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[2015] ZALCJHB 232
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Tobias v Renasa Insurance Company Limited (JS267/14) [2015] ZALCJHB 232 (30 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JS267/14
DATE:
30 JULY 2015
Not
Reportable
GLEN
MARTIN
TOBIAS
........................................................................................................
Applicant
And
RENASA
INSURANCE COMPANY
LIMITED
................................................................
Respondent
Heard:
28 July 2015
Delivered:
30 July 2015
Summary:
Claim for an automatically unfair dismissal in terms of s 187(1)(h)
of the LRA; Applicant contending that he made a protected
disclosure
and was subjected to occupational detriment as a result; At trial, it
becoming evident that no ‘disclosure’
was made as
contemplated by s 1 of the Protected Disclosures Act; Court
exercising discretion under s 158(2) of the LRA and referred
the
dispute to the CCMA for arbitration.
JUDGMENT
VOYI
AJ
[1]
The
matter pertains to an alleged automatically unfair dismissal premised
on s 187(1)(h) of the Labour Relations Act.
[1]
The
Applicant contends that he was dismissed by the Respondent for having
made a protected ‘disclosure’ as envisaged
by s 1 of the
Protected Disclosures Act.
[2]
[2]
The Respondent resisted the claim and
raised a few preliminary points
in
limine
. In the main, the Respondent
contests the jurisdiction of this Court to pronounce over the matter.
The jurisdictional challenge
is based on two grounds. In the first
place, the Respondent disputes that there was a ‘disclosure’
made by the Applicant.
[3]
Secondly,
the Respondent contends that the alleged dispute relating to a
protected disclosure was never referred to the CCMA for
conciliation.
As conciliation is a jurisdictional prerequisite for this Court to
adjudicate over an alleged unfair dismissal dispute,
[3]
the
Respondent holds the view this Court is not vested with jurisdiction
over the matter.
[4]
I summarily disposed of the second
jurisdictional challenge. The Applicant did lodge an unfair dismissal
dispute with the CCMA for
conciliation. The conciliation meeting was
held on 07 March 2014. After conciliation failed, the CCMA’s
Commissioner P Mbatsana
issued the certificate of non-resolution. The
dispute was, therefore, conciliated. The jurisdictional prerequisite
mentioned herein
before was, therefore, satisfied.
[5]
It
would be overtly technical to require of an employee to articulate
with precision the exact nature of the case he intends to
pursue in
the CCMA dispute referral form. After all, the categorisation of the
dispute by the employee in the dispute referral
form is not
decisive.
[4]
In
NUMSA
& others v Cementation Africa Contracts (Pty) Ltd
,
[5]
in
was held thus:
‘
In
the circumstances, and having regard to ss 135 and 191 of the Act, I
am satisfied that as long as the party who refers the matter
to
conciliation indicates, for example, that the dispute is about his or
her dismissal, both on substantive and procedural grounds,
despite
any specific issue or issues he or she raises with regard to why he
or she disputes his or her dismissal to be fair, if
the matter is not
resolved at the conciliation, he or she is not barred from raising
new issues at arbitration or adjudication.’
[6]
[6]
There
was nothing before me which revealed that what was conciliated was
not a dispute which had a bearing on a protected disclosure.
To
the extent that the issued certificate of non-resolution indicated
that the dispute should be referred to arbitration, it is,
by now,
trite that the certificate of non-resolution is not binding on the
parties in terms of the next step in pursuing an unfair
dismissal
dispute.
[7]
With
the certificate of non-resolution in the present matter, I was
satisfied that the dispute was conciliated.
[7]
With regard to the first jurisdictional
challenge, the Respondent urged this Court to solely determine if
there was a protected
‘disclosure’, as defined, before
delving into the subsequent issue for consideration, i.e. whether the
Applicant was
subjected to occupational detriment as a result
thereof.
[8]
The
Respondent’s Counsel, Advocate Nel submitted that the existence
of a protected ‘disclosure’ is a jurisdictional
issue. To
my mind, what is a jurisdictional issue is the existence of an
automatically unfair dismissal in its entirety,
[8]
and
not ideally the constituents thereof.
[9]
What the Respondent’s Counsel urged
may seem pragmatic as the non-existence of a protected ‘disclosure’
may be
dispositive of the matter. However, a piecemeal entertainment
of a matter is not ideal. To have a separation of the issues in a
dispute of this nature can never serve the aim of expeditious
resolution of labour disputes.
[10]
I, therefore, ruled that I will hear the
matter in its entirety and not allow same to be dealt with in a
piecemeal fashion. After
all, the Applicant exclusively pleaded a
case premised on being subjected to occupational detriment on account
of having made a
protected disclosure. It would, accordingly, be
evidence at trial which will determine if such a case succeeds or
not.
[11]
With the above having been cleared out of
the way, the trial commenced. The Applicant testified in person and
did not call any witnesses.
He appeared on his own without the
assistance of a legal representative. I offered whatever assistance
the parameters of a fair
trial to both parties allowed me to provide
to an unrepresented litigant under the circumstances.
[12]
The Applicant testified, under oath, that
his entire saga with the Respondent commenced after he became aware
of what was said about
him as an employee in an outcome of a
performance appraisal process.
[13]
The comments made thereon, about him,
engendered a grave concern about his job security as an employee of
the Respondent. He then
approached Legal Wise who, in turn, addressed
a letter of grievance on his behalf to the Respondent’s Chief
Executive Officer
on 2 July 2013.
[14]
The Applicant openly disclosed that it was
Legal Wise that advised him to also coin his grievance under the
guise of a protected
disclosure matter. This, so he was advised, was
to ensure that he was protected from further victimisation and
mistreatment by
his superiors.
[15]
It is the letter of 2 July 2013 which the
Applicant submits constitutes the ‘disclosure’ in this
matter. According to
the Applicant, the letter served not only as a
grievance against his unfair treatment at the hands of his superiors,
it also served
to bring ‘…the evading of legal
obligations to the surface as protected disclosures.’
[16]
The Applicant pleaded that ‘[t]he
disclosure itself does not constitute a criminal offence.’ I
understood this to suggest
that what was being disclosed were not
necessarily criminal matters. Despite this, the Applicant, in his
testimony, elevated what
he was disclosing to criminal offences.
[17]
Having considered that part of his
grievance to the CEO of the Respondent which is alleged to constitute
a protected ‘disclosure’,
it is clear to me that what was
disclosed was not a criminal offence which was being perpetrated at
the Applicant’s workplace.
[18]
Accordingly, the disclosures can only be
dealt with as per what is averred in the Applicant’s statement
of claim, namely that
the Respondent ‘…was evading a
legal obligation.’
[19]
With regard to the evasion of legal
obligations, the Applicant stated in his letter that certain
employees were not sufficiently
qualified; that the Respondent
might
not be in a position to properly render advice to its individual
clients and that two systems of the Respondent were ineffective.
With regard to the latter, the Applicant mentioned that the SASRIA
and/or FAIS required disclosures do not appear on the policy
schedules of these systems.
[20]
The Applicant received, through Legal Wise,
a response to his letter of grievance to the CEO of the Respondent.
The response was
under the hand of one Mr Brian Martin, the
Respondent’s Director: Legal. In his response, Mr Martin
pointed out that the
Applicant raised two separate complaints, the
first dealing with a grievance against his regional manager and the
second raising
a concern about non-compliance with industry specific
legislation.
[21]
With regard to the first compliant, the
Applicant was requested to lodge a grievance which he did on or about
27 August 2013. As
for the second complaint, Mr Martin advised as
follows in his letter:
‘
6.
RENASA has a zero tolerance policy to any legislative non-compliance.
We thus take your insured’s allegations in relation
to
non-compliance with industry specific legislation in the most serious
light and confirm that we are already in the process of
auditing the
relevant branches for possible non-compliance.
7. In order to
expedite the current investigation, we require that your insured
provide us with full details including dates, parties
to and
documents relating to the averred transgressions mentioned.’
[22]
The Applicant testified that he provided
the requested full details to the Respondent’s Mr Martin. What
was allegedly provided
was, however, not put before this Court. As a
result of this failure, on the part of the Applicant, the only
disclosure that had
to be scrutinised for compliance with the
provisions of the Protected Disclosures Act was the letter of 2 July
2013, addressed
to the Chief Executive Officer of the Respondent.
[23]
Under s 1 of the Protected Disclosures Act,
what is a ‘disclosure’ is fully defined. For purposes of
the present matter,
the relevant definition of a ‘disclosure’
is that found in s 1(b) under that definition, it being as follows:
‘…
any
disclosure of information regarding any conduct of an employer, or an
employee of that employer, made by an employee who has
reason to
believe that the information concerned shows or tends to show one or
more of the following:
(a)
…
(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; …’
[24]
In the present matter, the Applicant’s
‘disclosure’ sought to suggest that certain employees of
the Respondent
were not sufficiently qualified in terms of the
minimum industry related credits requirements. There was no specific
information
that was put forward to this end.
[25]
This
Court has expressed itself in previous cases with regard to what
would qualify as a ‘disclosure’ for purposes of
the
Protected Disclosures Act.
[9]
[26]
The Applicant, in the letter to the Chief
Executive Officer dated 2 July 2013, did not mention who were the
employees that were
not sufficiently qualified. He also did not
mention in what respect/s they were not sufficiently qualified.
[27]
Of note, the Applicant did not
categorically state that there were employees that had no
qualifications. Instead, he suggested that
certain female Broker
Consultants ‘…might not be sufficiently qualified in
terms of the minimum industry related credits
requirements.’
[28]
With the deliberate use of the term
‘might’, it becomes evident that the Applicant did not
have something conclusive
regarding the alleged employees’
qualifications. If he knew that the alleged employees were not
qualified, he would not have
used the term ‘might’ which
simply denotes a mere possibility.
[29]
The Applicant also suggested that the
Respondent as ‘…an Insurer might not be in a position to
properly render “advise”
to [its] individual clients.’
Again, the Applicant deliberately used the term ‘might’
to suggest a mere possibility.
[30]
As for the two systems, the Applicant
stated that there was an ‘…ineffective operation of
these system.’ There
was simply no mention of what rendered
these systems ineffective and in what manner were they ineffective.
What the Applicant stated
was, therefore, no more than his own views
about the two systems.
[31]
The fact that the definition of a
‘disclosure’ under the Protected Disclosures Act, as
quoted above, also makes reference
to ‘…likely to fail
to comply…’ cannot be read to suggest that even
speculations can be read into the
said definition. A disclosure,
proper, is disclosure of ‘information’ which shows or
tends to show an ‘impropriety’.
[32]
In
my considered view, a disclosure of what amounts to mere speculations
is certainly not a disclosure contemplated by the provisions
of the
Protected Disclosures Act.
[10]
[33]
As the Applicant was in the process of
presenting his case, it became glaringly apparent that there was no
‘disclosure’
envisaged by the provisions of s 1 of the
Protected Disclosures Act. This being a key element in an
automatically unfair dismissal
claim founded on s 187(1)(h) of the
LRA, the Applicant’s case was doomed from the onset.
[34]
Without any further ado, I expressed the
view that the provisions of s 158(2) of the LRA became operative. The
recently amended
version thereof reads thus:
“
If
at any after a dispute has been referred to the Labour Court, it
becomes apparent that the dispute ought to have been referred
to
arbitration, the Court may-
(a)
stay the proceedings and refer the dispute
to arbitration:
or
(c)
if it is expedient to do so, continue with
the proceedings, in which case the Court may only make any order that
a commissioner
or arbitrator would have been entitled to make:
Provided that in relation to the question of costs, the provisions of
s 162(2)(a)
are applicable.”
[35]
It
is, now, no longer a requirement that the parties must consent to
this Court continuing with the proceedings if it becomes apparent
that the dispute ought to have been referred to arbitration.
[11]
[36]
To the possibility of continuing with the
proceedings as allowed by ss 2(b) of the above quoted provisions, the
Respondent’s
Counsel pointed to the prejudice the Respondent
would suffer should it be subjected to a trial on an ordinary unfair
dismissal
dispute which it was not prepared for.
[37]
This was in view of the fact that the
Applicant pleaded a case of an automatically unfair dismissal dispute
without any reference
to an alternative claim for an ordinary unfair
dismissal dispute. It, therefore, became clear that continuing with
the proceedings
was going to be to the severe detriment of the
Respondent.
[38]
It would have been expedient to continue
with the proceedings if the aforementioned prejudice did not present
itself. In the exercise
of my discretion, I opted to refer the
dispute to arbitration as contemplated by s 158(2)(a) of the LRA.
[39]
To postpone the matter for later
adjudication by this Court as allowed by s 158(2)(b) would be miles
away from expediency. The dispute
is likely to be dealt with far more
expeditiously by the CCMA than by this Court. After all, s 138(1) of
the LRA affords the CCMA
Commissioner far more relaxed powers in
conducting arbitration proceedings. If this Court was to continue
with the proceedings,
it would certainly not be sitting as an
arbitrator.
[40]
Another benefit to the parties with the
dispute being referred to arbitration is the finality and the binding
nature of an award
that would be rendered at arbitration. For these
reasons, I was persuaded that it would be in the interest of both
parties that
the matter is referred to arbitration.
[41]
As for costs, I am of the view that the
requirements of law and fairness dictate that I should make no order
as to costs. The dispute
between the parties, which is about the
dismissal of the Applicant by the Respondent, is still on-going. To
award costs at this
stage would be premature. What has been
determined at this stage is that the dismissal was not for a
prohibited reason under s
187(1) of the LRA. It is yet to be
determined if the dismissal was or was not for a fair reason.
[42]
I, accordingly, make the following order:
42.1
The Applicant’s claim under s
187(1)(h) of the LRA is refused for failing to meet the
requirements of a ‘disclosure’
as envisaged by the
provisions of the Protected Disclosures Act.
42.2
The dispute about the fairness of the
Applicant’s dismissal is referred to the CCMA for arbitration.
42.3
There is no order as to costs.
VOYI AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant : In person
On
behalf of the Respondent : Adv Nel,
Instructed
by : Lindeque van Heerden Attorneys
[1]
Act
66 of 1995 as amended (“the LRA”)
[2]
Act
26 of 2000 (“the Protected Disclosures Act”)
[3]
See:
Feni v
Pan SA Language Board
(2011)
32
ILJ
2136 (LC) at para 5
[4]
See:
NUMSA
and
others
v Driveline Technologies (Pty) Ltd & another
(2000)
21
ILJ
142 (LAC)
[5]
(1998)
19
ILJ
1208 (LC)
[6]
At
para 25
[7]
Pienaar
v Stellenbosch University and another
(2012)
33 ILJ 2445 (LC). See also:
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[2009] 12 BLLR 1214 (LC)
[8]
Booysen
v National Union of Metalworkers of South Africa
(JA2013/13)
[2014] ZALCJHB 161 (13 May 2014)
[9]
See,
inter
alia
,
:
Grieve
v Denel (Pty) Ltd
(2003) 24
ILJ
551 (LC);
Communication
Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003) 24
ILJ
1670 (LC);
Tshishonga
v Minister of Justice & Constitutional Development and another
(2007)
28
ILJ
195 (LC);
[10]
See:
Ramsammy
v Wholesale and Retail Sector Education and Training Authority
(2009) 30
ILJ
1927 (LC) at para 51; See also
Communication
Workers Union v Mobile Telephone Networks (Pty) Ltd
(
supra
)
at para 21
[11]
Rahn
v Cheil South Africa (Pty) Ltd
(JS752/2013)
[2015] ZALCJHB 180 (12 June 2015)