POPCRU obo Rooi v Safety and Security Sectoral Bargaining Council (SSSBC) and Others (JR444/2014) [2016] ZALCJHB 243 (8 July 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR444/2014

POPCRU obo C.R. ROOI Applicant and THE SAFETY & SECURITY SECTORAL BARGAINING COUNCIL (“SSSBC”) First Respondent M C VAN AARDE (“SSSBC Panellist”) Second Respondent SOUTH AFRICAN POLICE SERVICE Third Respondent

Heard:

17 December 2015

Delivered: 8 July 2016

Summary: Review application in which Applicant admitted guilt in misconduct proceedings and was suspended without remuneration for a period of three months in terms of the SAPS Disciplinary Code. Second Respondent failing to communicate outcome to Applicant or to allow

Applicant a reasonable opportunity to consent to the sanction and having unreasonably imposed a second sanction of dismissal whilst the Applicant was ostensibly on leave.

JACKSON, AJ

Introduction

[1] This is a review application in terms of which the Applicant seeks to have the award of the Second Respondent set aside and substituted with an order that the Applicant be reinstated into his previous post at the Third Respondent.

[2] The Applicant had been charged with various charges such as absence without leave and driving under the influence of alcohol.

[3] Applicant pleaded guilty to all the charges proffered against him at the disciplinary hearing. In terms of Regulation 15(1)(d) of the Third Respondent’s disciplinary code, the sanction meted out to the Applicant on 1 August 2011 was suspension without remuneration for a period of three months subject to the consent of the employee. (emphasis added).

[4] The Third Respondent alleged that the Applicant was absent without leave on 1 August 2011 and that despite various efforts, they could not contact the Applicant and that, accordingly, the chairperson of the disciplinary hearing substituted his sanction with one of dismissal on the very next day, namely, 2 August 2011.

The condonation application

[5] The Applicant has applied for condonation for the late filing of his review application.

[6] The principles of condonation were established in Melane v Santam Insurance Company Limited[1] where the Court held that:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked.’

[7] The review application is 12 weeks late, which is a fairly lengthy period of time but not excessive in my view.

[8] The sole reason advanced by the Applicant for the late filing of the review application was that its attorneys of record relocated offices from Killarney to Sandton during November 2013.

[9] This reason proffered by the Applicant is not satisfactory in my opinion as it does not explain the lengthy delay between November 2013 and May 2014.

[10] However, the Applicant’s prospects of success appear to be very good having regard to the fact that the Third Respondent did not comply with Regulation 15 of the SAPS Disciplinary Code and that the outcome of the hearing was not communicated timeously to the Applicant and, moreover, Applicant was not afforded a reasonable period of time in which to consent to the sanction of three months’ suspension without remuneration.

[11] I am of the view that Applicant’s good prospects of success in his review application outweigh the fairly lengthy delay in filing the review application as well as the poor explanation for the delay.

[12] Fairness, accordingly, dictates that condonation should be granted.

The merits of the review application:

[13] There was a dispute between the parties at the arbitration hearing as to whether Applicant was on approved leave on 1 and 2 August 2011 or whether he was absent without leave.

[14] At paragraph 5.2.6.2 of his award, the Second Respondent finds without providing any reasons therefor, that the Applicant was not on approved leave during the period in question.

[15] What is important to note from the record is that both Warrant Officer Ventura and Lieutenant Colonel Joseph approved the Applicant’s leave.

[16] Whether Colonel Bock, as the Station Commander, was also required to approve Applicant’s leave is not clear from the record.

[17] However, when Colonel Bock and Captain van der Westhuizen testified that they could not find the Applicant over the above period and that Applicant was, accordingly, absent without leave, the Second Respondent clearly ignored the important evidence that two other senior officers at the station, namely, Warrant Officer Ventura and Lieutenant Colonel Joseph, were clearly aware of where Applicant was as they had signed off his leave application form.

[18] It would seem further as if the Second Respondent had no proper regard to the provisions of Regulation 15 of the SAPS Disciplinary Code which was crucial to the determination of the dispute.

[19] There is no time period specified in Regulation 15(1)(d) of the Code relating to how long an employee is given in which to consent to a sanction of suspension without remuneration.

[20] In my view, a reasonable period will apply.

[21] It is common cause that the initial sanction of three months’ suspension without remuneration was issued by the chairperson on 1 August 2011 and substituted with a sanction of dismissal the very next day without Applicant having yet been notified of the first sanction.

[22] Such a short period of time cannot be said to be reasonable.

[23] The Second Respondent seemed to misconstrue Regulation 15(3) as well.

[24] Regulation 15(3) provides as follows:

‘The chairperson must communicate the final outcome of the hearing to the employee within five (5) working days after the conclusion of the disciplinary hearing.’

[25] The outcome that had to be communicated to the Applicant within those five days was the sanction of three months’ suspension without remuneration. This was not done. The onus, in this regard, was clearly on the chairperson and not the Applicant.

[26] Thereafter, in my view, the Applicant had still to be afforded a reasonable period of time in which to make his election as to whether he consented to that sanction.

[27] Accordingly, the chairperson and the Third Respondent’s senior officers clearly did not comply with the relevant disciplinary code.

[28] It is important to note at this juncture that the Applicant’s uncontested evidence at the arbitration proceedings was that he would definitely have consented to the first sanction.

[29] It was also common cause that the Applicant certainly never refused such consent.

[30] The Applicant’s representative at the arbitration hearing relied on the principle of double jeopardy in arguing that the Applicant’s dismissal was procedurally unfair.

[31] I agree with the Second Respondent’s finding that the principle of double jeopardy has no application in this matter.

[32] The Second Respondent was alive to the real dispute between the parties at paragraphs 5.2.6 of his award where he considered whether the chairperson acted too hastily in substituting his sanction within a period of 24 hours. He makes no finding on this point, however.

[33] Second Respondent was moreover fully alive at paragraph 5.2.6.1 of his award that the Applicant was not afforded an opportunity to make any election with regard to the first sanction as that sanction only came to his attention when he signed for receipt of the second sanction on 3 August 2011.

[34] Had the Second Respondent acted like a reasonable arbitrator, he would have no doubt found that the chairperson indeed acted far too hastily and that having regard to the fact that the Applicant was never afforded an opportunity to make his election as aforesaid, his dismissal was clearly procedurally unfair.

[35] Had the Applicant been properly notified of the first sanction and had he been afforded a reasonable opportunity in which to make the necessary election, it is clear that the Applicant would have consented to the sanction of three months’ suspension without compensation.

[36] In the above circumstances, the Applicant would clearly have remained in the employ of the Third Respondent.

[37] Accordingly and despite the fact that Applicant’s only challenge was procedural unfairness, I am of the view that I must reinstate the Applicant to his previous position.

[38] As the parties will soon resume their employment relationship, I do not deem it prudent to award any costs in this matter.

Order

[39] In the premises, the following order is made:

(i) The Applicant is reinstated into his position as constable at the Springbok Police Station with immediate effect;

(ii) The initial sanction of 3 months suspension without remuneration is reinstated and such time period shall commence immediately upon Applicant reporting to the Springbok Police Station;

(iii) There is no order as to costs.

__________________

Jackson, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Attorney M Letoka

Instructed by:

C H S M Attorneys

For the Respondent: Advocate R P A Ramawele

Instructed by:

The State Attorney

[1] 1962 (4) SA 531 (A) at 532C-E.