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[2013] ZALCJHB 69
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Nyakunhuwa v Ford and Another (JS 894/12) [2013] ZALCJHB 69 (2 May 2013)
3
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JS 894-12
In the matter between –
KENNETH NYAKUNHUWA
............................................................................
Applicant
and
TREVOR FORD
..................................................................................
First
Respondent
CAFÉ’ VIBE
...................................................................................
Second
Respondent
Date of judgment: 02 May 2013
Summary: Default judgment. Automatically unfair dismissal.
Dismissal because employee citizen of Zimbabwe.
_______________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI J
This is an application for a default judgment in terms of which the
applicant seeks an order among others for his reinstatement
following his dismissal by the respondents.
The application for a default judgment is based on the averment by
the applicant that despite proper service the respondents
have
failed and/or neglected to file the statement of opposition to the
claim against them within the prescribed legal time limits.
The applicant is a Zimbabwean who has been resident in South Africa
since 2000. During 2010 the applicant entered into a written
contract of employment with the respondent in terms of which he was
employed as a
sous-chef.
According to the applicant he was dismissed by the first respondent
on 22 June 2012. The reason for the dismissal given by the
first
respondent was that the applicant "must go and get
nationalised.” The first respondent further issued the
applicant with a copy of the letter which was addressed in the
second respondent informing it that the applicant was a foreign
citizen. The applicant was after receipt of the letter and after he
enquired as to whether he should report for work the following
day,
escorted off the premises by the security guards.
The applicant further states that amongst other things the
respondents knew that he was a Zimbabwean citizen at the time of
concluding the employment contract and that he had documentation
supporting his lawful stay in South Africa.
The applicant contends that the sole reason for his dismissal was
because of his status as a foreign citizen of Zimbabwe. The
applicant further contends that the reason for his dismissal amounts
to discrimination based on arbitrary grounds and was thus
in breach
of the provisions of
section 187(1)(f)
of the
Labour Relations Act
66 of 1995
.
Section 187
(1) (f) of the
Labour Relations Act
provides
:
“
A
dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to
section 5
1
STYLE="font-size: 8pt">
49
or, 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, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
political
opinion, culture, language, marital status or family responsibility”.
In WORKPLACE LAW
1
the onus of proof in dismissal proceedings was summarised as
follows:
“
The
onus is on the employees to prove that they were in fact dismissed,
and on the employer to show that the dismissal was fair.
Proof that a
dismissal took place requires employees to prove on a balance of
probabilities that they were employees as defined
at the time of the
termination of employment relationship. Proof that the dismissal was
fair requires the employer to prove on
balance of probabilities that
the employee in fact committed misconduct, or was incapacitated to
the degree alleged, as the case
may be. The employer must also prove
on a balance of probabilities that it complied with the procedural
requirements of the type
of dismissal concerned.
In the absence of any evidence contradicting the version of the
applicant I have no reason to doubt its truthfulness. Accordingly
the applicant has made out a case for a default judgment including a
case that his dismissal was automatically unfair as it was
based on
a prohibited ground of his nationality.
The order
In the premises, the following order is made:
The dismissal of the applicant was automatically unfair.
The respondents are ordered to reinstate the applicant
retrospective to the date of his dismissal on the same terms and
conditions which prevailed at the time of his dismissal and
without loss of benefits.
The respondents are to provide the applicant with a written
apology in which the respondents records and confirm that the
applicant has no disciplinary infraction on his employment record
and that he was not dismissed for criminal activity.
E MOLAHLEHI
JUDGE OF THE LABOUR COURT OF
SOUTH AFRICA
Appearances:
Matter
considered in Chambers
1
Workplace
Law by John Grogan 9
th
Edition at page 123 para 5