Gavel, books and handcuffs on wooden table

In the last article that I wrote, (click on the link here), if you have for some unfathomable reason not yet read it, we looked at whether particular conduct by an employee away from the workplace was beyond the reach of an employer’s authority.

In keeping with that theme, the Labour Appeal Court (LAC) recently dealt with a matter where a police officer who was in the employ of the SAPS (South African Police Service), but who was off-duty at the time, shot and killed a civilian with his official police firearm after the two had got into an argument whilst they were attending a traditional ceremony.

The principal charge against the police officer at the disciplinary hearing was that he had contravened a SAPS regulation in that he had committed a common-law or statutory offence, to wit, murder, for which the employee was dismissed.

He referred an unfair dismissal dispute to the bargaining council where the arbitrator found that because the police officer had shot the deceased in the stomach, and because he had no motive for killing the deceased, that he had not been guilty of murder.

The arbitrator then found that because he was not guilty of murder, that his dismissal was unfair, and furthermore, that because there was no evidence that the relationship of trust between the applicant and the SAPS had broken down ( because the offence was committed while the employee was off duty), and considering the police officer’s clean disciplinary record and long service, the officer was reinstated with full backpay.

The SAPS unsuccessfully applied to the Labour Court to review and set aside the arbitration award. The Labour Court was of the view that the arbitrator had reasonably arrived at the conclusion that the employee was not guilty of murder.

The SAPS appealed to the Labour Appeal Court ( LAC).

The LAC found that the focus of the arbitrator and the Labour Court was incorrectly concerned with whether the employee had murdered the deceased, which is what would be required in a criminal trial, but that in relation to a disciplinary hearing, the issue was not whether murder had been proved or not, but rather whether dismissal was fair for having unjustifiably killed a civilian.

The court pointed out that the essence of the main charge against the employee was that he had committed a common-law or statutory offence, although using his official firearm, and that dismissal was a fair sanction.

The LAC also found that reinstatement would be intolerable given the egregious nature of the misconduct and the circumstances in which it was committed.

There was another significant issue which was dealt with in the judgment, and that was the whether the characterisation of the charges is critical ie. is it essential that an employee is found guilty of the exact charges that are contained in the disciplinary notice in order for a dismissal to be fair?

Could an employee be charged with one type of misconduct, be found guilty of another type of misconduct, and still be fairly dismissed?

It will be remembered that the main charge against the police officer was that he had committed murder; that the arbitrator had found that the police officer’s dismissal was unfair because he was not guilty of murder, and with which finding the Labour Court agreed as the police officer was not guilty of murder, but with which finding the LAC disagreed because the focus should not have been on whether the police officer was guilty of murder or not, but rather whether dismissal was fair for having unjustifiably killed a civilian.

The LAC’s decision was based on a legal principle known as a competent verdict. In my next article I will not only deal with the issue of competent verdicts, but also a critically important judgment which gives insight and valuable information to employer’s and HR Department alike when preparing disciplinary notices, as well as to disciplinary chairperson’s tasked with deciding on an outcome based on what is contained in the disciplinary notice.

Be sure not to miss this upcoming article, nor forget to alert any person who is in any way involved with disciplinary hearings to do so.

It could be the difference between walking away with a victory or a defeat in an unfair dismissal claim.

The SAPS’ review application eventually succeeded because the focus was on what was at the crux of the issue viz. the unjustifiable killing of another, rather than getting caught up in all the trappings of a criminal trial.

With the correct guidance, a review application can overturn an arbitration award.