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[2014] ZALCCT 23
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Beaurain v Martin NO and Others (C16/2012) [2014] ZALCCT 23; (2014) 35 ILJ 2454 (LC) (27 May 2014)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT
OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C 16/2012
IN
THE MATTER BETWEEN:
JOHAN BEAURAIN
APPLICANT
AND
COMMISSIONER
LESLIE MARTIN N.O.
FIRST
RESPONDENT
PHSSBC
SECOND
RESPONDENT
DEPARTMENT OF
HEALTH, WESTERN CAPE
THIRD
RESPONDENT
MEC FOR THE
DEPT OF HEALTH, WESTERN CAPE
FOURTH
RESPONDENT
DELIVERED:
27 MAY 2014
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant seeks leave to appeal against
my judgment of 16 April 2014.
[2]
The Court held that Mr Beaurain had not
made a protected disclosure and that his dismissal was fair. He seeks
leave to appeal against
the whole of the judgment.
Evaluation
[3]
In
considering this application, I am mindful of the cautionary note
recently sounded by Davis JA in
Martin
and East (Pty) Ltd v NUMSA & others
[1]
:
“
Before
I conclude there is a further comment I wish to make. I
indicated that the events in this case took place in 2010.
The
Labour Relations Act was designed to ensure an expeditious resolution
of industrial disputes. This means that courts,
particularly
courts in the position of the court
a
quo,
need to be cautious when leave to
appeal is granted, as should this Court when petitions are granted.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion.
There
are also the rights of employees who land up in a legal
“no-man’s-land” and have to wait years for an
appeal (or two) to be prosecuted.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court
a quo
misinterpret existing law.
There
was no incorrect application of the facts; in particular the
assessment of the factual justification for the
dismissals/alternative
sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.”
[4]
It is against that background that I
consider this application. The matter does raise interesting points
about the application of
the Protected Disclosures Act, but it is not
novel. The dispute then had to be considered on its facts. In order
to decide the
application for leave to appeal in the context of those
factual findings, I’ll consider each of the grounds of appeal
that
Mr Beaurain raises.
Contradiction?
[5]
Mr Beaurain says there is a contradiction
between information being ‘notorious’, and the notion
that disclosing that
information brings an employer into disrepute.
This submission fails to grasp that the two concepts are legally
relevant to two
separate enquiries:
5.1
the
question of
notoriety
goes to whether or not there has been a ‘disclosure’ for
the purposes of the PDA,
[2]
whereas
5.2
the question of
disrepute
goes to whether or not there is a fair reason for dismissal for
misconduct, for the purposes of s188(a)(i) of the LRA.
[6]
This ground does not raise an appealable
ground of appeal in the sense that the Court erred or misdirected
itself. There is no reasonable
prospect that another court will come
to a different conclusion.
Reasonableness
of belief
[7]
The applicant complains that the Court was
wrong when it held that his belief that dirty toilets endangered
health was unreasonable.
He reiterates his reasons for disbelieving
Dr Antonissen’s assurances. But these submissions only go
to re-confirm
the Court’s impression that the applicant was
bona fide
.
The Court held on the evidence before it that the applicant’s
belief, whilst
bona fide
,
was objectively not reasonable. The Court heard and evaluated
the factual evidence. There is no reasonable prospect
that an
appeal court will overturn this finding: it will respect the Court as
the trier of fact. In the words of Davis JA in
Martin
& East
, the case stood to be
resolved on its own facts.
The
interfloor toilets
[8]
The applicant takes issue with the finding
that unsanitary conditions in the interfloor toilets were not
‘disclosed’
because the information was notorious. He
explains that those toilets were locked and inaccessible to the
public; therefore nobody
knew about them (so it was not ‘notorious’).
However, the authority relied upon,
Xakaza
,
is concerned with whether the information disclosed was known to the
employer, as opposed to the general public. The evidence
before
the Court was that the employer had taken note of the unsanitary
conditions in the toilets (including the interfloor toilets)
and was
taking steps to rectify it through the quality assurance manager and
the SEAT committee.
[9]
In any event, given that the interfloor
toilets were not accessible to the public, the only public interest
in them would be if
fumes emanating from them indeed endangered the
health of the hospital’s patients. On the evidence before
the Court,
there was in fact no health hazard. There is no reasonable
prospect that another court will come to a different conclusion.
Distinction
between the health concern and the quality concern
[10]
The
applicant takes issue with paragraph 26 of the judgment where the
Court points out that under-performance of quality management
systems
does not come within the ambit of the PDA. The distinction between
under-performance and impropriety is a useful one, which
was
established in the Van Alphen matter.
[3]
The distinction is roughly equivalent to that between negligence and
intention: poor performance is unintentional and requires
management,
whereas impropriety is in bad faith and requires sanction. Management
falls within the competence and prerogative of
the employer.
Sanction falls within the competence and prerogative of the various
persons and institutions to whom a protected
disclosure may be made.
Dr
Antonissen’s evidence
[11]
The
applicant claims that the court erred in accepting the evidence of Dr
Antonissen.
[4]
It is
unlikely that another court would reject her evidence, which was
authoritative and coherent. There was no incorrect
finding on or
application of her evidence.
Harsh
sanction?
[12]
The applicant states that the Court erred
in upholding the sanction of dismissal for misconduct, arguing that
it was unduly harsh.
In giving consideration to whether his
dismissal was for a fair reason the Court identified the known rules
which the applicant
had contravened. I concluded that he was
guilty of gross insubordination. That conclusion is based on the
facts. He
deliberately and persistently refused to obey two
written instructions to desist. There is no reasonable prospect
that an
appeal court will come to a different conclusion on the
fairness of the misconduct dismissal.
Applicant
not charged with offences in judgment?
[13]
Lastly, the applicant complains that he was
‘never even charged for some of the alleged offences that the
trial court outlined
in its judgment’. The evidence before the
Court was that the Department charged the applicant with gross
insubordination
in that he failed to obey a lawful instruction to
stop publishing allegations. Although the applicant asserted that the
matter
was confined to allegations about toilets, this was never
established in evidence. The charge was a wide one encompassing
all the ‘allegations’ the applicant published. As
those allegations tended to bring the Department into disrepute,
the
Department as his employer was within its rights to instruct him to
stop. His refusal to obey this instruction gave the
Department
a fair reason to dismiss him. There is no reasonable prospect that an
appeal court will overturn the judgment on this
basis.
Conclusion
[14]
There is no reasonable prospect of success
on appeal. Based on the considerations set out by the LAC in
Martin
& East
, this is a matter that
should stop here.
[15]
I did not order costs
a
quo
out of sympathy for Mr Beaurain.
That is where he should have left the matter. But he has chosen to
put the Department to further
costs by bringing a further application
with no prospects of success. He should bear those costs, in law and
fairness.
Order
The
application for leave to appeal is dismissed with costs.
_______________________
Steenkamp
J
[1]
CA 23/2012, unreported 10 March 2013.
[2]
With
reference to the authority
Xakaza
cited at footnote 16 of the judgment.
[3]
Referred
to at paragraph 26 and footnote 17 of the judgment.
[4]
At
para 8 of applicant’s submissions.