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[2007] ZASCA 120
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Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala (461/06) [2007] ZASCA 120; [2007] SCA 120 (RSA); [2008] 6 BLLR 535 (SCA); 2008 (1) SA 551 (SCA); (2008) 29 ILJ 267 (SCA) (27 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
:
461/06
In the matter between :
RAOL
INVESTMENTS (PTY) LTD
t/a THEKWINI
TOYOTA
.......................
Appellant
- and -
ZWELINJANE
MADLALA
.......................
Respondent
____________________________________________________________________________
Before: SCOTT, FARLAM, NUGENT, JAFTA & MAYA JJA
Heard: 10 SEPTEMBER 2007
Delivered: 27 SEPTEMBER 2007
Summary: Dismissal of employee – automatic unfairness –
differentiation in treatment not necessarily racial discrimination.
Neutral citation: This judgment may be referred
to as
Raol Investments v Madlala
[2007] SCA 120 (RSA)
____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The respondent, who was employed by the appellant
(the company) for about 15 years, was dismissed for assaulting his
immediate
supervisor. After protracted proceedings brought by the
respondent to contest the fairness of his dismissal his claim was
upheld
by the Labour Court, which ordered that he be reinstated. An
appeal by the company to the Labour Appeal Court (Zondo JP, Nkabinde
and Davis AJJA) was not successful (except in a limited respect that
is not material for present purposes). The company now applies
for
leave to appeal to this court. The judges who considered the petition
referred it for oral argument
1
with directions that the parties prepare to argue the
merits of the appeal if called upon to do so. The respondent,
apparently for
lack of funds, was not represented before us.
[2] There is some dispute concerning the details of the
incident that gave rise to this matter but for present purposes I
will accept
the evidence that was tendered on behalf of the company.
One afternoon the service manager, Mr van Rooyen, who was the
respondent’s
immediate supervisor, while driving onto the
premises of the company, accidentally drove over the respondent’s
foot. Van Rooyen
proceeded to drive a further twenty or so metres
where he parked his vehicle. He alighted, called out an apology to
the respondent,
and proceeded to his office. He sent another staff
member to enquire whether the respondent had been injured and it was
reported
to him that he had not.
[3] The respondent was aggrieved at what he thought to
be Van Rooyen’s indifference to what had occurred. The
following morning
Van Rooyen was walking to the service department
when he encountered the respondent and another employee. He greeted
the respondent
who responded with a vulgarity. Van Rooyen replied
‘the same to you’ and turned away to walk to his office.
The respondent
approached Van Rooyen from behind and kicked him in
the small of his back, whereupon Van Rooyen turned around, and the
respondent
threw a punch in his direction that grazed him on the
shoulder. Van Rooyen reported the matter to one of his seniors, a
disciplinary
enquiry was held, and the respondent was dismissed.
[4] Had that been all that occurred the dismissal of the
respondent ought not to have been exceptionable. Assaults at the
workplace
are unacceptable and will generally justify immediate
dismissal.
2
(The company’s disciplinary code expressly
provided for that sanction.) However, some two years earlier the
respondent had himself
been the victim of an assault, which had not
resulted in his assailant being dismissed, and he was aggrieved at
what he considered
to be unequal treatment.
[5] According to the respondent the earlier assault
occurred after Mr Ferreira, who was at the time a salesman employed
by the company,
accidentally struck the respondent on the elbow with
a metal pipe. The respondent reacted with a vulgarity whereupon
Ferreira punched
him. The two then came to grips and wrestled until
the respondent slipped and fell to the floor. Ferreira struck the
respondent’s
head on the floor, breaking his teeth, and the two
were then separated by another employee.
[6] It is not disputed that the respondent did not lodge
a formal complaint to management in consequence of the assault upon
him by
Ferreira and accordingly no disciplinary enquiry was held.
(Why the respondent failed to do so is in dispute but that is not
material.)
Instead it was Ferreira who complained. He wrote to Van
Rooyen lodging what he called a ‘formal complaint against [the
respondent]
for verbal and racial abuse’. The matter was not
investigated further but Ferreira was given a warning and there the
matter
ended.
[7] The Labour Appeal Court found that the disparate
treatment of Ferreira and the respondent respectively was
unjustified, which,
by itself, would ordinarily have justified a
finding that the dismissal of the respondent was unfair.
3
However the court (in separate judgments of Nkabinde AJA
with whom the remaining members concurred, and of Zondo JP with whom
Nkabinde
AJA concurred) went on to find that the dismissal of the
respondent was automatically unfair (as contemplated by
s 187(1)(f)
of the
Labour Relations Act 1995
) because the disparate treatment was
racially based.
4
[8] Discrimination against an employee on the grounds of
race or other arbitrary grounds clearly has no place in employment
practices,
5
quite apart from being unlawful. But while a court must
be vigilant to ensure that that does not occur, equally it must be
wary of
concluding too hastily that an employee has been
discriminated against on grounds of race merely because disparity of
treatment coincides
with racial disparity.
[9] There seems to be some uncertainty in the labour
courts as to where the burden lies of establishing that the reason
for a dismissal
either was or was not discriminatory
6
but it is not necessary to resolve that question in the
present case. In the present case the Labour Appeal Court reached its
conclusion
as a matter of inference from the established facts. Quite
simply, it reasoned that because there was disparity of treatment
that
was not justified it followed axiomatically that the company
discriminated against the respondent on the grounds of race.
7
[10] That reasoning is unsound. Whether an employer has
discriminated against an employee on the grounds of race (or on any
other
arbitrary ground) is a question of fact (whether the
discrimination was unfair is a separate question). Where the evidence
establishes,
as it does in this case, that the employer treated
employees differently on grounds other than race, there is simply no
scope to
infer that the employee was discriminated against on the
grounds of race, because the reason for the disparate treatment has
been
established to be something else. That the differential
treatment was not justified is immaterial to the factual enquiry as
to the
reason that it occurred.
8
In this case the company said that its disparate
treatment of the two employees (Ferreira was white and the respondent
is black) was
because a formal complaint was lodged by the victim of
the assault in one case but not in the other. Unless that explanation
is rejected
as no more than a smokescreen to conceal a more sinister
motive (and in my view there are no proper grounds for doing so)
there is
simply no scope for an inference to be drawn that conflicts
with that explanation.
[11] Had the order that was made by the Labour Appeal
Court been dependent only upon that finding of racial discrimination
it might
well have constituted sufficient reason for this court to
interfere. But I think it is apparent from the reasoning of that
court
that even had it not found that the dismissal was automatically
unfair (on the grounds of racial discrimination) the Labour Appeal
Court would in any event have found that the disparity of treatment
alone rendered the dismissal unfair. Bearing in mind the test
for
leave to appeal to this court as it was articulated in
Fry’s
Metals
,
9
I do not think that good grounds have been shown for
this court to entertain an appeal from that value judgment, which is
peculiar
to the particular circumstances, and raises no matter that
is ‘objectively of such importance to the parties or the public
that special leave should be granted’.
10
[12] Accordingly the application for leave to appeal to
this court is refused.
__________________
R.W. NUGENT
JUDGE OF
APPEAL
CONCUR
:
SCOTT JA)
FARLAM JA)
JAFTA JA)
MAYA JA)
1
See
s 21(3)(c)(ii) of the Supreme Court Act 1959.
2
John
Grogan:
Dismissal, Discrimination and Unfair Labour Practices
241
3
See
the discussion of disparity of treatment in
SA Commercial
Catering & Allied Workers Union v Irvin & Johnson Ltd
(1999) 20 ILJ 2302 (LAC) para 29;
Cape Town City Council v
Masitho
(2000) 21 ILJ 1957 (LAC) paras 11-14;
Chemical Energy
Paper Printing Wood & Allied Workers Union v Metrofile (Pty) Ltd
(2004) 25 ILJ 231 (LAC) paras 35-38.
4
That
subsection provides that a dismissal is automatically unfair if the
reason for the dismissal is
‘that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including,
but not
limited to race …’
5
See
the judicial attitude to racial discrimination as it was expressed
in
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
(2002) 23 ILJ 863 (LAC).
6
Mafomane
v Rustenburg Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) para 57;
Mashava v Cuzen & Woods Attorneys
(2000) 21 ILJ 402 (LC);
Kroukam v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC) para
28;
Janda v First National Bank
(2006) 27 ILJ 2627 (LC) paras
13-23. See, too, Martin Brassey:
Commentary on the
Labour
Relations Act
(Rev
. Ser. 2 2006) A8-142; John Grogan:
Workplace
Law
9 ed p. 148; John Grogan:
Dismissal, Discrimination and
Unfair Labour Practices
p. 202.
7
See
Nkabinde AJA para 24, apparently on the concession of counsel, and
Zondo JP para 54.
8
I
do not agree with the suggestion in
Mafomane v Rustenburg
Platinum Mines Ltd
, above, at para 57.3, that in the absence of
a ‘rational and justifiable basis for differentiation’
an inference arises
that the differentiation was made on the ground
of race. If it is established as a fact that the differentiation was
not made on
the grounds of race then that fact is not altered by the
additional finding that the grounds upon which the employer
differentiated
were either not rational or not justifiable.
9
NUMSA
v Fry’s Metals (Pty) Ltd
2005 (5) SA 433
(SCA) paras 42
and 43.
10
Fry’s
Metals
, above, para 43.