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[2014] ZALCPE 9
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Niemand v South African Post Office Ltd (P528/10) [2014] ZALCPE 9 (16 May 2014)

REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN PORT ELIZABETH
JUDGMENT
OF INTEREST TO OTHER
JUDGES
CASE
NO: P 528/10
In
the matter between:
LEONIE LOURETTA
NIEMAND
Applicant
And
SOUTH
AFRICAN POST OFFICE LTD
Respondent
Heard:
11-12 September 2012
Delivered:
16 May 2014
Summary:
(automatically unfair dismissal – protected disclosure –
exercising rights under LRA –
proximate cause of dismissal not
illegitimate reason)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
In this matter, the employer claims that
the reason for terminating the applicant's employment was on account
of incapacity in that
she had exhausted her sick leave allowance and
had not returned to work for a period of over 18 months. On 30 April
2010, she was
issued with a final notice of termination for refusing
or failing to report for duty, to take effect on 3 June 2010.
[2]
The applicant, Ms Niemand, claims that, on
the contrary, the reason for her dismissal after many years of
unblemished service with
the respondent was that her incapacity
resulted from being treated in a manifestly unfair irregular and
victimising manner by the
respondent because she had taken action
against a shop steward whom the respondent sought to protect and
because of significant
leave fraud which he had reported and the
respondent did not want to address.
[3]
She claims that her dismissal was
automatically unfair for one or more reasons. Firstly, she contends
that the dismissal was automatically
unfair as contemplated by
section 187 (1) (d) of the Labour Relations Act, 66 of 1995 ('the
LRA') because she had taken action,
or indicate an intention to take
action, against her employer by exercising a right conferred by the
LRA. This allegation relates
to her claim that it was because she had
taken disciplinary measures against a certain shop steward, Mr
Mahuwa, and this was a
proximate cause for her dismissal. The
alternative or further reason for her dismissal being automatically
unfair in terms of section
187 (1) (h) of the LRA is that her
dismissal amounted to an occupational detriment on account of her
having made a protected disclosure
as defined in the Protected
Disclosures Act, 26 of 2000, ('the PDA'). The disclosure in question
concerned her reporting the result
of her investigation concerning
leave fraud to certain managers of the respondent on 13 June 2008.
[4]
In terms of the pre-trial minute concluded
by the parties it was agreed that if the court found that the
dismissal was not automatically
unfair but was based on either
misconduct or incapacity the court would be required to determine
whether or not the matter is to
be referred to the CCMA for the
determination of an ordinary unfair dismissal claim. In essence, it
means that the parties did
not consent to the court sitting in an
arbitral capacity in respect of an ordinary unfair dismissal claim if
the dismissal was
found not to have been automatically unfair under s
158(2)(b) of the LRA, but left it in to the court to decide if the
matter should
be sent back to the CCMA to determine the unfair
dismissal claim in terms of the CCMA’s jurisdiction under
section 191(5)(a)(i).
It is common cause that when the applicant
originally referred the dispute to the CCMA on 1 June 2010 that she
claimed the dismissal
was either automatically unfair or an ordinary
unfair dismissal.
Common cause facts
[5]
The parties agreed that a number of facts
were common cause, the most salient of which are summarised below.
[6]
At the time of her termination by the
respondent the applicant had been employed for 37 years, had a clean
disciplinary record and
was not subject to any disciplinary
proceedings at the time. It was also agreed that she had received
several Merit awards for
her performance. The applicant held the
position of a senior supervisor in the Parcel Plus section of the
respondent and earned
R 13,419.52 per month.
[7]
On or about 11 February 2008, the applicant
initiated disciplinary action against Mr Mahuwa, but disciplinary
proceedings against
him were only instituted some time later.
Relating to this, on 25 February 2008 she had complained to her
manager, Ms Minya (neé
Bokako) about
Mr Mahuwa's conduct. Around the same time, it was envisaged that the
applicant, who had not been working on Saturdays
previously would now
do so.
[8]
In May 2008 the applicant undertook an
investigation concerning suspected excessive absenteeism for which
she obtained certain documents.
On 13 June 2008 she reported the
alleged leave fraud she had discovered to Ms Minya and to the general
manager based in Cape Town,
Mr Kemp. A week later, on 19 June the
applicant was asked to work on certain Saturdays by Ms Minya. The
latter said she couldn't
remember asking Ms Niemand to work on
Saturdays but denied that this fresh instruction would have had
anything to do with the applicant
lodging the grievance over alleged
leave fraud. Whether such a request was attributable to legitimate
operational requirements
of the respondent is a matter of dispute. On
20 June 2008 the applicant lodged a formal grievance with Ms Miny
over the instruction
to work on Saturday because she considered it an
unlawful and unilateral change to the existing terms and conditions
of employment.
[9]
Later in July 2008 an investigation into
the leave fraud issue was conducted by the respondent. The applicant
was neither involved
with it nor approached in that regard. The
investigation did not result in any disciplinary action being taken
against any of her
subordinates.
[10]
The employer also held disciplinary
proceedings against Mr Mahuwa in July 2008 which led to a finding
that he was guilty of misconduct
and a formal warning was issued to
him.
[11]
In early July, the applicant also submitted
a formal grievance against another employee, Ms Cuntu, an
administrative officer. Around
the same time the applicant was
instructed to investigate certain "missed routines" and to
obtain reports from responsible
individuals. During the same month,
computer Ms Niemand had previously utilised was reallocated to
another employee. Similarly,the
photocopy machine she had previously
used was also reallocated to a different department. The reason for
these changes is a matter
of dispute but the parties agreed that the
Parcel Plus section where the applicant worked was allocated a
different workspace because
it had swapped work areas with the
Registered Letter section. The operational reason advanced by Ms
Minya for removing the computer
was that when the Parcel Post section
within head office moved to the Registered Letter section a new
‘tracking and tracing’
system was introduced, which meant
that the applicant no longer required her own computer. It was also
suggested to the applicant
that only a Level I supervisor needed a
computer for transactions, but the applicant said she could not type
a letter or send an
email using the track and trace computer. What
was put to the applicant was that it was a consequence of these
changes she was
moved out of her former private glass-enclosed office
into an open plan office area.
[12]
In October 2008, the applicant was verbally
reprimanded because of her alleged unauthorised absence on 27 June
2008. The applicant
disputed whether the sanction was properly
imposed, but did not pursue any avenues of redress in that regard.
The parties could
not agree if this reprimand constituted proper
formal disciplinary action against the applicant.
[13]
Shortly afterwards, the applicant consulted
her psychiatrist, Dr Prinsloo. The latter booked the applicant off on
account of illness
and she did not return to work again after 30
October 2008. The next contact she had with the respondent after that
date was in
June 2009, when the respondent instructed the applicant
to see a psychiatrist appointed by the respondent in Grahamstown,
which
the applicant did.
[14]
An incapacity hearing was convened by the
respondent on about 6 November 2009, which the applicant, accompanied
by her husband (a
labour consultant), attended.
[15]
Mr Niemand was refused the right to
participate in the subsequent incapacity enquiry and the hearing was
adjourned in order for
the applicant to apply for legal
representation, which she did.
[16]
In January 2010 the applicant salary was
stopped because the respondent was of the view she had exhausted her
ordinary sick leave
entitlements. It is a matter of dispute between
the parties whether the respondent was entitled to do this. A fresh
incapacity
enquiry was convened in 1 March 2010.
[17]
On 13 May 2010 the applicant was sent a
letter informing her that, owing to her failure to obey an
instruction to return to work,
her contract of employment had been
terminated with 30 days notice effective on 3 June 2010. The
applicant sent the respondent
a letter on the same day saying that
she had not been given any instruction to return to work. The letter
nonetheless advised that
she could contact the respondent within the
notice period with a view to resume in her normal duties and
responsibilities. On 8
June 2010, the termination was confirmed in
view of her failure either to resume her duties or to contact the
respondent. The respondent
further advised Ms Niemand in this letter
that she could request a review of the decision to terminate the
contract within seven
days but no such request was made.
The material evidence
[18]
The following witnesses gave evidence at
the hearing: the applicant, Ms Minya and Mr S Sonkosi, a Senior HR
Manager.
[19]
In 2005, the Parcel Plus section in which
the applicant worked was moved from premises in Deal Party to Head
Office, which was housed
in Govan Mbeki building. According to Ms
Minya, at that time the applicant’s section was restructured
and her post as a Level
I supervisor was eliminated in terms of the
new structure. However, in view of representations from her
psychiatrist, Dr Prinsloo,
Ms Niemand effectively remained in her
previous position where she retained the same salary level, namely
that of a Level I supervisor
but, unlike other Level I supervisors,
had no Level II supervisors reporting to her. Further, also unlike
all other supervisors,
the applicant did not rotate her position.
[20]
The applicant's section was housed together
with Insured Post and the Mail Sorting section which were divided by
large metal screens.
Initially, the applicant was housed in a
glass-walled office to begin with which was allocated specifically to
her by a senior
supervisor. In 2008, the section was moved to where
the Registered P section was situated. Although there was a private
office
in this new area she was not allowed to occupy it and it was
used as a tearoom and restroom.
[21]
Applicant’s detailed evidence began
with the period commencing January 2008. On her return from leave she
was approached by
Mr Mahuwa and another employee who wanted to borrow
money from her. In the past she had lent a lot of money without
charging interest
to a number of subordinates but on this occasion
she told them she could not help them for a couple of months
and they should
try and approach others. After that, Mr Mahuwa’s
demeanour towards her changed: he would not greet her or respond to
her
when she spoke to him and started to return late from lunch
times. Mr Mahuwa also became insubordinate thereafter and refused to

take instructions. He went so far as to challenge her to charge him
for this misconduct.
[22]
On 25 February 2008, the applicant sent an
e-mail to her superiors complaining that Mr Mahuwa had threatened her
on 21 February
by saying, in the applicant’s words, "He
will go after me. I must work on Saturdays and I must leave him
alone"
She recorded in the e-mail that she had approached Mr
Mahuwa’s shop steward and asked him to speak to him about the
incident.
She also related that she had reported the incident to the
administration officer but at that stage had submitted her complaint

in writing "for record purposes only”..
[23]
Shortly afterwards, the applicant said she
was called by Ms Minya who told her t she must work on Saturday in
two to three weeks
time. The applicant asked her if this had anything
to do with Mr Mahuwa, which she denied. In her own evidence, Ms Minya
also denied
instructing the applicant in February to work on
Saturdays, and said she did not take instructions from Mr Mahuwa.
[24]
The applicant said she had not worked on
Saturday as for 12 years while she had been employed in the parcel
plus section. The applicant
believed that the instruction had been
prompted by what had happened with Mr Mahuwa because his wife worked
with Ms Minya. According
to the applicant she had not worked on a
Saturday, in the four years since the move from Deal Party, even
though she agreed other
Parcel Plus staff including Level I
supervisors had been working on alternate Saturdays from about four
weeks after the move to
Head Office, when truck delivery schedules
changed.
[25]
The applicant testified that when the
Parcel Plus section was moved to the mail centre at head office, the
section was not working
on Saturdays, but about a month after the
move, Saturday work started because truck delivery times changed to
include night deliveries.
She agreed in cross-examination that all
staff in the section including Level I supervisors worked on
alternate Saturdays, but
she insisted Ms Minya had told her it was
not necessary for her to work on Saturdays because there was always
another supervisor
present who could keep an eye on the section. It
was only four years later that the applicant was told she had to work
on a Saturday.
It was put to her that the instruction to her to work
Saturdays had nothing to do with the incident with Mr Mahuwa, but she
was
adamant that her lack of Saturday duties only became an issue
after she had a clash with Mahuwa.
[26]
Ms Minya said the fact that the applicant
was not working on Saturdays only came to light when it was noticed
that the applicant
was not paid for Saturday work. Other staff at the
mail centre were unhappy about the fact that the applicant did not
rotate and
perform duties on alternate Saturdays. Ms Minya seemed to
accept that the applicant’s contract, which could not be
located,
did not require her to work overtime. However, it was
clearly her own view that there was no reason why the applicant
should have
been treated differently from other staff when it came to
Saturday work. As far as the insubordination of Mr Mahuwa was
concerned,
she regarded that as a matter for the applicant to handle
herself as his immediate supervisor.
[27]
The applicant testified that daily review
meetings took place at which all Level II and Level I supervisors
met. They were instructed
to take action on excessive absenteeism in
their respective sections. In her section the applicant would do her
own reconciliation
of absenteeism. The procedure she followed was
that if someone was absent she filled in the form with details and
the person would
have to sign the form on their return. A copy was
made and placed on the individual's personal file. She would take the
original
to Ms Mahuwa, Mr Mahuwa’s wife, or Ms Cuntu in the
administration office.
[28]
The applicant also related that at times
when the toner was not replaced in the photocopy machine she normally
used she could not
make copies of the leave forms. Consequently, she
would ask for reconciliation forms from Head Office for the previous
twelve months
to determine which forms had been captured so she could
reconcile those against her own manual record which she maintained.
In
May 2008, when she was comparing her record of persons who had
signed for absenteeism there were discrepancies in the report from

Head Office which showed that some of these absences had not been
recorded. These anomalies were evident in the case of Mr Mahuwa
and
two other staff.
[29]
These anomalies prompted her to request the
leave records of the previous two years as well. The applicant was
doing this analysis
on her work desk and it was possible for other
staff to see it if she left the office.
[30]
On 5 July 2008, she was told by a more
senior supervisor that her computer was being moved to another
section and she must remove
her stuff from it. She could not
understand why it was being done because she had to manage her
section and had used the computer
for this purpose for the last four
years. When she asked Ms Minya why the computer and the photocopy
machine were being removed,
she was simply told it was needed for
another section and that they were moving to the Registered Letter
section which had more
space. Ms Minya conceded during her evidence
that nothing about the applicant’s job had changed in the first
few years after
the move from Deal Party to the Mail Centre, apart
from the introduction of the Track and Trace system, which  was
a new development.
[31]
Ms Minya also instructed the applicant to
work on Saturday and on Sunday during the movement to the new area.
She was also advised
that she would no longer have her own office and
was told when she queried this, was told that she did not need one
and could sit
on the floor with other staff. She was also advised
there had been a complaint from other lower-level supervisors about
the fact
that she previously had her own glass walled office. On the
weekend of 6 June 2008, she worked 19.5 hours but no supervisor from

the Registered Letter section was on duty. She did not claim overtime
pay for the work that weekend, because over time was not
paid as
such.
[32]
In another incident, the applicant related
that she was compiling her final leave report when Mr Mahuwa looked
over her shoulder
and then took used her desk phone.  He dialled
four digits and spoke to someone whom she believed was his wife. She
completed
her investigation and sent an e-mail attaching her report
to Ms Minya on 13 June 2008, which he also copied to the Senior
Manager
in the Eastern Cape, Mr Kemp. In her e-mail she requested
that a further investigation be done as soon as possible.
[33]
On the same day she filed this report, she
sent a written grievance to Mr Kemp complaining that she was being
victimised at the
Mail Centre. She canvassed the following issues
in her grievance:
33.1
She complained that in terms of her job
classification (C3/4) she should be treated as other supervisors on
Level I, who all had
personal computers, but instead she was being
treated as a level 3 supervisor; all her communication with client
services was done
by e-mail on the computer as well as the
administrative work and in numerous other tasks she fulfilled in the
performance of her
functions. Under cross-examination, she disputed
that it was only Level I supervisors who needed computers or that the
dedicated
"track and trace" computer, which was available
for all staff to use was of any use.
33.2
The twelve-year-old photostat machine which
was removed from her section had been brought from the depot at Deal
Party when her
section moved to the mail Centre and had been removed
even though its monthly running costs were trivial because the first
thousand
copies were free. Moreover, the copier was old and
unsuitable for the production department to which it was supposedly
relocated.
33.3
She felt that the reason for these
impositions was that she had been trying to get Mr Mahuwa charged for
insubordination since
4 February and every time the hearing was
rescheduled either the chairperson, a representative or Mahuwa
himself were not available
on the specified date. As a result, the
hearing had been postponed eight times and four months had passed. In
the meantime, Mr
Mahuwa continued to disobey her instructions. It
should be mentioned that, in her later evidence the applicant stated
that nothing
had been done about the situation five months after she
had asked for disciplinary action to be taken against him.
33.4
The applicant reiterated that it seemed
that she was being asked to work on Saturdays because Mr Mahuwa had
said she should, even
though her own line manager Ms Minya had told
he she did not have to if she worked her additional hours in during
the week.
33.5
Further, the applicant noted that Mr
Mahuwa’s wife worked in the same office with Ms Minya and Ms
Cuntu. Ms Mahuwa and Ms
Cuntu both were involved in the recording of
leave. The person with the greatest amount of irregular leave was a
Mr Koyana. Over
a period of 60 months, on eight occasions, he had
taken nineteendays’ leave, twelve of which were not captured.
On a further
seven occasions his leave was incorrectly recorded. Mr
Koyana’s aunt was a senior HR manager and a friend of Ms Minya.
33.6
The applicant also reiterated her complaint
that she no longer had her own office even though one was available
in the new location
where they were working, apparently because Ms
Minya did not want to place her there.
She ended her grievance
by complaining about the stress  she was suffering as a result
of all these impositions, which was
confirmed by her psychiatrist,
but she said she was determined not to let Ms Minya 'break her’.
[34]
It was under the applicant’s
cross-examination that it emerged that the reason she  was being
paid as a Level I supervisor,
whereas she was working in a Level II
post, was that when her section had been relocated from Deal Party to
the mail Centre, on
the recommendation of Dr Prinsloo, she was
retained in her existing position. According to a letter written to
the respondent of
15 November 2005 by Dr Prinsloo, she had identified
that the applicant was suffering from major depressive disorder and
generalised
anxiety disorder and had been receiving psychiatric
treatment for the previous ten years. In the report, the psychiatrist
stated:
"The patient's
symptoms are currently well controlled, however she remains very
fragile to stressors. She has been functioning
well in her current
position for 10 years. The patient's illness diminishes her ability
to adapt to great changes.
It is my opinion that you
should therefore remain in her current position, as any drastic
changes would result in a relapse of her
illness."
[35]
Barely a week after filing her grievance on
13 June 2008, Ms Minya told Ms Niemand that she must start working on
Saturday, 21 June
2008. The applicant approached her husband to
assist her filing a grievance and he advised her to take a day off,
but when she
approached Ms Nyati a Level I supervisor with this
request the latter turned her back on her and said she did not want
anything
to do with the request which was between the applicant and
other supervisors, In turn, Ms Minya told the applicant to discuss it

with a Level I supervisor and then \ said that the applicant must
come to work for two hours. When the applicant insisted that
she
needed a whole day off, Ms Minya said she would discuss it with Level
I supervisors and she could take a day.
[36]
On the applicant's return to the office on
20 June 2008 she handed in another written grievance (the second
grievance) relating
to the instruction from Ms Minya to commence
working on alternate Saturdays. In her grievance she stated that she
believed the
instruction was invalid as it amounted to a unilateral
change to her existing terms of employment. In terms of her letter of
appointment
to Parcel Plus on 18 September 1996 she claimed she was
assured in writing that her basic conditions would not be altered
without
prior consultation with herself or the union. She had worked
from Monday to Friday for the past twelve years and had never been

required to work on Saturdays. She also repeated her belief that the
instruction was related to the threat uttered by Mr Mahuwa
and as she
was being victimised for performing her duties as a supervisor and
taking disciplinary action against him. She asked
Ms Minya to
withdraw the instruction and warned that she might exercise her
rights under the LRA if this was not done.
[37]
Nobody spoke to the applicant during the
following week and on the 26 June 2008 she handed in a leave
application for 34 hours overtime
worked. She asked for a day's leave
on the following day, being Friday, whereafter she would return to
work on the Monday. She
filled the form in and left it on the table.
When she returned to work on Monday she handed it in to a Level I
supervisor, and
was told that she had been absent without leave. Her
manager Ms Minya said the same thing when she approached her. The
applicant's
understanding was that because the ‘leave’
was time off
in lieu
of overtime pay which was owed to her, it was not leave in the true
sense of the term and hence did not need approval. Ms Minya
testified
that she might have orally agreed to grant such leave, but that was
still subject to being signed off in writing. Later,
she said that
the Post Office did not give time off
in
lieu
of overtime pay to operational
staff, though this was never put to the applicant under
cross-examination.
[38]
On the same day the applicant went to make
some photocopies on the machine in the Administration section because
there was no toner
in the machine in the Parcel section because the
account for that machine had not been paid for three months. The
applicant was
making copies of various forms that were used and
needed twenty copies of each. When the copy paper was finished she
asked the
senior administration officer, Ms Jackson, for more. When
Ms Cuntu saw this she shouted at Ms Jackson not to give the applicant

paper because they did not know what she was doing at the copier
machine. When the applicant took the paper, Ms Cuntu questioned
what
she was doing there. The applicant asked her to come and see what she
was copying and Ms Cuntu made her wait for some time
before coming to
look at what she was copying after which she said she could not make
more than 20 copies of any sheet. Ms Cuntu’s
behaviour towards
her had been humiliating, and it prompted the applicant to lodge a
grievance against her the following day (the
third grievance), to
which there was no response. It must be mentioned that later evidence
indicated that Ms Cuntu was junior to
the applicant, though not a
line subordinate of hers. In fact, a month later when Mr Kemp was in
Port Elizabeth on 4 August the
applicant learnt that the grievance
had not yet been captured on the system. It was apparent at this
point of her evidence that
relating these events was itself causing
the applicant some distress.
[39]
The applicant said she had not tried to
discipline Ms Cuntu herself because even though she was on a lower
level than herself, the
she was not Ms Cuntu’s supervisor. She
conceded she had not approached Ms Cuntu’s supervisor to take
action. Ms Minya’s
view was that the applicant should have
taken it up with Ms Cuntu and she did not even recall seeing the
grievance lodged by the
applicant
[40]
On 7 July 2008, the disciplinary enquiry
arising from her complaints in February about Mr Mahuwa's
insubordination finally took
place in his absence and he was issued
with a final written warning for failing to obey an instruction. A
few days after this when
she asked him for a report for Level I about
the wrong routing of files, his response was that level one could
wait and he made
an entry that she was a racist, for which she
charged him again for hate speech and gross insubordination.
[41]
At a meeting on 14 July 2008, at which a
Level I supervisor, Mr Bazi, Mr Mahuwa and  Mr Buso were
present, her complaint against
Mr Mahuwa was discussed and she was
asked to withdraw the charge because it could lead to Mahuwa losing
his job. Eventually, it
was agreed that Mahuwa would apologise in
writing and the applicant would withdraw the charge, but he never did
apologise. Under
cross-examination, the applicant conceded that she
did not insist on the matter going to a disciplinary proceeding
because it would
have meant waiting another five months before
anything was done, but she conceded that she had a choice whether to
do this or not.
[42]
On the same day of this meeting, the
applicant was called without notice to a meeting about her absence
from work on 27 June. Ms
Minya was amongst the supervisors present at
the meeting. She admitted that she had said the applicant could take
leave but said
that the applicant should have reminded her. The
applicant was adamant she had been reprimanded over this, and
insisted she did
not need the permission of Ms Minya to take the time
off but had only notified her as a courtesy and had filled in the
leave form
as a precautionary measure. The applicant was also
instructed she would have to rotate with the rest of the supervisors
in the
mail centre on Saturday work duty. It was at this juncture she
was told that the photocopy machine and computer must be handed over

and these items were removed on 22 July 2008.
[43]
On the same day the report by Mr Sonkosi
into issues raised by herself was finalised. The issues canvassed in
the report concerned
allegations made by her in the correspondence
she had addressed to Kemp on 13 June 2008 and the claim of alleged
victimisation
by Ms Minya. Mr Sonkosi’s report made no specific
finding on the victimisation claim but it did contain some trenchant
observations
on the different levels of supervision in the Mail
Centre. The report also noted the practice of Saturday work over the
last few
years. More specifically, he recorded under his findings
that:
" *  The
relationship and the reporting lines between the parcel section and
two Level (1) Supervisors as well as the
Senior Manager, Mail
Processing is not clearly defined. This is supported by the fact that
there are times when Leonie [Ms Niemand]
deals directly with the
Senior Manager without first approaching the Level 1 Supervisors.
·
The communication of the changes
regarding Saturday work was not done in writing, hence the reluctance
to follow-up to ensure that
not only the mail processors work on
Saturdays but also the supervisor works on Saturdays.
·
More than three years, the Saturday
shift was allowed to work without supervisor.
·
The communication of the changes
regarding the removal of the computers as winners the photocopy
machine should have been done in
writing and was some sensitivity as
it was a departure from the established practice."
[44]
Although he made no express reference to
his findings on the allegation of victimisation, in his evidence in
chief, Mr Sonkosi said
he could find no connection between the
applicant's attempt to discipline Mr Mahuwa and the imposition of the
requirement that
she must work on Saturdays. Similarly, he could find
no connection between the removal of office equipment from the
applicant's
Department and her complaint about Mr Mahuwa and the
alleged leave fraud. He said he had concluded that the removal of the
equipment
was not unreasonable as the applicant had no need for
dedicated equipment for herself. Further, Mr Sonkosi said he had not
found
any evidence of any deliberate failure to capture leave by the
administration offices but he left that to be determined by the
investigation. Importantly, he confirmed that the report was for
Kemp’s attention and was not intended to be an outcome of
the
applicant’s grievance.
[45]
In the meantime, Mr Kemp had instituted an
investigation into the alleged leave fraud, which was conducted by Mr
Sankosi. Mr Sonkosi
conducted interviews with the applicant and
others. Her report was furnished to him and contained confidential
information. However
Mr Bazi, sent Sonkosi’s report containing
the information to Ms Cuntu and then distributed it to the whole Mail
Centre. The
applicant saw the report in the registered letter section
the following day lying on a desk. On 4 August 2008, she then lodged
a grievance (the fourth grievance) against MrBazi for distributing
the confidential information to someone like Ms Cuntu, whom it
did
not concern. The applicant asked for an apology and that the person
responsible for the documents ending up in the registered
letter
section should be disciplined. Under cross-examination, the applicant
conceded that Mr Bazi’s explanation for sending
the report to
Cuntu because he needed a hard copy of the document as he had no
printer in this office made sense, even though she
was unhappy with
the way it got distributed. Mr Sonkosi testified that his report was
not intended either for Mr Bazi or Ms Cuntu
and agreed that it was
irregular if it had ended up lying on a desk.
[46]
The grievance was handed in at a meeting at
which other supervisors were present as was Mr Kemp. He acknowledged
receipt of the
grievance against Ms Minya and Mr Bazi and said he
would like a senior manager from Head Office to handle that. He also
asked Mr
Sonkosi to handle the grievance against Ms Cuntu. Further,
he said that he was instituting a full forensic audit of the Mail
Centre’s
leave. It was also agreed that the applicant would not
work on Saturdays until these matters had been addressed. To the
applicant's
obvious disappointment, she stated that none of these
steps materialised.
[47]
After the meeting, yet another incident
took place when the applicant complained about the noise coming from
the depot sorters who
worked adjacent to her department. According to
her, they made such a noise she could not hear her phone ring. One of
them, Ms
A Grootboom, was rudely dismissive of her complaint and
treated it as a matter of amusement. Grootboom was made acting
supervisor
of that section a couple of weeks later. A further
incident took place involving Grootboom when a request to transfer a
few staff
from her section to the Parcel Plus section was raised at
one of the daily review meetings. Mail Centre supervisors were asked
if they had a problem with the transfers, but the applicant was not
asked her opinion. In particular she had concerns about the
potential
transferees’ attendance records. The applicant felt she also
had a right to be consulted but was ignored. Under
cross-examination,
she claimed she was actually prevented from making a contribution and
that discussions in the meeting took place
in Xhosa so she could not
understand what was being said.
[48]
On 8 September 2008, the applicant was sent
a letter to the effect that the resolution of her grievances would be
put in abeyance
pending the finalisation of the investigation on
matters she had raised. The letter was from Mr Ngcongolwana, an
Employee Relations
manager, who assured her that endeavours would be
made to expedite the process and a resolution to be found at the
earliest convenience.
[49]
The final leave investigation report was
tabled in late September 2008. It confirmed that not all leave which
had been granted had
been properly recorded at head office. Following
the report, various procedures were tightened up. The applicant was
extensively
questioned about whether supervisors such as herself were
supposed to have reconciled leave applications granted with Head
Office
records, but nothing seems to turn on this.  It does seem
to have been common cause, as the investigation report stated, that

leave reconciliations had not been done consistently by supervisors
for some years. The investigation revealed that Koyana took
five days
leave in 2007 which were not captured in the system, but did not take
the amount of unaccounted for leave, which the
applicant claimed he
had. This discrepancy was not explored in the course of the evidence
to any meaningful degree.
[50]
Under cross-examination, it was put to the
applicant that because some leave application forms contained an
incident number indicating
that Head Office had been contacted and
advised of the leave taken but nevertheless Head Office did not have
a record of such leave,
there had been instances where the incomplete
record at Head Office did not reflect a failure by the Administrative
office at the
Mail Centre to report the leave. The applicant could
not directly dispute this, and could only suggest that there might
have been
an attempt to rectify matters after she had lodged her
grievance about leave fraud. Under re-examination, the applicant said
she
had never seen the final report until the matter came to trial
and she had never been asked about the observations made by the
author of the report that some of the forms were not received by the
administrative officers, which was a claim she is strongly
denied,
at least in so far as leave forms she submitted were concerned.
[51]
Curiously, though Ms Minya had originally
been removed from the investigation because she might have been
implicated in the leave
fraud, she had no interest in reading the
report when it was produced and only read it in preparation for
trial. She somewhat grudgingly
conceded that it might be seen as
suspicious that Ms Mahuwa worked with the leave reconciliations and
Mr Mahuwa had been
absent from work on leave on six occasions
without that leave being captured and the original leave application
forms were missing.
However, she maintained that there was simply no
process to monitor reconciliations in place at the time.
[52]
On 20 October 2008, approximately four
months after her absence from work on 27 June 2008, the applicant
received a report on unauthorised
absence from duty for that day. She
queried this in the light of the fact that as far as she was
concerned, she had been granted
permission to be off duty on that
day.
[53]
On 29 October 2008, the applicant consulted
with Dr Prinsloo who told her that she needed to get away from the
workplace. The applicant
said that although she worked with a lot of
good people, every day worked took a bit of herself away every day.
The psychiatrist
booked her off work for "a major depressive
disorder", for a period of three months from 30 October onwards,
during which
time she said she saw the psychiatrist regularly for
treatment. At the same time, the applicant applied for temporary
total disability
benefits. In the application Dr Prinsloo, described
the applicant's current condition in the following terms: "as a
result
of increasing victimisation at work and the removal of
resources in order to execute her work, the patient has been
struggling
to cope and her depression has deepened despite adequate
treatment."
[54]
According to Ms Minya it was Mr Bazi who
conducted the preliminary investigation on the application in keeping
with the Post Office
code on incapacity.
[55]
On 30 January 2009, Dr Prinsloo, issued a
further medical certificate bsased on the same diagnosis in which she
stated that the
applicant was not fit to work from 1 February to 31
July 2009 on account of her temporary disability. It was only on 15
April 2009
that the respondent sent the applicant a letter, which she
received on 23 April 2009, advising her to attend an appointment with

an independent psychiatrist, Dr Erlacher, at 17H30 on 27 May 2009 in
Grahamstown, even though he applicant lived in Port Elizabeth.
The
letter asked her to confirm her attendance and whether she required
transport. On 14 May 2009 the applicant responded saying
that she
could not see why it was necessary for her to go to Grahamstown for
the evaluation, which was130 km away when there were
several
psychiatrists available in Port Elizabeth. She pointed out that the
appointment could take up to 90 minutes and then she
would be
expected to drive home at night on treacherous roads, even if someone
else was driving. The applicant requested that the
venue and, or
alternatively, the time of evaluation be altered to earlier in the
day, and sent a copy of a letter to Dr Erlacher.
Ultimately,
as there was no response to her request and the applicant arranged to
go to Grahamstown, driven there by her husband.
She said she was very
upset, cried all the way there, and was nauseous while she was at the
psychiatrist's office. In the interview
she was not allowed to say
anything about her work, was told to write a sentence of her choice
and was told by the psychiatrist
that she could work without him
providing her with the report or the opinion.
[56]
On 14 September 2009, the applicant was
sent a letter signed by Ms Minya stating that the application for
temporary total disability
for the period 24 December 2008 to 31 July
2009 was declined and would be recorded as sick leave without pay.
Further she was advised
to return to work with immediate effect.
Under cross-examination, it was put to the applicant that it was not
in fact the employer
that took the decision on whether to approve her
application but in fact was Sanlam Insurance which did so after
considering the
recommendation of consultants known as Pro Active
Health Solutions. The applicant denied any knowledge of this, though
she conceded
that she had given permission to the consultants to
contact Dr Prinsloo about her condition. The applicant also did not
dispute
that, at that stage Ms Minya wanted her to return to work as
soon as possible. When asked whether she accepted that Ms Minya had

no intention of dismissing her at that point, the applicant's answer
was simply that she could have been placed in another division
[57]
Ms Minya testified that the employer had
then invoked phase 3.3 of the Post Office Guidelines on Managing
Absenteeism Due to Excessive
Sick Leave ('the Absenteeism
Guidelines'). She claimed that the object of doing so was to find a
way of how she could return to
work. Under cross-examination, Ms
Minya was challenged on this assertion because the letter of 14
September merely instructed the
applicant to return to work with
immediate effect, whereas the Absenteeism Guidelines required her
supervisor to arrange a meeting
with her to advise her of the
prognosis and to inform her of a date when she ought to report for
duty.
[58]
On 21 October 2009 the applicant obtained
an updated psychiatric report from Dr Prinsloo, which she claims she
submitted to the
respondent. In her report, Dr Prinsloo expressed the
view that from the clinical presentation and history of the applicant
"...
it is clear that the patient is not capable of functioning
in her work setting and I therefore extend her sick leave further”.

Dr Prinsloo said she disagreed with employer’s instruction that
the applicant should return to work because she was markedly
impaired
and a forced return to work would perpetuate the symptoms further. Dr
Prinsloo accordingly declared the applicant unfit
for work for the
period ending 31 January 2010.
[59]
On 6 November 2009, a written invitation to
a Disability Management Committee meeting was issued to the applicant
by Ms Minya. In
the letter the applicant was reminded that her
application for temporary total disability had been declined and it
was "recommended"
that she should return to work with
immediate effect and would be introduced to her workplace on a
gradual basis. The applicant
was further advised that if she wanted
her own representation at the planned meeting she should advise Ms
Minya about the arrangement
of that. The invitation further stated:
"To enable my office
to make proper arrangements of your commencement and all other
related matters, you are hereby invited
to present yourself at a
Disability Management Committee which will take place in the Mini
Boardroom at 10:00 on 16 November 2009."
[60]
The applicant said she attended the meeting
accompanied by her husband. He spoke on her behalf at the meeting
because she was not
in a position to speak for herself. The
respondent's view was that an application had to be made before her
husband could represent
her in the meeting. According to the
applicant her husband requested copies of the temporary total
disability policy, sick leave
policy, pension fund rules and
incapacity policy of the respondent. He was told those documents
would be provided the following
week. He agreed that he would wait
for them and he would ask for legal assistance for the applicant. The
applicant says the documents
were never received and the respondent
did not dispute this.
[61]
At the meeting the issues of the hostile
environment and the unresolved grievances were raised directly as
matters that needed to
be addressed in the context of the disability
management meeting. Ms Minya’s attitude, as revealed by her
testimony, was
that, because these issues were raised by the
applicant’s husband at the November meeting and since he was
not a Post Office
employee they could be ignored.
[62]
Some months later, on 19 January 2010, Ms
Minya wrote the applicant a further letter complaining that no
application for legal representation
had been received and advised
her to attend another Disability Management Committee meeting on 26
January 2010. Ms Minya also stated
in the letter that the applicant's
continued absence from work on full salary was of concern to her and
it was important for the
parties to address the matter once and for
all. This elicited an e-mail response from the applicant’s
spouse on 20 January
2010, in which he claimed that the understanding
at the meeting had been that the application for legal representation
would only
be made once the relevant documents requested by the
applicant had been received. These documents were necessary to assess
the
need for legal representation and for the preparation of a legal
representative, if required. He made an urgent plea for the
preparation
of the documents by the following day in order to consult
with a legal representative and prepare. In any event, he had
requested
a postponement of the meeting for a period of at least two
weeks after the provision of the documents requested.
[63]
It is also in January that the applicant
complained that she had not been provided with the details of the
outcome of the application
for total temporary disability and wanted
to understand the motivation therefor. Ms Minya was questioned on
this but did not see
the need for providing it because it was the PHS
that decided the applicant was fit to work, and management was
approaching the
matter on that basis of that finding.
[64]
According to the applicant, the meeting was
postponed until March. On 27 January 2010, the applicant submitted a
formal written
application for legal representation. In the letter,
she once again complained about the failure of the respondent to
provide the
documents which had been promised and the difficulties of
preparing for the hearing without them. She pointed out that the
matter
was one of some complexity, given the fact that her condition
was exacerbated by the hostile working environment and the failure
of
the respondent to address three of her grievances. She also alluded
to the fact that the respondent was a large organisation
with
considerable resources whereas she had no prior experience in dealing
with an incapacity process. Moreover, she was currently
under
treatment and would not be able to handle the matter without legal
representation. On the same day, she also sent another
letter to the
respondent complaining about the fact that her January salary had not
been paid. She claimed the respondent ought
to continue paying her
salary, in accordance with the temporary total disability process,
until a final decision had been made
regarding her incapacity. She
also requested a copy of the report that had resulted in her initial
application being declined in
September the previous year.
[65]
On 17 February 2010, the respondent sent a
letter to the applicant complaining that it had come to the attention
of the Disability
Management Committee that despite her commitment to
make an application for legal representation during the meeting she
had not
done so yet. It further reminded her that her current absence
was being treated as sick leave without pay and stated that the
policies
relating to pensions and absenteeism were irrelevant, given
the fact that the matter had been outstanding for so long and that
the management at the Mail Processing unit wanted her to cooperate in
the process of finding an alternative job. She was further
advised
that if she wished to make an application for a pension she could do
so by means of a formal application to her manager
quite separately
from the Disability Management Committee process. The applicant was
invited to attend a further meeting on 1 March
2010. The invitation
was accompanied by a warning that failing such meeting the respondent
would have "no other option but
to terminate your services in
terms of the Code of Good Practice, schedule 8, annexed to the
Labour
Relations Act 66...”
[66
]
Ms Minya testified that she did not see an
application for legal representation prior to the meeting in March
and that she did not
consider the further application submitted on 22
February 2010, because she was in meetings elsewhere with management.
Had they
not been willing to entertain legal representation they
would not have postponed the first meeting. However, despite claiming
a
willingness to entertain the application, she claimed not to have
considered the application for legal representation before the

meeting of 1 March 2010, because she was frustrated with the delays
which she believed the applicant’s husband had caused.
The
January meeting had not taken place because of his ‘arrogance’
in her view. The employer was concerned that because
of the delays it
had continued paying the applicant’s salary and  she had
not responded to its request to offset ongoing
sick leave against the
her annual leave.
[67]
Ms Minya was repeatedly tested on her
failure to address the application for legal representation and it
was apparent from her answers
that she believed it was more important
to address the applicant's return to work and the fact that the
respondent believed the
applicant owed it R 95,000-00, than to deal
with what she considered to be delaying tactics by the applicant. It
was put to her
that there was no real intention of discussing
alternative employment possibilities with the applicant, and that the
main focus
of the employer's concern was on the recovery of moneys
owed for an authorised sick leave.
[68]
Presumably in reply to the letter inviting
the applicant to a further meeting on 1 March 2010, an e-mail was
sent by her husband,
in which he  pointed out that no response
had been received to the application for legal representation and he
disputed the
respondent’s view that the policies which the
applicant had requested were irrelevant. The e-mail emphasised that
finding
an alternative job was only one aspect of the process, and
that it was necessary for the applicant to be conversant with the
process
and procedure. Further e-mails were sent to various managers
of the respondent following up on these representations.
[69]
Ultimately, the scheduled meeting of the
committee took place on 1 March 2010. According to the applicant, Ms
Minya said that she
had received an application for legal
representation a week before the hearing but could not be bothered to
open it. In any event,
she was refused legal representation and her
husband was not permitted to remain in the meeting. Ms Minya said
that she must give
her written consent for the respondent to use her
annual leave for sick leave and that she must return to work in
stages, by reporting
for four hours per day in the first week, seven
hours per day for two weeks thereafter and return to normal hours in
the fourth
week. The applicant asked to discuss the matter with her
husband first and mentioned that she was seeing the psychiatrist on
17
March and also wanted to discuss the matter with her before
reverting to the respondent.
[70]
The applicant agreed that, in circumstances
where the sick leave was exhausted and she had been refused temporary
disability, the
use of ordinary annual leave was generally the
procedure followed. It was also suggested to her that there was no
certainty that
she would in fact return to her existing position, as
her return to work would be subject to monitoring and guidance from
the Employee
Assistance Program Practitioner, but the applicant
insisted that this was not conveyed to her at the time. Further, in
another
portion of the minutes of the meeting when the chairperson
explained the process of her proposed return to work, nothing in that

explanation suggests an alternative position was really an option
under consideration. However, the applicant did concede that
in the
letter from the employer dated 17 February 2010, it had stated that
the management of the Mail Centre wanted her to cooperate
in the
process of finding an alternative job. Even so, she insisted that if
that was a job in the Mail Centre it would not have
resolved
anything, but if the issues set out in that letter had been addressed
she would have been willing to return. Ms Minya,
for her part,
maintained she had never stated that the applicant would return to
her normal duties, and clearly felt that it was
the applicant's
responsibility to have raised the issue of an alternative position.
[71]
The meeting adjourned at this point. In a
letter sent by the applicant a week later on 8 March 2010, she
declined to agree to offset
the time she had taken off work against
her accumulated annual leave. She also reiterated her demand for the
reinstatement of her
salary, the provision of the respondent's
incapacity and temporary disability policies and the outcome report
prompting the initial
decision to reject her application. Seemingly
in response to this, Mr Sonkosi sent an enquiry to Dr M Mpata at head
office the
following day in an attempt tofor the refusal of the
temporary total disability application. However, he was advised that
the report
was confidential. He conceded that it did not seem fair to
refuse to provide the applicant with the reason for the decision.
[72]
On the same date this letter was sent to
the respondent by e-m\apparently without any reference to it, Ms
Minya sent the applicant
a letter claiming that, on the contrary, the
applicant had consented to the leave offset and was to have written a
letter confirming
the same by 4 March 2010. The letter also stated
that, in the absence of such confirmation, the "status quo"
would remain
and the applicant was required to resume her duties "as
a matter of urgency".
[73]
The applicant responded with an e-mail
dated 18 March 2010, in which she said the above letter was only
received on 11 March and
that the respondent had ignored her own
letter of 8 March 2010. The applicant's letter of 18 March focused on
feedback from her
appointment with Dr Prinsloo on 16 March 2010,
which she claimed the respondent had agreed she could wait for before
having to
respond to the staggered return to work proposal. In
relation to this, the applicant stated in a letter:
"Unfortunately,
returning to the same position, surrounded by the same people, with
the grievance is still outstanding, would
still be a hostile
environment for me. My psychiatrist has indicated to me that I will
not be able to cope under the same circumstances
that [led] to my
illness when it became intolerable. I am currently still receiving
psychotherapy by Hennie Minnar"
The letter also repeated
the applicant’s previous demands and requested a ruling on the
application for legal representation
during the process.
[74]
Ms Minya says it was this letter prompted
her to adopt disciplinary action by giving the applicant a thirty day
ultimatum to return
to work, which was followed by the letter of
termination dated 8 June 2010. The applicant never took up the
invitation in that
letter to ask the Post Office to review its
decision.
[75]
On 2 May 2010, Dr Prinsloo once again
declared the applicant incapable of performing her duties for a three
month period ending
2 August 2010, on account of the applicant
suffering from a “bipolar mood disorder”. This
certificate was delivered
to the respondent shortly after it was
issued. In keeping with the pattern of the respondent’s
responses, the applicant subsequently
received another letter from Ms
Minya on 13 May 2010, though dated 30 April 2010, in which it was
claimed that at the meeting on
1 March 2010, the applicant was
instructed to resume her duties or to contact the respondent after
the consultation with her doctor
on 16 March. The letter said that in
view of the applicant's failure to resume her duties she was being
notified that her employment
would be terminated after 30 days with
effect from 3 June which would be her last working day. However, the
letter still invited
her to resume her normal duties during the
notice period.
[76]
Ms Minya claims to have followed the
Absenteeism Guidelines on managing absenteeism due to excessive sick
leave in the applicant's
case.
[77]
On the day the applicant received the
letter she drafted a reply which was e-mailed to the respondent on
the following day, 14 May
2010. Amongst other things, the applicant
disputed that she was instructed to return to work in the meeting of
1 March 2010. On
the contrary, she claimed that the understanding -
as verified by the audio recording of the meeting - was that, she
would only
respond to the proposal of a staggered return to work
after consulting with a psychiatrist. She then referred to the latest
medical
certificate issued by Dr Prinsloo and her previous letter
responding to the staggered leave proposal, following her
consultation
with the psychiatrist. The applicant then stated:
"However, it is
clear from your letter that you have made your decision and that you
have terminated my employment on dubious
and unfair grounds. Please
be advised that I intend to pursue this matter in the CCMA and then
in the Labour Court as an automatically
unfair dismissal as a result
of a protected disclosure that I made concerning that the leave fraud
that I reported that [led] to
the victimisation that I experienced
which resulted in my current condition."
[78]
The applicant emphasised that she believed
she was victimised because she had discovered fraud and because of Mr
Mahuwa’s
threats mentioned also  that she had laid charges
of insubordination against him. She further testified that the
regional
secretary of the Communication Workers Union had phoned her
and screamed at her on the phone, but did not provide any further
details
of when this took place or what was said by that individual.
Clearly, the applicant has a sense that when it came to union office

bearers the employer was  less inclined to take disciplinary
action and that Mr Mahuwa’s workplace contacts through
his
spouse, who held a more senior position than the applicant, might
have contributed to the difficulties she had in dealing with
him.
Prior to these events taking place she says she was trying to do her
work to the best of her abilities and other supervisors
at the mail
centre had asked her to advise them how they could achieve an ISO
2000 standard because she was the only one who had
done so until
then.
[79]
The applicant said she could never return
to work at the Mail Centre and that she was currently engaged in
selling jewellery once
a month, painting and assisting chronically
handicapped persons at a facility in Port Elizabeth.
Evaluation
[80]
The crux of the issue to be determined is
whether the reason for the termination of the applicant's service was
either because she
had taken disciplinary measures against Mr Mahuwa,
or that she had disclosed information about potential leave fraud
taking place
at the mail centre which amounted to a protected
disclosure. In argument, another alternative reason for
characterising the dismissal
as one that was automatically unfair was
on account of the grievances lodged by the applicant against her
manager and other employees.
Although I deal with it, victimisation
for filing grievances other than perhaps the one pertaining to Mr
Mahuwa was not part of
the pleaded case of the applicant.
[81]
The approach taken by the Labour Appeal Court to cases of
automatically unfair dismissal, in which the real reason for the

dismissal can never be considered a fair reason, is conveniently set
out in the decision in
Kroukam
v SA Airlink (Pty) Ltd
[1]
:
“
[26]
...The employee bears the onus of proving an automatic unfair
dismissal. ... this proposition was clearly contemplated in the

provisions of
s 192(1)
, read with the definition of dismissal in
s
186
and the provisions of s 187(1) of the Act. Once the employee had
proved the existence of an automatic unfair dismissal, the issues

would be resolved. The employer would be unable to rely upon s 188 to
prove that the dismissal was fair. To require
the
employer to disprove the existence of an automatic unfair dismissal
was clearly not contemplated by the Act.
[26]   Mr
Snyman placed considerable emphasis upon the judgment of this court
in SA Chemical Workers Union &
others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC)
at para 32 where Froneman DJP set out an approach in
respect
of an enquiry relating to an automatically unfair dismissal in terms
of s 187(1)(a) of the Act as follows:
'The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I can
see no reason
why the usual two-fold approach to causation, applied in other fields
of law should not also be utilized here (compare
S v Mokgethi &
others1990 (1) SA 32 (A) at 39D-41A; Minister of Police v Skosana1977
(1) SA 31 (A) at 34). The first step is
to determine factual
causation: was participation or support, or intended participation or
support, of the protected strike a sine
qua non (or prerequisite) for
the dismissal? Put another way, would the dismissal have occurred if
there was no participation or
support of the strike? If the answer is
yes, then the dismissal was not automatically unfair. If the answer
is no, that does not
immediately render the dismissal automatically
unfair; the next issue I is one of legal causation, namely whether
such participation
or conduct was the "main" or
''dominant", or ''proximate", or ''most likely" cause
of the dismissal. There
are no hard and fast rules to determine the
question of legal causation (compare S v Mokgethi at 40). I would
respectfully venture
to suggest that the most practical way of
approaching the issue would be to determine what
the
most probable inference is that may be drawn from the established
facts as a cause of the dismissal, in much the same way as
the most
probable or plausible inference is drawn from circumstantial evidence
in civil cases. It is important to remember that
at this stage the
fairness of the dismissal is not yet an issue. . . . Only if this
test of legal causation also shows that the
most probable cause for
the dismissal was only participation or support of the protected
strike, can it be
said that the
dismissal was automatically unfair in terms of s 187(1)(a) . If that
probable inference cannot be drawn at this stage,
the enquiry
proceeds a step further.'
[27]   The
question in the present dispute concerned the application of this
test. The starting-point of any enquiry
is
to be found in chapter VIII of the Act. Thus, if an employee simply
alleges an unfair dismissal, the employer must show that
it was fair
for a reason permitted by s 188. If the employee alleges that she was
dismissed for a prohibited reason, for example
pregnancy, then it
would seem that the employee must, in
C
addition to making the allegation, at least
prove that the employer was aware that the employee was pregnant and
that the dismissal
was possibly based on this condition. Some
guidance as to the nature of the evidence required is to be found in
Maund v Penwith
District Council
[1984] ICR 143
, where Lord Justice
Griffiths of the Court of Appeal held at 149 that:
'[I]t
is not for the employee to prove the reason for his dismissal, but
merely to produce evidence sufficient to raise the issue
or, to put
it another way, that raises some doubt about the reason for the
dismissal. Once this evidential burden is discharged,
the onus
remains upon the employer to prove the reason for the dismissal.'
[28]   In
my view, s 187 imposes an evidential burden upon the employee to
produce evidence which is sufficient to
raise a credible possibility
that an automatically unfair dismissal has taken place. It then
behoves the employer to prove to the
contrary, that is to produce
evidence to show that the reason for the dismissal did not fall
within the circumstance envisaged
in s 187 for constituting an
automatically unfair dismissal.”
[2]
[82]
It must be emphasised that there is a
distinction between the duty to produce sufficient evidence to raise
a credible possibility
that an automatically unfair dismissal has
taken place, which would defeat an application for absolution from
the instance at the
end of the employee’s evidence, and the
overall onus on the employee to prove that his or her dismissal was
most probably
for the illegitimate purpose. Clearly, if the employee
succeeds in establishing a plausible case that the dismissal did take
place
for the illegitimate reason identified and if insufficient
evidence to the contrary is presented, then that plausible case will

become the most probable case and the employee will then succeed.
[83]
The central question to be determined is
whether on all the evidence, one of the illegitimate reasons
identified by the applicant
has emerged as the most probable cause of
her dismissal.
[84]
The applicant filed a number of grievances
most of which were not processed to a conclusion. The employer had
decided that her grievances
would be put on hold pending the outcome
of the leave investigation. When the investigation was completed one
might have expected
the grievance process to resume, but it appeared
to have stagnated and no immediate steps were taken to finalise it
once the leave
fraud investigation had been finalised in early
September 2008. The only further development that related to past
events, which
took place before the applicant went on extended leave
on the basis of her psychiatrist's evaluation, was the belated report
she
received on 20 October 2008 concerning her alleged unauthorised
absence in June.
[85]
A week later, the applicant was booked off
ill and did not return to work again. After that matters moved very
slowly for a considerable
period. It was only in April the following
year that the employer started to respond to the applicant's request
for temporary total
disability leave. The ruling on this application
was only finalised in September 2009 and the applicant was instructed
to return
to work. When she did not do so on account of her
psychiatrist’s further assessment, the employer took steps to
convene the
Disability Management Committee in November that year.
[86]
It took several months before that
committee finally convened in March 2010. When it convened on this
occasion it did so against
a backdrop of wrangling over the
applicant's rights to representation, the failure to provide the
report on which the rejection
of her application for temporary total
disability benefits was based as well as various policies pertaining
to the issue, and the
applicant's complaint that her grievances
remained unresolved. After the meeting in March the issue between the
parties was under
what conditions, if any, the applicant would return
to work and whether the employer had any serious intention to find
alternative
work for the applicant which might avoid her being
subject to the same conditions to which her illness was attributed.
[87]
If one considers the events in the months
preceding the applicant being booked off from work in October 2009,
it is difficult to
avoid the conclusion that her work environment and
the unresolved grievances were placing considerable strain on her.
Even though
the respondent’s counsel,
Mr
Euiejen
, suggested that it was
inconceivable that the employer would have sided with a shop steward
against the applicant, the evidence
showed that the employer did drag
its heels in taking disciplinary action against Mr Mahuwa, and when
he subsequently displayed
insubordinate conduct towards the
applicant, instead of supporting her in her endeavour to  reassert
her legitimate authority
as a supervisor over him, she was
pressurised into accepting a palliative remedy which did not really
address the seriousness of
the issue.
[88]
Similarly, the respondent’s failure
to act with reasonable speed on the applicant's grievance about what
she perceived was
her humiliating treatment by Ms Cuntu, another more
junior employee, would understandably have created an impression that
the behaviour
of other staff which undermined her would not be
seriously addressed by the respondent. It was apparent from Ms
Minya’s testimony
that she did not see it as part of her
responsibility to support the applicant as a supervisor, even though
it would clearly have
been incorrect for the applicant herself to
have taken action directly against Cuntu who did not fall under her
line of authority.
[89]
It also seems not unlikely that Mr Mahuwa
may have exercised some influence on management in the section where
he worked. Ms Minya's
instruction to the applicant to work overtime
came very shortly after Mr Mahuwa had threatened the applicant with
the prospect
that she would have to work on Saturdays. Ms Minya’s
explanation that it only came to her attention that the applicant was

not working on Saturdays when she noticed she was not receiving
overtime cannot be reconciled with her other observation that some

staff were unhappy about the fact that the applicant did not work on
Saturdays. If she knew that already, why did she only issue
the
instruction after the situation had already prevailed for a few years
and just after Mahuwa had threatened the applicant? Likewise,
in June
2008, a further instruction from Ms Minya to the applicant to work on
Saturdays followed shortly after the applicant filed
her leave fraud
complaint.
[90]
On the issue of the removal of equipment
which she previously used, there might have been a legitimate
operational rationale for
the measure, but as the July 2008 report of
Mr Sonkosi indicated, the matter was not handled with any
sensitivity. It is easy to
see in the somewhat hostile environment in
which the applicant found herself that she might have seen the
unexplained and abrupt
removal of the equipment she had been using
for years as a malicious act intended to undermine her further.
[91]
It is more difficult to say with any
certainty that the relocation of the Parcel Plus section within the
mail centre necessarily
connected to antipathy towards the applicant
by her superiors. The utilisation of the available enclosed office at
the new location
as a tearoom instead of it being offered to the
applicant also cannot just be assumed to have been intended as
another slight towards
the applicant. An issue which complicated the
applicant's status and position in the workplace was that she
retained her previous
grade as a level one supervisor, but was
filling a Level II position in view of her own reluctance to move
from that position when
it was restructured several years earlier.
[92]
From the evidence, it is apparent that the
applicant often felt she was being treated less favourably than she
ought to have been
based on a Level I grade, whereas Level II
supervisors were not treated like Level I supervisors. This mismatch
between the applicant's
grade and her functional supervisory level
coupled with her perception about which level of supervision she was
entitled to expect
comparable treatment with, and the perception of
other Level II supervisors of how she was treated relative to them,
might well
have fuelled a degree of resentment towards her to which
contributed to the negatively charged environment she was working in.
[93]
If one considers the various causes of the
applicant's complaint and how Ms Minya interacted with her as well as
the failure to
deal decisively with her grievances other than to
pursue the leave fraud investigation, in my view there is no reason
to suppose
that matters would not simply have continued in this
negative and discouraging way for the foreseeable future in September
2008.
Nothing on the evidence indicates that either Ms Minya or other
management of the respondent were intending to deal decisively with

the applicant’s issues.
[94]
Would the applicant have been dismissed if
it were not for her conduct in filing her grievances, or in trying to
exercise her authority
over Mr Mahuwa, or for disclosing what she had
discovered about leave reconciliations? If I accept that the mixture
of indifference
and lack of support displayed by the respondent on
the one hand and the apparent vindictiveness of Minya in relation to
Saturday
work and the leave taken by the applicant in June, it is
quite plausible that the applicant, whose mental health was fragile
already,
might well have found it an overwhelming prospect to
continue working in that environment. In turn, this situation
understandably
could have precipitated her seeking further medical
treatment which led to the application for temporary total disability
and ultimately
to the convening of the Disability Management
Committee and the termination of her services. Thus, her state of
incapacity, even
though it might be contested by the respondent, is
causally linked to the antecedent treatment of her at the workplace.
On this
basis, it might be said that but for the conduct of the
respondent, the applicant probably would not have been dismissed.
[95]
However, that is not the end of the matter.
The remaining l question is whether it can be said that those actions
of the respondent
were the main, or a significant, cause of her
dismissal in June 2010. It is at this juncture that I have greater
difficulty with
the applicant's case. Even if it is accepted that the
chain of events is causally linked, I am not persuaded that the
conduct of
the respondent was the main cause of the applicant's
dismissal nearly two years after these events had taken place. Even
if the
sequence of events after the applicant was booked off from
work in October 2008, were initially triggered by the respondent’s

previous treatment of the applicant, those events acquired their own
momentum arising, in no small way, from the manoeuvrings of
both
parties over how the applicant's claimed medical incapacity should be
handled. Thus, the dispute over the applicant's entitlement
to
temporary total disability became an issue which had a bearing on the
proceedings of the disability committee meeting and the
substantive
basis on which any decision might be made by it. The parties were
also unable to agree on whether the Disability Management
Committee
could proceed in the absence of certain other pre-requisites such as
the provision of information, being met.
[96]
The matter ultimately came to a head over
the respondent’s insistence on the applicant returning to work,
albeit
on
a staggered basis, in the face of the applicant's unwillingness to do
so before consulting with her psychiatrist and before
the respondent
had met her various demands for information. Unwilling to accede to
the applicant’s requests for information,
but possibly willing
to discuss an alternative position with the applicant, the respondent
nonetheless insisted on her returning
to work in her previous
position or face termination. I believe the respondent’s
decision at that point was more directly
connected to the way it
perceived the applicant’s incapacity and what it was entitled
to do under such circumstances than
to the events which precipitated
the applicant’s apparent incapacity nearly two years earlier.
[97]
Even though there is reason to believe that
Ms Minya displayed a degree of animus towards the applicant, as
evidenced by her contemptuous
attitude towards her application for
legal representation, it cannot be said that was mainly attributable,
or significantly related,
to her unhappiness with the applicant’s
conduct in lodging grievances, trying to exercise her authority as a
supervisor,
and reporting the suspected leave fraud.  Ms Minya’s
attitude at this stage appeared to have more to do with what she

believed were the applicant’s bad faith attempts to thwart the
incapacity procedure the employer had set in motion, in circumstances

where the applicant had already been absent from work for an
extensive period of time.
[98]
Consequently, I am not persuaded that the
most probable reason for the respondent terminating the applicant’s
services was
because she made a protected disclosure, or because she
wanted to discipline Mahuwa, or because she filed various grievances
(bearing
in mind that this was not pleaded). In so far as the
employer or Ms Minya in particular had taken retaliatory action
against the
applicant in the form of trying to impose Saturday work
on her or take action against her over the day’s leave in June,
those
threats were never followed through.. Even if I assume that the
removal of the office equipment she had used for so long had no

legitimate rationale and was an act of petty vindictiveness on the
part of Ms Minya because of her report on leave fraud, or because
she
had lodged grievances against her and other staff, there is no reason
to suppose that any punitive impulse on Minya’s
part was not
satisfied by these measures and by other actions such as harassing
the applicant over Saturday work. The evidence
also shows that the
respondent was content simply to avoid dealing decisively with her
grievances, rather than trying to penalise
the applicant for raising
them.
[99]
It might even have been the case that Ms
Minya had hoped the applicant would simply give up and would leave.
Had she done so in
the last quarter of 2008, after giving the
respondent ultimatums to deal with her grievances decisively and to
desist from attempting
to pressurise her to work on Saturdays, and if
the respondent had remained indifferent and implacable in the face of
such demands,
the applicant might well have been able to argue a case
of constructive dismissal which was automatically unfair. However,
the
unresolved issues did not reach a culmination point and did not
precipitate such action on her part at that time.
[100]
Instead,
the applicant’s actions were dictated by her psychiatrist’s
medical diagnosis. Her prolonged and increasingly
contested absence
from work for a period of approximately twenty months, whether
medically justified or not, created an entirely
new source of
strained relations between her and management. In the end it was the
dynamics of the events which unravelled in the
course of dealing with
her incapacity that led to her dismissal. By that stage, I do not
believe it can be said that any punitive
intentions relating to her
actions prior to being booked off ill in October 2008 played a
significant role, if any, in her dismissal
in June 2010 in the sense
identified in
Kroukam
’s
case.
[3]
[101]
In conclusion, I am not satisfied that the
most likely reason for the applicant’s termination was one of
the illegitimate
reasons she complained of that would make her
dismissal unfair in terms of s 187(1), nor am I convinced they
influenced the decision
to dismiss her to a significant degree at
that stage.
The
applicant’s alternative unfair dismissal claim
[102]
The remaining issue concerns the
applicant’s alternative claim that her dismissal for incapacity
or misconduct was unfair.
I tried to avoid making any findings which
might have a bearing on the merits of this claim though clearly parts
of the record
of the proceedings in this matter may obviously have a
bearing on the merits thereof.
[103]
Unfortunately, this is not a case in which
the parties consented to allow the court to determine the alternative
leg of the dispute,
sitting in an arbitral capacity in terms of s
158(2)(b) of the LRA. In the pre-trial minute all the parties could
agree was that
the court should determine if the matter should be
referred to the CCMA if it was a dismissal based either on incapacity
or misconduct.
As the court has no jurisdiction to determine an
unfair dismissal dispute on either of these grounds, the only
alternative is to
refer the alternative claim of unfair dismissal to
the CCMA.
Costs
[104]
Although there is no ongoing relationship
between the parties and even though the applicant has been
unsuccessful in her claim,
the employer’s treatment of the
applicant prior to her being booked off ill was, on the kindest
interpretation,  one
of indifference at best and vindictive at
worst (at least in certain respects). It is true it did respond to
her leave fraud report
and at least there was some consideration of
the issues raised by her in her letter of 13 June 2008, but on her
specific grievances
there was no evidence of any effort to deal with
them decisively. The applicant was justifiably aggrieved about her
treatment even
if this was not the proximate cause of her dismissal.
In the circumstances, I believe it is fair and equitable that both
parties
should bear their own costs.
Order
[105]
In the circumstances :
105.1
The applicant’s claim that her
dismissal was automatically unfair either in terms of s 187(1)(d) or
(h) of the LRA is dismissed;
105.2
The applicant’s alternative claim of
unfair dismissal either for incapacity or misconduct is referred to
the CCMA for determination
in arbitration proceedings.
105.3
Each party must pay its own costs.
____________________
R LAGRANGE, J
Judge of the Labour
Court
APPEARANCES
For
the Applicant:  S Snyman of Snyman Attorneys
For
the Respondent: M Eiujen instructed by Goldberg & de Villiers Inc
[1]
(2005)
26 ILJ 2153 (LAC)
[2]
At
2206-7
[3]
At
2188, par [102]:“
However,
even if the reasons that I have found to constitute the dominant or
principal reason or reasons for the dismissal did
not constitute the
principal or dominant reasons for the appellant's dismissal, I would
still find that the dismissal was automatically
unfair if such
reasons nevertheless played a significant role in the decision to
dismiss the appellant. In my view for policy
considerations, where
such reasons have influenced the decision to dismiss to a
significant degree, the dismissal should be dealt
with as an
automatically unfair dismissal in order to deter as many employers
as possible from entertaining such
illegitimate
matters as, for example, racism and the exercise of rights conferred
by the Act as factors in their decisions to
dismiss employees.”