On 29 November 2012 the Supreme Court of Appeal reinstated Lt-Col Ivan Myers into the position he held before his dismissal in July 2007. This followed a lengthy court battle and last week there was yet another sequel. Although it was not found that the SAPS were in contempt of court Justice Steenkamp ordered his reinstatement into the position of commander of the Cape Town Dog Unit (or K9 Unit) at Maitland with retrospective effect to the date of his dismissal.
Record of cases
#1 Myers / South African Police Services [2004] 3 BALR 263 (SSSBC) per SH Christie, arbitrator on 15.10.2003
Unfair labour practice – reinstated after being placed on final warning and having salary reduced by two notches for using offensive language
#1 Myers v NC: South African Police Service: Western Cape Labour Court per Ngalwana [V] circa 12.2011
Dismissal unfair and reinstated.
#2 NC: South African Police Service: Western Cape v Myers [2012] 7 BLLR 688; (2012) 33 ILJ 1417 (LAC) per Waglay DJP on 2.03.2012
Dismissal not unfair – Misconduct – Unauthorised statement in media – Police officer writing letter to newspaper to explain role in alleged maltreatment of police dogs, well knowing that regulations required all media statements by officers to be approved
#3 Myers v NC: South African Police Service: Western Cape [2013] JOL 30564; (2013) 34 ILJ 1729 (SCA) per Mthiyane DP on 29.11.2012
Reinstatement ordered- Policeman ─ holding rank of Superintendent ─ with 28 years unbroken service with the South African Police Service ─ dismissed from employ for misconduct relating to issuing a media statement in breach of a Standing Order ─ whether dismissal reasonable in the circumstances
#4 Myers v NC: South African Police Service: Western Cape C37/13 dated 28.01.2014 (LC) per Steenkamp J on 28.01.2014
Employee reinstated in position he held before dismissal – SAPS argues position no longer exists – offered alternative – whether SAPS in contempt of court.
Extracts from the latest case [footnotes omitted]
Introduction
1 The applicant, Lt-Col Ivan Myers, was reinstated into “the position he held before” his dismissal by the Supreme Court of Appeal on 29 November 2012. The retrospective reinstatement followed a lengthy court battle since his dismissal six and a half years ago, in July 2007. But still it is not the end of his lengthy and costly journey. The respondents (the national and provincial commissioners of the South African Police Service, or SAPS) have not reinstated him into the position he held before his dismissal. They say that is because the position no longer exists. Is the SAPS in contempt of court?
Background facts
2 The applicant was the commander of the Maitland Dog Unit in Cape Town. He was dismissed after 28 years’ service with the SAPS after he had “blown the whistle” in Die Burger about the condition of police dogs in his unit. The Labour Court reviewed and set aside his dismissal. SAPS appealed. The Labour Appeal Court upheld the appeal by a majority of two to one (Zondi AJA dissenting). Myers obtained special leave to appeal further to the Supreme Court of Appeal (SCA). In a unanimous judgment, the SCA overturned the judgment of the LAC and replaced it with the following order:
“(i) [Myers’s] dismissal is declared to have been substantively unfair;
(ii) The [SAPS] is ordered to reinstate [Myers] to the position he held before [his] dismissal;
(iii) The order in (ii) above is to operate with retrospective effect to the date of dismissal;
(iv) [Myers] is given a final written warning valid for a period of 12 (twelve) months from the date of this order;
(v) No order is made as to costs.”
3 It is paragraph (ii) of that order that has led to the present application. Counsel for SAPS says that it cannot reinstate Myers “to the position he held before his dismissal”, as it no longer exists. Myers disagrees and argues that SAPS is in contempt of the SCA’s order.
4 At the time of his dismissal, Myers was employed at the level of a Superintendent as unit commander of the Maitland Dog Unit at salary level 10. At that stage, the SAPS operated two dog units – one at Maitland and one at Faure. After his dismissal and before the SCA judgment, the two units were amalgamated. The Maitland unit was classed as a “large dog unit” and the Faure one as a “medium sized unit”. The amalgamated unit is now known as the Cape Town K9 Unit. It still operates from Maitland, but it covers a bigger geographical area with greater responsibilities. The commander post of the amalgamated unit has, according to SAPS, been upgraded to one at salary level 12 at the rank of Colonel (as opposed to the rank of Lieutenant-Colonel at salary level 10 that Myers occupied at the time of his dismissal). Yet the current commander of the K9 unit, Lt-Col du Preez, is still employed at salary level 10.
5 Counsel for SAPS argues that Myers is not entitled to be appointed to the newly created post of commander of the amalgamated K9 unit; and that his previous post as commander of the Maitland unit no longer exists. Myers argues that the post still exists, but is now the bigger post of commander of the amalgamated dog unit. Level 10 is a salary level and not a “position”. He should be reinstated into the position of commander of the Cape Town Dog Unit; if that position now attracts a higher salary, so be it. The unit still operates from Maitland. The present incumbent was promoted to Superintendent – i.e. the same rank that Myers occupied at the time of his dismissal — when she was appointed on 1 March 2010.
. . . .
19 The dog unit was restructured in 2009. The amalgamated Cape Town Dog Unit (or “K9 Unit”), still operating from Maitland, was established as a single unit. It was headed by a Superintendent at salary level 10. On 1 March 2010 a new commander was appointed after the post became vacant and was advertised. The new incumbent, a Captain at the time, was promoted to Superintendent (Lt-Col at salary level 10) at the time of her appointment. SAPS says that that post was upgraded to that of Colonel at salary level 12 and, according to SAPS, “will be implemented during the second phase of the restructuring process”. Yet it is common cause that the incumbent of the post, Lt-Col Du Plessis, is still employed at salary level 10.
20 There is a difference between a “job” or a “position” and the salary level or grade that that position attracts. That much is confirmed by the distinction drawn in the SAPS Employment Regulations between a job, a grade and a salary level.
21 There can be little doubt that, had Myers not been unfairly dismissed, he would have continued in the post of commander of the Cape Town Dog Unit at Maitland, albeit in the guise of the restructured unit. His post may have been upgraded in terms of the SAPS “Resource Allocation Guide”; but he would have remained the incumbent. In those circumstances, the SCA order must be interpreted to mean that he must be reinstated into the restructured post of commander of the Cape Town Dog Unit at Maitland at the current salary that that post attracts, coupled with retrospective back pay.
22 The question remains whether the respondents are in contempt of court. I shall examine that question by considering whether the failure to reinstate Myers into the position of commander of the dog unit was wilful or mala fide.
23 I cannot find, on the facts before me, that it was either. SAPS believed that it had to “place” Myers in a position that attracted the same salary – i.e. at level 10 – as Myers earned at the time of his dismissal. The position of commander of the Maitland Dog Unit attracted that salary at the time of dismissal; the post of commander of the amalgamated Cape Town Dog Unit, on SAPS’s understanding, now apparently attracts a higher salary at level 12 (although the incumbent is still paid at level 10). Hence SAPS offered Myers alternative positions at salary level 10. The stance adopted by SAPS appears to me to be a bona fide one, although I do not agree that it is in compliance with the SCA order. And the non-compliance was not wilful; SAPS did attempt to implement the order as it interpreted the order.
Conclusion: contempt of court
24 In my view, SAPS has not complied with the order of the SCA. That order contemplated that Myers be reinstated into the post he would have occupied had he not been unfairly dismissed. That post, as presently restructured, is that of commander of the Cape Town Dog Unit (or K9 Unit) at Maitland. But the SAPS’s non-compliance was not wilful or mala fide. It is not in contempt of court.
The way forward
25 It would not bring this long-running dispute to a satisfactory conclusion, were the Court simply to dismiss the application to hold the respondents in contempt of court. Further guidance is needed.
26 Given the view I have taken of the interpretation of the SCA order, I deem it in the interests of justice to order the respondents to comply with that order.
Costs
27 The applicant, Myers, has had to incur significant costs in order to obtain justice. Even after the Supreme Court of Appeal had pronounced on his unfair dismissal, he did not obtain full redress as the order of that court contemplated. Eventually he represented himself. And I have found that the respondents are not in contempt of court. In those circumstances, law and fairness do not attract a costs order.
Order
28 I therefore make the following order:
28.1 The application is dismissed.
28.2 The respondents are ordered to reinstate the applicant, Mr Myers, into the position of commander of the Cape Town Dog Unit (or K9 Unit) at Maitland with retrospective effect to the date of his dismissal.
28.3 No order is made as to costs.