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[2012] ZALCJHB 7
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Lubbe v Roop NO and Others (JR 1303/09) [2012] ZALCJHB 7; (2012) 33 ILJ 1695 (LC) (20 January 2012)
Reportable
Of interest to other
judges
REPUBLIC OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
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
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.
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.
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.
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.
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.
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.”
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
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.
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
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
)
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
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?
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.
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.
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
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
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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
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
In
view of the reasoning above:
The
First respondent’s finding that compensation of 10 months’
remuneration is an appropriate form of relief is
reviewed and set
aside.
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.
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.
The
applicant must be issued with a final written warning in respect of
charge 12 on his return to work.
The
applicant must be reinstated by 6 February 2012.
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