In the recently reported Labour Appeal Court case of Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008 ) 29 ILJ 2189 (LAC) the appellant employee was dismissed for various incidents of sexual harassment. A CCMA commissioner found that the employee’s conduct did not amount to sexual harassment as defined in the Code of Good Practice: Dismissal, but that the sexual advances made by him did amount to inappropriate behaviour for a person in his position. The employee had been a convening senior commissioner of the CCMA.
The CCMA held that dismissal was not an appropriate sanction and re-instated the employee subject to a final written warning. The CCMA brought an application to review the award on, inter alia, the ground that the commissioner had committed a gross irregularity in that he had failed to consider and attribute weight to the fact that the employee had given false evidence both at the disciplinary enquiry and in the arbitration proceedings.
Labour Court decision
The Labour Court was unable to determine from the award whether the commissioner had considered the false evidence by the employee, but ruled that the dishonesty of the employee was a highly relevant issue and that, had the commissioner considered it, he would have come to a different conclusion.
The Labour Court accordingly granted the CCMA an order which in effect upheld the employee’s dismissal. The employee then appealed this decision to the Labour Appeal Court. The employee contended that, as the CCMA had not pertinently raised the issue of his dishonesty at the arbitration, the commissioner correctly did not consider the issue and the CCMA could not rely upon it as a gross irregularity. He also contended that, since the Labour Court had correctly held that his giving false evidence under oath was relevant only to the determination of the appropriate relief, the giving of false evidence could not convert an otherwise unfair dismissal into a fair one. There was therefore no basis in law for the Labour Court’s decision to deprive the employee of all relief, which was the effect of the judgement of the Court.
The employee also argued that if the CCMA wanted to avoid an order of re-instatement, it ought to have led evidence to establish that a continued employment relationship would be intolerable.
Labour Appeal Court decision
The Court found that the commissioner had been aware of the position that the employee held with the CCMA and that he had given false evidence. The commissioner ought to have appreciated the importance of the employee’s being a fit and proper person to occupy the position of a convening senior commissioner if he were to be re-instated in this position.
The Court below was therefore correct in concluding that, had the commissioner applied his mind to the effect on his job of the employee’s conduct in giving false evidence, he would not have ordered re-instatement. The Labour Appeal Court found that it was unfair that the employee should be denied any relief. Since his re-instatement was impracticable, it was just and equitable that the employee be awarded compensation equivalent to 12 months’ remuneration.
Although a commissioner is required to give brief reasons for an award in a dismissal dispute, he can be expected to include in such brief reasons those matters or factors which he took into account which are of great significance to or which are critical to one or other of the issues he is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his omission in his reasons of a matter of great significance or relevance to one or more of such issues give rise to an inference that he did not take such matter or factor into account.
In the present matter the employee’s conduct in giving false evidence under oath was so critical to the issue of relief that in the Court’s view, the only explanation for the commissioner’s failure to mention it in his reasons as one of the factors that he took into account is that he did not take it into account. If the commissioner had considered such a critical factor, he definitely would have mentioned this in his award. In the Court’s view the fact that the commissioner did not mention this very critical factor in his award justified the drawing of the inference that he did not take it into account.
Section 193 (2) of the Labour Relations Act, 1995 obliges the Labour Court or an arbitrator to order the employer to re-instate or re-employ an employee whose dismissal it has found to be unfair for lack of a fair reason or whose dismissal it has found to be automatically unfair unless one or more of the situations set out in Section 193 (2) (a) – (d) applies namely:
(a) The employee does not wish to be re-instated 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 re-instate or re-employ the employee; or
(d) The dismissal is unfair only because the employer did not follow a fair procedure.”
The situation envisaged in paragraph (b) is where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. It is possible that insofar as the giving of false evidence under oath occurs in the disciplinary enquiry before the dismissal and where it becomes one of the factors that are taken into account in taking the decision to dismiss, it could be said that it is one of the circumstances surrounding the dismissal. However, the same can not be said of a situation where the giving of false evidence only occurs in the arbitration or at the trial subsequent to the dismissal.
The Court went on to caution that its conclusion that the employee’s conduct in giving false evidence under oath in the arbitration rendered it “reasonably impracticable for the employer” to re-instate him did not mean that this will be the conclusion in each case in which as employee is found to have given false evidence under oath in an unfair dismissal matter. Each case will have to be decided on its own merits. The Court concluded that it would not often be the result because it does not follow in many cases that it is reasonably impracticable for an employer to re-instate such employee. It was precisely because the re-instatement of the commissioner was going to mean that he was re-instated to a position in which he had to expect others to respect an oath when he himself had been found to have shown no respect for the same oath, that makes this case unique in this respect.