The Labour Court has overturned an arbitrator award which found the dismissal of a police officer was substantively unfair.
The arbitrator award also ordered the reinstatement of the policewoman however, the Labour Court set aside this order on review.
This week, Judge Robert Lagrange at the Labour Court of South in Cape Town evaluated the sanction and found that the dismissal of the police officer was however substantively fair.
However, after being denied compensation in the arbitrator's award, the court agreed that the woman should be awarded for procedural fairness alone due to the discrepancies in the disciplinary hearing.
The court ordered that the woman be paid four months compensation and it was to be paid within 30 days of the court order.
Preferential treatment
The genesis of the matter arose when the officer, during the global pandemic, unlawfully released her adult foster child from police custody when the child breached the Covid Disaster Management Regulations and was accused of giving her child preferential treatment.
The officer was dismissed after being found guilty of several acts of misconduct under the SAPS Discipline Regulations.
“Police, who were on patrol, had arrested (the officer’s) adult foster daughter in the street for breaching the Disaster Management Act (DMA) regulations, which at the time restricted the free movement of persons. She was taken in a van to the police station together with other persons who had been apprehended for the same reason. The officer got wind of the arrest and went to the police station.
“The arbitrator found that the arrest of (the person) was lawful, contrary to the (foster mother’s) contention. She found that when the van arrived at the police station, the officer spoke to her foster child when she exited the van, instructing her to leave. The officer said she had told her daughter a car was waiting for her outside.
“The arbitrator found that, on the officer’s own version, she interfered with the work of her colleagues, by instructing the foster child to leave when she was in the custody of arresting police officers,” the judgment read.
According to the judgment, the foster daughter was simply released and her arrest was not processed as should have been the case in terms of police operating procedures.
The daughter was, however, along with other detainees fined for the contravention.
Arbitrator’s narrow view
Lagrange said: “In considering the harm caused by the officer’s conduct, the arbitrator took a narrow view, even though she had found her guilty of detrimentally affecting the image of the police. The arbitrator seemed to be of the opinion that because the other arrestees were ultimately not detained and that all of them, including the foster child, were fined, therefore they were all treated equally, and so no real harm was done.”
Added to the matter, during her disciplinary hearing, the officer had arranged to be represented by a shop steward, but the chairperson disallowed the representative to appear, apparently because his appointment was not made in accordance with an agreement inter alia about where the representative was based.
The question then arose whether the chairperson acted fairly in allowing the officer to find someone locally and then not agreeing to postpone the inquiry when it became apparent three hours later she had not been able to arrange someone willing and able to represent her that day. The hearing went ahead with the officer not being represented.
“The officer was facing serious charges and just because she was unable, at short notice, to find a substitute for the representative she had arranged, she was deprived of a proper opportunity to find a substitute… It is accordingly necessary to consider an award of compensation,” said Lagrange.