11 September 2011

No way back for miscreant cops

Capetonians who travel to work on the N2 shall not easily forget the absolute chaos on the morning of 15 August 2007 caused by a great many Metro Police officers blockading the traffic in protest against plans by the City of Cape Town to re-grade their posts. Following this unlawful work stoppage, the City charged the officers with misconduct because they participated in an illegal and unlawful strike while being essential service employees. It was agreed between the parties that a single hearing be held for all those charged, without the union admitting that the City was entitled to adopt the doctrine of "collective guilt" or common purpose. At the conclusion of the disciplinary hearing, the officers were found guilty of most of the charges which had been brought against them by the City. The chairperson imposed a sanction of dismissal. The employees challenged the fairness of the dismissal to the SALGBC.

Subsequent to arbitration proceedings, the arbitrator delivered an award on 31 July 2009 confirming the dismissal of the officers. SAMWU filed a review application with the Labour Court challenging the Arbitrator's award. The award was challenged on the basis that the Arbitrator had committed a gross error of law in finding that the employees could be dismissed on the basis of having been part of a Collective Agreement and without any individual proof of their misconduct.

It was further challenged on the basis that the Arbitrator committed a gross error of law in finding the disciplinary procedure Collective Agreement did not require the City to demonstrate the individual misconduct of each and every employee. In dismissing the union's review application, the Labour Court restated the test of judicial review viz. that the union had to show that the decision reached by the arbitrator was not one that a reasonable decision-maker could reach.

In June this year, after considering the evidence relied upon by the City in dismissing the employees, together with the grounds of review, the Labour Court found that it could not be said that the arbitrator had arrived at a decision a reasonable decision maker could not reach.

The City had been entitled to conduct the disciplinary proceedings against the officers on a group basis and was not required to prove the guilt of each officer on an individual basis. The review application was accordingly dismissed. The decision of the Labour Court effectively puts an end to any further challenge by the union to the fairness of the dismissal of the Metro Police Officers.

Gavin Stansfield

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