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[2020] ZALAC 26
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DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZALAC 26; [2020] 9 BLLR 881 (LAC); (2020) 41 ILJ 2078 (LAC) (18 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA61/2018
In the matter between:
DBT
TECHNOLOGIES (PTY) LTD
Appellant
and
MARIELA
GARNEVSKA
Respondent
Heard:
3 March 2020
Delivered:
18 May 2020
Summary:
Automatically unfair dismissal ---Dismissal pursuant to exercising
rights in terms s187(1)(d) of LRA 1995---employer dismissed
employee
for misconduct following the dismissal of grievance lodged against
fellow employee---employee alleging dismissal for exercising
rights---
filing of grievance not
amounting to taking action against employer---s 187(1)(d) concerning
referral dispute to the CCMA or another
governmental agency
concerning employer’s conduct---Labour Court not having
jurisdiction. Appeal upheld.
Coram: Waglay JP,
Sutherland JA and Murphy AJA
_________________________
__________________________________________
JUDGMENT
___________________________________________________________________
MURPHY AJA
[1]
The appellant appeals against the judgment of the Labour Court
(Mabaso AJ)
handed
down on 26 January 2018 which held that the respondent’s
dismissal was automatically unfair in terms of section 187(1)(d)
of
the Labour Relations Act
[1]
("the LRA") and ordering it to pay compensation equivalent
to nine months remuneration. Section 187(1)(d) of the LRA
provides
that a dismissal is automatically unfair if the reason for the
dismissal is ‘that the employee took action, or indicated
an
intention to take action, against the employer by – (i)
exercising any right conferred by this Act or (ii) participating
in
any proceedings in terms of this Act.’
[2]
The appellant is
a private company which
specialises in
manufacture,
supply and construction of plant sub-systems and component solutions,
primarily serving the power and oil and gas end
markets with both
new-build and aftermarket services in South & Sub-Saharan Africa
.
The respondent commenced employment with
the appellant in January 2010. At the time of her dismissal, she was
employed as the Senior
Financial Planning and Analyses Manager.
[3]
On 2 February 2015, a meeting was held in the appellant's boardroom
to
resolve a contractual dispute between
the appellant and one of its subcontractors. Various employees of the
appellant and its subcontractor,
including the respondent, were in
attendance. Prior to the meeting, the respondent and Mr. Gregory
Mailen, a Project Director in
the employ of the appellant, had a
disagreement during a conference telephone call.
Mailen
was also in attendance at the meeting. Mailen and the respondent also
openly differed about the contractual dispute during
the meeting.
Mailen left the meeting shortly before it was adjourned. The
respondent alleged that as Mailen was leaving the meeting,
he hit her
over the head with a file.
[4]
The respondent immediately reported the matter to her supervisor,
then drove home
from Johannesburg to Pretoria and visited a doctor to
seek medical attention. In the days following, the respondent
consulted an
attorney and lodged a formal grievance in terms of the
appellant’s grievance procedure wherein she alleged that she
was assaulted
by Mailen towards the end of the meeting. She also laid
a criminal charge of assault against Mailen at the SAPS.
[5]
A grievance inquiry was convened and chaired by an external
chairperson. The inquiry
held that the alleged assault was not proved
and dismissed the grievance. The respondent appealed against the
initial finding and
the appeal grievance hearing upheld the finding
of the grievance inquiry.
[6]
The appellant then charged the respondent with various counts of
misconduct. Following
a disciplinary enquiry chaired by a member of
the Bar, the respondent was found to have committed gross misconduct
for having falsely
accused Mailen of assault and by preventing other
employees from performing their duties. The chairperson of the
enquiry recommended
that the respondent be dismissed. An appeal in
terms of the disciplinary code was considered by another member of
the Bar, who
upheld the finding that the respondent be dismissed for
dishonesty.
T
he
respondent was subsequently dismissed.
[7]
After conciliation failed, the respondent referred a dispute to the
Labour Court in
terms of section 191(5)(b) of the LRA alleging that
her dismissal was automatically unfair in terms of section 187(1)(d)
of the
LRA. In paragraph 26 of her statement of claim, the respondent
formulated the legal issues for determination as follows:
‘
26.1
Was Applicant’s dismissal automatically unfair in terms of
section 187(1)(d) of the [LRA]?
26.2 Was the disciplinary
process that was instituted against the Applicant and which led to
her dismissal, instituted as a result
and a direct consequence of the
grievance she filed in terms of the Respondent’s grievance
procedure and the exercising of
a right in terms of the Act?
26.3 Were the charges
formulated and levelled against the Applicant a direct consequence of
the Applicant exercising a right in
terms of the Act?’
[8]
The relief sought by the respondent in the statement of case was
confined to orders
declaring the dismissal to have been automatically
unfair; reinstating her retrospectively to the date of dismissal; or
alternatively
compensation in an amount equal to 24 months
remuneration. The respondent did not seek an order declaring the
dismissal to be substantively
and/or procedurally unfair as
contemplated in section 188(1) of the LRA. During the trial, the
respondent abandoned her prayer
for reinstatement and limited her
claim to one for compensation.
[9]
In its statement of response, the appellant denied that the dismissal
was automatically
unfair and that the disciplinary process was
instituted against the respondent as a result of the grievance she
had initiated.
The disciplinary process was instituted against the
respondent, it contended, on the grounds of misconduct, most
particularly the
making of a false allegation of assault against
Mailen.
[10]
The Labour Court found that the evidence established a causal
nexus
between the respondent exercising her rights to institute a
grievance and her dismissal. It in effect found that the
sine qua
non
and the proximate or predominant cause of the dismissal was
the lodging of the grievance rather than the alleged dishonest or
false
accusation against Mailen. It accordingly concluded that the
respondent's dismissal was automatically unfair as contemplated in
section 187(1)(d) of the LRA and ordered the appellant to pay
compensation equivalent to nine months remuneration within 30 days
and made no order as to costs.
[11]
The appellant contends on appeal
inter alia
that the Labour
Court erred in finding there was evidence sufficient to establish
that the dominant reason for dismissal was that
envisaged in section
187(1)(d) of the LRA.
[12]
The reason for the dismissal is thus in sharp dispute.
[13]
Section 187 of the LRA lists reasons for which employees may not be
dismissed and categorises
such specific reasons as automatically
unfair.
[2]
The
categorisation of the reasons specified in section 187(1) of the LRA
as automatically unfair means that they cannot be conceived
as
reasons related to misconduct, incapacity or operational
requirements. If it is established on the evidence that the reason
for the dismissal was one of those proscribed in section 187(1) of
the LRA, there are two advantages. The employer can raise no
general
justification based on general principles of fairness, and the
employee can claim increased compensation in terms of section
194(3)
of the LRA (24 months of remuneration) in the event that she does not
want reinstatement. Additionally, in terms of section
191(5)(b) only
the Labour Court and not the Commission for Conciliation, Mediation
and Arbitration (“the CCMA”) has
jurisdiction to
determine an automatically unfair dismissal.
[14]
To reiterate: the respondent’s pleaded cause of action is that
she was dismissed on the
prohibited ground in section 187(1)(d) of
the LRA. The appellant says the reason for her dismissal was
dishonest misconduct. Whether
a dismissal is automatically unfair is
essentially an enquiry into its causation and whether the reason for
the dismissal was one
of the grounds listed in section 187(1) of the
LRA.
The
essential inquiry under section 187(1)(d) of the LRA is whether the
reason for the dismissal was “that the employee took
action, or
indicated an intention to take action, against the employer” by
exercising any right conferred by the LRA or participating
in any
proceedings in terms of the LRA. The test for determining the true
reason is that laid down in
SA
Chemical Workers Union v Afrox Ltd
.
[3]
The court must determine factual causation by asking whether the
dismissal would have occurred if the employee had not taken action
against the employer. If the answer is yes, then the dismissal is not
automatically unfair. If the answer is no that does not immediately
render the dismissal automatically unfair; the next issue is one of
legal causation, namely whether the taking of action against
the
employer was the main, dominant, proximate or most likely cause of
the dismissal.
[15]
There is no evidence of any kind on record indicating that at the
time of the respondent’s
dismissal she had taken action
or indicated an intention to take action against
the appellant. Her referral of a dispute (about her dismissal) to the
CCMA in terms
of the LRA was the only action she took against her
employer and was subsequent to her dismissal. It is in any event not
the respondent’s
case that she was dismissed because she took
action, or indicated an intention to take action against the
appellant. The respondent’s
case is
that
the disciplinary process leading to her dismissal was instituted
against her as a result and a direct consequence of the grievance
she
filed in terms of the appellant’s grievance procedure.
[16]
A grievance complaining about a fellow employee’s conduct,
filed in terms of a contractually
agreed grievance procedure at first
glance does not constitute taking action against an employer, nor
ordinarily, does it involve
the exercise of any right conferred by
the LRA or the participation in any proceeding in terms of the LRA.
The LRA does not expressly
confer rights upon employees to file
grievances. Nor does it establish a mechanism or proceeding for the
resolution of grievances
filed by employees. The only reference to
the processing of grievances in the LRA is found in section 115(3)(b)
of the LRA which
provides that the CCMA may provide employees,
employers and their bargaining agents with advice or training
relating to ‘preventing
and resolving disputes and employees’
grievances’. Hence, the only right that the LRA confers in
relation to employee
grievances is the right to approach the CCMA for
training.
[17]
In our law and practice, therefore, the right to file a grievance and
to have it processed is
based in contract and is derived either from
any applicable grievance procedure incorporated as part of the
implied terms of the
individual contract of employment or from a
collective agreement enforceable in terms of section 23 of the LRA.
[18]
Where an employee files a grievance under a grievance procedure
forming part of a collective
agreement binding in terms of section 23
of the LRA, it is perhaps arguable that she exercises a right
conferred (albeit indirectly)
by the LRA. It does not seem that the
grievance procedure applicable in this case formed part of a
collective agreement. However,
even if it did, such alone would not
be sufficient. The respondent still faces the hurdle of showing that
she was dismissed because
she took action or intended to take action
against the appellant prior to her dismissal and such pre-dismissal
action was the proximate
reason for her dismissal.
[19]
As said, the filing of a grievance about the behaviour of another
employee does not amount to
taking action against the employer. It is
a request by an employee for action to be taken to resolve an
internal problem. Nor does
it involve the direct exercise of a
statutory right against the employer. Section 187(1)(d) of the LRA is
not concerned with the
filing of a grievance. It is directed rather
at situations such as an employee exercising a right to refer a
dispute to the CCMA
or another governmental agency concerning the
employer’s conduct. A request by an employee to discipline
another employee
for alleged misconduct does not fall within the
ambit of conduct targeted by the provision.
[20]
Without question, were the evidence to prove that an employee was
dismissed for filing a grievance,
the dismissal would be unfair
because it would be for a substantively unfair or invalid reason. The
employee could challenge the
dismissal under section 188 of the LRA
and after failed conciliation could refer the dispute for arbitration
under section 191(5)(a)
of the LRA. But if there is no evidence that
the employee was dismissed for taking or intending to take action
against the employer,
as in this case, the unfair dismissal will not
fall into the category of automatically unfair dismissal contemplated
in section
187(1)(d) of the LRA entitling the employee to proceed
directly to the Labour Court in terms of section 191(5)(b) of the LRA
or
to increased compensation in terms of section 194(3) of the LRA.
[21]
In the premises, the respondent has failed to prove her cause of
action that the proximate reason
for her dismissal was the one
envisaged in section 187(1)(d) of the LRA and that she was dismissed
for an automatically unfair
reason. Consequently, the Labour Court
had no jurisdiction to determine the dispute.
[22]
During argument, we were referred to the decision of the Labour Court
in
Mackay
v Absa Group and another (Mackay)
[4]
holding that the exercise of a right to lodge a grievance conferred
by a private agreement between the employer and the employee
falls
with the ambit of section 187(1)(d) of the LRA. The Labour Court, in
that case, accepted that the LRA does not make explicit
provision
protecting an employee who lodges a grievance against his employer in
terms of an internally agreed document such as
a grievance procedure
or code. It held however, that one of the main objects of the LRA is
to give effect to and regulate the fundamental
rights conferred by
the Constitution of the Republic of South Africa, 1996 (Constitution)
including the right to fair labour practices.
The LRA, the judge
reasoned, is intended to regulate and govern the relationship between
employee and employer. In keeping with
the LRA’s main objects,
all disputes arising from the employer-employee relationship must be
effectively resolved. Therefore,
in keeping with the main object of
the Act i.e. of resolving all labour disputes effectively, and with
the constitutional guaranteed
right to fair labour practices, the
Labour Court held it must follow that a purposive interpretation of
section 187(1)(d) of the
LRA would mean that the exercise of a right
conferred by a private agreement binding on the employer and employee
as well as participation
in any proceeding provided for by such
agreement was also contemplated in that section.
[5]
[23]
The reasoning of the Labour Court in
Mackay
is, with respect,
misdirected. There is no need to read into the language of section
187(1)(d) of the LRA an additional species
of automatically unfair
dismissal in order to give effect to the constitutional right to fair
labour practices or to advance effective
dispute resolution. Section
188 read with section 191(5)(a) of the LRA amply protects the rights
of an employee who is dismissed
for lodging a grievance under a
private agreement and provides for effective dispute resolution by
means of arbitration. The constitutional
right to fair labour
practices in section 23(1) of the Constitution is given effect to by
the LRA. Section 187(1) of the LRA explicitly
carves out particular
kinds of egregious employer conduct for adjudication exclusively by
the Labour Court with additional remedial
powers to grant increased
compensation. There is no legal basis to extend the scope of section
187(1) of the LRA by adding additional
kinds of employer conduct not
contemplated by the legislature when enacting the LRA, especially
where it has provided adequate
redress elsewhere. Moreover, the
decision in
Mackay
is perhaps distinguishable from the present
case. In
Mackay,
the Labour Court held that the employee had
taken action against the employer at the time of his dismissal.
[24]
The decision of the Labour Court in
Mackay
was overturned by this court on appeal.
[6]
Zondo JP (as he then was) held that there were two questions which
had to be dealt with in order to uphold the finding that the
dismissal was automatically unfair. The one was factual, the other
legal. The factual one was ‘whether the reason why the
respondent was dismissed is that he had instituted a grievance
against the appellants’. The legal one was whether, when an
employee uses an internal grievance procedure of his employer, he can
be said to be ‘exercising a right conferred’
on him by
the LRA as contemplated by sec 187(1)(d)(i) of the LRA. If the answer
to the factual question was in the negative, the
legal question would
fall away. The court found that the reason for the dismissal was not
the fact that Mackay had instituted a
grievance and thus did not
determine whether the filing of a grievance involved the exercise of
a right conferred by the LRA.
[25]
By similar token, in the present case, there is no evidence that the
respondent took any action
against the appellant which led to her
dismissal with the result that no automatically unfair dismissal
occurred on the facts.
In the result, the Labour Court erred in
assuming jurisdiction over the dispute. The dispute about the
substantive fairness of
the dismissal should have been referred to
arbitration in terms of section 191(5)(a) of the LRA.
[26]
In terms of section 158(2) of the LRA, if at any stage after a
dispute has been referred to the
Labour Court, it becomes apparent
that the dispute ought to have been referred to arbitration, the
Labour Court may stay the proceedings
and refer the dispute to
arbitration or, if it is expedient to do so, continue with the
proceedings as if it were an arbitrator.
The respondent made no
request in its statement of case for the Labour Court to act in terms
of section 158(2) of the LRA in the
event that it was found to lack
jurisdiction under section 191(5)(b) of the LRA.
[27]
The appeal must accordingly succeed. This is not a case in which
fairness demands an award of
costs.
[28]
In the result, the appeal is upheld and the order of the Labour Court
is set aside and substituted
with an order dismissing the
application.
_________________
JR Murphy
Acting
Judge of Appeal
I agree
________________
B Waglay
Judge
President
I agree
_______________
R Sutherland
Judge
of Appeal
APPEARANCES:
FOR THE
APPELLANT:
Adv T Ngcukaitobi
Instructed by Cliffe
Dekker Hofmeyr
FOR THE FIRST RESPONDENT:
Adv WP
Bekker
Instructed
by Schoeman & Associates
[1]
Act 66 of 1995.
[2]
See
generally Grogan
Workplace
Law
(10
th
Ed) Chapter 12 for a lucid exposition of the law.
[3]
(1999)
ILJ 1718 (LAC) – See also
Kroukam
v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC) para 26 et seq.
[4]
[1999]
12 BLLR 1317 (LC).
[5]
Mackay
was followed and applied by the Labour Court in
De
Klerk v Cape Union Mart
(2012) 33 ILJ 887 (LC).
[6]
Absa
Bank Limited and Another v Mackay
(CA8/99)
[2000] ZALAC 18 (22 August 2000).