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[2014] ZALCCT 1
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Myers v National Commissioner of the South African Police Service: Western Cape (C 37/2013) [2014] ZALCCT 1; [2014] 5 BLLR 461 (LC) (28 January 2014)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of interest to other judges
The
Labour Court of South Africa, Cape Town
Judgement
Case no: C 37/2013
In
the matter between:
IVAN
MEYERS
.........................................................................................................................
Applicant
and
THE
NATIONAL COMMISSIONER
OF
THE SOUTH AFRICAN POLICE
SERVICE
..................................................
First Respondent
THE
PROVINCIAL COMMISSIONER
OF
THE SOUTH AFRICAN POLICE SERVICE: WESTERN CAPE
...........
.
Second Respondent
Heard:
11 October 2013
Delivered:
28 January 2014
Summary:
Employee reinstated in position he held before dismissal – SAPS
argues position no longer
exists – offered alternative –
whether SAPS in contempt of court.
Judgement
STEENKAMP
J
Introduction
[1]
The applicant, Lt-Col
Ivan Myers, was reinstated into “the position he held before”
his dismissal by the Supreme Court
of Appeal on 29 November 2012
[1]
.
The retrospective reinstatement followed a lengthy court battle since
his dismissal six and a half years ago, in July 2007. But
still it is
not the end of his lengthy and costly journey.
[2]
The respondents (the national and provincial commissioners of the
South African Police Service, or SAPS) have not reinstated him
into
the position he held before his dismissal. They say that is because
the position no longer exists. Is the SAPS in contempt
of court?
Background facts
[2]
The applicant was the
commander of the Maitland Dog Unit in Cape Town. He was dismissed
after 28 years’ service with the SAPS
after he had “blown
the whistle” in
Die
Burger
about the
condition of police dogs in his unit. The Labour Court reviewed and
set aside his dismissal. SAPS appealed. The Labour
Appeal Court
upheld the appeal by a majority of two to one (Zondi AJA
dissenting)
[3]
.
Myers obtained special leave to appeal further to the Supreme Court
of Appeal (SCA). In a unanimous judgment, the SCA overturned
the
judgment of the LAC and replaced it with the following order:
“
(i)
[Myers’s] dismissal is declared to have been substantively
unfair;
(ii) The
[SAPS] is ordered to reinstate [Myers] to the position he held before
[his] dismissal;
(iii) The
order in (ii) above is to operate with retrospective effect to the
date of dismissal;
(iv) [Myers]
is given a final written warning valid for a period of 12 (twelve)
months from the date of this order;
(v) No order
is made as to costs.”
[3]
It
is paragraph (ii) of that order that has led to the present
application. Counsel for SAPS says that it cannot reinstate Myers
“to
the position he held before his dismissal”, as it no longer
exists. Myers disagrees and argues that SAPS is in
contempt of the
SCA’s order.
[4]
At the time of his
dismissal, Myers was employed at the level of a Superintendent
[4]
as unit commander of the Maitland Dog Unit at salary level 10. At
that stage, the SAPS operated two dog units – one at Maitland
and one at Faure. After his dismissal and before the SCA judgment,
the two units were amalgamated. The Maitland unit was classed
as a
“large dog unit” and the Faure one as a “medium
sized unit”. The amalgamated unit is now known as
the Cape Town
K9 Unit. It still operates from Maitland, but it covers a bigger
geographical area with greater responsibilities.
The commander post
of the amalgamated unit has, according to SAPS, been upgraded to one
at salary level 12 at the rank of Colonel
(as opposed to the rank of
Lieutenant-Colonel at salary level 10 that Myers occupied at the time
of his dismissal). Yet the current
commander of the K9 unit, Lt-Col
du Preez, is still employed at salary level 10.
[5]
Counsel for SAPS argues that Myers is not
entitled to be appointed to the newly created post of commander of
the amalgamated K9
unit; and that his previous post as commander of
the Maitland unit no longer exists. Myers argues that the post still
exists, but
is now the bigger post of commander of the amalgamated
dog unit. Level 10 is a salary level and not a “position”.
He
should be reinstated into the position of commander of the Cape
Town Dog Unit; if that position now attracts a higher salary, so
be
it. The unit still operates from Maitland. The present incumbent was
promoted to Superintendent – i.e. the same rank that
Myers
occupied at the time of his dismissal -- when she was appointed on 1
March 2010.
[6]
On
5 December 2012 Myers’s counsel sent a letter to the National
Commissioner of SAPS (the first respondent) informing her
of the
order of the SCA and reminding her that Myers had to be reinstated
retrospectively. On 11 December 2012 the Section Head:
Legal Support
attached to the National Commissioner’s office instructed the
implementation of the SCA judgment. However,
on 19 December 2012 the
Deputy Provincial Commissioner of SAPS wrote to Myers informing him
that “your placement according
to the ruling of the Supreme
Court of Appeal is under consideration”. He did not explain why
that was the case, rather than
simply implementing the order.
Instead, he indicated that seven vacancies existed at post level 10.
All of the posts fell under
“visible policing” and not
the dog unit.
[7]
Myers responded on 24 December 2012. He
drew the Deputy Provincial Commissioner’s attention to the
order that he be reinstated
“
to
the position he held before his dismissal”.
He stated that that was the position of Unit Commander: Cape Town Dog
Unit.
[8]
Myers followed that letter up on 27
December 2012. He pointed out that his “placement” could
not be “under consideration”,
as the SCA had ordered SAPS
to reinstate him into the position he held before his dismissal –
that is, as commander of the
Dog Unit. His counsel also followed up
with a further letter on 3 January 2013, stating that “the
current incumbent in the
Lt-Col post at the Dog Unit is Lt Cl Petro
du Plessis and that she has shown a desire to be transferred from the
post”.
[9]
ON
10 January 2013 the Provincial Head: Personnel Management of SAPS, S
Govender, responded, reiterating that Myers’s “placement”
is “under consideration” and simply offering him six of
the same “visible policing” posts again, without
addressing the concerns raised by Myers or his counsel.
[10]
Myers met with Govender on 10 January 2013.
Govender explained that SAPS’s interpretation of the order was
that he should
be placed in a superintendent’s post at salary
level 10. The Provincial Commissioner of SAPS then instructed Myers
to report
for duty at the Ravensmead police station as Visible
Policing Commander at salary level 10 with the rank of
Lieutenant-Colonel.
[11]
Myers argues that the SAPS has not complied
with the order of the SCA. He seeks an order holding the respondents,
the national and
provincial commissioners of the SAPS, in contempt of
court.
Evaluation /
Analysis
[12]
In order to consider
whether the national and provincial commissioners of SAPS are in
contempt of court, the principles outlined
so succinctly by Cameron
JA in
Fakie NO v
CCII Systems (Pty) Ltd
[5]
have to be considered. Principally, the question is whether SAPS has
failed to comply with the order of the SCA; and, if so, whether
the
non-compliance is wilful and
mala
fide
.
[13]
The
prior question is how the SCA order should be interpreted in the
light of the subsequent restructuring of the dog unit. The
SCA
ordered SAPS to “reinstate” Myers into the position he
held before his dismissal.
[14]
The Constitutional
Court in
Equity
Aviation
[6]
interpreted the word “reinstate” to mean that the
employee must be put back into the same job or position that he or
she occupied before the dismissal, on the same terms and conditions.
Reinstatement is aimed at placing the employee in the position
he or
she would have been, but for the unfair dismissal.
[7]
[15]
Section 193 of the LRA is instructive. It
reads:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may─
(a) order
the employer to re-instate the employee from any date not
earlier than
the date of dismissal;
(b) order
the employer to re-employ the employee, either in the work in
which the
employee was employed before the dismissal or in other
reasonably
suitable work on any terms and from any date not earlier
than the
date of dismissal; or
(c) order
the employer to pay compensation to the employee.”
[16]
What is immediately apparent, is the
distinction between an order to “reinstate” and an order
to “re-employ”.
Importantly for this case, a court may
order the employer to re-employ the employee “either in the
work in which the employee
was employed before the dismissal or in
other reasonably suitable work”. In the case of reinstatement,
there is no such discretion.
In other words, the employee must be
reinstated into the same position, and not re-employed in some other
position.
[17]
From the aforegoing it appears that SAPS
could not give effect to the SCA’s order by “placing”
Myers in the position
of Visible Policing commander at Ravensmead.
That may be another position that equates “other reasonably
suitable work”
as contemplated in an order to re-employ; but
that is not what the SCA ordered. It ordered the SAPS to reinstate
Myers into the
position he held before his dismissal, i.e. commander
of the dog unit. But, argues SAPS, that position no longer
exists.
[18]
What would Myers’s current position
have been, had the SAPS not unfairly dismissed him?
[19]
The
dog unit was restructured in 2009. The amalgamated Cape Town Dog Unit
(or “K9 Unit”), still operating from Maitland,
was
established as a single unit. It was headed by a Superintendent at
salary level 10. On 1 March 2010 a new commander was appointed
after
the post became vacant and was advertised. The new incumbent, a
Captain at the time, was promoted to Superintendent (Lt-Col
at salary
level 10) at the time of her appointment. SAPS says that that post
was upgraded to that of Colonel at salary level 12
and, according to
SAPS, “will be implemented during the second phase of the
restructuring process”. Yet it is common
cause that the
incumbent of the post, Lt-Col Du Plessis, is still employed at salary
level 10.
[20]
There is a difference
between a “job” or a “position” and the
salary level or grade that that position attracts.
That much is
confirmed by the distinction drawn in the SAPS Employment
Regulations
[8]
between a job, a grade and a salary level.
[21]
There can be little doubt that, had Myers
not been unfairly dismissed, he would have continued in the post of
commander of the Cape
Town Dog Unit at Maitland, albeit in the guise
of the restructured unit. His post may have been upgraded in terms of
the SAPS “Resource
Allocation Guide”; but he would have
remained the incumbent. In those circumstances, the SCA order must be
interpreted to
mean that he must be reinstated into the restructured
post of commander of the Cape Town Dog Unit at Maitland at the
current salary
that that post attracts, coupled with retrospective
backpay.
[22]
The
question remains whether the respondents are in contempt of court. I
shall examine that question by considering whether the
failure to
reinstate Myers into the position of commander of the dog unit was
wilful or
mala fide.
[23]
I
cannot find, on the facts before me, that it was either. SAPS
believed that it had to “place” Myers in a position
that
attracted the same salary – i.e. at level 10 – as Myers
earned at the time of his dismissal. The position of commander
of the
Maitland Dog Unit attracted that salary at the time of dismissal; the
post of commander of the amalgamated Cape Town Dog
Unit, on SAPS’s
understanding, now apparently attracts a higher salary at level 12
(although the incumbent is still paid
at level 10). Hence SAPS
offered Myers alternative positions at salary level 10. The stance
adopted by SAPS appears to me to be
a
bona
fide
one, although I do not agree that
it is in compliance with the SCA order. And the non-compliance was
not wilful; SAPS did attempt
to implement the order as it interpreted
the order.
Conclusion: contempt
of court
[24]
In
my view, SAPS has not complied with the order of the SCA. That order
contemplated that Myers be reinstated into the post he would
have
occupied had he not been unfairly dismissed. That post, as presently
restructured, is that of commander of the Cape Town Dog
Unit (or K9
Unit) at Maitland. But the SAPS’s non-compliance was not wilful
or
mala fide.
It is not in contempt of court.
The way forward
[25]
It
would not bring this long-running dispute to a satisfactory
conclusion, were the Court simply to dismiss the application to hold
the respondents in contempt of court. Further guidance is needed.
[26]
Given the view I have taken of the
interpretation of the SCA order, I deem it in the interests of
justice to order the respondents
to comply with that order.
Costs
[27]
The
applicant, Myers, has had to incur significant costs in order to
obtain justice. Even after the Supreme Court of Appeal had
pronounced
on his unfair dismissal, he did not obtain full redress as the order
of that court contemplated. Eventually he represented
himself. And I
have found that the respondents are not in contempt of court. In
those circumstances, law and fairness do not attract
a costs order.
Order
[28]
I
therefore make the following order:
28.1
The application is dismissed.
28.2
The respondents are ordered to reinstate
the applicant, Mr Myers, into the position of commander of the Cape
Town Dog Unit (or K9
Unit) at Maitland with retrospective effect to
the date of his dismissal.
28.3
No order is made as to costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
........................................................................
In
person.
RESPONDENTS:
.................................................................
EA
de Villiers-Jansen
............................................................................
....
Instructed by the State Attorney, Cape Town.
[1]
Myers v National
Commissioner of the SAPS and Others
(2013)
34 1729 (LAC).
[2]
This application was heard on 11 October 2013, after a number of
postponements at the request of the parties. At the conclusion
of
their arguments, the parties requested me to withhold judgment as
they were still engaged in settlement discussions. On 4
December
2013 I issued a directive to the parties to indicate whether they
had made any progress, as I would otherwise devote
the time during
court recess (17 December 2013 – 27 January 2014) to write the
judgment. They indicated that they could
not settle, hence this
judgment was written during recess and only delivered in January
2014.
[3]
National Commissioner of SAPS v Myers
[2012]
7 BLLR 688
(LAC); (2012) 33
ILJ
1417
(LAC).
[4]
The demilitarization of the SAPS after the advent of democracy in
1994 has unfortunately been reversed again. The equivalent
to a
superintendent is now the rank of Lieutenant-Colonel.
[5]
2006 (4) SA 326 (SCA).
[6]
Equity Aviation (Pty) Ltd v CCMA & Ors
2009 (1) 390 (CC);
[2008] 12 BLLR 1129
(CC);
(2008) 29
ILJ
2507
(CC) para [36].
[7]
Ibid
para [36].
[8]
Government Notice R 973
,
12 September 2008, Reg 1(f), 1(h), 26, 27 and 30.