Employment law update – Denying reinstatement despite the employer’s failure to present argument why this remedy was inappropriate

June 1st, 2021
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Booysen v Safety and Security Sectoral Bargaining Council and Others (LAC) (unreported case no PA12/18, 30-3-2021) (Kathree-Setiloane AJA with Coppin JA and Phatshoane ADJP concurring)

The facts in this matter involved the employee being dismissed for allegedly raping a minor. The employee’s dismissal was set aside on review, despite which, the court denied the employee reinstatement based solely on his conduct and awarded him compensation.

Before the Labour Appeal Court (LAC), the employee’s ground of contention was that the Labour Court (LC) erred when it denied the employee reinstatement under circumstances where the employer did not present any argument as to why such relief was inappropriate.

The employee was employed as a chef at a South African Police Service (SAPS) college. He was charged and dismissed for raping a 16-year-old female at the latter’s place of residence. His dismissal was confirmed at arbitration.

On review, the LC found that on the facts presented at arbitration, the probability was that the employee chef had had consensual sex with the 16-year-old female. For this reason, the court found that the employee was not guilty of the charge preferred against him and hence his dismissal was substantively unfair. Despite the employee seeking to be reinstated retrospectively, the court held:

‘On his own version, the appellant had sexual intercourse with a 16-year-old, a person barely above the age of consent. Although the appellant is not an officer in the SAPS, he is employed by the SAPS at the local police college. It is reasonable to assume in these circumstances that the local community identifies the [appellant] as a member of or associates him with the SAPS. What the [appellant] did, on his own version, is not compatible with the SAPS’s stated values and is likely to bring the SAPS into disrepute. In my view, a continued employment relationship would be intolerable or not reasonably practical. An award of compensation is more one that better fits the requirements of s 193’.

On appeal, the employee raised the following grounds on which to overturn the court a quo’s findings:

  • He was not employed as a police officer by the SAPS but rather as a chef and, therefore, it was incorrect to hold the employee up to the same standards of a member of the SAPS.
  • The SAPS had not led any evidence at the arbitration to arrive at the conclusion that reinstatement was an inappropriate remedy. On the contrary the employee had worked for the SAPS for nine years and had a clean disciplinary record and was, furthermore, found not guilty of statutory rape in the criminal trial.

The starting point for the LAC was to examine s 193(2) of the Labour Relations Act 66 of 1995 (LRA). On a plain reading, this section states that the primary remedy for a substantively unfair dismissal is reinstatement. The exception in awarding this remedy is if the employee does not wish to be reinstated, where a continued employment relationship would be intolerable or when it is not reasonably practical to reinstate the employee.

Should an employer oppose reinstatement, then the onus would rest on the employer to prove that one of the exceptions apply.

In the absence of the SAPS leading any evidence as to why it would not be feasible for the employee to be reinstated or to demonstrate that a continued employment relationship with the SAPS would be intolerable; the LC made certain factual assumptions, that being –

  • despite the employee not being a member of the SAPS, the community identifies him or associates him with the SAPS; and
  • the employee’s conduct was not compatible with the standards and values of the SAPS.

In addressing the question of whether it was open for the LC to make these factual findings, under circumstances where the employer had not presented an argument opposing reinstatement, the LAC held that:

‘This court has held in Mediterranean Textile Mills (Pty) Ltd v SACTWU [and Others [2012] 2 BLLR 142 (LAC)], that even where no specific evidence is led by the employer as to the intolerability of a continued employment relationship or the impracticality of reinstatement, the Labour Court or arbitrator is obliged “to take into account any factor which … is relevant in the determination of whether or not such conditions exist”. The conduct of the employee is a relevant factor which the Labour Court or arbitrator should take into account in this determination’.

Having made this point the LAC went on to interrogate the findings of the LC.

The LAC found that the court a quo was correct to have regard to the fact that on the employee’s own version he had sex with a 16-year-old female, who was defined as a child in terms of the Children’s Act 38 of 2005. The employee’s conduct occurred while he was an employee of the SAPS and hence, he remained bound by the Code of Conduct for Public Servants, which requires every public sector employee to protect and respect every person’s dignity and rights as enshrined in the Constitution. Additionally, the LAC concurred with the findings that the employee’s actions, were not compatible with the values of the SAPS as set out in the South African Police Services Act 68 of 1995. Furthermore, the LAC found that the LC’s assumption that even though the employee was not a member of the SAPS, his conduct would have been associated with the SAPS in the communities’ eyes, was not implausible or improbable.

In conclusion the LAC held:

‘All things considered, I am of the view that it was fair, on the objective facts of this matter, for the Labour Court to conclude that the appellant’s conduct is incompatible with the SAPS stated values and is likely to bring the SAPS into disrepute. By the same token, the Labour Court was justified in concluding that the continued employment relationship with the appellant would be intolerable or not reasonably practical, and that an award of compensation as opposed to reinstatement is the appropriate remedy’.

The appeal was dismissed with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2021 (June) DR 36.

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