Armaments Corporation of SA (Soc) Ltd v CCMA (JR1961/13; JR1510/13) [2016] ZALCJHB 14 (20 January 2016) per Whitcher J.
On review the Labour Court upheld the reason for dismissal as being valid and fair. The reason related to the employee’s loss of a security clearance after more than 30 years service. But the procedure prior to dismissal was regarded as unfair and the employee was awarded 8 months’ remuneration as compensation. It just so happens that the amount is about the same as severance pay for the years of service. It was also decided that in reality the true reason related to the employee’s ‘incapacity’ in not being able to work without a security clearance. It is suggested the reason could just as well have been based on operational requirements. Apart from a ‘joint consensus-seeking process’ the employee would have had a right to be paid not only notice pay but also severance pay in terms of the Basic Conditions of Employment Act.
Excerpts [footnotes omitted]
[29] I agree with Mr Myburgh that incapacity is the correct categorisation of the basis for Mr Joubert’s dismissal and that this is apparent from this commentary by Prof Brassey SC, which was quoted with approval by the LAC in Samancor:
“Incapacity may be permanent or temporary and may have either a partial or a complete impact on the employee’s ability to perform the job. The Code of Good Practice: Dismissal conceives of incapacity as ill-health or injury but it can take other forms. Imprisonment and military call-up, for instance, incapacitates the employee from performing his obligations under the contract. The dismissal of an employee in pursuance of a closed shop is for incapacity; so is one that results from a legal prohibition on employment.” (Emphasis added.)
[30] I also agree that, in line with this authority, Mr Joubert’s dismissal was fair in that it resulted from a ‘legal prohibition on employment’ brought about by section 37(2) of the Defence Act.
[31] In addition, Mr Joubert’s dismissal was 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’. 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 Mr Joubert as a senior manager, namely ‘secret’ and ‘confidential’, this rule or standard is patently fair and reasonable, as was Mr Joubert’s dismissal ensuing from it.
[32] A consideration of the above facts and submissions – which were ignored in their entirety by the Commissioner – demonstrates that the Commissioner’s finding of substantive unfairness was unreasonable. Put differently, a failure to consider these factors caused an unreasonable result.
Reported
[2016] 5 BLLR 461; (2016) 37 ILJ 1127 (LC)
BLLR headnote
Dismissal – Incapacity – Employee dismissed after being refused security clearance by outside agency – Dismissal fair as security clearance precondition of employment with employer and removal thereof rendering employee legally incapable of rendering service.
Dismissal – Remedies – Reinstatement – Employee reinstated after being found unfairly dismissed because he had been refused security clearance by outside agency – Order of reinstatement incompetent because employee legally prohibited from rendering service.