About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2013
>>
[2013] ZALCPE 19
|
|
Air Traffic and Navigation Services Company Ltd v Commission for Conciliation Mediation and Arbitration and Others (P360/12) [2013] ZALCPE 19 (16 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case
no: P360/12
In the matter between:
AIR TRAFFIC AND NAVIGATION
SERVICES
COMPANY LIMITED
..........................................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
........................................
First
Respondent
DANIE OOSTHUIZEN N.O
..............................................
Second
Respondent
SOLIDARITY obo BLACKETT, J
........................................
Third
Respondent
JUSTIN BLACKETT
..........................................................
Fourth
Respondent
Heard
:
16 May 2013
Order : 16 May 2013
JUDGMENT-REASONS FOR ORDER
AC BASSON J
[1] On 18 May 2013 this Court gave the following order:
The application for
review is granted but only in respect of the finding on sanction.
The award is substituted
by an order that the applicant pays the fourth respondent
compensation in the amount of eight (8) month’s
salary.
No order as to costs.
[2] The applicant in this matter is the Air Traffic and Navigation
Services Company Limited (hereinafter referred to as “the
applicant” or “ATNS”). The fourth respondent (Mr
Blackett) was employed as an Air Traffic Service Assistant.
It was
not in dispute that that applicant fulfils a statutory responsibility
of controlling air traffic throughout the Republic
of South Africa.
For this purpose the applicant employs a number of Air Traffic
Controllers responsible for the safety and control
of air traffic.
The applicant fulfils its functions within a highly security
conscious environment where it is of paramount importance
that the
employees can be trusted with sensitive information which they may
come across in the performance of their day to day
duties.
[3] Mr Blackett was given a previous verbal warning for making a
comment on the social network Facebook regarding certain information
that he became aware of by virtue of the performance of his duties
with the applicant. The remarks made by Blackett were also reported
in a newspaper in the Eastern Cape and caused considerable
embarrassment to the applicant. The applicant viewed these actions in
a very serious light and accordingly issued a verbal warning to
Blackett.
[4] A few months later Blackett posted video footage of an emergency
landing of an aircraft on the social network YouTube. The
applicant
viewed this in a serious light and charged Blackett with misconduct.
According to the applicant it regarded the actions
of Blackett as
unpredictable and irresponsible. Further according to the applicant,
the trust relationship between the applicant
and Blackett has, as a
result of this incident, suffered severe deterioration to the point
where Blackett can no longer be trusted
to refrain from breaching its
communication policy. Blackett was subjected to a hearing and was
dismissed.
[5] Blackett referred a dispute about his unfair dismissal to the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”).
[6] The CCMA Commissioner evaluated the evidence and came to the
conclusion that the applicant was not guilty as charged and
consequently
found that the dismissal of Blackett was substantively
unfair. The commissioner ordered his reinstatement.
[7] The CCMA Commissioner, however, also recognized in his award that
he may be wrong in his conclusion that Blackett was not guilty
of
misconduct and proceeded, on the premises that Blackett was guilty as
charged to consider the question of an appropriate sanction.
The
Commissioner concluded that even if he was wrong in his assessment of
the evidence, he is nonetheless not persuaded that dismissal
was the
appropriate sanction. In this regard the Commissioner took into
account that Blackett displayed remorse in emails sent
to his
manager. The Commissioner further concluded that the incident was not
that serious because Blackett was not even suspended
after the
incident. The Commissioner accordingly concluded that dismissal
would, in any event, not have been an appropriate sanction
even if
Blackett was guilty as charged.
[8] I have considered the evidence and I am of the view that the
Commissioner’s finding that the dismissal was substantively
unfair is reasonable against the evidence led at the arbitration. I
must, however, point out that the basis for this finding was
the fact
that the Commissioner was of the view that the posting of the video
did not constitute ATNS activity. The Commissioner
also did not
regard the publication of the video as contravening the directive of
the applicant which prohibits the publication
of confidential
information. What is, however, clear from the award is the fact that
the Commissioner was not absolutely convinced
that he has interpreted
the evidence correctly, hence his alternative finding that, even if
the dismissal was substantively fair,
dismissal was not the
appropriate sanction.
[9] The only issue that therefore remained was the issue of an
appropriate remedy or put differently, was it reasonable for the
Commissioner to have reinstated Blackett.
[10] The issue of an appropriate remedy was debated at length during
the hearing. It is clear from section 193(2) of the Labour
Relations
Act
1
that although reinstatement is the preferred remedy for unfairly
dismissed employees, compensation should be granted when one or
more
of the exceptions mentioned in paragraphs (a) to (d) apply. In
deciding whether or not to grant reinstatement the Commissioner
must
have regard to the circumstances and the evidence that were placed
before him. In this regard it was submitted on behalf of
the
applicant with reference to the nature of the business of the
applicant and the legislative environment within which it operates,
that reinstatement was unreasonable in the circumstances. The
applicant therefore submitted that reinstatement was not the
appropriate
remedy in the circumstances and submitted that the Court
should find that compensation was more appropriate in the
circumstances.
I have considered the evidence and I am of the view
that the finding of reinstatement was unreasonable. The Commissioner
ought
to have taken into account the fact that Blackett has caused
embarrassment to the applicant and that the applicant has lost
confidence
in Blackett following the incident. The applicant operates
in a very specific environment and the evidence was that the
applicant
had to trust an employee to obey all lawful and reasonable
orders and that he or she will carry out such functions and that he
or she will protect and promote the business and interest of ATNS and
preserve its reputation and goodwill. Blackett clearly disregarded
the previous instructions and this caused the breach in the trust
relationship.
[11] I have considered the record and it is clear in my view that the
trust relationship between the applicant and Blackett had
broken down
and that the Commissioner has ignored the evidence in respect of the
breakdown of the trust relationship. I am therefore
in agreement that
the Commissioner’s failure to apply his mind to this evidence
caused him to arrive at an unreasonable decision
regarding sanction.
[12] I am therefore of the view that the award in respect of sanction
should be replaced with an order that the fourth respondent
is
awarded compensation equal to eight months’ salary. I make no
order as to costs.
_______________________
AC BASSON J
Judge of the Labour Court
24 July 2013
APPEARANCES:
For Applicant : Advocate A A Mphahlele
Instructed by : Snail Attorneys
For Respondent : Advocate A Redding SC
Instructed by :
.
1
Act
66 of 1995