By Talita Laubscher and Monique Jefferson

In Police and Prisons Civil Rights Union v Minister of Correctional Services and Another [2014] 5 BLLR 481 (LC) the second respondent, a minority trade union, was granted the organisational right of access to the workplace by the Department of Correctional Services. This right entitled the second respondent to convene meetings, gatherings and other activities, as well as the right to represent its members in grievance procedures and disciplinary hearings.

The applicant union complained about this and argued that the department’s conduct in granting the second respondent organisational rights was in breach of collective agreements. It accordingly referred a dispute to the bargaining council on the basis that the second respondent was not entitled to the organisational rights granted to it. The arbitrator disagreed, and the applicant union then applied for a review of the arbitration award. On 5 September 2013 the Labour Court, per Snyman AJ, reviewed and set aside the arbitration award and substituted it with an order denying the second respondent the organisational rights the department had granted it. On 19 September, the second respondent applied for leave to appeal against the judgment.

On 7 November 2013, the department confirmed in a circular that it had granted organisational rights to the second respondent union. The applicant union became aware of this on 22 November. It thereupon launched an urgent application to enforce the Labour Court order pending the finalisation of the appeal process on 3 December.

The Labour Court, per Lallie J, held that when the second respondent filed its application for leave to appeal on 19 September 2013, the judgment of the Labour Court denying the second respondent the organisational rights it had been granted was suspended. This meant that the arbitration award came into operation on that date. Considering the alleged urgency of the application, the court held that any urgency that existed was self-created – the Labour Court order was suspended on 19 September; the applicant union only applied to have the Labour Court order enforced on 3 December, about two and a half months later. The fact that the department’s circular was dated 7 November did not change the fact that the order of the Labour Court was in fact suspended already on 19 September and if the applicant union wanted to enforce the Labour Court’s order, it had to launch its application shortly after 19 September.

In the circumstances, the application was dismissed for lack of urgency and the application was struck off the roll with costs.

Reinstatement

On 29 November 2012, the Supreme Court reinstated Myers, the applicant in Myers v National Commissioner of the South African Police Service and Another [2014] 5 BLLR 461 (LC), into the position he had held before his dismissal. This retrospective reinstatement followed a lengthy court battle since Myers’ dismissal in July 2007. The South African Police Service (SAPS) argued, however, that it could not reinstate him into that position because the position no longer existed. So, Myers instituted this application arguing that the SAPS was in contempt of court.

Myers was the commander of the Maitland Dog Unit in Cape Town. He was dismissed after 28 years of 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. The SAPS appealed. The Labour Appeal Court (LAC) upheld the appeal. Myers obtained special leave to appeal to the Supreme Court of Appeal (SCA), and in a unanimous judgment, the SCA overturned the judgment of the LAC and held that Myer’s dismissal had been substantively unfair. It ordered the SAPS to reinstate Myers retrospectively into the position he had held before his dismissal and to give him a final written warning valid for 12 months from the date of the SCA order.

At the time of his dismissal, Myers was employed at the level of a superintendent as unit commander, at salary level 10. At that stage, the SAPS operated two dog units, one at Maitland and one at Faure. After Myers’ dismissal but before the SCA judgment, the SAPS merged the two units. The amalgamated unit was now called the Cape Town K9 unit. It still operated from Maitland, but it now covered a bigger geographical area with greater responsibilities. The commander post of the amalgamated unit was upgraded to 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 date of his dismissal). The SAPS argued that Myers was not entitled to be appointed to the post of commander of the combined K9 unit. Myers argued, on the other hand, that the post still existed, but that it was now the bigger post of commander of the combined K9 unit.

Considering the contempt application, the court, per Steenkamp J, held that it had to be determined whether the SAPS had failed to comply with the SCA’s order and whether such non-compliance was wilful and mala fide. Taking account of the restructuring that happened after Myers’ dismissal, the court held that the combined unit was established in 2009. It was headed by a superintendent at salary level 10. On 1 March 2010, a new commander was appointed after the post became vacant. The new commander, a captain at the time, was promoted to superintendent at level 10. This post was then upgraded to that of colonel at salary level 12. The upgrading was to be implemented during the second phase of the restructuring process and at the time of the contempt application, the incumbent was accordingly still employed at salary level 10.

The court held that, had Myers not been unfairly dismissed, he would have continued in his post of commander of the K9 unit. The SCA order must, therefore, be interpreted to mean that Myers had to be reinstated into the restructured post of commander of the Cape Town Dog Unit at Maitland at the current salary that the role attracted, coupled with retrospective back-pay.

Revisiting the contempt question, the court held that the SAPS’ conduct had not been wilful or mala fide. It genuinely believed that it had to place Myers in a position that attracted the same salary that Myers earned at the date of this dismissal. In an effort to achieve finality, the court accordingly dismissed the contempt application but ordered that Myers be reinstated into the role of commander of the Cape Town Dog Unit at Maitland, with retrospective effect to the date of his dismissal.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2014 (Aug) DR 45.