The National Commissioner of the South African Police v Ivan Myers

Lt. Col Ivan Myers was dismissed from the South African Police Service (SAPS) on 12 July 2007 while serving as Commander of the Maitland Dog Unit at salary level 10. The Supreme Court of Appeal (SCA) found his dismissal to be unfair and ordered reinstatement on 29 November 2012. Between his dismissal and the SCA order, SAPS restructured: the Maitland Dog Unit merged with the Faure Dog Unit to create the Cape Town K9 Unit. The restructured post remained at salary level 10 (rank: Lieutenant-Colonel). The National Commissioner approved upgrading the post to salary level 12 (rank: Colonel) in June 2009, but implementation was deferred to phase 2 of restructuring. Lt. Col Du Plessis occupied the restructured post (at level 10) until Myers' reinstatement in May 2015. Myers instituted two contempt applications, claiming entitlement to the upgraded salary level 12 post. The Labour Court (Whitcher J) granted relief ordering Myers be appointed at salary level 12 retrospective to 1 March 2011. SAPS appealed; Myers cross-appealed seeking greater retrospectivity.

• What is the proper interpretation of a reinstatement order and the scope of the employer's obligation to comply with it?
• Does a retrospective reinstatement order entitle an employee to promotions and upgrades to the post that occurred after dismissal but before reinstatement?
• What is the meaning and effect of 'reinstatement' under South African labour law, particularly in light of Equity Aviation?
• Whether the Labour Court erred in ordering reinstatement at a higher salary level and rank than that held at the time of dismissal?
• Whether the National Commissioner's discretion under regulation 30(8) of the SAPS Employment Regulations was properly considered?
• Whether new evidence should be admitted on appeal and whether the cross-appeal based on such evidence is competent?

Appeal upheld with costs, including costs of two counsel. The Labour Court order was set aside and replaced with an order dismissing the application with costs. The cross-appeal was dismissed with costs, including costs of two counsel. The application to adduce new evidence on appeal was dismissed with costs.

Reinstatement as a remedy aims to put the employee back in the same job or position occupied before dismissal, on the same terms and conditions of employment as existed at the time of dismissal. A reinstatement order restores the previous contract of employment; it does not create a new contract. An employee reinstated retrospectively is entitled only to remuneration and benefits to which he or she had a contractual or statutory entitlement at the time of dismissal. Where a post has been restructured or upgraded after dismissal but before reinstatement, the employee is entitled to be reinstated to the post as it existed when occupied by the incumbent, unless the employee can demonstrate a contractual or statutory right to the upgraded position. A court order directing reinstatement cannot fetter the exercise of statutory or regulatory discretions vested in the employer. The intention of a court order is to be ascertained primarily from the language of the judgment or order in accordance with usual rules of interpretation of documents, reading the order and reasons as a whole.

The court observed that an employee's claim that but for dismissal he would have achieved a promotion might give rise to a plausible unfair labour practice claim, but this does not mean reinstatement at the pre-dismissal salary level breaches the reinstatement order. The court noted that it is impermissible for a party to pursue on appeal or cross-appeal a case that conflicts with the case previously pursued in lower courts. The court emphasized that appeal courts should grant leave to adduce new evidence only sparingly, where special grounds exist, there is no prejudice, and the evidence is necessary to do justice. The court stated that it is not competent for a cross-appeal to lie against a judgment based on new evidence adduced on appeal and a case never made in the court of first instance.

This case provides important clarification on the scope and effect of reinstatement orders in South African labour law. It confirms that reinstatement restores the employment relationship on the same terms and conditions as existed at dismissal, and does not automatically entitle an employee to promotions, upgrades or benefits that may have accrued to the post after dismissal unless there is a contractual or statutory entitlement. The judgment emphasizes that courts interpreting reinstatement orders must apply established principles from Equity Aviation. It also clarifies that reinstatement orders cannot fetter administrative discretions conferred by regulations (such as the National Commissioner's discretion under SAPS Employment Regulations). The case demonstrates the high threshold for admission of new evidence on appeal and the impropriety of pursuing on cross-appeal a case not made in the court below.