10 February 2016

South Africa: When the Law Really Is an Ass!

analysis

Remember the name: Armscor v CCMA encapsulates an anomaly that should outrage you.

After more than 20 years of democracy centred on a Constitution that demands official action be fair, accountable and transparent, it comes as a shock to find a case where the court was bound by a law that, at least in the provisions relevant to the matter at hand, resulted in none of these.

The case, heard in the Labour Court, concerns JM Joubert, who had worked at Armscor for more than three decades, rising to become a senior official.

Section 37 (2) of the Defence Act, applicable to people employed by Armscor, says staff 'may not' be appointed or 'retained' unless issued with the relevant security clearance. Armscor's conditions of employment make it clear that an appointment to work in Armscor depends on 'obtaining and retaining' a security clearance at the relevant level. It also says those who fail to qualify 'for any grade of security clearance' as a result of a negative vetting process 'will be dismissed or their contract of employment terminated'.

And that, as it turned out 31 years later, is what happened to Joubert.

He was employed by Armscor in July 1981, and by the time he was dismissed in December 2012, he was a senior manager earning just over R80 000 before tax every month. Throughout his career with Armscor he had been given security clearance certificates at the relevant grade required, by the intelligence division of the SANDF.

On 26 November 2012, all that changed. For reasons never explained to him - or to Armscor - the SANDF refused to renew his security clearance.

Not just that. He was refused any grade of security clearance whatsoever. And this was despite the prior recommendation by Armscor's own personnel evaluation division that he should be cleared.

Armscor told Joubert the bad news on 7 December and 11 days later wrote him a letter of termination: 'You are hereby informed that you have been refused all grades of security clearance. Consequently your contract of employment is terminated with immediate effect.'

He was told he could appeal by making a written request via Armscor's personnel evaluation division to the 'Personnel Security Review Board'.

As you can imagine, he grasped this potential lifeline and, on 7 January 2013, he lodged a request with the SANDF for an urgent review. And then on 9 April he asked for reasons from the Secretary of Defence for the SANDF's refusal to grant him any security clearance after having been given such a clearance for the previous 30 years.

More than three years later he has still received no response from the SANDF to any of his efforts at obtaining an answer. Nor has he been given any explanation of the decision to refuse him the clearance on which his livelihood depended.

Armscor, meanwhile, has shrugged its shoulders. It is not involved in the decision-making process, its officials say, and it has no control over what happens about clearance certificates.

Along with the official silence from the SANDF came the end of Joubert's job and so he approached the CCMA to arbitrate his dispute with Armscor over the termination of his 31-year career with the company. The commissioner found in favour of Joubert, rejecting Armscor's preliminary legal point that Joubert was not 'dismissed' but rather that his contract was 'terminated by operation of law' after the SANDF refused him a security clearance.

Explaining his ruling the commissioner said he 'could not accept' that 'operation of law' was a fair reason to dismiss Joubert, 'or by this means to isolate (him) from his basic rights pertaining to fairness.' It is a finding that instinctively resonates with all the values we've come to accept as part of our constitutional dispensation. But it turns out to be wrong in law.

The CCMA decision - that Armscor had dismissed Joubert, that the CCMA had jurisdiction to arbitrate the matter, that his dismissal was substantively and procedurally unfair and that he had to be retrospectively reinstated - was challenged by Armscor in the Labour Court, and overturned.

Judge Benita Whitcher, who heard the matter, found that the commissioner had ignored a 'highly relevant alternative defence' by Armscor to Joubert's dismissal: since Joubert was refused any grade of security clearance he was 'incapable of performing his job in any manner'. Thus his dismissal for incapacity was substantively fair in that it resulted from a legal prohibition on employment brought about the Defence Act.

'His continued employment would have been unlawful as a consequence of him not having obtained the necessary security clearance in terms of the Defence Act.'

Joubert's dismissal was also sanctioned by 'Armscor's unambiguous internal policy provision to the effect that 'persons who fail to qualify for any grade of security clearance as a result of a negative vetting content will be dismissed or their contract terminated'.

The judge added: 'Given its statutory underpinning (its source being in section 37 (2) of the Defence Act), the nature of Armscor's business and the high levels of security clearance held by Joubert as a senior manager, namely 'secret' and 'confidential', this rule or standard is patently fair and reasonable, as was Joubert's dismissal ensuing from it.'

Armscor, ironically enough, accepted the original finding by the commissioner that Joubert's dismissal was 'procedurally unfair', but in the view of Armscor, payment of six months' salary would have been 'an appropriate and fair compensation'. The judge disagreed, and awarded eight months' salary as more equitable, given that Armscor 'dismissed an employee who had provided 31 years of service in the absence of any pre-dismissal procedures'.

The decision may well be right in law, but it's an outcome that seems completely arbitrary and unfair, one that flies in the face of the whole basis of the law of unfair dismissal.

In addition, I'm troubled that the judge made no comment about the complete failure of the SANDF to respond to Joubert's appeal. Though he followed the correct procedures his appeal has been met with years of silence. Why was there an equal silence from the court about the failure of the SANDF to provide reasons for its decision? Does the judge condone the silence? Does she see no problem with the refusal to explain the decision?

From her judgment it seems there is official provision for an appeal and that someone in Joubert's position has the right to make such an appeal. Why, then is there no corresponding duty on the relevant authorities to respond to the appeal? The fact that it is apparently acceptable to ignore such representations raises the question whether the appeal provisions have any real content - or if they are just for show.

Why should the defence force be exempt from providing reasons for its administrative decisions - decisions that have such a grave impact on someone's life? And why should there be no higher recourse for someone in Joubert's position, negatively impacted by secret decisions taken by faceless bureaucrats behind closed doors?

Joubert's union should take legal advice about further action: this time to ensure a proper response from the Defence Force, and to challenge the statutory basis which has allowed such an unfair, unjust situation to arise.

Of course, it's not just Joubert - other outfits apart from Armscor demand their staff gain security clearance. All such employees, subject to obtaining security clearance, are already extremely vulnerable: if those making the decisions know they will not be held to account for the outcome, the employee is even more at risk. A mistake, a personal vendetta, a decision made in pursuance of an improper political objective - none of these can be challenged, corrected or even brought to light given the way the law is apparently understood at present.

Add to this the apparent inability of the courts to help someone in Joubert's situation and it makes for a situation that feels like the bad old days, quite out of keeping with the promises, the guarantees even, of the constitution.

The Labour Court's decision in Joubert's case may well be the law - but it's not justice. And in our constitutional dispensation it comes as a shock to discover that such injustice can still be dispensed by the courts.

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