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[2015] ZALCJHB 166
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Gunn v Bidvest Prestige Cleaning Services (Pty) Ltd (JS 830 /2012) [2015] ZALCJHB 166 (28 May 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 830
/2012
DATE: 28 MAY 2015
Not Reportable
In the matter
between:
DONNE
GUNN
.........................................................................................................................
Applicant
And
BIDVEST PRESTIGE
CLEANING SERVICES (PTY)
LTD
...........................................
Respondent
Heard: 28, 29 and
30 April 2015
Delivered: 28 May
2015
Summary:
Applicant alleges automatically unfair dismissal for reasons related
to a protected disclosure and as provided for in section
187(1)(h) of
the Labour Relations Act. No nexus between the disclosure and
dismissal.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The
Applicant, Donne Gunn, approached this Court for relief on the basis
that she was subjected to an occupational detriment after
she made a
protected disclosure in terms of the Protected Disclosures Act
[1]
(the PDA). She claims that her dismissal was automatically unfair, as
provided for in section 187(1)(h) of the Labour Relations
Act
[2]
(LRA).
[2]
The Applicant disclosed information
relating to fraudulent claims submitted by cleaners. She disclosed
that hours were claimed for
which the individuals did not work.
[3]
The Respondent disputed that any disclosure
as contemplated in the PDA was made and submitted that the
information disclosed was
nothing but management information. The
Respondent denied that the Applicant was dismissed for reasons
related to the alleged disclosure.
The
Respondent’s case is that the Applicant was dismissed for
misconduct and that her unfair dismissal dispute should have
been
adjudicated by the CCMA.
[4]
The Respondent raised a point
in
limine
namely that the Court does not
have jurisdiction to determine this matter as the Applicant was
dismissed for reasons related to
misconduct. Mr Hutchinson for the
Respondent wanted the point
in limine
to
be heard and determined prior to the commencement of the trial.
[5]
I was of the view that this Court has
jurisdiction to hear a matter referred in terms of section 187(1)(h)
of the LRA. Whether the
Applicant would be able to show that she made
a protected disclosure and suffered an occupational detriment as a
result of the
disclosure, is a different question and an issue for
evidence.
[6]
It is impossible to divorce the merits of
the case and the question whether the Applicant was dismissed for
reasons related to misconduct
or because she made a protected
disclosure from the question whether this Court has jurisdiction or
not.
[7]
I ordered that the merits of the case be
presented and the trial proceeded.
Background and
evidence adduced
[8]
It appears that the substantive facts of
the matter are mostly common cause.
[9]
The Respondent renders cleaning services to
its clients. The Respondent employed the Applicant at Monte Casino
and since 10 April
2012 was she employed as operations manager at
Gallagher Estate (GE). She was placed at GE with the clear and
specific instruction
to put systems and control measures in place.
[10]
At GE there are two types of employees
namely permanent employees and fixed term contract employees who are
referred to as ‘variables’.
The permanent employees work
fixed hours per month and are paid a salary for that and there were
no problems with this category
of employees. In the event that GE
needed additional cleaners for a specific reason, for instance a
conference or expo, GE would
request a specified number of cleaners
for a specified number of hours on specified dates and the Respondent
would then appoint
variables for the period and purpose so specified.
The request from GE will be in the form of a client request booking
form and
the Respondent could invoice GE accordingly.
[11]
The problem the Respondent experienced with
the variables was as follows: GE would for example request 10
cleaners and 15 would
show up and report for duty. They would sign
time sheets and claim payment for the hours they worked but the
Respondent can only
invoice GE for 10 cleaners and is then
responsible to pay the five additional employees from its own pocket.
[12]
The Applicant was tasked to put systems in
place to avoid the situation where more cleaners than what was
requested by GE would
show up for work and the Respondent had to pay
them.
[13]
The Applicant testified that she put
systems in place and this was not disputed. She further testified
that she discovered that
there were fraudulent claims for hours the
employees never worked. This, she explained, happened with the
cooperation of the supervisors
who were supposed to check and verify
that the employees were indeed at work and working. The employee or
the supervisor would
sign a time sheet and submit a claim for hours
worked when the employee was in fact not at work at all and not
supposed to be working
in accordance with the client request form.
[14]
The issue of fraudulent claims were
disclosed in the middle of May 2012 and the supervisors who were
involved, were issued with
final written warnings.
[15]
The Applicant had her first pay run at GE
at the end of June 2012, implementing the systems she introduced.
[16]
On 29 June 2012 the ANC had a conference at
GE and on this date the Applicant was phoned by Vusi Nkosi, who told
her that staff
refused to work as they were either not paid at all or
were paid short. The Applicant went to GE and found the employees who
refused
to work. She had a meeting with Charles Wilson, the general
manager. Shannon Kriel, her direct supervisor, told her to meet with
the employees. The Applicant subsequently spoke to one Karabo, a
supervisor of the cleaners, who told her that approximately 50
employees had pay queries. She investigated the matter and at around
08:15 on 29 June 2012 she found out that the queries were
related to
wages and Karabo handed her a name list, indicating the name of the
employee and the nature of his / her complaint.
The Applicant was
instructed to meet with the employees and to resolve the issue.
[17]
The Applicant testified that she was in a
very difficult position as on the one hand staff members in critical
areas refused to
work on a day that the Respondent was not able to
afford a strike as the ANC congress was taking place and on the other
hand she
had to verify the complaints and she needed documents to do
so. The complaints were different and she had to verify each and
every
claim.
[18]
The Applicant is of the view that the
employees saw a window of opportunity on 29 June 2012 with the ANC
congress to stage a strike
with maximum impact.
[19]
On 29 June 2012 the Applicant interviewed
approximately 15 of the employees who had wage queries. She said that
it was impossible
to interview everyone and to deal with all the
queries and that she asked for assistance but nobody assisted her.
She testified
that Shannon was furious and angry when she heard that
not everyone was interviewed on 29 June 2012.
[20]
In the afternoon of 29 June 2012 the
Applicant once again met with Charles Wilson and when she arrived at
his offices, she was met
by three of the cleaners who were part of
the earlier strike. Charles Wilson told her that the situation was
not sorted out and
that the employees were still irate about the
non-payment or short payment of their wages. Charles Wilson said that
the employees
were treated like mushrooms in that they were kept in
the dark. The Applicant told Wilson that it was impossible to have a
discussion
with all the employees in the available time, but he was
irate and upset about the way the strike and the wage queries were
handled
and he made it clear that the Respondent would not want to
lose the GE contract. Wilson requested that the Applicant be removed
from the premises with immediate effect and she was escorted off the
premises.
[21]
On the following Monday, 2 July 2012, the
Applicant did not report at GE but reported at the Respondent’s
head office in Midrand.
She reported at Shannon’s office and
they met with the employees one by one. After they met with some of
the employees she
was told to go to the Greenstone offices to meet
with John van Deventer. He was extremely upset, angry and rude and he
offered
to pay the Applicant two months salary to leave the
Respondent’s employ. She refused and returned to the Midrand
offices,
where Shannon was still busy with the employees and they
were paid one by one.
[22]
Shannon paid the employees after she met
with them and the number of hours they were paid, were captured. The
Applicant testified
that this was wrong as one cannot simply pay
employees on claims they make without proof that they actually worked
the hours they
claim. The Applicant conceded that there were people
who indeed had valid claims.
[23]
The employees were paid on 2 July 2012 as
their pay queries were discussed and considered and a total amount of
R 49 601 had been
paid out to the employees.
[24]
On 11 July 2012 the Applicant was handed a
notice to attend a disciplinary enquiry on 16 July 2012 and the
charges levelled against
her were ‘dereliction of duty’
and ‘gross negligence’. On 12 July 2012 the Applicant
requested further
particulars and clarification as to what the
charges were and what she did wrong. The Respondent stated that
‘dereliction
of duty’ referred to the fact that the
Applicant is the operations manager and she is required to control
expenses and follow
company policy / instructions on the site.
“Gross negligence’ referred to the fact that the
Respondent had to
pay a further R 50 000 to employees for their wage
enquiries where there was no timekeeping available to prove whether
the employee
was in fact booked by the client or arrived on their
won.
[25]
The charges were dereliction of duty and
gross negligence and related to the period April – June 2012
and incident of 29 June
2012. It was stated that the Applicant
committed dereliction of her duties as she was required to control
expenses and to follow
company policy and she failed to do that. The
charge of gross negligence was that the Respondent had to pay R 50
000 to staff for
wage queries where there is no timekeeping available
to prove whether the staff members were booked by the client or
arrived on
their own accord. The Applicant testified that there was
no urgency when Shannon paid the employees on 2 July 2012 as the
strike
action did not continue on that date.
[26]
After the conclusion of the disciplinary
hearing, the Applicant was dismissed.
[27]
It was the Applicant’s testimony that
she asked why was she the one taking the blame, but her question
remained unanswered.
She testified that she was the only person
disciplined for the strike of 29 June 2012.
[28]
The Applicant’s case is that her
dismissal was automatically unfair as the real reason for her
dismissal is related to the
protected disclosure she made.
The disclosure
made by the Applicant:
[29]
In
Tshishonga
v Minister of Justice and Constitutional Development and another
[3]
it was held:
‘
The
PDA is conceived as a four-staged process that begins with an
analysis of the information to determine whether it is a disclosure.
If it is, the next question is whether it is protected. The third
stage is to determine whether the employee was subjected to any
occupational detriment and lastly, what the remedy should be for such
treatment. It is not an enquiry into wrongdoing but about
whether the
employee deserves protection. Structured in this way the inclination
to shift the emphasis from the conduct and credibility
of the
wrongdoer to that of the whistleblower is real.’
[30]
I have to follow the four-staged approach
and the starting point is to consider the disclosure made by the
Applicant.
[31]
The Applicant’s case is that she
disclosed information relating to fraudulent claims submitted by
cleaners. She disclosed
that hours were claimed for which the
individuals did not work and the supervisors cooperated with the
cleaners to submit the fraudulent
claims.
[32]
The Respondent did not dispute that the
Applicant made these disclosures. In fact, it resulted in final
written warnings for fraudulent
time keeping being issued to the
supervisors.
[33]
The Respondent however disputed that any
disclosure as contemplated in the PDA was made.
Analysis of the
disclosure made by the Applicant:
Is
the information disclosed by the Applicant a ‘disclosure’
as defined in the PDA?
Section
1 of the PDA defines a disclosure as follows:
(i)
‘‘
disclosure”
means any disclosure of information regarding any
conduct of an employer, or an employee of that employer, made by any
employee
who has reason to believe that the information concerned
shows or tends to show one or more of the following:
(a)
That a criminal offence has been committed, is being committed or is
likely to be committed;
(b)
that a person has failed, is failing or is likely to fail to comply
with any legal obligation to which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring or is likely
to occur;
(d)
that the health or safety of an individual has been, is being or is
likely to be endangered;
(e)
that the environment has been, is being or is likely to be damaged;
(f)
unfair discrimination as contemplated in the Promotion of Equality
and Prevention of Unfair Discrimination Act, 2000 (Act No.
4 of
2000); or
(g)
that any matter referred to in paragraphs (a) to (f) has been, is
being or is likely to be deliberately concealed’.
[34]
The Applicant’s case is that she
disclosed fraudulent claims for hours not worked. In my view the
definition if a ‘disclosure’
would include the disclosure
of fraud.
[35]
I am satisfied that the Applicant made a
disclosure of information regarding conduct as contemplated in
section 1(i) (a) of the
PDA.
Is the disclosure
protected?
Section
1 (ix) of the PDA defines a protected disclosure as a disclosure made
to:
(a)
a legal adviser in accordance with section
5;
(b)
an employer in accordance with section
6;
(c)
a member of Cabinet or of the Executive Council of a province in
accordance with section
7;
(d)
a person or body in accordance with section
8; or
(e)
any other person or body in accordance with section
9, but does not include a disclosure-
(i)
in respect of which the employee concerned commits an offence by
making that disclosure; or
(ii)
made by a legal adviser to whom the information concerned was
disclosed in the course of obtaining legal advice in accordance
with
section
5;
[36]
The Applicant reported the fraud to her
divisional manager, Bern Pienaar and her general manager, Shannon
Kriel. I accept that the
disclosure was made to the Applicant’s
employer in accordance with the provisions of section 1(ix) and
section 6 of the PDA.
[37]
It follows that the disclosure made by the
Applicant was a protected one as provided for in the PDA.
Was the Applicant
subjected to any occupational detriment?
[38]
The PDA defines an occupational detriment to include being
subjected to any disciplinary action and being dismissed. The PDA
provides
specifically that no employee may be subjected to any
occupational detriment on account or partly on account of having made
a protected
disclosure.
[39]
There ought to be some nexus between the disclosure and the
alleged occupational detriment.
[40]
The Applicant’s case is that she was disciplined and
dismissed as a result of the disclosure she made.
[41]
The Respondent’s case is that the Applicant was
dismissed for misconduct and that the disclosure she made in respect
of fraudulent
claims played no role in the decision to dismiss her.
[42]
The Respondent called Karin Reid, the chairperson of the
disciplinary hearing, as a witness. She testified that she did not
know
the Applicant prior to the disciplinary hearing, she considered
the evidence that was placed before her during the disciplinary
hearing and she made her findings in respect of the charges, the
misconduct and the evidence. There was no ulterior motive to get
rid
of the Applicant and she was not influenced in any way. Ms Reid was
unaware of the disclosure the Applicant made in May 2012.
[43]
In cross-examination Ms Denton on behalf of the Applicant
could not resist the temptation to pose questions to Ms Reid in
respect
of procedural fairness that belong to an unfair dismissal
dispute in the Commission for Conciliation, Mediation and Arbitration
(CCMA) or bargaining council. The questions were not focused and
related to a claim for automatically unfair dismissal and did
not
assist the Applicant’s case before this Court.
[44]
I have to point out that this is the result of having to make
an election in respect of a cause of action and forum in which to
pursue such an elected cause of action. The Applicant could have
referred an unfair dismissal dispute to the CCMA or bargaining
council and there she could have challenged the substantive and
procedural fairness of her dismissal on the grounds that tried
to
make their way into the trial, for instance the Applicant’s
right to present documents, the right to be informed fully
about the
charges or to be afforded sufficient time to prepare. Unfortunately
for the Applicant she did not pursue her case at
the CCMA and she
cannot be allowed to raise all the issues in respect of the fairness
of her dismissal before this Court.
[45]
The Applicant elected to refer an automatically unfair
dismissal case in terms of section 187(1)(h) of the LRA to this Court
and
she has to prove that the reason for her dismissal was the
protected disclosure she made.
[46]
In
SA
Chemical Workers Union and others v Afrox
Ltd
[4]
the test to be applied in determining whether a dismissal was
automatically unfair was formulated as:
'The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for
the dismissal) is essentially one of causation and
I can see no
reason why the usual twofold approach to causation, applied in other
fields of law, should not also be utilized here
(compare
S v
Mokgethi & others
1990 (1) SA 32
(A) at 39-41A;
Minister of Police v Skosana
1977 (1) SA 31
(A) at 34).
The
first step is to determine factual causation: was participation or
support, or intended participation or support, of the protected
strike a sine qua non (or prerequisite) for the dismissal? Put
another way, would the dismissal have occurred if there was no
participation or support of the strike? If the answer is yes, then
the dismissal was not automatically unfair. If the answer is
no, that
does not immediately render the dismissal automatically unfair;
the next issue is one if legal causation, namely
whether such
participation or conduct was the "main" or "dominant",
or "proximate", or "most
likely" cause of the
dismissal. There are no hard and fast rules to determine the question
of legal causation (compare
S v Mokgethi
at 40). I would
respectfully venture to suggest that the most practical way of
approaching the issue would be to determine
what the most probable
inference is that may be drawn from the established facts as a cause
of the dismissal, in much the same
way as the most probable or
plausible inference is drawn from circumstantial evidence in
civil cases. It is important to remember
that at this stage the
fairness of the dismissal is not yet an issue (see para [33] below).
Only if this test of legal causation
also shows that the most
probable cause for the dismissal was only participation or support of
the protected strike, can it be
said that the dismissal was
automatically unfair in terms of s 187(1)
(a)
.If that probable
inference cannot be drawn at this stage, the enquiry proceeds a
step further.’
[47]
In
Van
der Velde v Business and Design Software (Pty) Ltd
[5]
the Court confirmed the test in instances where automatic unfair
dismissal is alleged and it was held that:
“…
..
If
the applicant succeeds in discharging these evidentiary burdens, the
employer must establish the true reason for dismissal, being
a reason
that is not automatically unfair.
When
the employer relies on a fair reason related to its operational
requirements (or indeed any other potentially fair reason)
as the
true reason for dismissal, the court must apply the two-stage test of
factual and legal causation to determine whether the
true reason for
dismissal was the transfer itself, or a reason related to the
employer's operational requirements.
The
test for factual causation is a 'but for' test - would the dismissal
have taken place but for the transfer?
If
the test for factual causation is satisfied, the test for legal
causation must be applied. Here, the court must determine whether
the
transfer is the main, dominant, proximate or most likely cause of the
dismissal. This is an objective enquiry. The employer's
motive for
the dismissal, and how long before or after the transfer the employee
was dismissed, are relevant but not determinative
factors.”
[48]
The Applicant has to
establish causation and the test for factual causation is a 'but for'
test - would the dismissal have taken
place but for the fact that the
Applicant made a protected disclosure?
[49]
The answer to this question
in casu
is
yes – the Respondent instituted disciplinary action for issues
not related to the disclosure she made and would have done
so
irrespective of whether the Applicant made a protected disclosure or
not.
[50]
Once the test for factual
causation is satisfied, the test for legal causation must be applied.
Here, the Court must determine whether
the protected disclosure is
the main, dominant, proximate or most likely cause of the
C
dismissal.
This is an objective enquiry.
[51]
In my view the test for
factual causation has not been satisfied and there is no need to
consider or apply the further test for
legal causation. In the event
that I am wrong on this and that the test for legal causation has to
be applied, I am not convinced
that the protected disclosure made by
the Applicant was the main, dominant or most likely cause of the
termination of her employment.
[52]
In summary, applying the two-fold test for causation the first
question is: would the dismissal have occurred if the employee
did
not make the protected disclosure? The answer to this question is
yes. The next question is: was the protected disclosure the
main or
dominant cause of the dismissal? The answer is no.
[53]
In
the absence of any
nexus
between the disclosure and the
dismissal the Applicant did not suffer an occupational detriment as
per the provisions of the PDA.
[54]
It follows and I accordingly find that the
dismissal of the Applicant was not automatically unfair as
contemplated in section 187(1)
(h) of the LRA.
[55]
This raises the issue of jurisdiction. In the
absence of an automatic unfair dismissal this Court does not have
jurisdiction to
adjudicate the dispute.
Costs
[56]
Mr Hutchinson for the Respondent submitted
that there is no merit in the Applicant’s case before this
Court. He argued that
the Applicant was warned of the risks of costs
should she proceed with her case in the Labour Court. She was advised
that her case
belonged in the CCMA, but she elected to proceed on the
basis of an automatic unfair dismissal and it would be unfair to
burden
the Respondent to incur costs to defend this matter that is
nothing but an abuse of process.
[57]
Mr Hutchinson submitted that the
jurisdictional point be upheld and that the matter be dismissed with
costs.
[58]
Ms Denton submitted that the Applicant
elected to pursue her case in the Labour Court as she truly believed
that section 187(1)(h)
of the LRA was her cause of action and she
should not be punished for that.
[59]
The general accepted purpose of awarding
costs is to indemnify the successful litigant for the expense he or
she has been put through
by having been unjustly compelled to
initiate or defend litigation. In considering whether costs should be
awarded, the requirements
of law and fairness become applicable.
[60]
The requirement of law has been interpreted
to mean that the costs would follow the result.
[61]
In considering fairness, the Court has held
that the conduct of the parties should be taken into account and that
mala fide
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order. Another factor to be considered is
whether there is an ongoing relationship that would survive after the
dispute had been resolved by the Court. If so, a costs order
may
damage the ongoing relationship. In my view fairness would include
fairness to both parties.
[62]
The Applicant instituted proceedings
against the Respondent because she believed that the protected
disclosure she made was the
reason for her dismissal. This was the
case the Respondent had to answer. The Respondent however held the
view that the matter
should have been referred to the CCMA as the
reason for dismissal was misconduct.
[63]
In her evidence before this Court the
Applicant was able to show that the disclosure she made was a
protected disclosure for purposes
of the PDA. She was however unable
to show the nexus between the disclosure and her dismissal.
[64]
After a careful consideration of all the relevant facts and
the submissions made by Mr Hutchinson and Ms Denton, I am of the view
that the Applicant was misguided in pursuing her case in this Court
rather than the CCMA but I cannot find that the Applicant acted
vexatious or frivolously in instituting this claim. In my view
the
interest of fairness are best served by making no order as to costs.
[65]
In the premises I make the following order:
Order
1.
The Applicant’s dismissal was not automatically unfair as
provided in section 187(1)(h) of the Labour Relations Act;
2.
The Applicant’s case is dismissed for lack of jurisdiction;
3.
No order as to costs.
C
Prinsloo AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms Denton
DHD
Attorneys
For
the Respondent: Advocate W Hutchinson
Instructed
by Moodie & Robertson Attorneys
[1]
26 of 2000.
[2]
66 of 1995.
[3]
[2007] (4) SA 135
(LC);[2007] 28 ILJ 195 (LC) at para 176.
[4]
(1999) 20 ILJ 1718 (LAC).
[5]
(2006)
27 ILJ 1738 (LC).