Thus, if the employer is opposed to reinstating an employee whose dismissal is found to be substantively unfair, then it must demonstrate that one of the exceptions to reinstatement applies. This would require the employer to present evidence concerning the question of the appropriateness of reinstatement in anticipation of a decision by the Labour Court or an arbitrator that the dismissal is unfair.
It is, however, now settled law that the dominant consideration in the enquiry is not on “the legal onus but rather on the underlying notions of fairness between the parties”.
The Labour Court was entitled to draw certain inferences or assumptions from the proven facts.
One of these is that even though the appellant was not a police officer but a chef, his conduct in having intercourse with a child negatively impacted the image of the SAPS as the local community identifies him as a member of the SAPS or associates him with the SAPS. This was a reasonable assumption to make based on the evidence before him that the appellant worked as a chef for the SAPS at the local police college in Graaff-Reinet, at the time of having sexual intercourse with the complainant who was barely over the age of consent.
It is not implausible or improbable in the circumstances for the local community to associate him with the SAPS.
The appellant contends that the Labour Court was obliged to reinstate him as he was not found guilty of statutory rape. ‘’I do not consider this factor to be relevant to the question of remedy. What is relevant is that the appellant’s conduct, in having sexual intercourse with a minor (whose rights the SAPS is obliged to protect), is likely to bring SAPS into disrepute, thus undermining the confidence of the public in the police.
The conduct of this nature is not expected of an employee of the SAPS regardless of rank or designation. It is, in this respect, equally irrelevant that the appellant was employed as a chef by the SAPS at the local college in Graaff-Reinet, and not as a police officer.
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 16 No. 68 of 1995 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 starting point in determining whether the Labour Court erred in not ordering the SAPS to reinstate the appellant, is to look at how our courts have interpreted section 193(2) of the LRA which provides:
‘(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or reemploy the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.’
In interpreting this section, this Court has held that where an arbitrator or the Labour Court finds the dismissal of an employee to be unfair then reinstatement is the primary remedy under section 193(2) of the LRA. In other words, if the exceptions to reinstatement in section 193(2)(a) to (d) do not apply, then the Labour Court or an arbitrator is obliged to require the employer to reinstate or re-employ the employee as the case maybe.
Fairness, as held by the Constitutional Court in Equity Aviation Services (Pty) Ltd v CCMA, must be “assessed objectively on the facts of each case’’
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH Reportable Case no: PA12/18 In the matter between: THEMBINKOSI BOOYSEN Appellant and SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL First Respondent COMMISSIONER T MALGAS-SENYE Second Respondent PROVINCIAL COMMISSIONER OF SAPS Third Respondent NATIONAL COMMISSIONER OF SAPS Fourth Respondent MINISTER OF SAFETY & SECURITY Fifth Respondent