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[2015] ZALCPE 37
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POPCRU obo Noxungwana v South African Police Services (P486/2012) [2015] ZALCPE 37 (22 May 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
PORT ELIZABETH
Not Reportable
Case no: P 486 /2012
In the matter between:
POPCRU obo Z D
NOXUNGWANA
Applicant
and
SOUTH AFRICAN
POLICE
SERVICES
Respondent
Heard:
18 and 19 May
2015
Delivered:
22 May 2015
Summary:
Automatically unfair dismissal for participation in union activities.
Re-instatement granted. Limited
back pay due to Applicant’s
incorrect referral to arbitration and consequential delay.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The
Applicant on behalf of its member, Z D Noxungwana (the employee)
approached this Court for relief in terms of the provisions
of
section 187(1) and 187(1)(d) of the Labour Relations Act
[1]
(the Act) as they claim that the employee’s dismissal was
automatically unfair.
[2]
The
Respondent opposed the matter.
The pleadings and evidence adduced
[3]
After
due consideration of the pleadings and the testimony adduced, I
accept the following as common cause and relevant to the issues
this
Court has to determine:
[4]
The
Respondent employed the employee since January 1995. Since March 2006
he was employed as a warrant officer (trainer) at the
Bhisho Service
Training Institution (the institution).
[5]
The
employee was a member of POPCRU and a duly elected POPCRU shop
steward at the institution.
[6]
The
Respondent’s new recruits are trained at the institution where
they receive basic training on all aspects relevant to
police work on
an almost full time basis. The police trainees are lectured and
receive practical training in accordance with a
training schedule and
have study time every day from 19:00 – 21:00.
[7]
The
Respondent has issued “Institutional Orders SAPS Training
Institutions: Basic Training” (institutional orders) that
applies nationwide to all training institutions. Clause 11.3 of the
institutional orders provided that: “
union
activities with police trainees is strictly prohibited
.”
The police trainees also sign a memorandum of understanding
wherein it was stipulated that they would not participate
in union
activities.
[8]
The
Applicant pleaded that the police trainees are employees of the
Respondent and in cross-examination Brigadier Thambo, who testified
for the Respondent, confirmed that they were indeed employees.
[9]
Section
23 of the Constitution of South Africa and section 4 of the Act grant
every employee the right to join a trade union, subject
to its
constitution and every member of a trade union to participate in its
lawful activities.
[10]
The
police trainees became members of POPCRU and the Respondent deducted
their union subscriptions from their salaries and paid
it over to
POPCRU. This was done by the Respondent’s head office.
[11]
On
Saturday 6 December 2008 Captain Peteni was on duty at the
institution when she noticed that police trainees were wearing POPCRU
t-shirts. She enquired from the trainees why they were wearing POPCRU
t-shirts and they told her that the employee gave them the
t-shirts
and that he had recruited them as POPCRU members. Captain Peteni
warned the trainees that they could be charged for that
because they
were contravening the institutional orders by joining a trade union.
[12]
On
Monday 8 December 2008 a meeting took place in the office of
Brigadier Thambo, the commander of the institution. The testimony
in
respect of the events that transpired at this meeting was
contradictory but I accept that the meeting took place on 8 December
2008 and that there were two issues raised. The one issue was the
employee’s complaint against Captain Peteni and the other
issue
was the complaint against the employee. The employee’s
complaint was that Captain Peteni threatened and victimised
the
trainees on 6 December 2008 because they were not supposed to join a
trade union. Captain Peteni and in fact the Respondent
complained
that the employee recruited the police trainees as POPCRU members
whereas the institutional orders specifically prohibited
union
activities for the police trainees.
[13]
At
the meeting the employee confirmed that he had been recruiting the
police trainees as POPCRU members and that he would continue
to do so
as he held the view that every employee has a constitutional right to
belong to a trade union and the institutional orders
were therefore
invalid. He saw nothing wrong with what he had done and insisted that
nothing prohibited him from doing what he
did.
[14]
Brigadier
Thambo and Captain Peteni testified that the employee’s conduct
on 8 December 2008 was unbecoming and disrespectful.
He disrespected
his seniors and he contravened the institutional orders and the
matter was reported to the Respondent’s head
office for
investigation and disciplinary action. A letter was sent to POPCRU to
inform the union that disciplinary action would
be taken against the
employee.
[15]
On 16
March 2009 three charges of misconduct were levelled against the
employee. The charges all related to the fact that the employee
recruited police trainees as POPCRU members at the institution
between July to December 2008. The charges differed in the
sense that charge 1 was the contravention of institutional order
11.3, charge 2 was the failure to carry out a lawful order or
routine
instruction without just or reasonable cause by recruiting police
trainees and charge 3 was that the employee caused prejudice
to the
administration, discipline or efficiency of the Respondent by
recruiting police trainees while undergoing basic training.
[16]
It is
evident that despite the testimony that the employee was
disrespectful, no such charge was levelled against him.
[17]
In
her testimony Captain Peteni could not explain what the prejudice for
the Respondent was, as per charge 3. She explained that
it was
prejudicial to the other trade unions if one was allowed to recruit
members and the others not, but she could not mention
any prejudice
to the Respondent.
[18]
On 14
April 2009 the Respondent and POPCRU and SAPU entered into an
agreement that regulates the granting of organisational rights
and in
terms of this agreement a police trainee has the right to join a
trade union, subject to its constitution. This agreement
effectively
terminated the existence of clause 11.3 of the institutional
regulations.
[19]
The
disciplinary hearing was scheduled for 16 March 2009 but was
postponed to 18 and 19 April 2009. The chairperson of the
disciplinary
hearing, Superintendent Shubane, found the employee
guilty of misconduct and dismissed him on 21 April 2009.
Superintendent Shubane
testified and it was put to him that by the
time he dismissed the employee (21 April 2009) an agreement was
signed (14 April 2009)
that effectively abolished the misconduct the
employee was charged for and his conduct could no longer be regarded
as misconduct.
The response tendered was that he was not informed
about the existence of the agreement at the time and the misconduct
the employee
was dismissed for was committed during July to December
2008, prior to the existence of the agreement.
[20]
It
was not disputed that the agreement was entered into prior to the
employee’s dismissal. The employee’s case is that
by the
time he was dismissed, his conduct no longer constituted misconduct
hence his dismissal was substantively unfair.
[21]
The
employee was dismissed on 21 April 2009 and appealed against the
finding of the chairperson. The appeal was only finalised in
on 24
February 2011 when it was dismissed. The employee referred an unfair
dismissal dispute to the bargaining council and after
the matter was
arbitrated on several occasions over the period October 2011 to June
2012 the arbitrator on 3 July 2012 requested
the parties to make
submissions on jurisdiction.
[22]
A
final ruling was issued on 24 July 2012 and held that the bargaining
council did not have jurisdiction to adjudicate the dispute.
The
Applicant subsequently and on 23 October 2013 filed a statement of
case. Condonation for the late filing of the statement of
case was
sought and granted on 8 November 2013.
Closing arguments
[23]
In
closing argument Mr Grobler on behalf of the Applicant narrowed the
issues to be decided by this Court and submitted that the
Applicant’s
case is vested in section 5(2)(c)(3) of the Act, read with section
187 of the Act. The employee’s dismissal
was automatically
unfair as he was dismissed for participation in the lawful activities
of a trade union.
[24]
Mr
Grobler submitted that although the dismissal is premised on
misconduct, the rule the employee contravened stood in contrast
to
the provisions of the Act and the Constitution. The institutional
orders prohibiting union activities were in violation of legislation.
At the centre of all the charges levelled against the employee is
only one issue namely the recruitment of police trainees as union
members.
[25]
On
the issue of sanction Mr Grobler submitted that it was impossible to
dismiss an employee when the actual misconduct is no longer
regarded
as misconduct and by the time the employee was dismissed, the rule no
longer existed.
[26]
The
employee is seeking retrospective reinstatement and the Respondent
did not adduce any evidence to show why reinstatement was
not
possible or appropriate relief.
[27]
In
his argument Mr Grobler abandoned the challenge to procedural
fairness and submitted that the employee’s dismissal was
substantively unfair as no reason existed to dismiss him, but having
regard to the reason for dismissal, it was automatically unfair.
[28]
Ms
Ah-Shene for the Respondent submitted that this is a misconduct
dismissal. The rule was valid at the time and the evidence shows
that
misconduct was indeed committed that justified dismissal. Ms Ah-Shene
could not make any submissions on the fact that the
rule was no
longer valid at the time the employee was dismissed and she submitted
that it was indeed the factual position.
[29]
On
the appropriate remedy Ms Ah-Shene submitted that the matter has a
long history and the time period should be considered not
to burden
the Respondent unreasonably. She submitted that the employee was
dismissed in 2009 and his appeal was finalised in 2011.
Mr Grobler
conceded that there was no prejudice for the employee until his
appeal was finalised as he was still paid his salary.
POPCRU referred
the matter to the bargaining council and the jurisdictional ruling
was issued in July 2012. The statement of case
was only filed in
October 2012 and condonation granted in November 2013. POPCRU delayed
the matter by first referring it to the
bargaining council, where
after it had to apply for condonation and the Respondent should not
be burdened and prejudiced for these
delays caused by the manner in
which POPCRU chose to deal with the matter.
[30]
Neither
of the representatives insisted on costs and correctly so. I am of
the view that this is a matter where a cost order would
not be
appropriate, more so in view of the fact that there is an ongoing
relationship between POPCRU and the Respondent that is
worthy of
protection and costs may affect the relationship negatively.
The issues this Court has to
decide:
[31]
The
fundamental question this Court has to decide is whether the
employee’s dismissal was automatically unfair and if so,
the
appropriate relief to be awarded.
[32]
The
Applicant’s case is pursued in terms of the provisions of
section 5(2)(c)(3) of the Act, read with section 187 of the
Act.
[33]
Section
5 of the Act affords protection to employees when exercising rights
conferred by the Act. Section 5(2)(c)(3) reads
as follows:
(2)
Without limiting the general protection conferred by subsection (1),
no person may do, or threaten to
do, any of the following-
(c)
prejudice
an
employee
or a person seeking employment because of past, present or
anticipated-
(
iii)
participation in the lawful activities of a
trade
union
,
federation of
trade
unions
or
workplace
forum
;
[34]
The
protection is reinforced in the provisions of section 187 of the Act
and the portions thereof relevant to this matter are as
follows:
(1)
A
dismissal
is automatically unfair if the
employer, in dismissing the
employee
, acts contrary to section
5 or, if the reason for the
dismissal
is-
(d)
that
the
employee
took action, or indicated an intention to take action, against the
employer by-
(i)
exercising any right conferred by
this
Act
;
or
(ii)
participating in any proceedings in terms of
this
Act
.
Analysis:
The reason for the dismissal:
[35]
In
deciding the question whether the employee’s dismissal was
automatically unfair, the first consideration should be the
reason
for the dismissal.
[36]
In
the Respondent’s statement of defence it is stated that at the
time of the employee’s dismissal there was a workplace
rule
that stipulated that trainees were not to participate in union
activities and the employee, contrary to the rule, was actively
involved in the recruitment of trainees as members of POPCRU. The
employee was dismissed for misconduct.
[37]
The
evidence however has shown that at the time of the employee’s
dismissal, the rule was no longer in place as trainees were
allowed
to join a trade union as from 14 April 2009.
[38]
It
was further pleaded that the employee acted contrary to the
provisions of section 12 of the Act as he was a shop steward and
not
a union official or office bearer therefore he had no right of access
as afforded to union officials and office bearers in
section 12.
Secondly ‘access’ is subject to conditions as to time and
place that are reasonable and not unduly interrupting
work. The
employee unduly interrupted trainees during their work and training
schedules and recruited them whilst they were on
training.
[39]
Furthermore
it was pleaded that the employee failed to secure permission of the
commander to undertake the recruitment of trainees
within the
parameters of section 12(4) of the Act.
[40]
In my
view the plea put forward by the Respondent is problematic in the
sense that it constitutes two mutually destructive versions.
This is
so for the following reason: On the one hand the Respondent’s
case is that Clause 11.3 of the institutional orders
provides that:
“
union
activities with police trainees is strictly prohibited
.”
On this version the employee was not allowed to recruit members or be
involved in any union activities as such activities
were strictly
prohibited. Contravention of Clause 11.3 would constitute misconduct
as a breach of a workplace rule or institutional
order.
[41]
On
the other hand the Respondent stated that the employee contravened
section 12 of the Act in that he was not an office bearer
or official
of the trade union and therefore he was not entitled to enter the
Respondent’s premises to recruit members, he
had not required
permission from the commander and he disrupted training when he
recruited members.
[42]
Section
12 of the Act forms part of the chapter affording organisational
rights to representative trade unions. Reference to and
reliance on
the provisions of section 12 of the Act presupposes that the
representative trade union was afforded organisational
rights in the
workplace, being the institution. This is inconsistent with the
version that union activities were strictly prohibited.
[43]
The
Respondent cannot claim that the employee contravened a workplace
rule that prohibits union activities and in the same breath
complains
that he contravened section 12 of the Act, that affords
organisational rights, in a number of respects.
[44]
The
Respondent called the chairperson of the disciplinary hearing as a
witness and the evidence before me, both in the pleaded case
as well
as the oral evidence, shows that the reason for the employee’s
dismissal was misconduct, as per the charges levelled
against him and
that all related to the fact that he recruited police trainees as
POPCRU members at the institution between July
to December 2008, when
union activities were prohibited. I accept that the employee was
dismissed for reasons related to misconduct.
[45]
When
one has regard to the fact that the Respondent dismissed the
employee for reasons related to misconduct, it all sounds
very
legitimate and innocuous. However, it is necessary to delve deeper
into it in order to understand the precise nature of the
misconduct
and the rule the employee contravened.
[46]
The
evidence before me shows that there was a rule, the employee
contravened the rule and that he was disciplined and dismissed
for
contravention of the rule. The rule however calls for a closer
assessment.
[47]
The
rule the employee contravened was
Clause
11.3 of the institutional orders that prohibited union activities
with police trainees. The misconduct the employee was dismissed
for
related to the fact that he recruited police trainees as members for
POPCRU, in contravention of the rule prohibiting such
activities.
[48]
Having
conceded that the trainees are employees of the Respondent, it is
inconceivable that a rule prohibiting union activities
ever seen the
light of day. The existence of the rule disregarded the
constitutional right of every employee to join a trade union
and
participate in the activities of such trade union and it undermined
the provisions of the Act. The rights afforded in sections
4 and 5 of
the Act are absolute rights and give employees the right to join
trade unions and to participate in their activities.
The recruitment
of members is no doubt part of the activities of a trade union.
[49]
In
Kroukam v SA Airlink (Pty) Ltd
[2]
the Labour Appeal Court held that:
“
In
my view a court should be slow to infer that the reason why an
employer has brought disciplinary charges against an employee
or the
reason why an employer has dismissed an employee is or
are illegitimate reason(s) such as union activities unless there
is sufficient evidence to justify such a conclusion. A court should
be even slower to come to that conclusion in a case where it
does
seem that the employer may have had a basis to bring disciplinary
charges against an employee even if the court would not
have done the
same had it been in the employer's shoes. Obviously, in a case where
a proper basis exists for a court to make such
an inference, the
court should not hesitate to make it.”
[50]
I
cannot but find that the rule the employee contravened and was
dismissed for, was illegal in the sense that it took away rights
afforded in the Constitution and the Act. No wonder that the
Respondent entered into an agreement with the trade unions on 14
April 2009 that allows trainees to join trade unions. The rule the
employee contravened no longer existed at the time he was dismissed,
a pertinent and material factor never considered by the Respondent.
[51]
In
SA
Chemical Workers Union and others v Afrox
Ltd
[3]
the test to be applied in determining whether a dismissal was
automatically unfair was formulated as:
'The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for
the dismissal) is essentially one of causation and
I can see no
reason why the usual twofold approach to causation, applied in other
fields of law, should not also be utilized here
(compare
S v
Mokgethi & others
1990 (1) SA 32
(A) at 39-41A;
B
Minister of Police v Skosana
1977 (1) SA 31
(A) at 34). The
first step is to determine factual causation: was participation or
support, or intended participation or support,
of the protected
strike a sine qua non (or prerequisite) for the dismissal? Put
another way, would the dismissal have occurred
if there was no
participation or support of the strike? If the answer is yes, then
the dismissal was not automatically unfair.
If the answer is no, that
does not immediately render the dismissal automatically unfair;
the next issue is one if legal causation,
namely whether such
participation or conduct was the "main" or "dominant",
or "proximate", or "most
likely" cause of the
dismissal. There are no hard and fast rules to determine the question
of legal causation (compare
S v Mokgethi
at 40). I would
respectfully venture to suggest that the most practical way of
approaching the issue would be to determine
what the most probable
inference is that may be drawn from the established facts as a cause
of the dismissal, in much the same
way as the most probable or
plausible inference is drawn from circumstantial evidence in
civil cases. It is important to remember
that at this stage the
fairness of the dismissal is not yet an issue (see para [33] below).
Only if this test of legal causation
also shows that the most
probable cause for the dismissal was only participation or support of
the protected strike, can it be
said that the dismissal was
automatically unfair in terms of s 187(1)
(a)
.If that probable
inference cannot be drawn at this stage, the enquiry proceeds a
step further.’
[52]
Applying
the two-fold test for causation the first question is: would the
dismissal have occurred if the employee did not recruit
trainees as
members for POPCRU? The answer to this question is no, especially in
view of the content and nature of the charges
the employee were found
guilty on and dismissed for. The next question is then: was the
recruitment of members the main or dominant
cause of the dismissal?
When all the circumstances are taken into account and despite the
claim that this is purely a misconduct
dismissal, the principal
or dominant reason for the employee’s dismissal was his
participation in union activities in
that he recruited members for
POPCRU.
[53]
Having
established factual and legal causation, I cannot but find that the
employee’s dismissal was automatically unfair.
[54]
Ms
Ah-Shene for the Respondent submitted that the Court only has the
version of the Respondent as the employee did not testify and
the
onus was on the employee to lay the basis for his claim. This is a
dismissal for misconduct and not an automatically unfair
dismissal as
claimed by the employee, so she submitted.
However,
in the view I take of this matter and the fact that the overall onus
remains on the Respondent, there is sufficient evidence
proving that
the employee’s dismissal was because of the fact that he, as a
POPCRU shop steward, recruited police trainees
as members of the
trade union and this argument does not assist the Respondent at all.
Relief:
[55]
Having
found that the employee’s dismissal was automatically unfair,
the next question that needs to be dealt with is the
relief that
should be granted to the employee.
[56]
The
employee seeks retrospective reinstatement.
[57]
Reinstatement
is the preferred and primary remedy where there has been an unfair
dismissal. In terms of section 193(2) of the Act
the Labour Court
'must require the employer to reinstate or re-employ the employee'
unless one or more of the situations set out
in paragraphs
(a)
-
(d)
of section 193(2) exists. Those situations are where:
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c)
it is not
reasonably practicable for the employer to reinstate or re-employ the
employee; or
(d)
the
dismissal is unfair only because the employer did not follow a fair
procedure.
[58]
Paragraph
(a)
does not apply because the employee seeks to be reinstated nor does
paragraph
(d)
apply because procedural fairness was not an issue in this matter
after Mr Grobler effectively abandoned the challenge to procedural
fairness.
[59]
In my
view paragraphs
(b)
and
(c)
also do not apply because there is no evidence upon which it could be
said that a continued employment relationship between the
employee
and the Respondent would be intolerable or that it is not reasonably
practicable to reinstate the employee.
[60]
Ms
Ah-Shene urged the Court to consider the long history of this matter
in deciding the appropriate relief and she submitted that
in the
event of reinstatement, the Respondent should not be burdened with
back pay for the entire period since the employee’s
dismissal.
Ms Ah-Shene submitted that the employee, assisted by POPCRU, referred
the unfair dismissal dispute to the bargaining
council, a
jurisdictional ruling was issued in July 2012 and the statement of
case was only filed in October 2012, which gave rise
to an
application for condonation that was considered as an interlocutory
application. Condonation was granted on 8 November 2013,
where after
the parties held a pre-trial conference and the matter was thereafter
set down for trial.
[61]
I
agree that the Respondent should not be burdened where the delay in
finalizing the matter was caused by an incorrect referral
to the
bargaining council and subsequent arbitration proceedings. The
Applicant should have been aware that the nature of the case
was
automatically unfair dismissal and should not have wasted time on an
arbitration process.
[62]
In
the premises, I make the following order:
Order
1.
The
dismissal of Mr Noxungwana was automatically unfair.
2.
Mr
Noxungwana is reinstated retrospectively to the same or similar
position he held prior to his dismissal.
3.
Mr
Noxumgwana is to report for duty by no later than 29 May 2015.
4.
The
Respondent is ordered to pay Mr Noxungwana back pay from the date
condonation was granted (8 November 2013) until the date he
reports
for duty.
5.
No
order as to costs.
_____________________
Connie Prinsloo
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Adv Grobler
Instructed by: Schoeman Oosthuizen Inc
Attorneys
For the Respondent:
Advocate Ah-Shene
Instructed by State
Attorney
[1]
Act 66 of 1995.
[2]
(2005) 26 ILJ 2153
(LAC).
[3]
(1999) 20 ILJ 1718
(LAC).