Kroukam v SA Airlink (Pty) Limited (JA3/2003) [2005] ZALAC 5 (26 September 2005)

[1] I have had the opportunity of reading the judgment prepared by my Colleague, Davis AJA, in this matter. I agree with him that the appellant’s dismissal was automatically unfair and that the respondent should be ordered to reinstate him. However, I do not share the approach and reasoning that lead Davis AJA to that conclusion nor do I share the extent of the retrospective operation of the reinstatement order that he proposes. I also do not share the construction that he places upon sec 193 of the Labour Relations Act, 1995 (Act No 66 of 1995) (“the Act”) with regard to the extent of retrospective operation of a reinstatement order that can competently be made under sec 193 of the Act. Accordingly, it is necessary for me to set out the approach and reasoning that has led me to the conclusion I have reached in this matter. I do so below.

[2] The appellant was employed by the respondent as a pilot in 1994. He was dismissed from the respondent’s employment with effect from the 11^th May 2001 after he had been found guilty of two alleged acts of misconduct in a disciplinary inquiry. For some time before his dismissal and at the time of dismissal, the appellant was chairman of the Airlink Pilots’ Association which was the branch based at the respondent’s operations of a registered trade union called Airline Pilots’ Association. In this judgment I shall refer to the branch as “the union”. The appellant took the view that his dismissal was automatically unfair as contemplated in sec 187(1)(d) of the Act in that, as far as he was concerned, he had been dismissed for the active role that he had played as chairman of the union in the union’s dealings with the respondent and the role he played in the litigation that he had brought against the company on behalf of the union in March 2001. The respondent disputed this and maintained that the reason for the appellant’s dismissal was that he had committed two acts of misconduct of which he had been found guilty. These were that he had been grossly insubordinate to the respondent and had been disruptive influence to the orderly operation of the respondent. A dispute then arose between the parties concerning whether or not the dismissal was automatically unfair.

[3] In due course the dispute was referred to the Labour Court for adjudication. The appellant maintained that, for the reasons referred to above, his dismissal was automatically unfair. He did not seek to make out a case that, even if his dismissal was not automatically unfair, it was, nevertheless, unfair for one or other reason. The respondent defended the action and maintained its stance referred to above. The Labour Court found that there was no basis for the appellant’s contention that he had been dismissed for the reasons that he had advanced and, therefore, that his dismissal was automatically unfair. It dismissed the appellant’s claim but made no order as to costs. As it was not part of the appellant’s case that, even if his dismissal was not automatically unfair, it was nevertheless ordinarily unfair, the Labour Court did not make any finding about whether the dismissal was unfair on any other basis. The appellant subsequently applied for leave to appeal to this Court against the order of the Labour Court. The Labour Court granted the application for leave to appeal. This, then, is the appeal against the judgment of the Labour Court. Before the appeal can be considered, it is necessary to set out the factual background to the dispute between the parties.

[4] There are certain incidents which feature prominently in the factual background to the dismissal of the appellant which, it seems to me, would be helpful to set out because the charges brought against the appellant were either based on some or all of those incidents or those incidents may throw light on the reason(s) for the appellant’s dismissal. These are:

[5] The respondent and the Government of Swaziland established a business partnership. In terms of the arrangements between the two, the respondent could utilise Swazi flight attendants on its plane on routes between Swaziland and South Africa. In September 2000 the appellant off-loaded a Swazi cabin attendant from an aircraft in which he was a pilot. He did this because apparently the Swazi flight attendant failed to produce a work permit when, as the pilot of the aircraft, he asked for it. This was in September 2000. The respondent’s management took the view that the appellant did this in order to undermine their authority. The appellant was charged with misconduct and was found guilty. The chairman of the disciplinary inquiry recommended that the appellant be dismissed but the respondent’s management rejected this recommendation and gave the appellant a final warning which was to be valid for six months from the date of the incident. The warning was given in November 2000.

[6] In March 2001 the union brought an urgent application in the Labour Court for an order interdicting the respondent from acting in breach of a collective agreement existing between the union and the respondent with regard to the recruitment of pilots. The appellant was the union official who signed the founding affidavit on behalf of the union. The respondent opposed that application. The Labour Court granted the required order interdicting the respondent from recruiting pilots in breach of such collective agreement.

[7] Another feature of the background to the dismissal dispute between the parties is a certain memorandum which bore the title: “The blessing that became a curse” which Captain Van Schalkwyk, the respondent’s client pilot, addressed to the cockpit crew and copied to Capt Roger Foster, the respondent’s chief executive offices, and Captain Moorosi, the operations director. The memorandum was dated the 24^th March 2001. In the first paragraph Captain Van Schalkwyk stated that he was writing the memorandum in his capacity as Chief Pilot. Operations and Standards of the respondent. He explained therein that his “mission” was to inform the pilots “of the current state of affairs, and to show you that you need to take action in order for you to have a fair opportunity to fly the ERJ (operated by SAAR (Metavia) and to have a prosperous future at SA Airlink.”.

[8] Captain Van Schalkwyk divided his memorandum into a number of sections. He gave one section the heading: “Costly for Everyone.” In the first paragraph under this heading he referred to the events of the previous week which he said had been exhausting for everyone. The previous week must have been the one in which the union had brought an urgent application in the Labour Court against the respondent for an interdict. In the memorandum Captain Van Schalkwyk assured all the pilots that he knew that they were all worried about their future at the respondent “and whether you will have an opportunity to fly the amazing new ERJ 135 operated by SAAR (Meta via).” He called upon the pilots to believe that he and the rest of the management were committed to offering the pilots “a prosperous future at SA Airlink.” He said: “We have proved before, that we were able to negotiate acceptable terms with SAAR (Metavia) to be offered an opportunity to fly the ERJ”.

“SA Airlink top management has a responsibility to the SA Airline shareholders, which demand proper management of huge amounts of money. Their first focus must be to ensure a profitable and professional new business venture. I have no grounds to question their business decisions, as they see a much larger picture than I (or any other individual) see. The labour issue of the past few weeks absorbed most of their energy and time with the result that their ability to plan the future has been compromised severely. This has a direct impact on all the employees of SA Airlink.

[10] It is convenient to deal with the lunch incident simultaneously with the contempt of court application. Subsequent to the granting of the order referred to above, the appellant had a discussion with one Captain Moorosi and another member of the respondent’s management about the matter which was the subject of the order of the Labour Court. Such discussion took place in the cafeteria within the company during lunch time. Captain Moorosi had insisted that such discussion be on an off – the record basis and the appellant had agreed to such condition and the discussion had then taken place on the basis of such agreement.

[11] Later, the union brought a contempt of court application against the respondent, Captain Moorosi, and Captain Forster. The order sought by the union was for the committal to jail of the members of the management of the respondent cited. The appellant was the one who deposed to the founding affidavit in that application. In the affidavit he mentioned that there had been a discussion or meeting between himself and Captain Moorosi at lunch-time in the cafeteria on the day in question. He also said that he had asked Captain Moorosi that they should discuss the matter which was the subject of the then existing order of the Labour Court. He stated in the affidavit that Captain Moorosi’s reply was that there was nothing to discuss.

[12] When Captain Moorosi saw the appellant’s affidavit, he took the view that the appellant had acted in breach of the agreement in terms of which the discussion had been off-the-record. Capt Moorosi regarded such conduct as constituting insubordination. He later decided that the appellant should be charged with misconduct for such conduct. At least part of the insubordination with which the appellant was charged which led to his dismissal was based on the appellant’s alleged breach of the agreement to treat the discussion or meeting concerned as off-the-record. The contempt of court application had been prompted by the fact that the respondent was continuing to recruit pilots which the union believed the respondent was contractually precluded from recruiting and which the union maintained the respondent was precluded by the order previously granted by the Labour Court from recruiting.

[13] On 28 March 2001 the contempt of court application came before the Labour Court. The appellant and the respondent’s attorney had a discussion within the premises of the Labour Court which, according to the respondent’s attorney, resulted in an agreement between the two that the contempt of court application would be settled on a certain basis. However, subsequently the respondent’s attorney understood the appellant to have reneged from such agreement. Accordingly, the respondent’s attorney wrote a letter to the union’s attorneys in which he stated, among other things, that the appellant’s conduct in this regard would not be “forgotten”. During the trial the respondent’s attorney took the witness stand to explain what he meant by this. He explained that what he meant was that in his dealings with the appellant in the future, he would not forget that the appellant had previously gone back on his word.

[14] Another incident is one relating to the appellant being required to submit a psychologist’s report. At some point either towards the end of March or early in April but prior to 11 April 2001 the appellant undertook to supply Captain Van Schalkwyk with a psychologist’s report relating to his health. Such report was important to the respondent’s management because they could not allow the appellant to fly an aircraft unless they were certain that he was fit to do so. For some time the appellant failed to submit the psychologist’s report. Captain Van Schalkwyk was getting frustrated by the appellant’s failure to submit the report. He grounded the appellant pending the submission of the report. When, despite Capt Van Schalkwyk’s specific instructions to the appellant to submit the report by a certain Monday or Tuesday, the appellant still failed to submit it, Capt Van Schalkwyk decided to take disciplinary action against the appellant because he regarded such conduct on the appellant’s part as insubordination. This incident was one of the incidents upon which the first charge in the disciplinary inquiry which later followed was based.

[15] It also needs to be stated that during the previous year or the 12 months preceding the appellant being charged with misconduct in April 2001, the appellant had flown less than 950 hours. This is relevant to the second charge that the appellant faced in the disciplinary inquiry that will be referred to shortly. Apparently in any airline the normal number of hours that a pilot may fly in any 12 months is 1000 but the respondent had fixed the target at 950 hours per 12 months. It is common cause that the appellant had flown less than the required target. However, it was also common cause that there were other pilots who had also flown less than the target. In other words those pilots were also in the same position as the appellant. It was also common cause that they were not charged with misconduct for this whereas the appellant was charged with misconduct for this. It was said by the respondent to fall under the second charge in the disciplinary inquiry of April 2001.

[16] On the 12^th April 2001 the appellant was called and told that he was going to be charged with misconduct. The appellant was accompanied by a Captain Paul Smith, a colleague of his, to the office where he was going to be handed a notice calling him to a disciplinary inquiry to face certain allegations of misconduct. Such notice would be an equivalent of a charge sheet in a criminal matter. When the appellant arrived, Captain Foster gave him a long lecture before giving him the notice to attend a disciplinary inquiry. The appellant testified thus about that lecture: “The CEO presented us with information pertaining to the vision and the goals of the company also pointing out what damage the litigation and the contempt of court proceedings and that, this was lack of respect for the CEO and that this forced them to take, the words he used, his eye off the ball.” (Underlining supplied). The appellant was then asked whether those were the CEO’s exact words. He answered in the positive and went on to add the following as part of what the CEO had said on that occasion: “And thereby losing crucial deadlines pertaining to the license application for certain routes.” The appellant stated that, after the CEO had completed the presentation, he was then served with the “charge sheet”. He said that the presentation went on for about 30 or 40 minutes, or even longer.

[18] Another feature of the background to this matter is a memorandum which Captain Van Schalkwyk addressed to “all cockpit crew” on the 17^th April 2001. This memorandum was written after the appellant had been given notice of the disciplinary inquiry but before the disciplinary inquiry could start. Captain Van Schalkwyk began that memorandum with the words: “As you are, I am tired of litigation and legalisms (sic) …” A reading of the memorandum reveals that Captain Van Schalkwyk’s evidence that through this memorandum he was trying to appeal to the pilots to co-operate with the management and to commit themselves to the company is probably true. As one reads the memorandum one can see the frustration that the management was feeling as a result of the litigation. In this regard reference can be made to some paragraphs in that memorandum. Two of the paragraphs read thus:-

The Court order issued due to the APA litigation, prohibits the implementation of the Business Plan as conceived by the Board of Directors, for the utilization of the ERJ’s. This is no small matter, as this project can only be viable if our group qualifies for certain Tax Incentives. As matters are standing (sic), due to the declariters (sic) within the Court order the group will not qualify for the incentives. Should the order be irreversible (with the pending appeal, or APA negotiations) then the ERJ project in its current form will probably be revoked.”

Captain Van Schalkwyk went on to say, among other things, that the respondent had missed a licensing council hearing which had been scheduled for the 2^nd April. He blamed this on what he referred to as the “APA litigation” which he said had distracted the respondent’s management and absorbed their attention. He said that the result thereof was that the respondent had missed the “Bulawayo route” as a start up and that “Ndola/Livingstone” would have to be a joint venture.

[20] The fundamental question that must be answered in this matter is whether the appellant’s dismissal was automatically unfair. If, as the Court a quo found, the answer is that the dismissal was not automatically unfair, the appeal must fail. If, however, the answer is that the dismissal was automatically unfair, the next issue for determination will be the relief that should be granted to the appellant if any should be granted to all. The determination of the question whether or not the dismissal was automatically unfair depends upon what the reason for the appellant’s dismissal was. Sec 187(1)(d) of the Act provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to sec 5 or, if the reason for the dismissal is –

[21] The appellant’s case both in his statement of claim and in his evidence included an allegation that the reason why he was dismissed was the active role that he played in representing the interests of the union and its members in his dealings with the respondent and in the litigation which the union initiated against the respondent in March 2001. In support of this allegation the appellant referred to the presentation that Captain Foster had made to him on the occasion of the delivery of the “charge sheet” to him, the fact that Captain Van Schalkwyk had repeatedly suggested to him that he should resign or consider resigning as chairperson of the union as well as to the letter from the respondent’s attorney to him informing him that his conduct would not be forgotten.

[22] The respondent’s stance has always been that the appellant was dismissed for the misconduct of gross insubordination and for being a disruptive influence to the orderly operation of the respondent. When one has regard to the respondent’s stance, it all sounds very legitimate and innocuous. However, it is necessary to delve deep into it in order to understand the precise nature of the conduct on the part of the appellant which the respondent covers when it says that the appellant was guilty of gross insubordination and of being a disruptive influence to its orderly operation. In other words it is necessary to inquire into the precise nature of the conduct on the appellant’s part that the respondent regarded as misconduct taking the form of gross insubordination and being a disruptive influence to its orderly operation.

[23] Before I can consider what the respondent’s witnesses said in their oral evidence which may reveal what the respondent meant when it said that the appellant was dismissed for gross insubordination and being a disruptive influence to the orderly operation of the organisation, it is necessary to consider what was said in the disciplinary inquiry and the internal appeal by representatives of the respondent and by the chairmen of the disciplinary inquiry and the internal appeal because what they said in those fora may throw light on what the respondent meant and, therefore, on the true reasons for the appellant’s dismissal. It will also be necessary to have regard to what the appellant alleged in his statement of claim and what the respondent’s response to that statement was in so far as these may throw light on what the respondent understood to constitute gross insubordination and being a disruptive influence.

- that the appellant had admitted that his work performance, which was said to be 697 hours of flight time in the previous 12 months and 48 hours during the month of March 2001 fell far short of the respondent’s productivity efficiency targets of 950 hours per year and 86 hours per month; it was argued that this poor performance was disruptive of the operation of the respondent.

- that neither the appellant nor his representative had challenged the statements that on several occasions the appellant had “shown no confidence (sic) and a breakdown in trust in management – he had on several occasions called for the resignation of key personnel including the operations director, the chief pilot and he had required the arrest and detention of his operations director and his chief executive.” The argument went on to say that the appellant’s ground of justification for all of these was that he had acted in his capacity as a shopsteward.

[25] There is also a document in the record bearing the heading: Heads of Argument. The document is dated Monday, 23 April 2001. It also reflects that it was prepared for use at or in connection with the disciplinary hearing of the appellant. It does not bear anyone’s name. The document contains matters or points which Captain Moorosi apparently submitted in support of the charge of gross insubordination as well as those apparently submitted by Captain Van Schalkwyk in support of that charge. The document also contains matters or points under a heading relating to the charge of being “disruptive influence to the orderly operation of the organisation”.

[26] In the first bullet point under that heading it is stated: “Insubordination is in (sic) its own right a disruptive influence to the orderly operation of the organization.” The significance of this statement is that even alleged acts of insubordination were seen as disruptive of the orderly operation of the organisation. Along another bullet point it was stated in the document that on at least three occasions the appellant had “called for a vote of no confidence in, or for the resignation of management.” It went on to state that between July and November 2000 the appellant had “voted no confidence (sic) in Capt Smith, then a training captain and Mr Moorosi and called for the resignation of the executive manager of human resources.” It went on to say that the appellant had “publicly announced this view which had caused disunity and degradation of morale within the company which has been disruptive to the orderly operation of the organization.”

[27] During the trial there was some confusion as to who the author of the document referred to in the preceding paragraph was. It is clear from its contents that whoever prepared it purported to do so on behalf of the respondent. Its contents are either the same points that have been made in some or other document of the respondent or the points it makes are consistent with the respondent’s case against the appellant as documented in various documents or as testified to by some of the respondent’s witnesses. There is no doubt that the document sought to present the respondent’s case against the appellant. In fact its contents are in line with the respondent’s case.

South Africa: Labour Appeal Court

Kroukam v SA Airlink (Pty) Limited (JA3/2003) [2005] ZALAC 5 (26 September 2005)