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[2015] ZALCJHB 24
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Ntuli v Weir Minerals (Pty) Ltd (JS390/2014) [2015] ZALCJHB 24 (6 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No:
JS390/2014
DATE: 06 FEBRUARY
2015
Not Reportable
In
the matter between:
NKOSINATHI
NTULI
.........................................................
Applicant
And
WEIR
MINERALS (PTY) LTD
......................................
Respondent
Heard: 27, 28,
29, 30 January 2015 and 2 February 2015
Delivered: 6
February 2015
Summary:
Automatically unfair dismissal claim founded on s 187(1)(d)(i) of the
LRA; Applicant contending that he was dismissed for
having lodged a
grievance against his senior managers; Respondent taking the stance
that the true reason for the dismissal was
gross misconduct;
Probabilities favouring a conclusion that the true reason for the
dismissal was the alleged misconduct; Nexus
between the grievance
lodged and the disciplinary proceedings coincidental; Applicant’s
mis
conduct the true cause of the dismissal; Referral dismissed
with no order as to costs.
JUDGMENT
VOYI, AJ
Introduction
[1]
This
matter pertains to a claim for an automatically unfair dismissal as
envisaged by s 187(1)(d) of the Labour Relations Act.
[1]
In its original state, the Applicant’s case was premised on two
causes of action.
[2]
The first and the primary cause of action
was grounded on the provisions of s 187(1) of the LRA, read together
with s 5(2)(c)(iv)
of the same Act. The other leg of the case was
founded on s 187(1)(d)(i) of the LRA.
[3]
I disposed of the Applicant’s primary
complaint in support of his case in my Ruling on an application for
absolution from
the instance that was launched by the Respondent.
[4]
Nothing more, therefore, needs to be said
about the case and the allegations premised on the provisions of s
187(1) and s 5(2)(c)(iv)
of the LRA.
[5]
In seeking to vindicate his right in
respect of the remaining assertion that the dismissal was
automatically unfair, the Applicant
declares that he was dismissed
for having exercised a right conferred by the LRA. That right was the
lodgement of a grievance against
his senior managers.
[6]
Without hesitation, I take the view that
the lodgement of the grievance was the exercise of a right conferred
by the LRA which,
therefore, brings the Applicant’s claim
within the ambit of s 187(1)(d)(i) of the LRA.
[7]
I come to this finding on the basis that
the grievance lodged was against a
demotion
.
[8]
A demotion would amount to an unfair labour
practice if it is found to have been occasioned by an
unfair
conduct of an employer in relation thereto.
[9]
In lodging the grievance, the Applicant
was, therefore, vindicating his right not to be subjected to unfair
labour practice as protected
under s 185(b) of the LRA.
Background
[10]
The Applicant was, on 07 March 2011,
employed by the Respondent in the position of Process Engineer. On 07
December 2012, he was
promoted to the position of Product Manager:
Cyclones and Engineering Systems.
[11]
There was a probation period of six months
that was attached to this promotion. The probation period was, for
reasons not relevant
for purposes of this matter, extended by another
three months.
[12]
Before the end of the extended probation
period, the Applicant was demoted. Specifically and on 28 August
2013, the Applicant was
demoted by the Respondent from the position
of a Product Manager: Cyclones and Engineering Systems to that of a
Process Engineer.
[13]
The Applicant felt aggrieved by this
demotion. His first reaction was to address a complaint to the
Respondent’s Regional
Managing Director, being one Mr Dave
Athey (“Mr Athey”). He did so on 13 September 2013 and
whilst on annual leave.
Mr Athey responded to the Applicant’s
correspondence on 16 September 2013 and advised him that his
correspondence was not
in compliance with the Respondent’s
grievance procedure. The Applicant was, accordingly, guided by Mr
Athey to express his
concerns through the appropriate channels.
[14]
In the interim and on 17 September 2013,
the Respondent’s Sales and Marketing Director, one Mr Gavin
Dyer (“Mr Dyer”)
issued an instruction to the Applicant
to,
inter alia
,
‘…share all passwords in related models…’
of a DMS Sink Product Model (hereinafter “the DMS Model”).
[15]
There is a serious dispute between the
parties as to who owns the intellectual property rights over the DMS
Model. The Applicant
was of the view that the DMS Model was product
of his ingenuity and he, therefore, remained the proprietary owner
thereof. He,
further, contends that he had previously developed a
particular DMS cyclone performance simulation program which he handed
to the
Respondent for free at the end of May 2013.
[16]
The Respondent, on the other hand, took the
view that the DMS Model was company property whose intellectual
property rights vested
on it as the employer. I find it unnecessary
to resolve this dispute as I take the view that ownership of the DMS
Model is not
central to the determination of the case before me.
[17]
The Applicant returned from annual leave on
27 September 2013 and he promptly lodged the formal grievance as
advised by Mr Athey.
The formal grievance was against Mr JD
Singleton, Mr Dyer and Ms Florence Chandinha. The nature of the
grievance was described
as unfair demotion.
[18]
On the same date the Applicant returned
from annual leave, he was approached by Ms Rene Calitz (“Ms
Calitz”), who is
the Respondent’s Strategic Marketing and
Communications Manager, about the DMS Model. Ms Calitz instructed the
Applicant
to send the DMS Model to the sales engineers of the
Respondent.
[19]
The Applicant advised Ms Calitz that he was
no longer in possession of the minerals DMS model and had completely
destroyed the files.
This, he reiterated in an electronic mail
forwarded to Ms Calitz at approximately 10:56 on 27 September 2013.
[20]
On 30 September 2013, the Applicant was
suspended. He was issued with a notice of a disciplinary enquiry on 3
October 2013. In the
notification of the disciplinary enquiry that
was issued, the Applicant was charged with two counts of gross
misconduct. These
were labelled as follows:
‘
Gross
misconduct, i.e. Wilful damage to company property in that you have
destroyed the DMS sinks product model
Gross
Insubordination in that you have deliberately disobeyed an
instruction, issued by the Sales and Marketing Director on 17
September 2013 (instruction: to share all passwords in the related
models)’
[21]
The disciplinary enquiry commenced on 8
October 2013 and it was concluded on 10 October 2013. The appointed
chairperson of the disciplinary
enquiry found the Applicant guilty
and imposed the sanction of summary dismissal.
[22]
A certain ‘disciplinary action form’
that was issued by the Respondent on 10 October 2013 recorded the
following:
‘
Mr
Ntuli destroyed company property being the DMS sinks product model.
He was further instructed to hand over all passwords in the
related
models by a Director and deliberately disobeyed such instruction.’
[23]
In the end, the ‘disciplinary action
form’ stipulated that the sanction imposed was summary
dismissal with effect from
10 October 2013. The Applicant’s
appeal against this outcome was unsuccessful.
Evaluation
[24]
The
above being a truncated background to the matter, I now turn to
the crux of the issue before me. I commence by pointing
out that the
approach to be adopted in matters of this nature was recently and
aptly articulated by this court in
Mashigo
v South African Airways (Pty) Ltd
.
[2]
In the first place, the employee has to adduce evidence which is
sufficient to cast doubt as to the reason for the dismissal as
advanced by the employer. Once this has been done, it then becomes
the employer’s duty to show that the reason for the dismissal
is not one that is prohibited under s 187(1) of the LRA.
[25]
In this matter, the Respondent has
demonstrated that the Applicant was dismissed for gross misconduct.
The disciplinary charges,
the minutes of the disciplinary enquiry as
well as the ‘disciplinary action form’ all attest to
this. In the entire
scheme of things, it seems to me that what
prompted the disciplinary proceedings was the Applicant’s own
conduct or rather
misconduct. I draw this overall conclusion on the
balance of all probabilities.
[26]
On the evidence before me, it is highly
unlikely that the Applicant would have been dismissed regardless of
his very own conduct.
It is equally unlikely that the Respondent
would have taken umbrage with the mere lodgement of a grievance. I
say this as the Respondent
has in place a grievance procedure that
allows employees to vent out any dissatisfaction they may have. This
policy even prescribes
certain timelines.
[27]
What presents an insurmountable challenge
for the Applicant is his conduct, for which he appears to accept no
responsibility whatsoever.
First, he deliberately ignored an
instruction that was issued to him by Mr Dyer. One would have
expected him to inform Mr Dyer
why he would not be able to accede to
the instruction, more so considering the warning that was embedded at
the end of the written
instruction. The Applicant elected to be
defiant, apparently, on the ground that what he was being asked to do
was not lawful for
the employer to require of him.
[28]
Secondly, the Applicant did not flinch in
informing the Respondent that he had destroyed the DMS Model. As to
whether or not this
Model was lawfully owned by him and could,
therefore, be destroyed at whim is not for me to decide. What is,
however, clear to
me is that the destruction of the DMS Model lead to
the disciplinary proceedings and the ultimate dismissal of the
Applicant.
[29]
The Applicant had also led evidence to the
effect that the Respondent’s Mr Athey had admonished him on
having lodged a grievance
against a director of the Respondent, in
this instance being Mr Dyer.
[30]
It was the Applicant’s case that he
was, as a result of the grievance, dealt with by the Respondent
through the disciplinary
proceedings which eventually resulted in his
dismissal. Again, this claim is overwhelmed by the clear, calculated
and defiant conduct
of the Applicant as mentioned herein before.
[31]
All things considered, I am unable to find
that the reason advanced by the Respondent for the dismissal was
simply a pretext. The
dismissal was occasioned by the Applicant’s
own conduct in refusing to abide by a lawful instruction and also in
destroying
the DMS Model.
[32]
Objectively, I find no connection between
the grievance lodged and the ultimate dismissal except for a mere
co-incidence in terms
of the sequence of events. On the other hand, I
find a solid connection between the Applicant’s conduct and the
ultimate
dismissal.
[33]
In
Janda
v First National Bank
,
[3]
it was held thus:
‘…
when
an automatically unfair dismissal is alleged, the sole enquiry is to
establish the true reason for the dismissal, and the only
legal issue
is whether the reason so identified is covered by one or other of the
provisions of section 187.’
[34]
In this matter, it is my judgment that the
Applicant has not adduced any evidence to rebut the reason advanced
by the Respondent
for his ultimate dismissal.
[35]
At best, the Applicant merely raised an
issue on the timing of his dismissal. On the evidence which serves
before me, the nexus
between the lodgement of the grievance and the
disciplinary proceedings is simply coincidental.
[36]
The long and short of it is that the true
reason for the Applicant’s dismissal is evidently his
misconduct. The fairness or
otherwise of the dismissal as a result of
such misconduct is not before me to decide upon. It is a matter for
an arbitrator at
arbitration to pronounce upon. The Applicant’s
claim, therefore, stands to be dismissed.
[37]
As for costs, I mention that they fall
within my discretion. The Applicant did not have the benefit of legal
representation. He,
nevertheless, presented his case with commendable
articulation for a lay litigant. No effort of his was spared in the
thorough
preparation of the case.
[38]
The Applicant manifestly believed that he
was unfairly dismissed on a prohibited ground. As a consequence, he
lodged the claim with
this court in order to vindicate his rights.
[39]
The Applicant was, in essence, exercising
his constitutionally guaranteed right of access to courts. The
requirements of law and
fairness dictate that I should not condemn
him in costs.
[40]
There shall, under the circumstances, be no
order as to costs.
Order
[41]
I, accordingly, make the following order:
(i)
The Applicant’s referral on the basis
of an alleged automatically unfair dismissal claim as founded on s
187(1)(d)(i) of the
LRA is hereby dismissed.
(ii)
There is no order as to costs.
Voyi,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: In person
For
the Respondent: Mr C van Zyl of Van Zyl’s Incorporated
[1]
Act
No. 66 of 1995 (“the LRA”).
[2]
(JS488/12)
[2014] ZALCJHB 366 (25 September 2014), at para’s 14 and 15
[3]
(2006)
27
ILJ
2627 (LC) at para 10