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[2015] ZALCCT 68
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Myers v National Commissioner of the South African Police Services and Another (C338/15) [2015] ZALCCT 68 (17 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable/Not
Reportable
Case
no: C338/15
IVAN
MYERS
Applicant
and
THE NATIONAL
COMMISSIONER
First Respondent
OF THE SOUTH
AFRICAN POLICE SERVICES
THE PROVINCIAL
COMMISSIONER
Second Respondent
OF THE SOUTH
AFRICAN POLICE SERVICES:
WESTERN CAPE
Heard:
3 September 2015
Delivered:
17 November 2015
Summary:
Employer ordered to reinstate employee – employer contending
employee could not be reinstated as position no longer
in existence
because of restructuring – reinstatement aimed at placing
employee in the position he or she would have been
but for the unfair
dismissal - once an employee has established a particular benefit or
promotion was plausibly within his grasp
had he not been unfairly
dismissed and this is not rebutted, reinstatement, in fairness,
should include these enhancements to his
remuneration or rank,
retrospectively.
JUDGMENT
WHITCHER
J
[1]
This is an application by Lieutenant-Colonel
Myers, (‘the applicant’) that the National Commissioner
of Police (‘the
Commissioner’) and the Provincial
Commissioner of Police (‘the Provincial Commissioner’) be
compelled to comply
with the declaratory order of Steenkamp, J in the
Labour Court and the final order of the Labour Appeal Court in this
matter.
[2]
In effect, and in the main, the applicant seeks to
compel the respondents to absorb him in
the
higher graded level 12
post of
commander of the Cape Town Dog Unit (Maitland) retrospectively from
the first day of the month following the upgrade of
the post.
[3]
The applicant prays that, in
the
event that the respondents do not comply, an order is sought that
they be held in contempt of court.
Background
[4]
The matter has a long history in which both
parties have won temporary victories only to suffer a reversal of
fortune on review
or appeal. The matter before this court is
essentially to decide whether the effect of earlier court judgments
was that the applicant
should be “reinstated” at the
grade of the post he occupied when he was dismissed or at a higher
one, retrospectively.
[5]
The applicant was the commander of the dog unit,
situated in Maitland, Cape Town, in the Western Cape. The post
was at a level
10 grade. In July 2007, he was dismissed from
the SAPS for communicating with the press without permission about
the poor
conditions under which SAPS dogs were kenneled.
[6]
He referred an unfair dismissal dispute to the
Safety and Security Sectoral Bargaining Council (SSSBC). On 3
September 2008,
a Commissioner of the SSSBC dismissed his
application. The applicant successfully reviewed this decision
and on 13 January
2009 the Labour Court ordered that the matter be
remitted
de novo
to
the SSSBC to be heard again.
[7]
The Commissioner applied for leave to appeal, was
refused and then petitioned the Labour Appeal Court for same.
Leave to appeal
was granted and the matter was heard on 11 November
2010. The majority of the LAC bench upheld the appeal.
[8]
The applicant then successfully petitioned the
Supreme Court of Appeal for special leave to appeal. The matter
was heard on
5 November 2012. The full bench of the SCA found
the applicant’s dismissal to be unfair and upheld the appeal
with
costs. It ordered that the Commissioner reinstate the
applicant to the position he held before his dismissal.
Reinstatement
was further to operate with retrospective effect to the
date of dismissal.
[9]
The Commissioner failed to give effect to this
order by requiring the applicant to report for duty instead at
Ravensmead police
station. This was outside his area of
specialisation and without being a commander of any unit.
[10]
In 2013, the applicant filed for contempt of the
SCA’s order in the Labour Court. In the Provincial
Commissioner’s
answering affidavit, he claimed that another dog
unit had been amalgamated with the one formerly commanded by the
applicant.
This occurred in November 2007, four months after
the applicant’s dismissal. After the amalgamation of
units, a restructuring
took place and on 29 June 2009 the applicant’s
former post of dog unit commander was formally upgraded to level 12.
According
to the Provincial Commissioner, the level 10 position that
the applicant occupied at the time of his dismissal was therefore
non-existent
and the applicant could thus not be appointed to this
new post.
[11]
These facts did not surface during the litigation
that took place in the LAC in November 2010 or the SCA in November
2012.
The applicant contends that they are reasons contrived to
frustrate full compliance with the SCA’s order.
[12]
The applicant sought an order of contempt of
court. On 28 January 2014, Steenkamp J, declined to make a
contempt order but,
in essence, interpreted the SCA’s order for
the Commissioner. In doing so, he implicitly rejected the
argument that
the original post the applicant occupied was
abolished. In this he was, with respect, completely right.
The post the
applicant occupied before his dismissal was simply
extended to a larger geographical area and greater responsibilities
were added
to it. For this reason Steenkamp J specifically
ordered that the applicant 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
”
(emphasis added).
[13]
The Commissioner appealed this decision in the LAC
advancing the argument that it would be impractical to reinstate the
applicant
since his grade 10 post was abolished and the new post
created was at grade 12. A transcript of the proceedings shows
the
judges of the LAC were less than impressed with these arguments
and seen as taking a semantic, literalist and overly bureaucratic
approach to giving effect to the SCA’s order. They also
took issue with the new facts regarding abolishment of the
post being
supplied.
[14]
On 10 April 2015, the LAC’s final word on
the matter was this:
“
[7]
When the Supreme Court of Appeal made its decision to reinstate [the
applicant],
it would have been mindful of the possible remedies set
out in s 193 of the Act as would the parties. For this reason,
it
was at the hearing before the SCA, which took place in 2012, that
is, many years after the restructuring process had taken place,
that
appellants, if they had so wished, should have argued that
reinstatement was an inappropriate order because the relevant post
had been abolished. There is nothing on the papers, neither in
the judgment of the SCA, to indicate whether such arguments
were
raised before the SCA. Suffice it to say that the order of the
SCA was clear: appellants were to reinstate the respondent
to his
former position. There was no qualification made to the order
nor can one be implied.
[8]
When the appellants restructured the organisation of the SAPS and
abolished
the Maitland Dog Unit and replaced it with the Cape Town
Dog Unit they must have known that, were the respondent to have been
successful
in his litigation, appellants would have been required to
place him in his former position or one of a similar nature.
That
someone was appointed to be the Commander of the Cape Town Dog
Unit illustrates, firstly, that there was such a post and, secondly,
that it was appellants who risked the possibility that successful
litigation by the respondent would place them in a difficult
position
regarding reinstatement”
[9]
Be that as it may, the order of the Supreme Court of Appeal is
clear.
The opportunity to have raised objections to the
granting of the order passed when the order was granted. No further
appeal was
prosecuted in the Constitutional Court
[10]
In the circumstances the appellants are obliged to reinstate
[applicant]. It
is a legal duty which flows from a clear and
unequivocal order of the Supreme Court of Appeal.”
[15]
On 5 May 2015, the applicant was required to
report to the Cape Town Dog Unit as commander, but at post level 10.
The Commissioner
submits that this constituted full compliance with
the preceding court orders.
[16]
The applicant, in turn, contends that compliance
with the SCA’s order means he should be reinstated to the post
at its current
grade, after restructuring.
[17]
The Commissioner avers that upgrading of posts is
regulated by the SAPS’ Employment Regulations promulgated under
the South
African Police Services Act 68 of 1995 and that none of the
preceding court orders escape these provisions. In terms of
Regulation
30, the Commissioner possesses the discretion to deal with
a situation where a post is upgraded in a number of ways, only one of
which includes continuing to employ the incumbent. The Commissioner
states that the applicant seeks to deprive the Commissioner
of this
discretion by interpreting reinstatement to effectively promote the
applicant to colonel.
[18]
The applicant’s reply to this is that the
post of Dog Unit Commander is an existing post, which has been
re-graded and funded.
After the LAC’s latest judgment in
the matter, the Commissioner did indeed place the applicant into this
post. The Commissioner
is compelled to absorb the applicant into this
grade 12 post, retrospective to the date on which, but for his unfair
dismissal,
the post was upgraded.
[19]
The applicant contends further that the Provincial
Commissioner’s decision to subject him to discipline for not
reporting
to Ravensmead police station and also appointing a Colonel
Visser to the disputed post sustains the contention that SAPS
leadership
were deliberately defying orders of the SCA and the LAC.
It is trite that in application proceedings where a dispute of fact
emerges on the papers, the version of the respondent is to be
accepted unless it is patently improbable. The respondents’
explanation for subjecting the applicant to discipline is weak but
not fanciful. The explanation regarding Colonel’s
Visser’s erroneous yet quickly reversed appointment to the
disputed post also does not support the inference of wilful defiance.
Analysis
[20]
Since the SCA judgment the Commissioner has
misunderstood the true scope of the relief of reinstatement, despite
having two courts
nudge it in the right direction. The applicant was
unfairly dismissed. But for this action he would have occupied
the very
post that was re-graded when two dog units amalgamated.
Had the applicant not been unfairly dismissed, the Commissioner
possessed
the powers, in terms of regulation 30 (8), to have enhanced
the applicant’s grade in those circumstances. While it is not
a
certainty the Commissioner would have elected to continue to employ
the applicant in the upgraded post this was by no means unlikely.
[21]
The respondents tried to suggest that the SAPS
Employment Regulations prevented an upgraded post from being filled
unless that post
was advertised. This has no merit if one reads
regulation 30 (8). The National Commissioner may continue to
employ
an incumbent in the higher graded post without advertising if:
a)
the incumbent already
performs the duties of the post;
b)
the incumbent has received
a satisfactory rating in his or her most recent performance
assessment;
c)
it will be in the interest of the Service.
[22]
In this case, the very least, in fairness, that
one could expect from an employer wishing to resist the restoration
of the full
status quo ante
for an act of unfair dismissal, is a demonstration
in the appropriate forum that the reinstated employee was unlikely to
have achieved
the contested benefits or advancement that his
dismissal prevented him or her from seeking. In my view, to
expect an employee
to always demonstrate a contractual or statutory
right to an entitlement, over and above being taken back into employ,
could defeat
fully restoring the
status
quo ante.
[23]
In a sense this is as much a question of evidence
as legal doctrine. The respondents have placed nothing before
the SCA, LAC
and, indeed, this court indicating that the applicant
would not have benefited, as a specialist incumbent, from the fact
that his
post was upgraded while he should have been in it. As
Steenkamp J correctly ordered, the SCA judgment meant that the
applicant
should be reinstated into the
restructured
position. This can only but mean at grade
12.
[24]
The fact that the Commissioner had other options
open to him other than upgrading the applicant together with the post
should, for
policy reasons, signify very little. As the LAC
stated, it was the SAPS who, after a restructuring risked the
possibility
that successful litigation would place them in a
difficult position regarding reinstatement. The Commissioner’s
discretion
to fill the upgraded post was thus limited by the order of
reinstatement to the restructured post. This limitation is the
wages of the ‘sin’ of an unfair dismissal of an employee
from a post upgraded in his absence.
[25]
I
agree with Mr Nortje, counsel for the applicant, that
Equity
Aviation Services (Pty) Ltd v CCMA and Others
[1]
is
authority for the idea that reinstatement is aimed at placing an
employee in the position he or she would have been but for the
unfair
dismissal. Once an employee has established a particular
benefit or promotion was plausibly within his grasp had he
not been
unfairly dismissed and this is not rebutted, reinstatement, in
fairness, should include these enhancements to his remuneration
or
rank.
[26]
In any event, the Commissioner indeed elected,
albeit spurred by the recent rulings of the Labour Court and LAC, to
place the applicant
in the upgraded post of Cape Town Dog Unit
commander without advertising the position. The discretion the
Commissioner enjoys
to retain such an employee at his previous grade
is removed by the imperative language of SAPS Employment Regulation
30 (9).
This states that:
a)
the absorption of the incumbent employee in the higher graded post as
provided
for under sub-regulation (8),
must
take effect on the
first day of the month following the month during which the National
Commissioner approved the absorption; and
the salary level of the
employee must be adjusted on the first day of the month following the
month during which the National Commissioner
approved the absorption;
and
b)
the salary of the employee
must
be adjusted to the minimum
notch of the higher salary level with effect from the date referred
to in subparagraph (a).
[27]
In this case, the date of retrospective adjustment
of salary must, I believe, shift even further back to the date that
the post
was formally upgraded. As stated above, this is how
the applicant is most fairly placed back into the position he would,
in all likelihood have been, but for his unfair treatment.
[28]
As also alluded to above, I am not convinced that
a case is made for the present non-compliance with the various court
orders being
wilful and male fide. Nevertheless I do intend to
place the respondents under time frames to fully implement the court
orders
mentioned above, as set out in the order below. In
addition, I believe the sword of a future contempt order hanging over
their heads is in order as any further delay in fully ‘reinstating’
the applicant would strongly suggest
male
fides
and thus require the court’s
more robust intervention. The issues have now been fully
ventilated and space for misinterpretation
of the SCA’s
judgment as explained by Steenkamp, J is now well and truly over.
[29]
The applicant pleaded that the post in issue was
formally upgraded to level 12 from 1 July 2009. At the hearing of
this application
on 3 September 2015, the applicant’s counsel
accepted the respondent’s plea that the upgrade of the post was
only implemented
in phase two of the restructuring at the beginning
of March 2011.
Order
[30]
In light of all the findings above the Order of
this Court is as follows:
(1)
The first and second respondent are compelled to
fully comply with the SCA order, the declaratory order of Steenkamp J
in the Labour
Court and the final order of the LAC.
(2)
Specifically this means, appointing the applicant
to the lowest notch at salary level 12 with the associated increase
in rank to
colonel.
(3)
The applicant must be paid the difference in
salary between the lowest notch on salary level 12 and salary level
10, retrospective
from the first day of the month following the
upgrading of the post to level 12, that is, 1 March 2011.
(4)
Paragraphs 1 – 3 of the Order above are to
be complied with within 14 days of the order of this court.
(5)
The first and second respondent are to pay the
costs of this application, including the costs of counsel.
_______________________
Whitcher
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Adv J Nortje
instructed by Heidi Van der Meulen Attorneys
For
the Respondents:
Adv E A De Villiers-Jansen instructed by the State Attorney, Cape
Town
[1]
[2008]
CC 16.