Griessel v Trade Kings (Pty) Ltd (JS 65/2012) [2015] ZALCJHB 148 (6 May 2015)

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[2015] ZALCJHB 148
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Griessel v Trade Kings (Pty) Ltd (JS 65/2012) [2015] ZALCJHB 148 (6 May 2015)

The
Labour Court of South Africa, JOHANNESBURG
Judgment
Case
no: JS 65/2012
DATE:
06 MAY 2015
Not
Reportable
GRIESSEL,
BENJAMIN
QUINTON
.....................................................................................
Applicant
And
TRADE
KINGS (PTY)
LTD
.................................................................................................
Respondent
Heard:
12; 13; 14; 15 May 2014; 29; 30 and October 2014;
(Written
closing arguments: 12 November 2014)
Delivered:
6 May 2015
Judgment
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
applicant claims that his dismissal by the respondent was
automatically unfair as contemplated in section 187(1) (d) (i) read

with sections 5 (1) and 187 (1) (f) of the Labour Relations Act
[1]
(the
‘LRA’). In his statement of case, the applicant alleged
that the basis of his claim was that he was dismissed for
exercising
his right to lodge an unfair discrimination dispute in terms of
section 10 of the Employment Equity Act
[2]
(The ‘EEA’) at the Commission for Conciliation, Mediation
and Arbitration (The CCMA). The dispute referred was in regards
to
alleged direct unfair discrimination and harassment of the applicant
for exercising his rights to raise grievances. He further
alleged
that he was discriminated against on account of his marital status.
He seeks an order that his dismissal was substantively
and/or
procedurally unfair.
[2]
In
the statement of case, the applicant initially sought maximum
compensation. This had however changed during his cross-examination,

and he now seeks an order of reinstatement, as he contends that the
source of his complaint leading to the automatically unfair
dismissal
claim has since been removed. The respondent opposed the claim.
Background:
[3]
The
respondent is in the business of manufacturing, importing and
exporting of confectionary products. The applicant started his

employment with the respondent in June 2006 as a Sales Marketing
Assistant, and used to report to one Grobler who was the then

Managing Director. Grobler passed away in 2009 and the applicant took
over his functions. This came with a significant increase
in his
salary in view of his additional responsibilities including setting
up of factories, running the export, steel, production
development,
and marketing parts of the business.
[4]
In
July 2010 the respondent had appointed Allan Devraj as its Managing
Director. Devraj had prior to his appointment acted as a
consultant
for the respondent, having been recruited at the time by the
applicant with the blessing of the CEO of the respondent,
Zuber
Moosa. It appears at the time that the applicant needed assistance
and mentoring in certain aspects of the business, and
it was in that
regard that Devraj was brought in on a consultancy basis.
[5]
The
applicant was consulted on Devraj’s appointment and he had
thought that he would be good with the retail side of the business.

The applicant’s contention was that he worked closely with
Devraj after his appointment as MD, and had supported him in the

confectionary side of the business. He further denied that he was
ever jealous of Devraj’s appointment and had no problems
in
working with him until March 2011 when their relationship
deteriorated.
[6]
Following
Devraj’s appointment as MD, the applicant had continued to
report to Moosa until January 2011, when he was appointed
as National
Sales Manager for the respondent’s confectionary business,
following the failure of the steel aspect of the business.
The
applicant had occupied that position until 24 October 2011 when he
was dismissed on allegations of misconduct. At the time
he had earned
a salary equal to R75 000.00 per month, cost to the company.
[7]
The
applicant’s contention is that the true or predominant reason
for his dismissal was the fact that he had attempted to
have
grievances against Devraj resolved, and that the respondent, and in
particular, Moosa, had failed to make any meaningful attempt
to do
so. It was further submitted that when it was clear that he would not
let the grievance go unresolved, the harassment and
victimization was
increased by Devraj who was supported by Moosa. The applicant further
submitted that in the light of the grievances,
Moosa then
deliberately started looking for ‘dirt’ on him and
discovered performance issues that arose in the past,
leading to the
charges against him and his ultimate dismissal.
[8]
The
dispute between the parties is alleged to have been triggered by
formal written complaints lodged by the applicant on 20 and
25 July
2011 against Devraj. It was common cause that Moosa had met with the
applicant on 26 July 2011 for three hours to discuss
the said
grievance. The grievance according to the applicant remained
unresolved despite the possibility of him being moved to
the export
division of the respondent having been discussed
.
There is a dispute regarding whether during these discussions, Moosa
had also made an offer to pay the applicant 12 months’
salary
to terminate the employment relationship.
[9]
The
respondent’s contention was that there was a long build up to
the disciplinary hearing and the applicant’s dismissal
on 24
October 2011. It was submitted on its behalf that the lodging of the
grievance did not have an influence on the disciplinary
hearing or
the ultimate dismissal.
Issues for determination:
[10]
The
main issues for determination as per the parties’ pre-trial
minutes are:
i.
Whether
the dismissal of the applicant was automatically unfair;
ii.
Whether
the grievances raised by the applicant and his referral of an unfair
labour practice dispute to the CCMA was the ‘
dominant’
or
most
likely cause(s) of the dismissal
.
If these questions are answered in the affirmative, whether the
dismissal was substantively fair/or unfair;
iii.
Furthermore,
it is required of the court to determine whether the applicant’s
dismissal was in accordance with a fair procedure
on the basis that;
a.
The
disciplinary hearing was prematurely instituted pending resolution of
an unfair labour practice by the CCMA;
b.
If
so, the hearing constituted a form of harassment
c.
The
chairperson of the hearing was biased;
iv.
Whether
the dismissal was for a reason listed as unfair discrimination under
section 187 (1) (f) of the LRA and/or arbitrary reason
related to
discrimination and thus automatically unfair;
v.
Whether
the applicant is entitled to any relief.
The dispute and the evidence:
[11]
The trial took six days to complete. Other than giving evidence, the
applicant also called upon four other witnesses to testify
on his
behalf, whilst the respondent only called upon Moosa to testify on
its behalf. The evidence presented covered a variety
of issues, and
an attempt is made hereunder to summarise the most salient common
cause and disputed facts.
[12]
The applicant’s main source of discontent was Devraj. In his
written complaints of 20 and 25 July 2011 addressed to Moosa,
he had
alleged that Devraj had subjected him to unfair treatment,
discrimination, harassment, and victimization, including threats
made
to his job security. The applicant deemed the conduct of Devraj
towards him over time to be unbecoming, unprofessional, degrading,

demotivating, humiliating and insulting. He further complained that
Devraj gave other employees preferential treatment.
[13]
The applicant in substantiating the complaints further testified that
he believed that Devraj treated him unfairly because
he thought that
he (applicant) was incompetent when this was not the case. Devraj had
told him in foul language that he was not
good enough and that he
should leave as he was looking for another National Sales Manager. He
further complained that Devraj marginalised
him, excluded him from
the affairs of the respondent, refused to copy him in e-mails and
basically subjected him to unfair discrimination
on account of his
open relationship with his wife. He testified that Devraj sought to
micro-manage him, ‘was all over him’,
overloaded him with
work and constantly criticized him. According to the applicant,
Devraj had started employing his friends from
other companies,
created camps in the workplace, favoured other employees, and planned
to get rid of him eventually.
[14]
After the two written complaints, Moosa had held a three-hour meeting
with the applicant on 26 July 2011 in order to address
his concerns.
Moosa’s response according to the applicant was that of
indifference, as he did not believe the allegations
he had made
against Devraj. Moosa essentially told him to work with Devraj, and
to sort their differences out.
[15]
On 18 August 2011, Devraj had sent an e-mail to the applicant
outlining several outstanding work related issues and making
some
changes in his functions. Attached to the e-mail was a copy of “
Work
Level Position Statement - National Sales Manager”
which the applicant viewed as changing his role without any
discussions being held with him.
[16] In
the e-mail, the applicant was also informed that he did not require
an office as he was issued with a laptop and mobile
phone to respond
to emergencies, and that he should move to the open plan area. When
the applicant received this e-mail and the
attachment, he formed the
view that there was no longer a role and position for him in the
company, and viewed this as a personal
attack and a demotion. The
applicant further saw his removal to an open plan area as
favouritism, as another employee, Marianne
was not moved even though
she did not use her office regularly. The applicant’s view was
further that with these actions,
Devraj sought to humiliate and
belittle him, as he felt threatened by him.
[17]
The applicant was booked off sick from 19 August 2011 until 26 August
2011 and had accordingly informed Moosa initially by
‘sms’.
He also sent through a copy of his medical certificate in that
regard. His contention was that upon receipt
of a copy, Devraj had
continued with the humiliation and mistrust by informing him via an
e-mail that he wanted a second opinion
on the nature of his ailment
from a respondent’s recommended doctor. This was followed by a
further e-mail from Devraj to
the applicant enquiring about copies of
outstanding agreements and work to be done which was overdue. Devraj
on the same date sent
yet another e-mail to the applicant, informing
him that disciplinary steps would be taken against him if his
instructions were
not complied with.
[18] On
the same date, Devraj informed the applicant that another person,
Vinay would take his place on a trip to the Tanzanian
Trade Show that
had been previously planned. The applicant contended that he was
excluded from the trip despite working hard towards
it over three
years, and he viewed this as further attacks on him and an attempt at
blocking his opportunities. On 19 August 2011,
in an e-mail to Moosa
and in which he complained about being excluded from the Tanzanian
trip, the applicant requested to be moved
to the exports division and
also asked Moosa to intervene in the harassment by Devraj.
[19]
Moosa’s response to the applicant in one of the e-mail
exchanges was that he wrong in attributing problems to a personal

vendetta and that they related more to his competency and fights with
Devraj. On 19 August 2011, the applicant responded with a
detailed
e-mail, and persisted with his allegations against Devraj. He further
stated that if the respondent held the view that
he was not suited
for the job, he would accept the 12 months’ compensation offer
allegedly made by Moosa in their meeting
held on 26 July 2011 and he
would move on.
[20] In
one of the e-mail exchanges, the applicant had informed Devraj that
he had consulted with the CCMA, and was advised that
his instruction
to submit to a second medical opinion was unlawful. Devraj in return
had sent e-mails to the respondent’s
HR division for checks to
be made on whether the applicant had any sick leave days due to him,
failing which his salary should
be deducted if he did not have any
sick leave days due to him.
[21]
Moosa’s response on 20 August 2011 to one of the applicant’s
e-mails with the familiar complaints was that he was
tired and did
not know what to do anymore. He denied having made an offer of 12
months’ salary for the applicant to leave,
and informed him to
communicate directly with Devraj. Moosa further told the applicant
that he did not want him to leave and proposed
the position in
exports as an alternative.
[22]
The applicant further testified that Devraj and Moosa were in cahoots
in attacking and being vindictive towards him. He cited
instances
where old issues about performance had resurfaced to find faults in
him. He also made reference to Devraj’s e-mail
of 19 August
2011, wherein he had requested certain things to be done whilst he
was on sick leave, and the fact that he was also
threatened with
disciplinary warnings if instructions were not carried out.
[23]
On 23 August 2011, the applicant had sent an e-mail to Moosa
informing him that his attempts to meet with Devraj to resolve
their
differences did not yield results as he told him that he should speak
to him. Moosa send a ‘sms’ to the applicant,
advising him
that he told Devraj not to communicate with him and that since the
issues related to his performance, the matter was
to be referred to
Labournet to handle. The applicant testified that he construed
Moosa’s response as a ‘declaration
of war’.
[24]
The applicant was due to return to work on 29 August 2011 from sick
leave. On that date, Moosa received correspondence from
the
applicant’s attorneys of record, informing him
inter alia
that the applicant had intimate knowledge of the business of the
respondent and that should he join the competition, this could

severely impact on the prospects of the respondent. It was further
alleged on behalf of the applicant that because of the harassment
and
unfair discrimination by Devraj, his health had come under strain,
and that an amicable solution should be reached to terminate
the
employment relationship.
[25] In
the correspondence to Moosa, it was suggested that the applicant
should be paid 12 months’ salary to take ‘garden
leave’
to maintain confidentiality regarding the business of the respondent,
since also he did not have a contract or restraint
of trade. Devraj
on the other hand had on the same day sent further e-mails to the
applicant enquiring about work related matters.
[26]
On 31 August 2011, the applicant’s attorneys of record sent
follow up correspondence and continued to complain
inter
alia
about unfair labour practices,
discrimination, the unlawfulness of Devraj’s instructions in
the light of the allegations
that he was not properly appointed as
MD, and the fact that Devraj had appointed his daughter Natasha to a
position he had created
without advertising it. Moosa did not respond
immediately to the correspondence from the applicant’s
attorneys.
[27]
The respondent had scheduled a formal grievance hearing to be held on
7 September 2011 and to be facilitated by Labournet.
On 5 September
2011, the applicant’s attorneys had formally informed the
respondent that the applicant would not attend the
grievance hearing
and raised several objections. The attorneys further insisted that he
should be legally represented in the grievance
hearing, failing which
he would not attend.
[28]
The applicant’s attorneys sent another letter, accusing the
respondent of having demoted the applicant and further intensifying

attempts to force him to resign. On 7 September 2011 the applicant’s
attorneys had sent further correspondence to Moosa and
effectively
raised the same or similar complaints and informed him that a
referral was to be lodged with the CCMA. The applicant
then on 7
September 2011 referred an unfair labour practice and unfair
discrimination dispute to the CCMA. The referral according
to the
applicant, was as a result of Moosa having handed the matter over to
Labournet, and the fact that his laptop and cell phone
were then
taken from him.
[29] On
8 September 2011, the respondent’s attorneys wrote three
letters, advising the applicant
inter alia
that the respondent
disputed allegations of unfair labour practice and discriminatory
conduct towards him. It was further pointed
out that the respondent
did not want to negotiate a separation of employment with him, and
concerns were expressed about threats
made by him through his
attorneys. It was also indicated that the respondent was still
committed to dealing with the issues raised
in an internal grievance
proceeding, and the applicant’s laptop and cell phone were
removed from him in the light of the
threats he had made through his
attorneys.
[30] On
12 September 2011, the applicant’s attorneys wrote to the
respondent, and confirmed that the applicant would not attend
any
grievance hearing and that there was a breakdown in the trust
relationship between the applicant, Moosa and Devraj. This was
again
confirmed in writing on 16 September 2011, and the applicant
indicated that any attempts at resolving the matter should be
at the
level of the CCMA. In the applicant’s attorneys’ letter,
it was also raised that a third party, (the applicant’s

landlord), was allegedly informed that the applicant was no longer
employed by the respondent, and that the situation at work was

untenable. The respondent was threatened with further litigation in
terms of the Companies Act and the contravention of the RICA

(Pertaining to alleged invasion of privacy after the laptop and
mobile phone were taken from him and investigated).
[31] In
his testimony, the applicant had confirmed that he did not attend the
grievance hearing scheduled as he held the view that
it would not be
fairly conducted since it was to be facilitated by Labournet. He also
contended that the grievance hearing was
belated, and would not have
been fair, as he was not allowed legal representation whilst
Labournet handled the affairs of the respondent.
[32] On
19 September 2011, the respondent’s attorneys informed the
applicant in writing that since he had made up his mind
and had no
intention of resolving the issues internally or to participate in the
grievance hearings, that process was regarded
as having been aborted.
He was informed that he was henceforth suspended, and that a
disciplinary hearing was to be convened on
26 September 2011 for him
to answer to allegations of misconduct, which were outlined in the
notice.
[33] On
22 September 2011, the applicant lodged yet another grievance
detailing the same issues he had raised before,
albeit
in more
detail. On 26 September 2011, the disciplinary enquiry was postponed
to 28 September 2011 and a new or revised ‘charge
sheet’
was issued. The disciplinary enquiry was again postponed to 5 October
2011.
[34]
The dispute referred to the CCMA on 7 September 2011 was to be
conciliated on 3 October 2011 and a certificate of outcome was

issued. On the same date, the applicant had referred another unfair
labour practice dispute to the CCMA, alleging that he was unfairly

demoted from National Sales Manager to Regional Sales Manager, was
removed from his office to an open plan area; his cell phone
and
laptop was confiscated and that 25% was deducted from his salary.
[35]
The disciplinary enquiry eventually commenced on 5 and 10 October
2011 with a chairperson from Labournet presiding. It had
proceeded
despite the applicant’s objections about being suspended
without a hearing; the fact that he had referred two disputes
to the
CCMA and his requests for further documents.
[36] On
20 October 2011, the applicant was informed that he was found guilty
on four of the six charges preferred against him, and
was further
advised to submit mitigating circumstances. On 24 October 2011 he was
then informed of his dismissal. He had referred
an unfair dismissal
dispute to the CCMA on 26 October 2011 and then withdrew the unfair
labour practice dispute he had initially
referred. A certificate of
outcome pertaining to the unfair dismissal dispute was issued on 17
November 2011. On 20 January 2012,
the CCMA had issued a ruling to
the effect that since the dispute pertained to a dismissal on grounds
of discrimination, it lacked
jurisdiction to arbitrate the dispute.
[37]
Under cross-examination, the applicant conceded that his experience
in retail and sales was limited as he was mostly involved
in
marketing and business management. He further conceded that Devraj
was brought into the respondent by him as a consultant to
assist him,
and denied that he had wished to occupy the position of MD. He
further reiterated that when Devraj started, he had
supported him and
had no ill feelings towards him until his attitude changed in March
2011. He further confirmed that from August
2010 he had reported
directly to Moosa and even after Devraj was appointed as Managing
Director.
[38]
The applicant nevertheless conceded that he had problems with the
appointment of Devraj, as it was not properly done in terms
of the
company laws of the country. He conceded that he was appointed
National Sales Manager after the respondent’s steel
business
had gone under, and had to thereafter report to Devraj. He however
denied that the problem had to do with reporting to
him and contended
that it was more about how Devraj dealt with employees.
[39]
The applicant contended that although Devraj was demanding and rude,
he had lots of experience, and that the respondent’s
business
grew under him even though this was more as a result of a team
effort. He testified that Devraj had simply taken over
from him at
the stage when the company was doing well.
[40]
According to the applicant, when Devraj asked him on 18 August 2011
to vacate his office, as he wanted him to be more in the
field, he
saw this as a demotion to a region as he was now allocated the tasks
of a regional manager. He conceded that his tasks
did not require him
to be office bound. He however contended that he needed his office
for after hours office work and also since
his position was
strategic. He had however conceded that other people were moved from
their offices and that Moosa as CEO, and
the respondent’s
Finance Manager occupied the open plan area. He however still saw his
removal to the open plan area as an
attack and victimization after he
had lodged a grievance. He attributed the problems between him and
Devraj as being due to the
fact that he had expressed his own
opinions, which did not go down well with him.
[41] In
regards to the Tanzanian Trade show trip, the applicant conceded that
at the time it was scheduled, he was on sick leave
and had to be
replaced with another employee. He could not comment when it was put
to him that eventually no one went to the trade
show. He however
still felt that he was being excluded and treated unfairly by Devraj
when removed him from the trip.
[42] In
regards to the charges preferred against him, the applicant conceded
that these were not thumb-sucked as they were based
on facts. He
however contended that the hearing was unfair. The main issue for him
was however that the disciplinary enquiry was
in response to his
complaints, which were not addressed.
[43] Stephen Joubert’s testimony on behalf of the applicant was
as follows;
[44]
He was employed as an agent by the applicant and Devraj in 2010/2011,
and used to encounter the applicant at least thrice a
month. He
described Devraj as abrupt, rude, boisterous, bullish, authoritative
and a person who liked to be feared. On a date he
could not recall,
he was with Devraj and another employee, Vinay when the two discussed
a plan for Vinay to move to Johannesburg
from the Eastern Cape in
order to take over from the applicant. He and other employees were
told by Devraj at about that time that
the applicant was to be
suspended, and that they should cut off all communication with him.
Joubert further testified that he knew
that there was a ‘plot’
to get rid of the applicant, and he had experienced instances in
meetings where Devraj had
in his presence, shouted and verbally
abused the applicant, rubbished him for ‘stuffing up’
deals, and blamed him for
everything. Devraj had accused the
applicant of being incompetent and not good for the business.
[45]
Under cross-examination, Joubert revealed that he was in fact
dismissed by the respondent, and was indeed aggrieved by the

dismissal, as the respondent was his blue-chip client. Joubert could
not recall the dates on which the incidents he had referred
to had
taken place. He reiterated however that Devraj and Vinay wanted to
get rid of the applicant, as they were unhappy with his
performance.
[46]
Donavan Reyersbach also testified on behalf of the applicant.  He
also described Devraj as being pleasant in the beginning.
He had
however become abusive towards employees, was unpopular, outspoken
and bombastic. He himself was also verbally abused and
shouted at by
Devraj in front of other employees and Moosa did nothing despite
being aware of the problems. He had also overheard
Devraj verbally
abusing the applicant over the phone and despite complaining to
Moosa, nothing was done. He contended that the
applicant on the other
hand was always pleasant and never swore back at Devraj except on
that one occasion when he had responded
in expletive terms to the
abuse by Devraj. He became aware of the grievance lodged by the
applicant, but only after his suspension.
[47]
Under cross-examination, Reyersbach confirmed that the respondent
retrenched him in 2012. Despite his contention that he was
verbally
abused by Devraj, he never lodged a formal complaint. In regards to
the telephonic conversation he had allegedly overheard,
his
recollection was that as Devraj spoke to the applicant at the time,
he did not hear the entire conversation except the swearing
and
verbal abuse by Devraj.
The
respondent’s case:
[48]
Zuber Moosa, the respondent’s CEO testimony is summarised as
follows;
[49]
The applicant was not experienced in the sales side of the business
and he had proposed to him that he should get someone to
mentor him.
It was the applicant that had brought Devraj into the company due to
his experience in the business. The applicant
had however failed in
his duties as National Sales Manager according to Moosa, hence the
disciplinary action against him. Amongst
issues mentioned were that
the applicant had failed to execute material with agents, never kept
records and money was given on
trade deals. Although sales were
increasing, the company had lost money. Moosa testified that he was
shocked by allegations of
unfair discrimination made by the applicant
in his two formal complaints. His view was that the applicant ‘blew
matters out
of proportion’ and he had told him so in their
meeting. After the meetings Moosa thought that the applicant would
deal directly
with Devraj, and that the matter would be resolved.
[50]
Moosa confirmed that Devraj had taken away certain functions and
responsibilities from the applicant, and had told him to move
out of
his office. He however denied that the applicant was demoted as his
salary remained the same. He denied having offered the
applicant 12
months’ compensation, and that the issue came about as a
proposal from the applicant when they looked at options
on 26 July
2011. Moosa’s response to the applicant at the time was that
even if he was given 12 months’ salary, the
money would not
take him anywhere. Moosa contended that the applicant was his ‘own
enemy’, as he had refused to listen
to his advise not to fight
with Devraj.
[51]
The applicant according to Moosa had problems with his work
performance, and in one of their encounters, he had told him that
he
would involve Labournet to deal with such issues. Moosa further found
the letters from the applicant’s attorneys to be
threatening
and testified that it appears that the applicant had no intention of
working with Devraj as in his view, he was not
properly appointed as
the MD. Despite a grievance process being set up, the applicant had
refused to participate in it.  In
the light of these factors,
Moosa had concluded that the applicant had become ‘out of
control’, was not performing,
had failed to be accountable on a
number of issues, and that something had to be done, hence he had
involved Labournet.
[52]
Moosa denied that the applicant was victimized for raising a
grievance, and contended that the problem was with his performance

despite Devraj’s attempts to mentor him, his failure to take
advice from him, fighting with everyone, and the fact that he
was the
only employee to have raised discrimination issues. He conceded that
Devraj was a difficult person to deal with, but contended
that he was
target driven and never specifically targeted the applicant alone.
[53]
Under cross-examination, Moosa reiterated that he had spoken to the
applicant about his complaints, and had advised him to
work well with
his colleagues. He conceded that the applicant did make sales
albeit
on a small scale. In regards to issues of performance, he cited the
example of POSM, outstanding issues that needed to be attended
to,
and that when Devraj raised these issues, the applicant would
complain about victimization. As the person with ultimate
responsibility
for the POSM, the applicant according to Moosa was
correctly charged for that issue.
[54]
Moosa further testified that after he got the first written
complaint, he had to make sense of it as he had never heard Devraj

swear at employees. He told the applicant to deal with the issues
rather than being emotional. In regards to allegations of
discrimination,
Moosa contended that the applicant was ‘paranoid’,
and that it was ‘all in his head’ as he wanted to become

a victim. He further contended that Devraj was correct in demanding
certain things from the applicant, and to be upset when things
were
not done according to his standards and expectations. He denied that
there were incompatibility issues between the two, and
that it was
the applicant who had picked up fights with Devraj.
The legal framework in respect of automatically unfair dismissal
claims:
[55] Section 187 of the LRA provides that;
‘
Automatically
unfair dismissals.
-
(1)
‘
A
dismissal is automatically unfair if the employer, in dismissing the
Employee, acts contrary to section 5 or, if the reason for
the
dismissal is-
(a)
……
.
(b)
……
..
(c)
……
.
(d)
That
the employee took action, or indicated an intention to take action,
against the employer by-
i.
exercising
any right conferred by this Act; or
ii.
participating
in any proceedings in terms of this Act.
(e)……
(f)   that the employer
unfairly discriminated against an employee, directly or indirectly,
on any arbitrary ground, including,
but not limited to race, gender,
sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience,
belief, political opinion, culture,
language, marital status or family responsibility.
Section
5 (1) of the LRA upon which the applicant also relied on provides
that:
“
No
person may discriminate against an employee for exercising any right
conferred by this Act”
[56] In any
dismissal dispute, a
duty is imposed on an
employee to establish the existence of that dismissal
[3]
,
and it is thereafter for the employer to prove that the dismissal was
for a fair reason permitted in section 188 of the LRA. Where
however
an employee alleges that a dismissal was based on discrimination or
some other prohibited ground, more than a mere allegation
of a
dismissal is required. In
Kroukam v SA
Airlink (Pty) Ltd
[4]
,
the Labour Appeal Court dealt with the
question of onus in respect of automatically unfair dismissal claims
under section 187 of
the LRA in the following terms
[5]
:
‘
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 circumstances envisaged in s 187 for constituting an

automatically unfair dismissal.
And
The further question then
arises as to the approach to the evidence led by the respective
parties. The answer can be illustrated
by way of the following
example: Assume that an employee can show that she was pregnant and
dismissed upon the employer gaining
knowledge thereof. The court
would examine whether, upon an evaluation of all the evidence,
pregnancy was the 'dominant' or most
likely cause of the dismissal.’
[57]
In
Viney v Barnard Jacobs Mallet
Securities (Pty) Ltd
[6]
,
it was held that:
“
In
order to ascertain whether a dismissal constitutes an automatically
unfair dismissal in terms of s187 of the LRA, one must ascertain
the
true reason for such a dismissal”.
(Citations
omitted)
Also
relying on
Kroukam
, the Court in
Viney
further held
that:
“
The
starting point in this inquiry… is to determine whether the
employee has produced sufficient evidence to raise a credible

possibility that an automatically unfair dismissal has taken place.
Having discharged the evidentiary burden of showing that the

dismissal was for an impermissible reason, it is upon the employer to
discharge its onus of proving as provided for in terms of
s192 of the
LRA that the dismissal was for an impermissible reason, it is upon
the employer to discharge its onus of providing
as provided for in
terms s 192 of the LRA that the dismissal was for a permissible
reason as provided for In terms of s188 of the
LRA”
[7]
[58]
The
question whether the lodging of an internal grievance constitutes an
exercise of a right conferred by the LRA for the purposes
of a claim
under section 187 (1) of the LRA received attention in
Mackay
v ABSA Group and another
[8]
where this Court held that;
“
Therefore
in keeping with the main object of the Act, ie of resolving all
labour disputes effectively, and with the constitutional
guaranteed
right to fair labour practices it must follow that a purposive
interpretation of section 187(1) would mean that the
exercise of a
right conferred by a private agreement binding on the employer and
employee as well as participation in any proceeding
provided for by
such agreement was also contemplated in that section. As in casu, the
participation by an employee in a privately
agreed grievance
procedure, must have been contemplated as a proceeding in terms of
this Act, ie when section 187(1)(d) was enacted.
This is on the basis
that the disputes specifically mentioned in section 187(1) are of the
same kind as the dispute in casu.”
[59]
The Court in
Barbara De Klerk v Cape Union Mart
International (Pty) Ltd
[9]
followed the decision in
Mackay
in finding that the lodging of
an internal appeal equally enjoys protection under the provisions of
section 187 (1) (d) of the
LRA. The respondent in its written heads
of argument accepted that the meaning of ‘exercising any right’
or ‘participating
in any proceedings’ as referred to in
section 187 (1) (d) of the LRA does include the filing of an internal
grievance.
[60] For the purposes of this dispute
therefore, it will be accepted that an employee who lodges an
internal grievance should enjoy
protection under the provisions of
section 187 (1) of the LRA. This is for the reason that the act of
lodging a grievance is merely
an assertion of a right not to be
treated unfairly. Support for this view as also correctly pointed out
on behalf of the applicant
is further found in
Jabari
v Telkom SA (Pty) Ltd
[10]
where
it was held that where the dominant reason for the applicant’s
dismissal in that matter was predicated on the fact that
the he had
initiated grievance proceedings against the respondent's management,
in challenging its unfair labour practices:
“
The
applicant had the constitutional and statutory right to initiate and
pursue grievances against the respondent, as long as his
actions were
motivated by a bona fide belief that the respondent was subjecting
him to unfair labour practices.”
Evaluation:
[61]
The issue of a dismissal is not in contention in this case, it being
common cause that the applicant was indeed dismissed.
As it
was correctly pointed out on behalf of the respondent, and in line
with the authorities already referred to, in order for
the applicant
to succeed with his claim of automatically unfair dismissal, he needs
to show;
a)
That there
is a credible possibility that the dismissal was due to him lodging
the grievance or having referred a dispute to the
CCMA.
b)
That the
lodging of the grievance was the ‘
dominant
or most likely cause of the dismissal
’.
c)
If the
facts show more than one reason may have been the reason for the
dismissal, the applicant must show that the lodging of the
grievance
was the ‘
dominant
or most likely reason for the dismissal’
.
[62]
Seventy items were identified by the parties in the signed pre-trial
minute as being facts in dispute, which required the court’s

determination. I do not intent to deal with all these factual
disputes to the extent that it would not assist in determining the

principal issue. These disputes arose as a consequence of a myriad of
complaints, which the applicant sought to rely upon in substantiating

his claim.
[63]
Central to the applicant’s claim however was that he was
dismissed for lodging a grievance. Aligned to that contention
are
allegations pertaining to a referral of disputes to the CCMA in
respect of alleged discrimination on account of his open marriage
and
an unfair labour practice dispute pertaining to the alleged demotion.
[64]
Having assessed the overall evidence presented, the history and
background to this dispute, and the complaints leading to the

grievances it is my view that the applicant has not demonstrated that
there is a
credible possibility that his dismissal was due to
him having lodged the grievance or having referred dispute to the
CCMA. Even
if the applicant’s incessant complaints about
victimization and harassment may have been legitimate and a source of
irritation
and frustration for Moosa, the lodging of the grievance or
lodging of referrals to the CCMA was not the ‘
dominant or
most likely cause’
of his dismissal.
These
conclusions are based on the following observations;
The
grievance:
[65] It
was common cause that Moosa did not formally respond to the two
grievances lodged by the applicant. A meeting was however
held on 26
July 2011 between the applicant and Moosa, and on the applicant’s
own version, that meeting took no less than
three hours.
[66]
Under cross-examination, the applicant had conceded that ‘
things’,
‘way forward’ and ‘options’
were
discussed in his meeting with Moosa. He conceded that he had asked
that he be paid out, and that after the meeting, Moosa
had told him
to work with Devraj and have meetings with him. Despite this meeting,
the applicant still contended that his grievance
was not dealt with
as Moosa continued to sing praises for Devraj.
[67]
It cannot be doubted from the evidence presented by the applicant,
Joubert and Reyersbach that Devraj’s management style
was
brash, rude, and intemperate. Despite Moosa’s claims that he
had not heard Devraj use foul language, it does not seem
likely that
this was the case. As also apparent from the applicant’s
initial complaint of 20 July 2011 and Moosa’s
subsequent
e-mails after their meeting of 26 July 2011, it cannot be doubted
that the applicant’s complaints against Devraj
had been
discussed before
[11]
and still the applicant was not satisfied. Despite Moosa’s
attempts at denying that Devraj’s management’s style

towards the applicant was the latter’s source of discontent, in
the absence of evidence by Devraj to deny same, it is found
that
indeed there was cause for the applicant to complain him.
[68]
On the applicant’s version, and emanating from his three hour
meeting with Moosa on 26 July 2011, alternatives were looked
at in
resolving the matter. It is however apparent that no agreement could
be reached as to how to deal with Devraj’s management
style,
and the option of a move to export was suggested by Moosa as evident
from his e-mail of 20 August 2011
[12]
.
[69] In
the light of the above, there is no basis for a conclusion to be
reached that Moosa was uninterested in resolving the matter
as the
applicant had alleged. I fail to appreciate what possibly could have
been discussed for three hours on 26 July 2011 other
than the
applicant’s complaints and ways and means of resolving them.
The fact that the meeting did not achieve what the
applicant wanted
does not imply that Moosa did not deal with the grievances. It is
apparent from Moosa’s his e-mails and
evidence, and despite his
exasperations, that he wanted the employment relationship with the
applicant to continue.
[70]
The submissions made on behalf of the applicant was that the true or
dominant reason for his dismissal was the fact that he
had attempted
to have the grievance resolved and that the respondent failed to make
any meaningful attempt to do so. It is however
my view that in the
light of what has been stated in the preceding paragraph, the
applicant’s contention that the respondent
failed to make any
meaningful attempt to resolve the grievance cannot be sustained
moreso in the light of the further following
observations;
70.1 Following what I can refer to as the ‘peace period’
between 26 July and 18 August 2011, and after Devraj’s
e-mail
of 18 August 2011, the employment relationship between the applicant
and the respondent had taken a different turn especially
after Moosa
had escalated the matter to Labournet. After Moosa informed the
applicant that he could no longer deal with the issues
he had raised,
and further having formed a view that those issues pertained to the
applicant’s performance, he had involved
Labournet to deal with
them.
70.2 Attempts were then made by the respondent to formally deal with
the grievances as lodged by the applicant by scheduling a
grievance
hearing for 7 September 2011 to be facilitated by Labournet. The
applicant, through his attorneys had however rejected
the grievance
hearing on a variety of grounds, which in my view were clearly
unreasonable. Despite his insistence that he would
not attend the
hearing, on 16 September 2011 the applicant’s attorneys had
sent ‘extremely urgent’ correspondence
to the
respondent’s attorneys, confirming discussions between the
attorneys wherein the applicant had indicated his willingness
to
submit to a grievance hearing only if his laptop was returned to him,
and if he was allowed to resume his duties as National
Sales Manager.
The applicant’s attorneys had however stated that in the light
of new developments, i.e. information having
come to light through
the landlord that the applicant was dismissed, and the applicant
being refused to do his work, no purpose
would be served by attending
the hearing, and that the matter should be dealt with at the level of
the CCMA.
70.3    In the light of the above, it is my view that
the applicant’s approach and that of his attorneys in
rejecting
the respondent’s attempts at resolving the grievance was
unreasonable. It is accepted that Moosa did not timeously
deal with
complaints in the formal manner that the applicant would have wanted.
At the same time, it is not as if Moosa, being
the CEO had not made
any attempts at all in dealing with those complaints. It is further
apparent that since Moosa’s attempts
had failed, and further
since the applicant had also accused him of having acted in cahoots
with Devraj, it could not possibly
have been expected of Moosa to
intervene any further, hence the involvement of Labournet.
70.4    The applicant’s rejection of these
attempts was also unreasonable in that legal representation in

internal grievance hearings is not an automatic right. Furthermore,
the fact that the applicant had already referred a dispute
to the
CCMA was not a bar to convening an internal grievance hearing,
especially taking into account that the referral of the unfair
labour
practice and unfair discrimination dispute to the CCMA was lodged on
7 September 2011, immediately after the grievance hearing
was already
scheduled. It is apparent that the referral of the dispute given its
timing was merely to frustrate the respondent’s
attempts at
resolving the grievance, and an attempt to bolster a case he had been
building. The same goes for the belated grievance
lodged on 26
September 2011, after the applicant had on no less than three
occasions informed the respondent that he was not interested
in
attending a grievance hearing unless on his own terms.
70.5    The CCMA process would have taken its course
in respect of the disputes referred, and it was unreasonable
for the
applicant to insist that his internal grievance should be resolved at
the level of the CCMA when it is not the role of
that forum to
resolve internal grievances.
70.6
It also appears that the applicant was ambivalent about whether to
submit to the hearing or not.  In
my view, he was fixated with
the alleged offer of 12 months’ salary to terminate the
employment relationship, and in his
view, if he were to participate
in such a hearing, it would only have been on his own terms. To this
end then, there is no basis
for a conclusion to be reached that the
respondent failed to make any meaningful attempts at resolving the
grievance. Instead,
it was the applicant that frustrated those
attempts, and his contention that subsequent disciplinary action
against him was on
the basis of having lodged that grievance and the
respondent’s failure to address the grievance is indeed without
merit.
The
events after 26 July 2011:
[71] On
the applicant’s own version, between 26 July and 18 August 2011
there were no incidents between him and Devraj. The
applicant
conceded that nothing had happened that could have created any
tension between them, even though he had continued to
feel victimized
despite having spoken to Moosa. As to what could have caused him to
feel in that manner despite no incidents having
taken place during
that period remains unknown. Moosa’s observation that the
harassment and victimization was ‘all
in the applicant’s
head’ is in my view not far-fetched.
[72] As
correctly pointed out on behalf of the respondent, a turning point in
the parties’ relationship appears to be Devraj’s
e-mail
of 18 August 2011 with the attached “
Work Level Position
Statement
”, wherein Devraj had addressed several work
related matters that needed the applicant’s attention. It was
submitted
on behalf of the respondent that the applicant’s
response to that e-mail, coupled with his conduct and statements made
in
his responses set the path to the disciplinary hearing. It was
further submitted that the applicant’s response was an
overreaction
in the most bizarre fashion. I fully agree with these
submissions for the following reasons;
72.1
In the e-mail
[13]
,
Devraj had made reference to
previous
discussions held with the applicant and informed him to take
immediate action on certain work related matters including;
Ø
Taking
time as National Sales Manager in trade, working with the sales
agents managing and measuring effectiveness;
Ø
To
work with all inland agents including Bloemfontein;
Ø
See
key wholesale customers to establish relationships with them;
Ø
Call
identified customers;
Ø
In
terms of his position profile agreed to, to do the following;
§
Except
on Fridays, to spend more time in the trade (between 8am and 4pm
daily) and furnish a report daily;
§
Finalise
a ‘pull thru strategy’ for a customer;
§
Display
stands - all signed copies of agreements required;
§
Counter
top units- an action plan was required;
§
Effective
sales in rural areas;
§
Report
on alternative consultants;
72.2    I did not understand the applicant’s
contention to be that the work related issues that were raised
by
Devraj in the e-mail that needed his attention were unreasonable.
Despite his contentions that these matters were not discussed
with
him before, he however did not raise this as an issue with Devraj
immediately and had instead, viewed the e-mail as a further
personal
attack and a vendetta.
72.3    To a large extent, there is merit in Moosa’s
observations that the applicant was indeed paranoid and
had viewed
himself as a victim. It is accepted that the applicant’s past
experiences and encounters with Devraj may have
been unpleasant in
the light of the conclusions made about Devraj’s character and
management style. However, to a large extent,
the applicant was no
less blameworthy. Rather than addressing Devraj’s requests and
instructions pertaining to work related
matters, his very first
response in the flurry of e-mails that were exchanged between him,
Devraj and Moosa was to complain about
being moved from his office
which he viewed as favouritism. He saw this as a continuation of
victimization and effectively a demotion.
72.4    The issue of the applicant’s removal
from his office cannot in any manner be attributable to any form
of
harassment or victimisation. In my view, this issue is pure red
herring in that it was common cause that Moosa and the Finance

Manager occupied space in the open area. In accordance with Devraj’s
performance requirements, the applicant was to spend
more time
outside of the office in trade, working with sales agents. The
applicant had conceded that he was not office bound, but
had however
contended that he needed his office for after hours, and also since
his position was strategic. In my view, there was
nothing untoward in
asking the applicant to move to the open area. On his own version he
was not office bound and I fail to appreciate
his sense of
entitlement to occupy office space. The applicant had conceded that
there was a need for the finance department to
have an office and I
fail to appreciate what could have been more strategic in his
position as compared to the need for the respondent’s
finance
department to have its own office. As he had stated under
cross-examination, the only issue of concern for him with being

removed to the open area was that Devraj had not spoken to him about
it, and further that at his level, his removal from the office
could
have been seen as degrading. If the respondent’s CEO and
Finance Manager could occupy the open plan area, I fail to
appreciate
what could possibly have been degrading to the applicant in occupying
the same space in the open plan area.
72.5    The complaint about being taken off the
Tanzanian Trade Show trip is equally without merit. On 19 August

2011, the applicant had reported sick. Devraj had suggested that the
applicant be replaced with Vinay on the trip, as he was sick.
The
applicant despite having reported sick and being out of the office
between 19 and 29 August 2011 however saw his removal from
the trip
as further harassment. Ultimately however, no one went on that trip,
and I fail to appreciate the harassment complained
of.
72.6
The same conclusions should be reached in regards to the applicant’s
complaint that when he had submitted
a copy of his medical
certificate, Devraj had informed him that a second opinion should be
sought on his ailment. A submission
of a copy of a medical
certificate is not proof that an employee is ill
[14]
.
It is merely a confirmation that an employee was seen by a medical
practitioner resulting in a particular diagnosis being made.
An
employer in the absence of a supporting affidavit from the medical
practitioner to confirm the nature of the ailment complained
of is
entitled to question the validity of a medical certificate. Thus
where appropriate, an employer is entitled to request an
employee to
be subjected to a second medical assessment and opinion. In this case
therefore, Devraj was correct in his approach,
in the light of the
fact that on 18 August 2011 he had sent a detailed e-mail to the
applicant on things to be done, and as Managing
Director, he had
expected those things to be done. It is not as if the things he had
required to be done came out of nowhere, as
it is apparent from his
e-mail that these were discussed with the applicant before. When the
applicant reported sick the next day,
Devraj was obliged to act. The
contention that the request to submit to a second medical opinion
amounted to harassment is in my
view far-fetched. To link Devraj’s
e-mail of 18 August 2011 to further continuation of harassment and
victimization as a
result of having lodged a grievance is without
merit.
Events leading up to the charges and the dismissal:
[73] An
analysis of the timeline of events from Devraj’s e-mail of 18
August 2011 and the dismissal on 24 October 2011 in
my view does not
support the applicant’s contention that the disciplinary
hearing and ultimate dismissal was as a consequence
of the grievance
lodged. On 19 August 2011, Devraj had sent an e-mail to the
applicant, enquiring about copies of contract agreements
that were
long overdue and that needed to be finalised on that day. Rather than
responding to Devraj’s legitimate request,
the applicant sent a
long e-mail to Moosa complaining about harassment, to which Moosa had
responded by advising him to deal with
the issues that Devraj needed
to be attended to.
[74] In
the light of Devraj not receiving a response to his requests, and
further in view of the fact that the applicant was exchanging

numerous e-mails with Moosa whilst on sick leave, he had then sent
him another e-mail about work related matters and advising him
that
if he did not comply, including on the issue of a second opinion from
another medical practitioner, he would be issued with
a warning. The
applicant’s response was that having sought advise from the
CCMA, the instructions issued by Devraj were not
lawful.  He had
also responded to enquiries about work related matters, and Devraj’s
response in return was that he
needed more details on that date.
[75]
Moosa in the light of a barrage of e-mails from the applicant had on
19 August 2011 responded by stating that he had spoken
to the
applicant on the issues he had raised, and had implored him to work
with Devraj rather than personalising matters. He advised
the
applicant to deal with the work related and outstanding matters
Devraj had enquired about and stated that he was now tired
of the
issues raised and no longer knew what to do. The applicant’s
response on 19 August 2011 was to continue to complain
about Devraj,
requesting that he be assigned to exports or alternatively he would
accept the alleged offer of 12 months’
salary and leave.
Moosa’s response was that no such an offer was made, and
following from that response, another long-winded
e-mail followed
from the applicant in which he basically cast aspersions on the
integrity of Moosa as a religious person, and also
cited examples of
ex-employees who were offered termination packages. He alleged that
he was no longer wanted in the company. Following
a further exchange
of e-mails, some involving Devraj, Moosa on 23 August 2011 informed
the applicant that he had since informed
Devraj not to meet with him
and advised that he would be contacting Labournet as the issues
pertained to his performance.
Correspondence
from the applicant’s attorneys of record:
[76] It
is my view that the applicant’s attorneys’ correspondence
of 29 August 2011 to Moosa set the tone of how the
employment
relationship between the applicant and the respondent was to unfold
and ultimately come to an end. Apart from raising
the familiar
complaints, it was proposed to Moosa that an amicable termination of
the employment relationship should be negotiated.
The contents of
this correspondence are indicative of the applicant’s
intentions of terminating the employment relationship
on his terms,
bearing in mind that already on 19 August 2011, he had indicated to
Moosa that he should be given 12 months’
salary to terminate
the employment relationship. In my view, the following excerpts from
the correspondence clearly dispel any
notion that the grievance was
indeed the main concern or reason for the termination of the
employment relationship:
“
8.
With regard to the proposed settlement, we note that our client, by
agreeing to severe
(sic)
the
relationship, stands to lose an income built up over about 5 years of
hard work and by his total and unstinting commitment to
assist you in
building Trade Kings. We estimate that once he has recovered his
health that will take him another 5 years, if not
longer, to recover
what he will be losing in income and position.
9. Mr Griessel’s
projected loss in income and benefits in the medium term amounts to
an estimated R10.4m. This includes bonuses
he would have received as
Export Manager, the position he was offered before he was advised
that legal action was being contemplated
for alleged performance
issues. We note that these performance issues in reality relate to
his deteriorating health brought about
by the harassment and unfair
discrimination as well as reduction of his assistants.
10.
Our instructions are that our client is in possession of intimate
knowledge of business of Trade kings and should he decide
to join the
competition this could severally
(sic)
impact
on the prospects of Trade Kings. We note that there is no contract of
employment and thus no restraint of in place.
11. Accordingly, to show good
faith, our client is prepared to volunteer one year of garden leave
or restraint of trade including
an agreement to maintain
confidentiality regarding the business of Trade Kings, including not
seeking employment in the confectionary
business for the duration of
the restraint.”
[77]
The above correspondence was followed upon with another on 31 August
2011, wherein the familiar complaints were repeated. The
applicant
also questioned the appointment of Devraj as MD, contending that it
was not in compliance with the
Companies Act 71 of 2008
. The
applicant indicated that he was under no obligation to follow
Devraj’s instructions, but however that he would do so
pending
the decision to proceed with legal steps via Labournet. The applicant
further informed Moosa that his title as CEO and
that of Devraj as MD
overlapped and were in conflict with the legal requirements regarding
the role and duties of executive directors.
The applicant also raised
the issue of the appointment of Devraj’s daughter, Natasha
contending that it was nepotism and
further demanded that he should
be reinstated back to his office.
[78]
Having rejected the formal grievance the applicant’s attorneys
further informed Moosa that the applicant would not attend
the
grievance hearing and that Devraj’s position should be the
subject of investigation and not the applicants grievances,
as the
matter had now progressed beyond the mere the submission of personal
grievances regarding Devraj’s conduct.
[79] A
further letter followed on 7 September 2011 wherein the attorneys
reiterated the allegations that there were attempts to
force the
applicant to resign, complained about his demotion, the confiscation
of his laptop and cell phones and also threatened
to take urgent
legal action should the tools not be returned to him. Moosa was
informed that a formal application would be launched
with the CCMA,
which was done.
[80]
Following the respondent’s attorneys three responses in writing
as at 8 September 2011, the applicant’s attorneys
in further
correspondence continued with the same complaints, alleged that
information was received that the applicant was no longer
employed by
the respondent, and that the situation at work was untenable. The
respondent was threatened with further litigation
in terms of the
Companies Act.
[81
] On
19 September 2011, the respondent had taken a decision through its
attorneys that since the applicant had made up his mind
and had no
intention of resolving the issues internally or to participate in the
grievance hearings, that process was regarded
as having been aborted,
and he was henceforth suspended. He was also furnished with a list of
‘charges’ of misconduct
against him.
[82] In
the light of the above exchange of correspondence, starting with that
from the applicant’s attorneys of 29 August
2011, it was
apparent that the employment relationship had reached a point of no
return, and was destined for a complete breakdown.
The applicant was
indeed the architect of that breakdown for the following reasons;
82.1    It was always the applicant’s contention
that he never had any problems with the appointment of Devraj.
This
however as is apparent from correspondence of his attorneys and the
applicant’s own evidence was not the case. It is
clear that the
applicant was displeased with Devraj’s appointment from the
beginning, and if this was not the case, I fail
to appreciate the
reason he would attribute any alleged unfair treatment towards him as
being due to the fact that Devraj felt
threatened by him.
82.2    Devraj was appointed as MD in June 2010 and
within the context of various complaints raised by the applicant
I
fail to understand the reason the appointment would suddenly become
an issue in August 2011 unless as it had consistently been
put to him
under cross-examination, that he had designs for that position.
82.3    The fact that the applicant sought to divert
the investigation of his grievance to that of Devraj’s

appointment is clearly indicative of his displeasure at the latter’s
appointment. This displeasure at the appointment of
Devraj casts
doubts on his motives for persisting with this claim.
82.4    Another factor leading to the breakdown is the
issue surrounding whether Moosa had indeed made an offer
of mutual
termination of the employment relationship and the applicant’s
insistence that such an offer was made. Moosa’s
contention was
that such an offer was not made and the applicant had misconstrued
the context within which the discussion around
the issue had come
about during their meeting of 26 July 2011.
82.5    The applicant had however formed an intention
to put an end to the employment relationship, and was determined
to
obtain a settlement to terminate the relationship as evident from his
contentions in his e-mail of 20 August 2011 that offers
of mutual
termination had been made to two other employees in the past.
However, when Moosa would not yield to his demands,
the
applicant persisted with his familiar complaints in order to build up
a case, and adopted a different and clearly disconcerting
strategy.
That strategy was for all intents and purposes, meant to exert
pressure on Moosa to agree on a financial settlement.
In my
view, the applicant’s conduct in this regards bordered on
extortion. This is evident from his sudden and startling
reference to
being in possession of confidential information, which effectively
could land in the competitors’ hands if he
left without a
financial settlement being reached. It was apparent that the
applicant intended to use that confidential information
to gain
leverage and in the light of these threats, an employment
relationship between the parties could not have been sustainable

thereafter. The applicant sought to terminate the employment
relationship and cannot point to the lodging of a grievance as an

excuse for his dismissal. Any employer under these circumstances
would have felt its interests being threatened and treated any

employee making such threats as being out of control.
82.6    It is further my view that the employment
relationship between the applicant and the respondent irretrievably

broke down immediately when the applicant viewed the involvement of
Labournet as a ‘declaration of war’.  He had
made it
abundantly clear as far as 19 August 2011 that he no longer wished to
continue with the employment relationship. He was
no longer
interested in having his grievance resolved, and was preparing for
‘war’ by referring disputes to the CCMA,
diverting his
attentions to the legality of the appointment of Devraj, the obvious
threats he had made if he did not get the settlement
he wanted and
raising of all sorts of matters that made the working relationship
untenable. Inasmuch as it has already been stated
that Devraj was the
source of the applicant’s discontent, at the same time, he did
not make matters easier for himself with
his unreasonable stance and
demands, and clear intention to terminate the employment relationship
on his own terms, including the
use of threats.
The charges:
[83]
The applicant under cross-examination had accepted that the “Work
Level Position Statement” attached to Devraj’s
e-mail of
14 August 2011 pertained to responsibilities assigned to him as
National Sales Manager. He had conceded that prior to
his complaint
of 20 July 2011, there were operational problems, some of which he
attributed to being physically impossible to deal
with. He conceded
that in his position he had ultimate responsibility, but contended
that Devraj had in raising some of these performance
issues, ‘jumped
the gun’ and failed to professionally deal with those issues.
When it was put to him under cross-examination
that Devraj constantly
pointed out performance issues with him, the applicant’s
response was that in every business there
are always operational
issues that arose due to some reason. He denied however that these
had anything to do with his performance,
and blamed some of these
issues to the fact that Devraj was always assigning additional
functions to him.
[84]
The first charge related to mismanagement of the Point of Sales
Material (POSM), which could not be accounted for. In this
regard it
was alleged that the company had ordered R600, 000.00 worth of POSM
and that a substantial amount of it went missing
and could not be
accounted for. This was discovered after an audit was done on 14
August 2011.
[85]
The applicant had conceded that as at 7 July 2011, there were already
problems identified with the POSM. He however contended
that this was
initially not part of his responsibilities and that Devraj had merely
added these as part of his responsibilities.
He however conceded that
the POSM was ultimately his responsibility, and that he had delegated
it to other employees as he was
overworked. In regards to the charges
pertaining to the POSM, the applicant’s contention was that
this amounted to discrimination,
as by being assigned these
responsibilities, he was set up for failure by Devraj who also sought
to build a case against him and
ultimately to force him to resign.
[86]
The second charge related to the failure to follow procedures. In
this regard it was alleged that on 30 August 2011, the applicant
was
requested to send out display stands only after the contracts had
been signed with the relevant clients. It was alleged that
only 15
contracts signed were received and that 35 display stands where
placed without the signed contracts.
[87]
The third charge related to overspending on trade deals and
misleading the financial manager. This incident was related to
the
events of 27 June 2011 after the applicant had sent an email to
another company (Finro CC) and it was later discovered that
the
information was misleading.
[88]
The fourth charge related to poor management of subordinates. The
fifth charge related to bring in the company’s name
into
disrepute by misusing its resources. In this regard it was alleged
that the applicant had utilised the company’s premises
and
laptop to post his profile of an Internet dating site, stating that
he was looking for the girls between ages 28 and 43. The
applicant
viewed this charge as being discriminated against on account of his
open marriage with his wife. He contended that the
posting of his
profile on the said site was used by the respondent to imply that he
was disloyal to his wife and could therefore
be disloyal to the
company.
[89]
The sixth charge related to incorrectly booking the company on the
Tanzanian tradeshow. Other sub-charges related to continuous
conflict
with employees of the company, failing to carry out his duties as
outlined in this job description, sharing with an external
person,
confidential documents of the company, which included its policies,
and without its approval. The events leading to the
last allegations
allegedly took place on 2 February 2011.
[90]
The applicant was found guilty on the first, second, fifth and part
of the sixth charge. In his evidence in chief, the applicant
had
contended that all of these charges were trumped up and that he had
performed his duties as required. In cross-examination
however, he
had conceded that some of the charges were not thumb-sucked and were
indeed based on facts.
[91] As
is apparent from the charges, some of them pertain to issues that
arose long before the grievance was lodged, whilst some
related to
incidents that occurred thereafter. The applicant’s signature
response to literally every question under cross-examination
was that
he was victimized, harassed, discriminated against or there was a
plot to dismiss him, even if these responses were unrelated
to the
question posed. In further contending that there was a ‘plot’
to dismiss him, Joubert had testified to over-hearing
a conversation
between Devraj and Vinay discussing how they should get rid of the
applicant. Joubert’s testimony however
has to be treated with
caution in the light of his concessions that he was indeed aggrieved
by his dismissal by the respondent.
Furthermore, it is doubted that
much weight can be attached to evidence, which is clearly biased in
that Joubert despite making
these allegations of a plot, could not
recall when it was discussed and under what context. Significantly
though, Joubert had testified
that Devraj and Vinay wanted to get rid
of the applicant, as they were unhappy with his performance.
Reyersbach’s testimony
was only useful to the extent that he
had overheard Devraj verbally abusing the applicant over the phone
even though he did not
hear the entire conversation. The testimony of
these witnesses does not how show in what material respects the
lodging of the grievance
had led to the dismissal.
[92] In
the light of some of the charges coming to the fore in September
2011, it was contended that these came about as a consequence
of the
grievance he had lodged. I however do not believe so. As already
indicated, the lodging of the grievances was not the ‘dominant

or most likely reason for the dismissal, and on the contrary,
performance issues,
albeit
some came to the fore after the
grievance was lodged, played a major role in his dismissal. This
conclusion is further fortified
by the following;
92.1    The ultimate responsibility for the POSM was
that of the applicant despite his initial denials and ultimate

concession. He had conceded that performance issues in this regard
had been raised as far back as 7 July 2011.
92.2    The complaints surrounding the display stands
and outstanding contracts had been raised before and also
again in
Devraj’s e-mail of 19 August 2011.
92.3    There is merit in the respondent’s
contention that some of the charges spring from outstanding work

related issues, and the courts in the light of the
Kroukam
decision should be cautious in making an inference that the reason
for bringing up the charges are illegitimate.
92.4    Importantly however, even if the charges in
question could not have led to a dismissal, it does not imply
that
the reason for bringing them up and the ultimate dismissal was
automatically unfair based on the grievance lodged in the light
of
the conclusions reached elsewhere in this judgment.
The unfair discrimination claim:
[93] A
myriad of complaints were raised by the applicant in contending that
he was discriminated against, including preferential
treatment of
other employees, being over-loaded with work, being removed from the
office etc. Some of these issues have been dealt
with and I could not
find any substance in them. Pertinent however is the applicant’s
reliance on the provisions of
section 187
(1) (f) of the LRA, having
alleged that he was discriminated against on account of his open
marriage and thus on the ground of
his marital status. The allegation
in regard to discrimination was in regard to the charge pertaining to
joining a social friendship
website (“Badoo”), where it
was alleged he had looked for girls. In this regard, it was contended
that Moosa went out
of his way to do a Google search to discover the
fact that the applicant had indeed joined this site, whilst other
employees were
not subjected to the same scrutiny. It was further
submitted on the applicant’s behalf that he had brought
evidence of other
employees’ Internet activities to Moosa’s
attention, but no charges were brought against these employees, nor
were
their laptops confiscated or their privacy infringed.
[94] It
has always been the applicant’s case that the charges against
him were trumped up even though he had conceded that
some of the
charges were based on facts. It had however transpired during Moosa’s
cross-examination that he had lied about
having received complaints
from a fictitious customer about the fact that the applicant’s
profile was allegedly on the Badoo
site, which could have brought the
name of the respondent into disrepute.
[95] It
was common cause that the applicant was not found guilty in regards
to the charge of bringing the company’s name into
disrepute
pertaining to the posting of his profile on the Badoo site. The issue
however as already pointed out is that even if
the charge was trumped
up, and Moosa’s lie became apparent, it couldn’t in my
view be linked to the fact that the applicant
had lodged a grievance.
Rather than this being a discrimination matter, and in the light of
the applicant’s contentions,
it is more an issue that pertains
to consistency in the application of discipline in view of the
applicant’s contention that
other employees who had joined
similar sites or had contravened the respondent’s electronic
media policy were not similarly
charged. To link this charge to
discrimination on the basis of the applicant’s marital status
is indeed far-fetched and disingenuous.
The referral of unfair labour practice:
[96] It
is my view that the referral of an alleged unfair labour practice and
discrimination disputes on 7 September 2011 cannot
be the basis of an
automatically dismissal in this case. The alleged unfair labour
practice pertained to the applicant’s
removal from his office
to the open plan area, and the alleged diminishing of his role as
National Sales Manager. It is not my
intention to deal with this
aspect of the dispute for the simple reason that it raises the
question of the jurisdiction of this
court to deal with such matters
in the event of it having been found that the alleged unfair labour
practice is not remotely linked
to an automatically unfair dismissal.
Thus even if at the end it could be argued that his removal from his
office and the realignment
of his tasks may have resulted in his role
as National Sales manager being diminished, and thus this
constituting an unfair labour
practice as contemplated in
section 186
(2) of the LRA, this court would lack jurisdiction to determine such
a dispute in line with the reasons to be advanced below.
[97]
In regards to the dispute pertaining to the alleged unfair dismissal,
it has always been the case of the respondent that the
dismissal had
nothing to do with the lodging of a grievance and had everything to
do with the applicant’s performance. The
respondent in the
parties’ supplementary pre-trial minute had indicated that this
Court would lack jurisdiction to determine
whether the dismissal was
fair or not
[15]
.
[97]
It has consistently been held in this Court and by the Labour Appeal
Court in particular that this Court should not adjudicate
matters
that fall outside of its jurisdiction. In this regard, Waglay JP in
Jacobus Petrus Malan v Johannesburg
Philharmonic Orchestra
[16]
held that:
“
The
issue of jurisdiction in respect of dismissals based either of
section 191(5)(a)
or (b) of the LRA has been dealt with fully in
Wardlaw v/s Supreme Moulding (Pty) Ltd
[2007] 6 BLLR 487
(LAC)
(Wardlaw).In that matter, this Court held that while it is the
applicant who will determine the nature of the dispute when
referring
the matter to arbitration or adjudication, the arbitrator or the
court must determine whether it has jurisdiction to
entertain the
dispute. This Court in Wardlaw recognised that it may only become
clear after all the evidence is led as to whether
or not the body
ceased with the matter had jurisdiction to determine the dispute
referred to it. Where it is the case that the
dispute is not one
within the jurisdiction of the body hearing the matter it cannot
determine the dispute.”
[99]
The dispute resolution scheme of the Labour Relations Act is specific
in regards to matters of jurisdiction. In terms of section
191(5) (b)
of the LRA, when an employee alleges that his or her dismissal was
automatically unfair, this Court will ordinarily
adjudicate such a
dispute. If however it is found that the dismissal merely relates to
the conduct or capacity of the employee,
in terms of section
191(5)(a) of the LRA that dispute must be referred to a bargaining
council or the CCMA for arbitration.
[100]
In this case, it has already been concluded that the applicant has
not established
a credible possibility that
the dismissal was due to him having lodged the grievance or having
referred a dispute to the CCMA, or
that the lodging of the grievance
was the
dominant or most likely cause of
his dismissal
. In the applicant’s
statement, it was contended that the parties’ legal
representatives at an arbitration hearing at
the CCMA on 20 January
2012 had agreed that the matter be referred to this Court for
adjudication. Mere consent however by legal
representatives that a
matter should be adjudicated is not sufficient to confer jurisdiction
on the Court.
[101]
In general this Court does not have jurisdiction to adjudicate
disputes concerning dismissals for misconduct, incapacity or
other
causes falling within the jurisdiction of the CCMA or Bargaining
Councils. If this Court discovers that the dispute which
has been
referred to it for adjudication is one which the LRA requires to be
arbitrated, it may stay the proceedings and refer
the dispute to
arbitration, or if, in terms of section 158 (2) and (3) of the LRA
the parties consent, and it is expedient to do
so, assume the role of
the arbitrator. Furthermore, jurisdiction over such matters may be
conferred in terms of the provisions
of section 191 (6) of the LRA,
if the Director of the CCMA has upon an application, decided that it
would be appropriate to refer
the matter for adjudication. In this
case, none of the above provisions are applicable to confer
jurisdiction on this Court to
determine the unfair dismissal dispute.
Conclusions:
[102]
The applicant had
failed to demonstrate that the reason for his dismissal, whether fair
or not, was on account of having lodged
a grievance or having
referred disputes to the CCMA. He was also unable to establish any
other unfair conduct by the respondent
over which this Court would
have jurisdiction and it follows that his application should fail.
Further having had regard to considerations
of law and fairness, it
is deemed that a cost order should not follow.
Order:
i.
The
applicant’s claim of an automatically unfair dismissal is
dismissed.
ii.
There
is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Ms A Denton of DHD Attorneys
On
behalf of the Respondent: Mr. H Lee of Snyman Attorneys
[1]
Act 66 of 1995
[2]
Act 58 of 1998
[3]
Section 192
[4]
(2005) 26 ILJ 2153 (LAC)
[5]
Per Davis AJA at paras [28] and [29]
[6]
(2008) 29 ILJ 1564 (LC) at para 37
[7]
At para 48. See also
State
Information Technology Agency Ltd v Sekgobela
[2012] 10 BLLR 1001
(LAC) at paras 13 to 16
[8]
[1999] 12 BLLR 1317
(LC) at para 18
[9]
Case no: C 620/2011
[10]
(2006) 27 ILJ 1854 (LC) at 1869
[11]
Annexure “QG 10” where the applicant
stated that; “
As you are aware
from a previous discussion I have held in confidence with you in the
last 3 months
….”
[12]
Page 64 of the bundle
[13]
Page 40 of the bundle
[14]
Mgobhozi v Naidoo NO & Other
s
[2006] 3 BLLR 242 (LAC)
[15]
Paragraph 7.5.15
[16]
Case no: JA 61/11 at para 42