Hollow victory after three-decade fight over dismissal
Publish date: 04 December 2018
Issue Number: 134
Diary: A Matter of Justice
Category: A Matter of Justice
In February this year I wrote about a Labour Court case that had outraged me, and suggested that readers should be just as appalled at the injustice involved.
Now the matter has been considered on appeal, and though there is just the slightest improvement in the outcome for the man involved, I am no less outraged.
It is the story of someone who has been able to obtain no justice despite the Constitution and all its guarantees, because the courts are bound by a law that has dispensed only injustice in his case.
That man, Jacobus Martinus Joubert, worked for Armscor for more than 30 years. As part of the job he needed security clearance from the South African National Defence Force (SADF) and during his three decades at Armscor he was regularly issued with clearance from the SANDF intelligence division.
Then, in December 2012, the vetting panel of the SANDF intelligence division turned him down. For reasons that, until today, have not been explained to him, he was refused a certificate for any grade of security clearance, let alone the highest-level clearance that he was previously granted.
Quoting a section of the Defence Act that says no one may be ‘enrolled, appointed or promoted … or be retained as a member or employee’ without clearance by the intelligence division, the acting general manager of Armscor’s acquisition department wrote to inform Joubert that his services had been terminated immediately as he had not obtained the applicable security clearance.
Joubert tried to invoke his right to review the decision refusing him any security clearance, but when the process reached the stage of exchanging correspondence, no reasons were given for refusing him any grade of security clearance. Given this approach by the authorities, he was stuck in limbo: his application for the review ‘remained pending, with no end in sight’, as the Labour Appeal Court would later put it.
His only way forward was to approach the Commission for Conciliation, Mediation and Arbitration where he claimed he had been unfairly dismissed.
The commissioner found that Armscor could have considered other action, short of dismissal, and that Joubert had to have been given proper reasons for the decision to fire him.
The commissioner found Joubert’s dismissal both substantively and procedurally unfair. He ordered that Joubert be reinstated on the previous terms and conditions and be given nine months’ back-pay.
When Armscor took the matter to the Labour Court on review, however, the judge criticised the commissioner’s findings, saying the dismissal was fair because, in terms of the Defence Act and Armscor’s own internal policies, his further employment was prohibited after he was refused security clearance.
The judge agreed, though, that the dismissal was procedurally unfair, and ordered eight months back-pay because of Joubert’s 31 years of service and the ‘abrupt’ way Armscor terminated his services ‘without following pre-dismissal procedural steps’.
What would the Labour Appeal Court say about the dispute? Not much of practical comfort to Joubert, as it turned out, though it found his dismissal both procedurally and substantively unfair.
While Armscor dismissed Joubert because of his incapacity to fulfil his contractual obligations, that was not the end of the matter, said the Appeal Court. The Secretary for Defence was required, by law, to give written notice to anyone whose application for a security clearance was considered by the intelligence division. The Secretary was also required to ‘furnish in writing’, to anyone who applied but whose clearance was ‘refused, downgraded or withdrawn’, the reasons for that decision. Just as important, the law also provides that no application for a clearance may be refused, without the applicant being given ‘reasonable opportunity to present information regarding such matter’. Someone affected by refusal of a clearance certificate has 14 days to lodge a written objection to the Secretary for Defence, and to submit written representation and relevant documents on why the decision should be reviewed.
The Labour Appeal Court pointed out that though Joubert was told of his ‘right to appeal’ within 30 days, he was, however, dismissed immediately. The Personnel Security Review Board (PSRB) had been created through which grounds and reasons for refusing a security certificate would be provided to employees. This was to allow such an employee a reasonable opportunity to make representations against the decision. But Joubert was effectively denied access to the board.
Without the grounds being known on which Joubert was refused a clearance, the crucial question of whether the decision to dismiss him was substantively fair, could not be resolved. As Armscor dismissed him before the PSRB process was completed, he was effectively fired before confirmation of whether his ‘incapacity’ was permanent.
‘In the final analysis, there could never have been any rationality to the decision by Armscor to terminate (Joubert’s employment) prematurely and prior to the determination of the review.’ The only remedy available to Joubert was that of compensation, said the Appeal Court, since, without security clearance, reinstatement was not possible.
‘Regard being had to the egregious manner’ in which he was dismissed, namely, ‘without providing a fair reason and following due process’, the maximum compensation allowed by the Labour Relations Act would be appropriate. The Appeal Court also awarded him costs.
So consider this: aged 61, Joubert was dismissed, four years before pensionable age and after 31 years of excellent service, without ever being given reasons for the refusal of a clearance certificate. The implications on that dismissal, at that age, on his pension and other benefits were devastating – his pension value was halved, for example – and yet the maximum compensation to which he is entitled for unfair dismissal is merely one year’s salary.
With legal costs in mind, a further appeal to the Constitutional Court is unlikely. But would there perhaps be grounds for a damages claim? Joubert’s dismissal has now been found by the Labour Appeal Court to be both ‘substantively and procedurally unfair’ and to lack ‘rationality’. While there are no consequences for either Armscor or the SANDF, their dismissal of Joubert dealt him a life-crippling blow. Would he not be entitled to a separate claim related to his pension benefits at least?
Reacting to the latest judgment, Joubert himself points to the enormous legal expenses incurred by Armscor and the SANDF in fighting this case, and describes their behaviour throughout as unethical. Now that they have the Appeal Court decision, he and his lawyers are investigating the possibility of a separate damages claim against Armscor and/or the SANDF for the decimation of his pension. I wish them well: under our Constitution, everyone is entitled to fair and transparent administrative action; Joubert’s ‘egregious’ treatment by Armscor and the SANDF – their irrational, high-handed, bullyboy tactics – denied him even a semblance of that basic right.