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[2017] ZALCJHB 168
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Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JS287/2012
In the
matter between:
MADELAINE
DOREY
Applicant
and
TSB
SUGAR RSA LTD
Respondent
Heard
:
13-24 June 2016; 16-20 January 2017 and 27-31
March 2017
Delivered
:
03 May 2017
Summary:
A referral in terms of which the applicant alleged that she was
dismissed
on account of having made disclosures showing or tending to show
impropriety on the part of the respondent.
Held: (1) The
applicant was subjected to an occupational detriment. (2) The
dismissal of the applicant is automatically unfair within
the
contemplation of section 187(1) (h) of the Labour Relations Act 66 of
1995. (3) The applicant is awarded compensation equivalent
to 24
months’ salary within the contemplation of section 194 (3) of
the Labour Relations Act 66 of 1995. (4) The respondent
to pay the
applicant’s costs.
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
This is a referral in terms of
section 191
of the
Labour Relations Act.
[1
]
The applicant alleges that the respondent subjected her to an
occupational detriment by dismissing her on account of her having
made a protected disclosure. This trial ran for a period of three
weeks. To my mind such was not necessary. On various occasions
during
the trial, I warned the parties of the possible escalating costs in
relation to the trial in this matter. Since both parties
were ably
represented by counsel I assumed that their respective counsel would
take the warning seriously, unfortunately not.
Background
facts
[2]
The
respondent is a producer, distributor and marketer of sugar and
related products. The applicant commenced employment with the
respondent with effect from 1 July 2002. On 22 December 2011, after a
disciplinary enquiry, the applicant was dismissed for reasons
related
to conduct. At the commencement of her employment, the applicant was
a secretary. She later became a Training Coordinator.
Later her
position as a Coordinator was made redundant. Following that she was
transferred to the Risk Control Department to be
trained as a Risk
Control Officer. Whilst so employed, the applicant discovered certain
irregularities, which she disclosed to
one Jan de Villiers, the
Company Secretary and Risk and Compliance Manager. Following such
disclosures, the applicant was charged
with acts of misconduct, found
guilty of some and dismissed. Aggrieved by her dismissal, she
referred a dispute to this Court alleging
automatically unfair
dismissal.
[3]
Various witnesses were called from both sides.
Only a summary of the witnesses’ evidence shall be stated in
this judgment.
Evidence
Led
[4]
Mr
Xolani Lubisi (Lubisi) testified that from August2011 to
September2011, he was in the employ of the respondent. He was
employed
as a relieve attendant. Whilst on duty, he sustained serious
injuries on his leg. After one week of being at home, he returned to
work. Upon his return he was informed that he would perform light
duties and he was moved from working night shift to day shift.
For a
period of about two weeks, he was stationed at Human Resources where
he was asked to read books. Later he was informed to
go back to the
factory.
[5]
After he had
left the respondent, in 2016, he received a call from an unknown
person from the respondent. That person informed him
that he was
required to sign a document related to his injuries in 2011. He never
had an opportunity to sign the aforesaid document,
however he was
later informed that the document was found. He never gave consent to
have his medical records inspected. In cross-examination
he testified
that his signature was forged. He did not recall signing a consent
form.
[2]
[6]
Mr Richard
Tembe testified that from 2000-2012, he worked for the respondent as
a driver. He was hijacked in 2010. During the hijack,
he sustained
injuries
[3]
following the assault by the hijackers. He was examined at the
respondent’s clinic. He was booked off. He never returned
to
work. He was dismissed for being hijacked in 2012.
[7]
Ms
Madelaine Dorey (the applicant) testified that she commenced
employment on 1 July 2002 and was dismissed on notice on
22December2011.
She testified at length about her career path within
the respondent. At the time of her dismissal Mrs. Herbst (Herbst) was
her
direct manager. She gave a detailed account of her duties prior
to her dismissal. Amongst others she was dealing with statistics
for
injuries. She worked closely with Herbst on that. She testified that
if the Disabling Injuries Frequency Rate (DIFR) is low,
such is good
for the respondent and gives the respondent a five-star rating which
is good for marketing purposes. Divisional Heads
receive bonuses for
low DIFR as it is part of their Key Performance Indicators (KPI).
[8]
She
further testified about the procedure that must be followed once
there is an injury on duty. She also explained the types of
injuries
on duty. A disabling injury is one where the injured will not be able
to perform duties for a few days. Major incidents
are those where the
injured employee would be off duty for a period of 14 days. Such
incidents are required by law to be reported
to the Department of
Labour. She never had any complaints about her work.
[9]
She
testified about the fitness certificates
[4]
(green
cards). In May2010, she received a call from Ms Riaan Liebenberg
(Liebenberg)
–
a
SHE representative in the Civils Department. Liebenberg
informed her
that she saw cards that were signed by Sister Wendy Snyman (Snyman).
Given the applicant’s relationship with
DrBreytenbach, she
asked
Liebenberg
to speak to
Herbst. She informed Herbst that such signing of the cards was an
irregularity. Herbst told her that she was aggrieved
because
DrBreytenbach was no longer doing work for the respondent. She also
raised issues around the audiometric tests. Shortly
thereafter, she
was made to sign a confidentiality agreement.
[5]
She signed
it under protest. It came as a surprise because since she started in
2008, she was never asked to sign such a document.
Following
discussions around training records, she accidentally sent an
email
[6]
to Herbst.
After this email, Herbst started excluding her.
[10]
Around 13 September 2011, she sent an email to Mr
Jan de Villiers (DeVilliers) setting up an appointment in order to
disclose the
irregularities she observed. One such irregularity
related to the injuries of Lubisi. She overhead Herbst and Snyman
discussing
that Mr Danie Olwage (Olwage) did not want to investigate
the injuries because in his view the incident was reportable to the
Department
of Labour. She overhead the two speaking about light duty,
as they did not wish to bring the injury to the attention of the
Department
of Labour. She indeed met with DeVilliers and discussed
the irregularities at hand. She was concerned that some
irregularities
would put the respondent at risk. She disclosed
various issues, which in her view, were irregular. She was told that
DeVilliers
would look into the issues, as he does not like grievance
processes.
[11]
On
15 September 2011, the applicant had another meeting with De
Villiers. In this meeting Olwage also explained his role in the
Lubisi matter. He also pointed out the irregularities and made a copy
of the relevant Act for DeVilliers. The applicant disclosed
the
alleged tampering of the clinic records for purposes of NOSA audits.
She gave DeVilliers names of people to contact. She did
not have
access to certain documents during the discussion. Later on she sent
some contacts of the relevant people to be contacted.
DeVilliers did
not come back to her.
[12]
On
27 September 2011, she had further discussions with De Villiers. By
6October2011, she had no feedback from De Villiers. On 26October2011,
during the external NOSA audit, the Lubisi matter was discussed. The
Auditors questioned Herbst. She stated that Lubisi was not
reportable. Mr Clinton Vermuelen, who later became the chairperson of
her disciplinary hearing, joined the audit. Frustrated by
what was
happening, she uplifted Lubisi’s file, which was lying either
in the boardroom or Ms. Veldman’s office and
walked into the
office of DeVilliers. She said to him, “
here
are all the lies
”, and that she
couldn’t take it anymore. She left the file and asked him to
deal with it.
[13]
On
4 November 2011, she met with De Villiers, who gave her feedback on
Lubisi. He told her that NOSA auditors did not have a problem,
the
incident was handled properly. On 7 November 2011, she was due to be
evaluated by Herbst. During that evaluation Herbst wanted
to change
her KPAs. She refused to sign the new KPAs document. She did not feel
comfortable to raise the Lubisi matter. Subsequently,
she sent five
batches of documents to De Villiers to back her disclosures. At
length, with reference to the documents, she sought
to explain the
irregularities as observed by her.
[14]
She
also disclosed the issue to Ms Flora Shabangu. She was given a letter
indicating that the issues were investigated and there
were no
irregularities. On 28 November 2011 she met with DeVilliers who gave
her the letter of the outcome of the investigations.
She informed him
that she did not agree with the manner in which the issues she raised
were investigated. On 6 December 2011, she
met with DeVilliers again
and raised concerns about the investigations.
[15]
On
9 December 2011, there was an incident regarding the office set up
and cabinets between her and Herbst. She stated that she would
be
going to the CCMA to report what she believed to be an unfair labour
practice. She ended up not going there. Whilst on leave
and on her
way to a chess competition, she was informed of her disciplinary
hearing. The charges she faced related to the disclosures
she made.
During the hearing, she gave evidence around certain of the aspects
relating to injuries on duty, which were not reported
or handled
properly. Following this disciplinary hearing, she was dismissed.
After her dismissal she worked with Dr Breytenbach
for two years
until the practice closed. She earned around R10 000.00. She does not
wish to be reinstated.
[16]
She
was cross-examined at length. Various versions of the respondent’s
case were put to her, which she disputed. The cross-examination
was
largely directed to the veracity of her disclosures.
[17]
Liebenberg testified that from 2008-2011, she was
in the employ of the respondent as a SHE Administrator in the Civil
Department.
She further testified about the green cards, which were
signed by Snyman. Upon noticing that she phoned Herbst who directed
her
to phone the applicant. She did phone the applicant and related
the incident to her. Later Snyman phoned her informing her that
all
the cards were returned in order to be re-issued. The cards were
re-issued. In cross-examination she disputed Snyman’s
version
as put to her. She testified that she was responsible for employees
and not contractors. The cards were re-issued in 2011
and she cannot
recall who signed them.
[18]
After unsuccessfully applying for absolution from
the instance, the respondent called Wendy Snyman. She commenced
employment on
1March2000 as an OHS (Occupational Health Sister). She
spelled out her duties. Regarding the green cards, she confirmed that
she
did sign the cards. She did that upon the request of Mr Piet
Hattingh. The cards were for contractors. In November 2011, De
Villiers
confronted her about the cards and she explained what
happened. She testified about documents drawn by the clinic for the
Risk
Department. She assists Herbst for audit purposes. She also
testified about the Flora Shabangu matter. She investigated the
incident.
Shabangu had personal problems. She concluded that Shabangu
was not paying attention. She sent Shabangu for counselling. Shabangu
went for training as required by the regulation and this training was
conducted at the clinic of the respondent. She testified
how the
clinic register gets corrected for the purposes of the audit. She
disputed some of the disclosures made by the applicant.
She disputed
the manipulation of clinic registers.
[19]
In
cross-examination she testified that she could have asked another OMP
(Occupational Medical Practitioner) to complete the certificates.
By
signing on behalf of Dr Breytenbach, she was wrong. That was a
mistake on her part.
[20]
Mr
Justin Hobday was the Managing Director of NOSA from 2005 to 2016.
They provided auditing services to the respondent from 2005
to 2014.
He testified how NOSA worked. Herbst was her contact at the
respondent. He dealt with the contents of the audit reports
for the
period 2009-2011. He touched on documents relevant to Lubisi matter.
In cross examination he admitted that he was
not involved in the
audits in question. Despite that he was cross-examined on the
contents of the audit reports. He testified that
there is an
advantage to be derived by a company from a good NOSA report.
[21]
Mr Jan De
Villiers testified that he commenced employment on 1July2003 in a
legal advisory position. Around 13 September 2011, he
received an
email
[7]
from the applicant seeking to discuss a private and confidential
matter after work. Indeed, he met with the applicant who laid
a
number of complaints as to the workings in the Risk Department and
the irregularities she observed. She did not wish him to do
anything
about what she disclosed. He however told her that he would do a
discrete inquiry in order to inform himself.
[22]
On
15 September 2011, they met again. The discussion was around the
exchange the applicant had with Herbst around training, the
coming
into the picture of Veldman and duties being taken away. He informed
her about the new structure stating that the administration
function
is not the responsibility of a Risk expert. Since the issues were
personal in his view, he suggested to her to discuss
with Herbst, he
mediates or she files a formal grievance. Herbst told him about the
email accidentally sent to her, which she saw
as a betrayal of
loyalty. As part of his enquiry he met with a Marcia, who gave him
information.
[23]
On
27 September 2011, the applicant approached him where she indicated
that the work situation is not improving as she was sidelined.
Again
he repeated the suggestions he made previously. He suggested a roles
clarification meeting, which he will facilitate. On
6October2011
after welcoming Veldman’s, roles were clarified. He testified
about the job grading and increment of the applicant’s
salary
processes. He disputed the certain accounts of the applicant relating
to the meetings they both had. He met with people
mentioned in the
applicant’s disclosures and they expressed their views and
effectively differed with the applicant’s
disclosures.
[24]
On
4 November 2011, he met with the applicant and provided her with the
feedback. The applicant made reference to the SHE statistics,
which
were not properly kept. He advised her to discuss that with Herbst
since he did not understand her concerns. According to
him there was
nothing illegal about the SHE statistics. The concerns were more
related to the manner in which they were handled
structurally. In his
view the applicant ought to have determined the accuracy of her
complaints before raising them. The issue
of the green cards was only
brought to his attention on 13November2011.
[25]
He had
investigated the issues raised, discussed with colleagues and
thereafter arrived at some findings.
[8]
His findings were handed to the applicant on 6 December 2011. He then
gave testimony in relation to the list of employees, to which
the
applicant raised certain allegations of irregularities. His
investigations revealed that there was nothing untoward.
[26]
In
cross-examination, he testified that the NOSA reporting was part of
the system. Further, he was aware that the AIA had lapsed
and he was
working towards correcting it. He was aware that it was a legal
requirement to do surveys. He was not involved in the
disciplinary
enquiry. The issue on Lubisi was not the reportability thereof but
whether Herbst lied to the auditors.
[27]
He
concluded that she did not lie. He conceded that the Lubisi incident
was part of the charges in so far as it relates to the removal
of the
file. According to him by the 5
th
and 6
th
of December2011, Herbst and the applicant were to work on their
relationship. He approved the disciplinary action to be taken against
the applicant. The main reasons for discipline were her insolence and
abscondment. Had the applicant returned the files and not
write the
email indicating that she will be leaving the workplace that would
have been the end of the matter. There would not have
been any
disciplinary hearing.
[28]
Herbst testified that she retired from the
respondent after working for almost forty years. The applicant
started to work in her
department in November or December 2008. Upon
receipt of the clinic register, she would pass it to the applicant in
order to do
the analysis. The clinic register was received monthly in
order to do the statistics. In 2009, the applicant was still
undergoing
training. She disputed preventing the applicant to do her
work. When she saw the email accidentally sent to her she was upset.
She found it to be distasteful and disrespectful. Following that she
stopped certain responsibilities, which she routinely passed
to the
applicant.
[29]
On
15 November 2011, she was called into the main boardroom where
allegations were presented to her. She presented two lever arch
files
in response to the allegations. She testified as to how the
statistics were calculated. She also testified how they were
used to
prepare for external audits. She could not recall stating that an
auditor should be banned. Top management had taken a
decision
sometime back that medical files would not be given out. The shift
boss, Mr Shongwe, obtained the Lubisi consent form.
In relation to
the green cards, she testified that she directed Hattingh to Snyman
to assist him. She testified about some of the
incidents, which the
applicant observed as irregular. Largely, she disputed the
allegations leveled against her by the applicant.
Since 12July2011
the relationship between her and the applicant soured.
[30]
In
cross-examination she testified that her expectation was that after
conclusion of the issues investigated by De Villiers the
applicant
would continue to work as normal. She did not know that Lubisi was
reading books on his return. She considered the emails
of the
applicant to display cheekiness.
Argument
[31]
Both
representatives submitted written heads to which the Court is
grateful. It is unnecessary for the purposes of this judgment
to
repeat the submissions.
Evaluation
[32]
Mr Mooki for
the respondent argued that the case as pleaded by the applicant
behooved her to show that there are improprieties.
The applicant
cannot rely on “tends to show”. Mr Van Der Westhuizen for
the applicant argued that “tends to show”
was pleaded.
[9]
It is trite that only facts need to be pleaded and not conclusions of
law.
[10]
Accordingly, to my mind “tends to show” is a legal
conclusion to be arrived at by the Court upon reflection on certain
facts. In terms of section 1 of the Protected Disclosures Act
(PDA),
[11]
a disclosure is defined with those two positions-“show”
or “tends to show”. Accordingly, I come to the
conclusion
that the facts pleaded allow me to come to a legal conclusion
required in this case. The argument by Mr Mooki is thus
rejected.
[33]
Further Mr Mooki argued that what the applicant
did was not a disclosure; it was simply the hand of lawyers, which
sought to turn
it into a disclosure in terms of the PDA. Fortunately,
section 1 of the PDA defines a disclosure. It is defined to mean—
“
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.” (Emphasis
added.)
Guided by
this definition it is clear to me that what the applicant brought to
the attention of De Villiers was information regarding
the conduct of
Herbst and others. The applicant clearly had reason to believe that
what was provided to De Villiers show or tends
to show amongst others
failures to comply with legal obligations. I fail to comprehend why
it could be said that the applicant
did not make a disclosure. All
the evidence led by the respondent seeks to point out that it
complied with the law. If there were
no allegations that for
instance, Lubisi was reportable to the Department of Labour in terms
of the law, it would have not been
necessary to present evidence that
Lubisi was not off duty for 14 days. The Department of Labour would
not have been approached
to clarify the ‘true’ legal
position. Clearly the applicant was not simply venting as argued by
Mr Mooki. She was raising
an issue of non-compliance. I come to the
conclusion that the information provided to De Villiers amounts to a
disclosure within
the contemplation of the PDA.
[34]
The approach
taken by the respondent in this matter was to show that the
disclosure is not true. The Labour Appeal Court in
Radebe
and Another v Premier, Free State Province and Others
[12]
clarified the position thus:
“
The
phrase “tends to show” in section 1 cannot be equated to
“show”. Had the legislature intended the approach
propounded by the Labour Court, it would have used only the term
“show”. The phrase “tends to show” properly
interpreted means that the information in the disclosure “conveyed
a suggestion of” an impropriety or conduct that
may have taken
place or might be continuing. I do not understand the provision
itself to include a requirement that what is conveyed
must be
factually accurate or be the truth. If the employee believes that the
information is true it would fortify the reasonableness
of his belief
from which, in turn, his bona fides can be inferred.” (Footnote
omitted.)
[35]
In line with
Radebe
I
need not concern myself with the truthfulness and or accuracy of the
allegations.
[13]
Having concluded that the applicant has made a disclosure, I need to
determine whether such a disclosure was
bona
fide
or not. Mr Mooki submitted that the applicant was not
bona
fide
.
I cannot agree. This is not a situation where an employee was acting
recklessly and seeking to disparage her employer.
She
reasonably believed that the respondent was acting improperly. She
took the trouble of analysing the records to the extent she
could
because she reasonably believed that the respondent was acting
improperly. As pointed out earlier, her
bona
fides
cannot
be judged by the accuracy of the allegations. Accordingly, I come to
the conclusion that the applicant was
bona
fide
in her disclosure thus protected by the PDA.
[36]
In terms of
section 1 being dismissed in relation to the working environment of
an employee amounts to an occupational detriment.
[14]
The occupational detriment complained of is the dismissal of
December2012. To the extent that the evidence led by the applicant
demonstrates other forms of occupational detriments, such are not
before me. This much MrVanDerWesthuizen conceded. Section 3 of
the
PDA provides that—
“
No
employee may be subjected to any occupational detriment by his or her
employer on account, or party on account, of having made
a protected
disclosure.”
[37]
Section 187(1) (h) of the LRA provides that
contravention of the PDA by the employer, on account of an employee
having made a protected
disclosure defined in the PDA, amounts to an
automatically unfair dismissal. To my mind the text of the section is
over embellished.
It would have been sufficient to simply provide
that contravention of section3 of the PDA amounts to an automatically
unfair dismissal.
Nonetheless, it is clear that if an employee is
dismissed on account or partly on account of having made a protected
disclosure,
such a dismissal is automatically unfair.
[38]
For an
employee to succeed, an employee must establish a causal link between
his or her dismissal and the protected disclosure.
Put it
differently, an employee must produce evidence sufficient to raise
the contravention of the PDA.
[15]
Once that is done, the respondent bore the onus to prove that the
applicant was dismissed for a fair reason.
[39]
The
respondent alleged in its statement of defence that the applicant was
dismissed for misconduct. She was guilty as charged in
other words.
The evidence of Herbst and De Villiers suggests that the applicant
could not have faced disciplinary steps, which
led to her dismissal.
That being the case, the probabilities are that the dismissal was on
account of having made the disclosure.
[40]
Closer scrutiny of the charges creates a
connection between the disclosure and the charges. As an example, the
applicant was charged
with having illegally removed a file containing
confidential information from a place without permission and
following due process.
It turned out in evidence that the file in
question is that of Lubisi. The applicant’s case was that
Lubisi was reportable.
Clearly she removed that file in order to
disclose non-compliance to De Villiers.
[41]
Her
providing the file to DeVilliers was a disclosure, which is protected
as she was intending to show the non-compliance. Another
charge
related to her publication of inaccurate information with an
intention to damage the reputation of the Risk Control Department.
It
turned out in evidence that the said information related to clinical
records or files. According to the applicant certain injuries
on duty
were not recorded properly in order to avoid reporting and also to
obtain good NOSA audit ratings. The said information
was provided to
De Villiers in order to show the alleged manipulation. When she did
so she was making a protected disclosure. Dismissing
her on account
of these two incidents amounts to an automatically unfair dismissal.
[42]
I therefore
come to the conclusion that the applicant was dismissed for an
impermissible reason. Her dismissal is automatically
unfair. I now
turn to the issue of relief. The applicant did not wish to be
reinstated. Therefore, the appropriate relief is that
of
compensation. Section 194(3) of the LRA caps compensation for
automatically unfair dismissal to 24 months. However, compensation
ought to be just and equitable. In
State
Information Technology Agency Ltd v Sekgobela
,
[16]
the LAC dealing with a 24 months compensation issue said the
following:
“
Insofar
as the relief is concerned, the appellant has argued that this was
excessive. I do not agree. The PDA is a piece of legislation
that
addresses a critical area in the sphere of public finance and
accountability. It is a piece of legislation that addresses
the
important constitutional objectives of clean government and service
delivery. Public entities have to be scrutinized in terms
of their
dealings to ensure that they deliver to the general public in terms
of the mandate.”
[17]
[43]
I
am acutely aware that I am not dealing with a public entity in
casu
.
However, I have come to the conclusion that the PDA was contravened.
In terms of the preamble of the PDA, the following is recognised:
“
Criminal
and other irregular conduct in organs of state and private bodies are
detrimental to good, effective, accountable and transparent
governance in organs of state and open and good corporate governance
in private bodies and can endanger the economic stability
of the
Republic and have the potential to cause social damage.”
[44]
It must then
follow that the sentiments echoed by the LAC
supra
apply with equal force to private bodies like the respondent. Also I
bear in mind that the respondent dismissed the applicant for
an
impermissible reason. Such brings to the fore the punitive
component.
[18]
I am also convinced that the applicant was seriously humiliated when
in truth she was attempting to act in the interest of the
respondent.
[19]
[45]
Accordingly, I come to the conclusion that it will
be just and equitable to award compensation equivalent to 24 months’
remuneration.
I now turn to the issue of costs. Both parties
submitted that costs should follow the results. I pause and mention
that I have
consistently warned the parties that there was an
unnecessary accumulation of costs. The loosing party will suffer as a
result.
I therefore agree with the parties that the costs must follow
the results.
Order
[46] In
the results, I make the following order:
1
The dismissal of the applicant is automatically unfair.
2
The respondent is to pay the applicant an amount
of
R552 000.00
(Five hundred and fifty two thousand rand only) being an equivalent
of 24 months remuneration at the rate of
R23000.00
(Twenty three thousand rand only) per month.
3
The respondent is to pay the costs of the
applicant.
_______________________
GN
Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant: Adv G L Van Der Westhuizen
Instructed
by: MacRobert Attorneys, Brooklyn, Pretoria
For the
Respondents: Adv O Mooki
Instructed
by: Norton Rose Fulbright SA, Sandton
[1]
Act 66 of
1995, as amended. (LRA)
[2]
Page 153A
of Bundle A.
[3]
Page 253 of
Bundle D.
[4]
Pages
262-265 of Bundle A.
[5]
Page 121 of
Bundle A.
[6]
Page 129 of
Bundle A.
[7]
Page 113 of
Bundle A.
[8]
Page 406
Bundle A.
[9]
Paragraphs
33-37 of the statement of case.
[10]
See
Jowell
v Bramwell Jones
1998 (1) SA 836
(W) and First Rand Bank Limited v
Jooste
[2015] ZAGPJHC 11 (3 February 2015).
[11]
Act 26 of
2000.
[12]
[
2012
]
(5) SA 100 (LAC); [2012] 33 ILJ 2353 (LAC)
;
[2012] BLLR
1246
(LAC) at para 33. (
Radebe
)
[13]
See also
City
of Tshwane Metropolitan Municipality v Engineering Council of SA and
Another
(2010) 31 ILJ 322 (SCA) at para 42.
[14]
Occupational
detriment is defined as follows under section 1 of the PDA:
““
occupational
detriment”, in relation to the working environment of an
employee, means—
(a)
being subjected to any disciplinary action;
(b)
being dismissed, suspended, demoted, harassed or intimidated;
(c)
being transferred against his or her will;
(d)
being refused transfer or promotion;
(e)
being subjected to a term or condition of employment or retirement
which is altered or kept altered to his or her disadvantage;
(f)
being refused a reference, or being provided with an adverse
reference, from his or her employer;
(g)
being denied appointment to any employment, profession or office;
(h)
being threatened with any of the actions referred to paragraphs (a)
to (g) above; or
(i)
being otherwise adversely affected in respect of his or her
employment, profession or office, including employment opportunities
and work security.”
[15]
See
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC) at paras 27-8.
[16]
[
2012]
ZALAC 16
;
[2012] 10 BLLR 1001
(LAC)
;
(2012) 33
ILJ 2374 (LAC).
[17]
Id at para
34.
[18]
See
CEPPWAWU
and Others v Glass and Aluminum
2000
CC (2002) 23 ILJ 695 (LAC).
[19]
See
Minister
for Justice and Constitutional Development v Tshishonga
(2009) 9 BLLR 862
(LAC) at para 18 and
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
(2015) 36 ILJ 2989 (LAC) paras 21-3.