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[2012] ZALCJHB 132
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South African Police Service and Another v Van der Merwe NO and Others (JR 998/09) [2012] ZALCJHB 132; [2013] 3 BLLR 320 (LC); (2013) 34 ILJ 1579 (LC) (8 November 2012)
9
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
number: JR 998/09
In the matter between:
THE SOUTH AFRICAN
POLICE SERVICE
............................................
First
Applicant
MINISTER OF SAFETY AND
SECURITY
.........................................
Second
Applicant
And
SCHALK VAN DER MERWE
NO
......................................................
First
Respondent
SSSBSC
........................................................................................
Second
Respondent
W PATON
..........................................................................................
Third
Respondent
SOUTH AFRICAN POLICE
SERVICE
...........................................
Fourth Respondent
Heard: 25 October 2012
Delivered:
08November2012
Summary: Review
application – application of rule 20 (z) of SAPS Regulations.
Commissioner finding that SAPS could not dismiss
employee unless
found guilty by a criminal court.
judgment
Molahlehi J
Introduction
This is an application
to review and set aside the arbitration award, made by the first
respondent under case number PSSS 432
– 07/08. The applicant
seeks to review the first respondent’s (the arbitrator)
finding that the dismissal of the
third respondent, Inspector Paton,
was substantively unfair and ordered that he be re-employed. For
ease of reference Inspector
Paton will in this judgment be referred
to as “the employee.”
Background facts
Theemployee who was
prior to his dismissal employed asthe inspector at Local Criminal
Centre (LRC), was dismissed for misconduct
concerning allegations of
assault on a colleague, Captain Kgotle and defrauding a friend. The
facts relating to the allegation
of fraud are straight forward and
common cause. The employee was accused of having withdrawn money
from the credit card of Mr
Van Der Westhuizen a family friend.
The employee withdrew
the money from the credit card during the preparation of the funeral
of the children of Mr Van Der Wethuizen
(hereinafter referred to as
“Marius.”) The children were allegedly shot by Marius
who was also a police officer in
front of his wife, Charlotte Van
Westhuizen (hereinafter referred to as “Charlotte”).
After shooting the children
Marius attempted at taking his life. At
that stage Charlotte’s family was based in the Cape Town and
the employee and his
wife were based in Bloemfontein.
Soon after the shooting
Charlotte’s father contacted the employee and informed him
about the incident. Without any delay
employee together with his
wife drove to Cape Town. During the course of the week before the
funeral Charlotte accompanied by
employee went to an ATM machine to
withdraw money for the purposes of paying the electricity bill and
buying groceries. At the
ATM machine it would appear as a result of
trauma, Charllotte struggled with withdrawing the money. She was
then assisted by
the employee after she gave him the credit card
which belonged to Marius. She gave him the pin number of the card.
During the course of
that week closer to the day of the funeral the employee went into
Charlotte’s bedroom and took out
of her purse the credit card.
He testified during the arbitration hearing that he took the credit
card because when he left his
home in Bloemfontein rushing to Cape
Town after hearing about the tragic incident he did not take any
formal clothing with him.
He says he needed formal clothing for the
day of the funeral, in particular a jacket and shoes. Once he had
the credit card he
proceeded to purchase the things he needed
including a generator machine worth more than R2000,00.
The employee testified
that he had intended to pay back the money he had taken from the
credit. He indeed paid the money back
into the account and in fact
paid more than he had taken.
On discovering that
money had been withdrawn from his credit card, Marius pressed
charges against Charlotteand the employee. The
matter came before
the magistrate court on a number of occasions but was finally
withdrawn.
It would appear that
after the dropping of the criminal charges against the inspector the
applicant instituted a disciplinary
hearing where he was charged
with both the assault of Captain Kgotle a fellow employee and the
fraudulent use of the credit card
of Marius. The evidence presented
during the arbitration hearing showed that the employee used the
credit card to purchase clothing
and a generator using Marius’s
credit card.
I do not deem it
necessary to dwell into the details about the incident of the
alleged assault. The assault charge concerned the
allegations that
the employee had indicated to Captain Kgotle that he would “bliksem”
him and pressed his fingers
repeatedly against his head and told him
that hewas “kaffer kaptein.” As a result of that
actionby employee the spectacles
of Mr Kgotle is said to have fallen
down.
The arbitration award
As stated earlier the
arbitrator found the dismissal of the employeeto have been unfair
and ordered that he be re-employed. The
Commissioner does not
indicate as to why the primary remedy of reinstatement was not
applicable after making the finding as he
did. In arriving at the
decision as he did the Commissioner found that if the charges were
properly formulated he would have
found against employee. He suggest
that the proper formulation that may have resulted in the
confirmation of the dismissal ought
to have been that the employee
was involved infighting at the workplace or assaulted another
employee and the second being that
dishonesty outside the workplace.
The Commissioner says that if that was the case he would have found
the conduct to have destroyed
the trust relationship and would as a
result in the finding against the employee. The Commissioner arrived
at the conclusion
as he did, based on his interpretation of
regulation 20 (z) of the SAPSRegulations which is read as follows:
"An employee will be
guilty of misconduct if he or she, amongst other things, commits any
common law, or statutoryoffence."
Evaluation
It is apparent from the
reading of the arbitration award that the Commissioner, accepted the
contention of the employee that the
provisions of the regulation
would come into effect only once he was found guilty by the criminal
court of having committed the
common law criminal offence. The
Commissioner found that the employee was not guilty of both the
offences of assault and fraud
because in the former charge the
prosecutor had declined to prosecute and in respect of the latter
the matter had not been tried
by the criminal court. In this respect
the Commissioner observed:
"5.5 If one takes
the argument one step further one must take into account the common
law and now constitutional, presumption
of innocence. Put simply, the
applicant would be presumed innocent of a statutory or common law
offence until found guilty in a
court of law.
The Commissioner further
interpreted the regulation to mean that the "misconduct is
committing of an offence and not the
offence itself. In other words
the misconduct is been found guilty of the crime by a court of law."
And at paragraph 5.12.
The Commissioner says:
"In short then, the
applicant has never been found guilty of having committed a common
law offence. It follows then that he
could not be dismissed fairly
for such misconduct."
As concerning the
substance of the charge of fraud the Commissioner found that:
"5.14 I can remark
that I was rather unimpressed with the applicant's version relating
to the alleged fraud. He described himself
as a criminal expert, but
then expected everyone to believe he did not realise he was possibly
executing an act for which a court
could find him guilty of
committing fraud or at least forgery. He claims not to have known
that Mr Van der Westhuizen was the owner
of the account, but then
says he bought a generator out of spite for the same person. If the
applicant was, correctly charged and
found guilty on these facts, I
have little doubt that I would have found against him.’’
The Commissioner is
correct to say that it is not every criminal offence that a member
of the SAPS will be charged or found guilty
of. It is in those
instances where a member commits criminal acts or statutory offences
which are of a serious nature and that
destroys the employment
relationship for which he or she may be charged with and or
dismissed for. It seems to me, that what
regulation 20(z) envisages
is conduct or action by a member that carries with it dishonesty,
breach of trust placed on the member
as public officer and serious
criminal conduct warranting termination of the employment
relationship.
It is clear that the
charge of fraud which was proffered against the employee fell
outside workplace and was not committed in
the course and scope of
his employment. It is however, this kind of conduct which is
envisaged in regulation 20(z) of the SAPS
regulations. The
regulation was clearly intended to stretch the standard of behaviour
expected on members beyond simple work
related misconduct or
criminal offences. In other words the regulation encompasses both
criminal conduct and statutory offences
that falls within the
employment relationship and those that do not. The analysis in the
present instance focuses on the conduct
that falls outside the
employment relationship as that is what happened in the present
instance.
The regulation seeks to
raise the standard of conduct of police officers outside their
employment and tobring it into the employment
relationship even when
that conduct had nothing do with the employment issues. In my view
what the regulation seeks do is to
set standard of conduct outside
the employment relationship.The standard set by the regulation in
general that police officers
would not engage in conduct or
activities that:
would ordinarily not be
expected of a police officer; that is unbecoming, disgraceful and
or improper in the eyes of both the
State as the employer and the
public.
undermines the
confidence of the public in the police.
project a member as
being unfit to be a police officer.
[18] There can be no
doubt that failure to regulate criminal conduct that falls outside
the employment relationship is not only
reasonable but necessary for
failure to do so could lead to both the breakdown in the confidence
on the police and may lead to
hostility and resentment towards the
police service. The essence of a rule that regulate conduct that
falls outside the employment
relationship is to protect the interest
of the State as the employer. In other words the regulation imposes a
duty on police officers
even in their private lives to conform to the
ethical duties imposed upon them, the position they occupy as police
officers. The
interest which the regulation seeks to protect can be
found in one of the objectives set out in the South African Police
Service
Act where it is stated that:
“
c.
ensure co-operation between the services and communities it serves.”
[19] In my view the
Commissioner in dealing with the charges which had been proffered
against the employee adopted a highly technical
approach which is
inconsistent with the objective of the Labour Relations Act which
requires Commissioners to deal with the merits
of disputes before
them and with minimum legal formalities. Because of his failure to
deal with the substance of the dispute the
Commissioner failed to
adopt a fair and a balanced approach in resolving the dispute between
the parties. In
CUSA
v Tao Ying Metal Industries and Other
,
1
the Constitutional Court
held that:
“
[65]
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.” This requires commissioners to deal with
the substance of a dispute between
the parties. They must cut through
all the claims and counter-claims and reach for the real dispute
between the parties. In order
to perform this task effectively,
commissioners must be allowed a significant measure of latitude in
the performance of their functions.
Thus the LRA permits
commissioners to “conduct the arbitration in a manner that the
commissioner considers appropriate”.
But in doing so,
commissioners must be guided by at least three considerations. The
first is that they must resolve the real dispute
between the parties.
Second, they must do so expeditiously. And, in resolving the labour
dispute, they must act fairly to all the
parties as the LRA enjoins
them to do.”
[20] The finding of the
Commissioner that the employee could only in terms of regulation
20(z) of the SAPS Regulations be dismissed
once he was found guilty
by the criminal court is not only at odds with our legal system but
is also grossly unreasonable and thus
fails the test set out in
Sidumo.
2
It is trite that proof in
civil matters such as labour dispute is lower than that in criminal
matters. In civil matters proof is
on the balance of probabilities
whereas in criminal law is beyond reasonable doubt.
[21] In my view, for the
above reasons alone the Commissioner ought to have found that the
dismissal of employee was fair and that
the conduct of defrauding a
friend in circumstances where the friend was vulnerable because of
the death in the family was intolerable
and unforgivable. There is no
doubt that the conduct of employee is not one to be expected of a
police officer as it is unbecoming,
disgraceful and improper in the
eyes of both the State as the employer and the public and has the
risk of undermining the confidence
of the public in the police
service. And more importantly the conduct has projected the employee
as being unfit to be a police
officer. Thus, to expect the SAPS to
keep a person like him in its employ is unfair and unreasonable.
[22] It follows from the
above analysis that the applicant has made out a case warranting
interference with the arbitration award.
I do not deem it necessary
to deal with the issue of the assault.
[23] On the facts and the
circumstances of this case I find the opposition to the review to
have been unreasonable and unwarranted
and therefore find that cost
should follow the results.
[24] In the premises the
following order is made:
The arbitration award
made under case number PSSS 432-07/08 and dated 26 March 2009 is
reviewed and set aside.
The arbitration award
is substituted with an order to the effect that the dismissal of
Inspector Paton was for a fair reason
and thus the claim of
unfair dismissal is dismissed.
The third respondent
is to pay the costs of the applicant.
___________________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the Applicant:Adv F
Boda instructed by the State Attorney Bloemfontein.
For the Third Respondent:
Adv W Van Aswagen, instructing Attorneys unknown.
1
[2009]
1 BLLR 1
(CC).
2
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
(2007) 28
ILJ
2405 (CC).