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[2020] ZALAC 73
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Securitas Specialised Services (Pty) Ltd v Kabelane (JA56/19) [2020] ZALAC 73; (2021) 42 ILJ 833 (LAC) (14 December 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 56/19
In
the matter between:
SECURITAS
SPECIALISED SERVICES (PTY)
LTD Appellant
and
SAMSON
KABELANE Respondent
Heard:
27
November 2020
Delivered:
14
December 2020
Coram:
Coppin JA, Murphy AJA and
Savage AJA
JUDGMENT
MURPHY
AJA
[1] The
appellant appeals against the judgment of the Labour Court (Mahosi J)
delivered on 29 March 2019 in which
it found that the dismissal of
the respondent was automatically unfair and ordered his
reinstatement. The appellant contends that
the Labour Court erred in
finding that the respondent was dismissed for participating in union
activities and should instead have
found that the appellant dismissed
the respondent for misconduct.
[2] The
respondent was in the employ of the appellant as a security officer
from 22 August 2008 until his dismissal
on 19 January 2017. At the
time of his dismissal, he was deployed to one of the appellant’s
important clients, Kentucky Fried
Chicken (KFC), at its outlet in
Akasia, Pretoria. The respondent joined the United Private Sector
Workers Union (UPSWU) in 2015.
[3.] In
January 2016, UPSWU issued a letter addressed to ‘whom it may
concern’ advising that the respondent
was duly authorised by
UPSWU to represent any UPSWU union member before any ‘authorised
institutions, CCMA and bargaining
council’.
[4] On
15 November 2016, the respondent represented Mr. Stanley Mhangwani
(Mhangwani), a former employee of KFC
Akasia, in an unfair dismissal
dispute before a bargaining council. Mhangwani had been dismissed by
KFC Akasia for theft. KFC was
not happy about the respondent, a
security officer, representing one of its employees in a dispute
against it. KFC wrote to the
appellant expressing its disquiet,
emphasising that it had a difficulty with a security officer deployed
to protect its business
acting on behalf of an employee who had
stolen from it.
[5] On
8 December 2016, the appellant issued a notice to the respondent
directing him to attend a disciplinary
enquiry and requiring him to
answer certain allegations of misconduct. The appellant formulated
five different charges against
the respondent all emanating from the
respondent acting on behalf of Mhangwani, namely: committing an act
detrimental to the company;
disruption of company activities;
bringing the company’s name into disrepute; disloyalty; and
breach of a specific clause
of the contract of employment. The
charges involve a measure of duplication and splitting. The key
allegation of misconduct was
that the respondent acted contrary to
the interests of the appellant by representing Mhangwani.
[6] The
respondent was found guilty of the misconduct. The appellant regarded
the offence as serious as it had
put the relationship with an
important client at risk. It accordingly dismissed the respondent.
[7] The
respondent thereafter referred an automatically unfair dismissal
dispute as contemplated in s 187(1) of
the Labour Relations Act
[1]
(the LRA) to the Labour Court. Section 187(1) of the LRA provides
inter alia that a dismissal is automatically unfair if the employer
in dismissing the employee acts contrary to s 5 of the LRA, which
proscribes anti-union discrimination, prejudicing or disadvantaging
an employee for exercising any right conferred by the LRA or
participation in any proceedings in terms of the Act. The respondent
alleged that his dismissal was discriminatory because he was
victimised for being involved in the activities of a trade union.
[8] The
appellant submitted that the respondent’s representation of
Mhangwani at the bargaining council strained
the relationship between
the appellant and its client and put the service level agreement at
risk. By representing Mhangwani at
the bargaining council, the
respondent clearly acted detrimentally to the interests of the
appellant and compromised the appellant’s
business relationship
with the client. Acting detrimentally to the interests of the
appellant is a dismissible offence in terms
of the appellant’s
employee relations policy. Hence, the dominant reason for the
dismissal of the respondent was not his
participation in union
activities or in statutory proceedings but his acting to the
detriment of the appellant by representing
Mhangwani at the
bargaining council without the permission or knowledge of the
appellant.
[9] The
Labour Court held:
‘
By representing a
union member as [a] shop steward or union official, the applicant
[the respondent] did not commit an act detrimental
to the respondent
[the appellant], severely disrupt the respondent’s activities
or breach his contract of employment as charged.
In addition, his act
did not amount to disloyalty against the respondent. All he did, was
to exercise his rights conferred upon
him in terms of the
Constitution and the LRA. Accordingly, the falls within the scope of
s 187(1)
(d)
of the LRA and is automatically unfair.’
[10] The
appellant maintains that the Labour Court erred in two respects.
Firstly, there was no evidence before
the Labour Court that the
respondent was a union official of UPSWU. The respondent did testify
that he was a shop steward of UPSWU.
However, UPSWU did not enjoy
organizational rights at the appellant or at KFC and the respondent,
therefore, could not be regarded
as a shop steward at the workplace
of either the appellant or KFC, where he was not an employee. It is
thus doubtful that the respondent
had exercised his rights as a union
official or as a shop steward.
[11] Nonetheless,
it is arguable that the respondent might have been prejudiced for his
participation in proceedings
in terms of the LRA, which conduct is
proscribed by s 5(2)
(c)
(vii)
of the LRA. However, the charges and the evidence of the appellant’s
witness convincingly show that the appellant instituted
disciplinary
action not on account solely of the respondent’s participation
in proceedings at the bargaining council, but
rather because of his
lack of judgement in disregarding his employer’s interests by
representing an employee of KFC dismissed
for theft when it was part
of his job to protect the client. And, thus, it was argued, the
Labour Court erred in concluding that
the dominant reason for
dismissal was union activity or participation in the statutory
procedures.
[12] When
there are a number of factors or reasons contributing to an
employer’s decision to dismiss an employee,
it is necessary
when deciding whether the reason for dismissal renders it
automatically unfair to establish which reason of the
various reasons
was the dominant or proximate reason. In
SA
Chemical Workers Union & others v Afrox Ltd,
[2]
this court held that a causation analysis was the best way to
determine the most likely reason for the dismissal.
[3]
In this instance, the court must first determine factual causation by
asking whether the dismissal would have occurred if the employee
had
not participated in the statutory proceedings. If the answer is yes,
then the dismissal is not automatically unfair. If the
answer is no,
as is in fact the case, that does not immediately render the
dismissal automatically unfair; the next issue is one
of legal
causation, namely whether such refusal was the main, dominant,
proximate or most likely cause of the dismissal.
[13] The
cumulative reasons informing the decision to dismiss the respondent
were firstly that he participated
in statutory proceedings but more
significantly that he represented an allegedly dishonest employee of
the client of his employer
in apparent conflict with his duties and
his own employer’s contractual obligation to provide protection
services. The clear
wording of the charges, and the evidence overall,
show that the dominant reason for the dismissal was the latter not
his trade
union activities.
[14] It
might be argued that dismissal for this infraction was
inappropriately harsh in light of the respondent’s
length of
service. But the Labour Court had no jurisdiction to determine an
unfair dismissal case as contemplated in s 188 of the
LRA. No
application or decision was made in terms of s 158(2) of the LRA for
the Labour Court to act as an arbitrator in respect
of an ordinary
unfair dismissal referral that should have been referred to
arbitration in terms of the LRA. This court too thus
lacks
jurisdiction to consider whether the dismissal was substantively
unfair or to grant any relief in that regard. Employees
should take
caution and not too readily characterise a dismissal as automatically
unfair when the evidence may be insufficient
to substantiate such a
claim.
[15] Fairness
dictates that there should be no award of costs.
[16] 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
COPPIN
JA and SAVAGE AJA concurred.
Appellant’s
Attorneys:
Fluxmans
Inc
Respondent’s
Attorneys:
Mabaso Attorneys
[1]
Act 66 of 1995.
[2]
(1999) ILJ 1718 (LAC).
[3]
In
National
Union of Metalworkers of SA & others v Aveng Trident Steel
(A
Division of Aveng Africa (Pty) Ltd)
&
another
(2021)
42 ILJ 67 (CC)
,
the Constitutional Court was divided equally on whether the test was
useful. The second judgment held that where there are conflicting
reasons, the ordinary rules of evidence are sufficient to determine
the issue without reference to a causation analysis. The
virtue of
Afrox
is that it assists in the determination of a true reason when the
court is faced not with conflicting reasons but cumulative
or
co-contributing reasons. As the second judgment did not command a
majority,
Afrox
remains good law.