ZACC 07
Judgement Date:19 February 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 19 February 2019, at 10h00, the Constitutional Court handed down judgment in an application seeking leave to appeal against a judgment of the Labour Court relating to two review applications, one concerning Mr Long’s dismissal and the other his suspension prior to dismissal.
Mr Long was previously employed by South African Breweries (Pty) Limited (SAB) as its district manager for the Border District. He was responsible for legal compliance in respect of SAB’s operations in the Border District, including the requirements pertaining to a fleet of vehicles. On 10 May 2013, a trailer owned by SAB was involved in a fatal accident. The vehicle, before the accident, was in a state of disrepair and unlicensed. This accident prompted an investigation by SAB into the vehicle fleet. It turned out that many of the vehicles for which Mr Long was responsible were not roadworthy and had invalid licence discs. After further investigation and a disciplinary hearing Mr Long was found guilty of dereliction of duties, gross negligence and bringing the company name into disrepute. He was dismissed on 14 October 2013. Mr Long had also been suspended from work from the time the investigations began until he was dismissed.
Two arbitrations followed in the Commission for Conciliation, Mediation and Arbitration (CCMA). The first related to Mr Long’s suspension prior to dismissal. The arbitrator held that Mr Long’s dismissal constituted an unfair labour practice because Mr Long had not been given a hearing before his suspension and the suspension was unreasonably long. The arbitrator awarded compensation equivalent to two months’ remuneration. The second arbitration related to Mr Long’s dismissal. The arbitrator held that Mr Long had been unfairly dismissed because the illegalities regarding the vehicles did not fall within his responsibility. The arbitrator ordered that SAB reinstate Mr Long.
SAB reviewed both arbitration awards before the Labour Court. Regarding the first arbitration, the Labour Court held that where a suspension is precautionary, and with full salary, as in this case, there is no requirement that an employee be given an opportunity to make representations. The Labour Court set aside the arbitrator’s finding that the suspension was an unfair labour practice. As for the second arbitration, the Labour Court held that Mr Long had been guilty of dereliction of duty. It held that the arbitrator had come to the contrary conclusion by irrationally and improperly evaluating the evidence. The arbitrator’s award was set aside and substituted with an order declaring Mr Long’s dismissal to be fair. The Labour Court ordered that Mr Long pay SAB’s costs in both review applications.
The Labour Appeal Court refused Mr Long’s application for leave to appeal.
In a unanimous judgment written by Theron J, the Constitutional Court partially upheld the application for leave to appeal. The Constitutional Court refused leave to appeal on the merits of the review, holding that the Labour Court had correctly held that an employer is not required to give an employee an opportunity to make representations before a precautionary suspension. The Constitutional Court further held that the Labour Court was correct in holding that the dismissal had been fair and that Mr Long should not be reinstated. However, this Constitutional Court granted leave to appeal against the Labour Court’s costs order. In labour matters costs do not ordinarily follow the result. The Labour Court failed to justify its adverse costs order, and the Constitutional Court found that there were no reasons for awarding costs against Mr Long. The Labour Court’s costs order was therefore set aside.
The Full judgment here.