The Labour Appeal Court (“LAC”) recently upheld an employee’s appeal against a Labour Court review application and held that not only had the Acting Judge failed to make it clear that he had set aside a reinstatement award of the CCMA but also that he had incorrectly treated the matter as an appeal.
The LAC has now ordered Billiton Aluminium SA Ltd to reinstate a Mr K with retrospective effect from 2 August 2001 and pay him R436,000 together with interest and costs.
The Acting Judge had ordered Billiton to pay Mr K 12 months compensation for the unfair termination of his employment, purportedly related to the disclosure of confidential information in breach of company policy. Mr K testified in the CCMA as a witness for a fellow employee whose services had been terminated for poor performance. Mr K thought that the CCMA should have the benefit of the full facts and how other employees had been treated and erroneously believed that he was covered by the Protected Disclosures Act of 2000.
Very briefly the facts are as follows: Mr K started working for Billiton at Hillside Aluminium in 1995; after a disciplinary inquiry and internal appeal his services were terminated on 2 August 2001; the CCMA reinstated him with retrospective effect on 18 March 2001; the Labour Court reviewed and set aside that award on 15 April 2003; in April 2004 the CCMA again reinstated him with retrospective effect as from 2 August 2001 together with an award of compensation of R436,000.00 (being backpay for 32 months); on an unspecified date the Labour Court effectively set aside the reinstatement award but ordered Billiton to pay Mr K R163,500 with no order as to costs; in February 2009 the LAC overturned that judgment and restored the second arbitration award.
Here are some extracts from the LAC’s judgment:
“[30] The only reason advanced by … for his conclusion that the commissioner should not have ordered reinstatement was that the appellant had said in the disciplinary enquiry that, if similar circumstances arose again in the future, he would repeat his conduct complained of. … said in par 20 of his judgment that this ‘points to a breakdown in the trust relationship between [the appellant] and the [first respondent]. This is all the more so where he was employed in a relationship of trust as a supervisor'”.
“[31] The Labour Court misdirected itself in this regard. That does not mean that statements made in a preceding disciplinary inquiry can never be taken into account. However, it must be borne in mind that the arbitration is a hearing de novo. Secondly, the Labour Court completely ignored the explanation that the appellant gave in the arbitration for the statement he made in the disciplinary inquiry. That explanation was not challenged under cross-examination. Accordingly, the conclusion of the Labour Court in this regard was completely unjustified.
With regard to the trust relationship, the Labour Court failed to have regard to the positive and co-operative attitude displayed by the appellant in the witness stand before the arbitrator. In this regard I am referring to his stance that, if his employer regarded the information as confidential, he would take it as confidential and that he would not in the future repeat his conduct”.
“[34] In the end the Labour Court, in deciding to interfere with the order of reinstatement made by the commissioner, did not deal with the matter as a review. It dealt with it as if it was an appeal. In this regard I draw special attention to the fact that, when the Labour Court was dealing with the issue of reinstatement, it did not ask the question whether the commissioner’s decision to order reinstatement fell within any one of the grounds of review. It ought to have done so. In not doing, so it erred. As I have said, it dealt with the issue as if the question was whether the commissioner’s decision was right or wrong. In the light of the evidence that was before the commissioner and the fact that, in the absence of the exceptions provided for in sec 193(2)(a) – (d) of the Act, reinstatement is compulsory, there can be no doubt that the commissioner was correct in ordering reinstatement. This being the case, the commissioner’s award must be restored. Subsequently the appellant petitioned the Judge President of this Court for leave to appeal which petition was granted”.