospectivity. The
delays in the matter
were not caused by the applicant. He was simply
exercising the remedies provided to him in terms of the Act. The
period of delay
is not six years as was the case in the
Republican
matter.
17. An appropriate order is to replace the commissioner’s
award for compensation with an order that the applicant is

reinstated from the date of his dismissal, which in this case was 31
January 2008.
18. There is no reason why costs should follow the result. The
applicant had to suffer at the instance of the third respondent.
He
waited for almost six years for the dismissal dispute to be
finalised. He has received no payment for the period during which
he
was unemployed. In my view, considerations of the interest of
justice and fairness dictates that the third respondent should
pay
his costs.
19. In the circumstances I make the following order:
19.1. Paragraphs 7.2 and 7.3 of the arbitration award dated 5
October 2010 under case number PSGA 1240.07/08 is reviewed and
set
aside and is replaced with the following order:
“
The respondent is ordered to reinstate
the applicant from 31 January 2008”.
19.2 The third respondent is to pay the applicant’s costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT : J WHYTE OF CHEADLE THOMPSON & HAYSOM
FOR THIRD RESPONDENT : N MANGCU-LOCKWOOD INSTRUCTED BY STATE
ATTORNEY
DATE OF HEARING : 31 MAY 2011
DATE OF JUDGMENT : 2 JUNE 2011