Ob­jec­tive facts brought into play

Court con­sid­ers a find­ing that a rea­son­able de­ci­sion-maker could have made af­ter con­sid­er­ing all the facts

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - DIPAN AMBARAM

IN THE re­portable labour ap­peal court case be­tween Dirk Willem Pot­gi­eter and Tu­batse Fer­rochrome and oth­ers, de­liv­ered on 12 June, the ap­pel­lant­was em­ployed by the re­spon­dent, Tu­batse Fer­rochrome, as a qual­i­fied engi­neer on 16 Jan­uary 1989.

The re­spon­dent op­er­ated a mine and the em­ployee held the ti­tle of project su­per­in­ten­dent, with one of his job re­spon­si­bil­i­ties to en­sure that the health and safety stan­dards were main­tained at the work­place.

The em­ployee sus­tained a frac­ture to his col­lar­bone and as a re­sult was booked off from 20 Au­gust 2006 un­til 28 Au­gust 2006, which was later ex­tended un­til 15 Oc­to­ber 2006.

On 3 Oc­to­ber 2006 the re­spon­dent in­formed the em­ployee that his med­i­cal con­di­tion had been re-eval­u­ated by the re­spon­dent’s res­i­dent doc­tor and that he should re­sume his duty with ef­fect from 4 Oc­to­ber 2006. The em­ployee failed to re­turn to work and the re­spon­dent sub­se­quently dis­missed the em­ployee at a dis­ci­plinary hear­ing for fail­ing to obey a rea­son­able in­struc­tion: be­ing ab­sent with­out per­mis­sion and in­sub­or­di­na­tion.

The em­ployee re­leased a re­port to the me­dia and an ar­ti­cle was pub­lished in a pub­li­ca­tion known as High­land Panorama. The em­ployee al­leged that the re­spon­dent did not have ad­e­quate mea­sures in place to ad­dress the wa­ter pol­lu­tion that its min­ing op­er­a­tions have caused. This dis­clo­sure was cen­tral to the is­sue at the labour ap­peal court in de­ter­min­ing whether re­in­state­ment or com­pen­sa­tion should be an ap­pro­pri­ate rem­edy.

Af­ter dis­missal, the em­ployee re­ferred an un­fair dis­missal dis­pute to the bar­gain­ing coun­cil. The com­mis­sioner found the em­ployee’s dis­missal to be pro­ce­du­rally and sub­stan­tively un­fair. Per­tain­ing to the cen­tral is­sue re­gard­ing the ap­pro­pri­ate rem­edy, the

It was stated by the judge that courts must guard against a piece­meal anal­y­sis of ev­i­dence and take into con­sid­er­a­tion the no­tion of fair­ness be­tween the em­ployee and em­ployer

com­mis­sioner found that re­in­state­ment was im­prac­ti­cal and granted the em­ployee the max­i­mum com­pen­sa­tion. She was of the opinion that it would be im­prac­ti­cal to re­in­state him, as the em­ploy­ment re­la­tion­ship was ir­re­triev­ably dam­aged as a re­sult of the em­ployee dis­clos­ing the re­port to the me­dia af­ter his dis­missal.

The com­mis­sioner’s find­ing that re­in­state­ment was not an ap­pro­pri­ate rem­edy was based on s193(2)(b) of the Labour Re­la­tions Act (LRA), on the ba­sis that the trust re­la­tion­ship be­tween the em­ployer and the em­ployee was de­stroyed by the dis­clo­sure made by the em­ployee. The em­ployee then ap­plied to the labour court for a re­view of the com­mis­sioner’s award, per­tain­ing to the find­ing that the em­ploy­ment re­la­tion­ship had bro­ken down with the award­ing of com­pen­sa­tion in­stead of re­in­state­ment. The em­ployee prayed for an order re­in­stat­ing him to his pre­vi­ous po­si­tion. The labour court dis­missed the em­ployee’s ar­gu­ment and held that the com­mis­sioner’s de­ci­sion was one that a rea­son­able de­ci­sion-maker could reach.

The em­ployee then ap­proached the labour ap­peal court, which ad­dressed the is­sues per­tain­ing to whether re­in­state­ment or com­pen­sa­tion was the ap­pro­pri­ate rem­edy in this case. The cen­tral is­sue to be de­cided in this mat­ter was whether the com­mis­sioner’s de­ci­sion not to re­in­state the em­ployee was one that a rea­son­able de­ci­sion­maker could have reached in light of all is­sues and ev­i­dence, pre­sented by both the em­ployer and em­ployee.

It was stated by the judge that courts must guard against a piece­meal anal­y­sis of ev­i­dence and take into con­sid­er­a­tion the no­tion of fair­ness be­tween the em­ployee and em­ployer. The labour ap­peal court stated that on a bal­ance of prob­a­bil­i­ties and given the ev­i­dence at ar­bi­tra­tion, it could not have been ac­cepted that the em­ployee’s dis­clo­sure was made in bad faith or out of vin­dic­tive­ness.

The judge con­cluded that it is trite that re­in­state­ment is the pri­mary rem­edy avail­able to an em­ployee that has been un­fairly dis­missed, un­less the ex­cep­tions listed in s193(2) of the LRA are found to ex­ist. The labour ap­peal court re­jected the com­mis­sioner’s find­ing that re­in­state­ment was im­prac­ti­cal on the ba­sis that no ev­i­dence was led by the em­ployee to show that he had made a pro­tected dis­clo­sure or that the dis­clo­sure was made in good faith.

The judge adopted the prin­ci­ple set out in the Con­sti­tu­tional Court in Eq­uity Avi­a­tion Ser­vices Ltd v CCMA and oth­ers, where the court held that fair­ness ought to be as­sessed ob­jec­tively on the facts of each case, bear­ing in mind that the core value of the LRA is se­cu­rity of em­ploy­ment. The ap­peal court con­cluded that the com­mis­sioner’s find­ing that re­in­state­ment was not an ap­pro­pri­ate rem­edy on ac­count of an ir­re­triev­able break­down of the trust re­la­tion­ship was not sup­ported by the ob­jec­tive facts and was not a find­ing that a rea­son­able de­ci­sion-maker could have made af­ter con­sid­er­ing all facts and ev­i­dence placed be­fore the ap­peal court. The ap­peal court or­dered that the em­ployee be re­in­stated ret­ro­spec­tively into his po­si­tion.

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