Objective facts brought into play
Court considers a finding that a reasonable decision-maker could have made after considering all the facts
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.