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[2015] ZALCCT 42
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Ernstzen v Reliance Group Trading (Pty) Ltd (C 717/13) [2015] ZALCCT 42 (18 May 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Cape Town
Judgment
Case
no: C 717/13
DATE:
18 MAY 2015
Not
Reportable
Of
Interest to Other Judges
In
the matter between:
Reagan
John
Ernstzen
..............................................................................................................
Applicant
And
Reliance
Group Trading (Pty)
Ltd
.......................................................................................
Respondent
Heard:17
May 2015
Delivered:18
May 2015
Summary:
Claim
for automatically unfair dismissal on grounds of disability in terms
of LRA s 187(1)(f). Respondent raised point in limine
on
jurisdiction. Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC)
followed. Proceedings stayed and matter referred to CCMA
for
arbitration.
Judgment
STEENKAMP
J
Introduction
[1]
The
applicant, Mr Reagan John Erntszen, was dismissed by the respondent
in May 2013. He says that the reason for his dismissal was
his
disability and that the dismissal is automatically unfair in terms of
section 187(1)(f) of the Labour Relations Act.
[1]
The respondent says that he was dismissed for incapacity.
[2]
The
respondent was represented by different attorneys from the time that
the dispute was referred until a month ago, when they withdrew
as
attorneys for the respondent. The respondent’s current legal
team then came on record. The matter was set down for trial
commencing yesterday, 18 May 2015. On the morning of the trial, and
for the first time, the respondent raised a point
in
limine
that this Court does not have jurisdiction, primarily based on the
dictum of the Labour Appeal Court in
Wardlaw
v Supreme Mouldings (Pty) Ltd
.
[2]
[3]
Given the fact that the court was
experiencing difficulties with its recording equipment, I handed down
an oral ruling yesterday
and, in order to save the parties the costs
of another day in court, told them that I would hand down the written
reasons for judgement
today.
Evaluation
[4]
The applicant says that he was dismissed on
27 May 2013 “because of his disability thus discriminating
against him.”
He describes the legal issues that arise as
follows:
“
1.
The real reason for the applicant’s dismissal was because of
his disability.
2.
The dismissal was automatically unfair as provided for by section
187(1)(f) of the Labour Relations Act no 66 of 1995 (LRA).”
[5]
The background to the claim is that the
applicant was injured because of a car accident in May 2012. An
incapacity hearing was eventually
held on 19 April 2013. The
respondent offered the applicant alternative employment. The
respondent formed the view that the applicant
was not capable to
continue performing the duties for which was appointed and dismissed
him for incapacity on 27 May 2013.
[6]
The respondent, then, says that the reason
for dismissal was incapacity. The applicant says that the real reason
was disability;
that this constitutes discrimination; and that,
therefore, his dismissal is automatically unfair.
[7]
The problem that arises is that of
jurisdiction. If the reason for dismissal is incapacity, an unfair
dismissal dispute must be
arbitrated by the CCMA in terms of section
191(5)(a)(i) of the LRA. But if the reason for the dismissal is that
the employer unfairly
discriminated against the employee on the
grounds of disability, this court has jurisdiction to hear the
dispute.
[8]
What,
then, is the Court to do? In the recent case of
Department
of Correctional Services v PSA
[3]
it referred to the guidance of the Constitutional Court and the
Supreme Court of Appeal. As Nugent JA stated in
Makhanya
[4]
:
“
[T]he
power of a court to answer a question (the question whether a claim
is good or bad) cannot be dependent upon the answer to
the question.
To express it another way, its power to consider a claim cannot be
dependent upon whether the claim is a good claim
or a bad claim. The
Chief Justice, writing for the minority in
Chirwa
[5]
, expressed it as follows:
‘
It
seems to me axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it.’”
[9]
And
the Constutional Court in
Gcaba
[6]
said that:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa, and not the substantive merits of the case”.
[10]
In this case, the applicant bases his case
on a claim that the real reason for his dismissal was his disability.
Does that mean
that the court has jurisdiction to hear it, and that
it will only decide whether it is a good or a bad claim after all the
evidence
is in?
[11]
There
can be no doubt that this court has jurisdiction to hear the
applicant’s claim as pleaded. But the principle raised
by the
Labour Appeal Court in
Wardlaw
[7]
is the following:
“
[Section]
157(5), read with s 158(2), clearly envisages a situation where the
Labour Court initially takes as correct the employee’s
allegation of what the reason for dismissal is and proceeds with the
process of hearing the matter until it is ‘apparent’
to
it that the reason for dismissal is a different one and it is one
falling under section 191(5)(a). In such a case s 158(2) is
triggered. Once it is apparent to the court that the dispute is one
that ought to have been referred to arbitration, the court
deals with
the matter in terms of either s 158(2)(a) or (b). It cannot deal with
it outside the ambit of those provisions. Accordingly,
it has no
power to proceed to adjudicate the dispute on the merits simply
because it is already seized with the matter. To do so
would be in
conflict with provisions of s 157(5) and 158(2) of the Act.
The
question that arises from s 158(2) is: when does it become apparent
to the Labour Court that a dispute is one that ought to
have been
referred to arbitration? To answer this question within the context
of a dismissal dispute, it is necessary to bear in
mind the
provisions of s 191(5)(a) and (b). In terms of those provisions the
employee’s allegation of what the reason for
dismissal is
provisionally channels the dispute to either arbitration or
adjudication after conciliation has failed.
…
In
the light of the above it seems to us that the employee’s
allegation of the reason for dismissal as contemplated in s 191(5)
is
only important for the purpose of determining whether dispute should
be referred of the conciliation but the forum to which
it is referred
at that stage is not necessarily the forum that has jurisdiction to
resolve the dispute on the merits finally. That
may depend on whether
it does not later appear that the reason for dismissal is another one
other than the one alleged by the employee
and is one that dictates
that another forum has jurisdiction to resolve the dispute on the
merits. Once a dispute has been referred
to, for example, the Labour
Court, the Labour Court provisionally assumes jurisdiction. That
assumption of jurisdiction is conditional
upon its not later becoming
‘apparent’ to the court within the contemplation of s
158(2) of the Act that the reason
for the employee’s dismissal
is one that falls within s 191(5)(a) of the Act. We say it is
provisional and conditional because
if it later becomes ‘apparent’
that the dispute is one that ought to have been referred to
arbitration, the court will
decline jurisdiction and have the dispute
referred to arbitration.
…
[In
this case] the court a quo heard oral evidence and examined the
evidence to establish whether the reason for dismissal alleged
by the
employee was the reason for the dismissal. In terms of s 158(2) of
the Act it seems that it is not necessary to go that
far. If ‘it
becomes apparent [to the Labour Court] that the dispute ought to have
been referred to arbitration’, this
will suffice for the
purpose of the invocation of s 157(2)(a) or (b). Probably, the
drafters of the Act wanted to avoid, as far
as possible, that the
court should go too much into the matter to establish the true reason
before invoking s 158(2) because that
would not be cost-effective,
could undermine the objective of an expeditious resolution of
disputes and could also result in a
duplication of proceedings.”
[12]
I debated with Mr
De
Kock
whether it is possible for the
Court, at this stage, and without having heard evidence, to consider
what the true reason for dismissal
is. His argument is that that is,
in appropriate circumstances, what the Labour Appeal Court enjoins us
to do in order to be cost-effective,
to ensure an expeditious
resolution of the dispute and to avoid a duplication of proceedings.
[13]
The Court had to consider that position in
the light of the common cause facts before it, without having heard
evidence.
[14]
It is common cause that the applicant was
injured in a car accident; that the respondent formed the view that
he had been incapacitated
for his duties; that an incapacity hearing
was held; and that the respondent gave that as its reason for
dismissal. Those facts
have to be considered against the applicant’s
claim that he had become disabled and that that was the real reason
for his
dismissal.
[15]
The
principles relating to disability and discrimination were considered
eloquently and at length by Murphy AJ (as he then was)
in
IMATU
v City of Cape Town.
[8]
He considered the discrimination analysis in the framework of section
6 of the Employment Equity Act.
[9]
He noted that the approach to unfair discrimination to be followed by
courts has been spelt out in
Harksen
v Lane NO.
[10]
The first enquiry is whether the provision [in an employment policy
or practice] differentiates between people or categories of
people.
The second leg of the enquiry asks whether the differentiation
amounts to unfair discrimination. This requires a two-stage
analysis.
Firstly, does the differentiation amount to “discrimination”?
If it is on a specified ground, discrimination
will have been
established. If it is not on a specified ground, then whether or not
there was discrimination would depend upon
whether, objectively, the
ground was based on attributes and characteristics which had the
potential to impair the fundamental
human dignity of persons as human
beings or to affect them adversely in a comparably serious manner.
[16]
The
court also pointed out
[11]
that the word “disability” is not defined in the EEA, but
item 5 of the Code of Good Practice: Key Aspects on the Employment
of
People with Disabilities, enacted in terms of the EEA, defines
“people with disabilities” as “people who have
a
long-term or recurring physical or mental impairment which
substantially limits the prospect of entry into, or advancement in,
employment.” The definition, he held, is therefore not based on
the medical model of disability but rather on the effect
the
impairment has in limiting the complainant’s entry into, or
advancement in, employment.
[17]
Although this case concerns s 187(1)(f) of
the LRA and not the EEA, similar principles apply. The question to be
asked is whether
the employer has discriminated against the
applicant; and if so, whether it is based on disability.
[18]
The
applicant can only succeed with the claim for automatically unfair
dismissal based on discrimination if he can show that the
real reason
for his dismissal was that he was disabled. Mr
De
Kock
referred to
Mouton
v Boy Burger (Edms) Bpk
[12]
where it was held that, in cases involving dismissals for alleged
discriminatory reasons, the employee must produce sufficient
evidence
to raise a ‘credible possibility’ that the main or
dominant reason for the dismissal was some form of discrimination.
And in
Wardlaw
the
LAC held that, if an employee fails to raise a prima facie case that
the dismissal was automatically unfair, and the employer
persuades
the court that it was for reasons relating to the employee’s
conduct or capacity, the matter must be stayed and
referred to
arbitration.
[19]
In my view, even on the facts as pleaded by
the applicant, he does not cross the hurdle of showing that he was
disabled. There is
no indication on the pleadings or in the evidence
that has been introduced by way of an expert witness report that the
applicant
has a long-term physical impairment which substantially
limits his prospects of entry into, or advancement in, employment.
[20]
It appears from the report of the expert
witness, an occupational therapist, that the applicant secured
employment as a fitter and
turner for approximately six months with
in about two months of his dismissal; and he then started working for
a new employer in
a similar position to the one that it occupied at
the respondent from about January 2014. The injury that led to his
incapacity
clearly has not transmogrified into a long-term physical
impairment which has limited his prospects of entry into, or
advancement
in, employment.
[21]
To use the test in
Wardlaw
,
it is apparent that the reason for the applicant’s dismissal is
incapacity and that it should therefore be referred to arbitration
in
terms of s 158(2)(a) of the LRA. I must stress that that will not
nonsuit the applicant. The dispute will be referred to arbitration.
The applicant will still have a full and fair hearing where he can
lead evidence and where the employer will have to show that
his
dismissal (for incapacity) was fair.
Conclusion
[22]
Although this court had jurisdiction to
consider the dispute that the applicant referred, as set out in his
pleadings, it has become
apparent that the dispute is one that ought
to have been referred to arbitration. In terms of s 158(2) of the
LRA, therefore, the
Court has to stay the proceedings and refer it to
the CCMA for arbitration.
Costs
[23]
This
Court is enjoined to take into account the requirements of law and
fairness when deciding on costs.
[13]
The respondent raised the point that led to the ruling in this
judgement at a very late stage after it had procured the services
of
a new legal team. The applicant did not have an adequate opportunity
to consider whether he should proceed with litigation in
this court.
This ruling also does not bring the dispute between the parties to an
end. It is merely referred to a different forum.
In all these
circumstances, I do not consider a costs order to be appropriate.
Order
[24]
I therefore make the following order:
24.1
The proceedings are stayed in terms of
section 158(2)(a)
of the
Labour Relations Act and
the dispute is
referred to arbitration under the auspices of the Commission for
Conciliation, Mediation and Arbitration.
24.2
There is no order as to costs.
Anton
J Steenkamp
Judge
APPEARANCES
APPLICANT:
Theo Potgieter (attorney).
.
RESPONDENT:
Coen de Kock
Instructed
by Carelse Khan
[1]
Act 66 of 1995 (the LRA).
[2]
(2007)
28
ILJ
1042 (LAC).
[3]
[2015] ZALCJHB 150 (13 May 2015) paras [20] – [21].
[4]
Makhanya
v University of Zululand
[2009] 4 All SA 146
(SCA);
2010 (1) SA 62
(SA) para 54.
[5]
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 155.
[6]
Gcaba
v Minister for Safety & Security
(2010) 31 ILJ (CC) para 75.
[7]
Supra
para [21] - [23].
[8]
[2005] 11 BLLR 1084 (LC).
[9]
Act
55 of 1998 (the EEA).
[10]
1998
(1) (SA) 300 (CC) paras [78] – [81].
[11]
Para
[89].
[12]
(2011) 32
ILJ
27013
(LC).
[13]
LRA s 162.