Booysen v Safety and Security Sectoral Bargaining Council

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Phatshoane ADJP Coppin JA and F Kathree-Setiloane AJA
• Judgment Date: 30 March 2021
• Docket Number: PA12/18
• Hearing Date: 17 November 2020
• Court: Labour Appeal Court
• Citation: 2021 JDR 0540 (LAC)

Kathree-Setiloane AJA:

[1]

This is an appeal against the judgment and order of the Labour Court (Van Niekerk J) reviewing and setting aside the arbitration award of the second respondent ("arbitrator"), made under the auspices of the first respondent, the

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Kathree-Setiloane AJA

Safety and Security Sectoral Bargaining Council ("Bargaining Council") in which she found the appellant's dismissal by the third and fourth respondents, collectively referred to as the South African Police Services (SAPS), [1] to be substantively and procedurally fair.

The Background:

[2]

The appellant was employed as a chef by the SAPS in Graaff-Reinet. He was charged with the following offences in terms of regulation 20(z) and (q) of the South African Police Discipline Regulations and dismissed:

(a)

Charge 1: Regulation 20(z): [2] Commits any common law or statutory offence, by raping ["the complainant"] on 2012-08-22 at Chris Hani Village, Umasizakhe, Graaff-Reinet.

(b)

Charge 2: Regulation 20(q) contravenes any prescribed Code of Conduct for the Service [3] or Public Service whichever may be applicable to him or her - did not protect and uphold the fundamental rights of [the complainant] in terms of the Code of Conduct but harmed her on 2012-08-22 at 18h35 at Chris Hani Village, Umasizakhe, Graaff-Reinet.

[3]

The complainant accused the appellant of raping her on two occasions during the course of the same afternoon in a room at the back of her home. The complainant had just turned 16 years old at the time and was still in school. She lived with her mother and the appellant was their neighbour.

[4]

The rape took place outside of the appellant's working hours. His defence to the charge was that he had consensual intercourse with the complainant on the day in question. The SAPS found the appellant guilty as charged at an internal disciplinary hearing and dismissed him. He referred an unfair dismissal dispute to the Bargaining Council. The arbitrator made an award upholding the appellant's dismissal as substantively and procedurally fair.

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Kathree-Setiloane AJA

The Review:

[5]

The appellant challenged the arbitrator's award on review to the Labour Court. He sought an order reviewing and setting aside the arbitration award and substituting it with an order that the dismissal was substantively unfair and that he be reinstated with retrospective effect.

[6]

The Labour Court found that the appellant's dismissal was substantively unfair as he did not rape the complainant as charged, and that it was more probable than not that the appellant had consensual intercourse with the complainant on a single occasion. On the question of remedy, the Labour Court held as follows:

'The [appellant] seeks to be reinstated. Section 193 of the LRA requires that in the case of a dismissal that is found to be substantively unfair, an employer must be required to reinstate or re-employ the employee unless the employee does not wish to be reinstated or employed, the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable, or it is not reasonably practicable for the employer to reinstate or re-employ the employee. 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 SAP'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.'

[7]

The Labour Court, accordingly, made an order reviewing and setting aside the arbitration award and substituted it as follows:

'1.

The [appellant's] dismissal was substantively unfair.

2.

The [appellant] is awarded compensation in the sum equivalent to 12 months remuneration, calculated at the rate applicable on the date of dismissal.'

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Kathree-Setiloane AJA

[8]

The appeal is limited to the Labour Court's conclusion that the appellant was not entitled to the primary relief of reinstatement in section 193(2) of the Labour Relations Act [4] ("LRA").

The parties' submissions

[9]

The arguments advanced on behalf of the appellant is broadly that the Labour Court erred for the following reasons: The appellant was employed by the SAPS as a chef and that objectively, on the evidence, the trust relationship had not irretrievably broken down. There was no evidence presented by the SAPS, in the arbitration proceedings, that the relationship of trust had irretrievably broken down and that reinstatement was...