National Commissioner of the South African Police Service and Another v M.A. Mphalele N.O. and Another

M.A. Mezichel was employed at SAPS in Kraaifontein as a legal advisor holding the rank of Warrant Officer. He had a drinking problem which resulted in emotional difficulties and erratic work attendance. Due to suspicions of previous falsification of attendance records, he was required to report to Captain Barlow and Colonel Vanto on arrival and departure. Between 4-11 September 2013, Mezichel was absent from work without permission on several days (5, 6, 10, 11 September 2013). On 4 September 2013 he signed on but left without signing off. Lt-Col Philander photocopied the Z8 Register on 11 September 2013 to document unauthorized absences. On 12 September 2013, Mezichel made false entries in the Z8 Register reflecting that he had booked on and off during his unauthorized absences. A disciplinary hearing found him guilty of making false entries, absenting himself without permission, failing to hand in a sick certificate, and failing to report for duty. The disciplinary tribunal imposed dismissal for the false entries charge and final written warnings for other charges. The appeal authority confirmed the guilty verdict but reversed the dismissal sanction, replacing it with a suspended dismissal and reducing other sanctions to a combined fine of R500. The SAPS sought review of the appeal authority's decision on sanction.

• Whether the appeal authority's decision to reverse the sanction of dismissal was rational and reasonable
• Whether the Labour Court erred in dismissing the review application
• Whether dismissal was the appropriate sanction for falsifying attendance records by a police officer and legal advisor
• Whether procedural delays affected the fairness of the dismissal sanction
• What standard of conduct is required of police officers who also serve as legal advisors

The appeal was upheld and the order of the Labour Court was set aside. The decision of the appeal authority dated 27 November 2014 was set aside and substituted with a decision upholding the decision of the disciplinary tribunal made on 4 February 2014 (dismissal). No order as to costs was made.

A police officer who also serves as a legal advisor is required to observe the highest standard of integrity, good faith, honesty, and reliability. Police officers and lawyers must act honourably in a manner befitting their office, free from fraud, deceit and falsehood, both in discharge of official duties and in private life. Fraudulent conduct such as falsification of attendance records by such an employee self-evidently destroys confidence and makes restoration of trust virtually impossible, justifying dismissal as the only sensible and rational operational response. An appeal authority's decision to reduce a sanction of dismissal in such circumstances, where there is no rational connection between the purpose of the disciplinary regulations, the evidence, and the reasons for reducing the sanction, is irrational and subject to review under section 158(1)(h) of the LRA. Minor procedural delays in the disciplinary process that cause no prejudice to the employee do not impact on the substantive fairness of a dismissal sanction.

The Court observed that a police officer who practices fraud in his own life while being required to act against fraud in his official duties is a hypocrite, and that this inevitably results in a total loss of confidence in the officer concerned which could rub off on SAPS more generally, adding to a loss of public confidence in SAPS. The Court noted that where the nature and gravity of misconduct are such that dismissal is a foregone conclusion, remitting the matter to another appeal authority would merely prejudicially delay the inevitable, and substitution is therefore appropriate. The Court also commented that POPCRU's decision to defend the appeal authority's decision in favour of its member was not unreasonable or frivolous, justifying the decision not to award costs against the respondents.

This case establishes important principles regarding the standard of conduct required of police officers who also serve as legal advisors, particularly in relation to dishonesty and falsification of records. It confirms that such employees are held to the highest standards of integrity, honesty, and reliability, and that fraudulent conduct inevitably destroys the trust relationship necessary for continued employment. The case also clarifies the grounds for reviewing disciplinary sanctions under section 158(1)(h) of the LRA, confirming that irrationality is a proper ground for review. It demonstrates that where an employee's misconduct is so serious as to make dismissal inevitable, courts may substitute the decision rather than remitting it to another decision-maker. The judgment also provides guidance on when procedural delays will or will not impact the substantive fairness of a dismissal sanction.