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[2017] ZALCJHB 319
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Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 752/13
In
the matter between:
NICOLE
JACQUELINE RAHN
Applicant
and
CHEIL SOUTH
AFRICA (PTY) LTD
Respondent
Heard:
11 September 2016
Delivered:
5 September 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
In her statement of claim, the applicant seeks to have her dismissal
be deemed an automatically unfair dismissal within the
meaning of
section 187(1)(d) and
section 187
(1)(h) of the
Labour Relations Act
66 of 1995
.
[2]
Her claim is grounded on an allegation that her dismissal was
precipitated by the lodging of a grievance with the respondent.
That
grievance led to a dispute being lodged at the Commission for
Conciliation Mediation and Arbitration (CCMA). Following the
convening of conciliation proceedings at the CCMA, she had disclosed
certain confidential information, which conduct she contended
was
protected in terms of Rule 16 of the CCMA Rules. Thus, having made a
protected disclosure at the CCMA as defined in terms of
the Protected
Disclosure Act No.26 of 2000, she was then dismissed, which dismissal
according to her constituted an automatically
unfair dismissal. Her
alternative claim is that she was unfairly dismissed.
[3]
The matter initially came before Steenkamp J in view of the three
exceptions raised by the respondents upon receipt of the statement
of
claim. The exceptions were dismissed, and it would therefore not be
necessary for this court in the light of the judgment handed
down on
12 June 2015 to consider whether the Court has jurisdiction
to determine the alternative claim of an alleged
unfair dismissal.
Background:
[4]
The facts of this matter are to a large extent common cause and may
be summarised as follows:
[5]
The applicant is the erstwhile employee of the respondent, having
commenced her employment on October 2011 as an Client Service/Account
Director. The respondent, is a privately-owned enterprise, and a
subsidiary of Cheil Worldwide Inc, a global marketing and
Communications
Company, which is in the business of advertising. One
of its major clients in Samsung Electronics, for which it is its
internal
advertising agency. In effect, the respondent is one
of Samsung’s chain of companies, with the latter having less
than
50% share in the respondent.
[6]
The applicant reported directly to Mr Hugh Kim, the respondent’s
Managing Director at the time. Below the position of
Managing
Director was that of Vice-President or COO, which position was
occupied by Mr Mark Kronenberg. During March 2012,
the position
of Chief Operations Officer become vacant as a result of Kronenberg
leaving the employ of the respondent. The applicant
contends that she
assumed all the duties and functions of the COO as well as having to
fulfil her own functions as client service/account
director, which
led to her being overwhelmed with work.
[7]
In December 2011, there was a disagreement between the applicant
and Hugh Kim regarding a particular service offering to
a client. At
some point, the applicant also had discussions with Kim surrounding
the possibility of her being elevated to the position
of Chief
Operations Officer. These discussions however yielded no results.
[8]
During July 2012, the applicant lodged grievance against Hugh
Kim, following what she deemed to be unfair treatment, unwarranted
harassment and being subjected to unbearable working conditions. In
her grievance, the applicant also complained
inter alia
about
the changes in the organisation and in particular her department and
the work that was assigned to her, which she was of
the view fell
outside her scope of duties, and also since she was not consulted in
that regard. She also complained about differential
treatment of
South African personnel as against personnel of Korean origin in the
company. The applicant also brought her
complaint to the
attention of the respondent’s client, Samsung.
[9]
On 5 July 2012, the respondent’s HR Manager, Hans
Kim, wrote to the applicant acknowledging receipt of the formal
grievance. On the same day, the applicant wrote a further letter to
Hugh Kim, raising further grievances against him. On 6 July 2012,
Hans Kim, wrote correspondence to the applicant in which he recorded
the following;
“…
Kindly be reassured that
the company is committed to properly considering and resolving your
grievance through the appropriate channels.
…
You are informed that
insofar as you have forwarded your grievance letter to the company’s
main client, SAMSUNG, your conduct
is unnecessary and inappropriate
for the following reasons: -
(a)
You are an employee of the company, not SAMSUNG;
(b)
The person using the email address is a senior executive in
the employ of SAMSUNG (“the senior executive”);
(c)
The senior executive is not employed by or involved in any way
in the management of the company;
(d)
The senior executive has no knowledge of your grievance and no
useful purpose can be served by bringing your grievance under his
attention.
There is no reason for
you to communicate your grievance to the senior executive of SAMSUNG.
Communicating your grievance to SAMSUNG
cannot advance your grievance
and can only erode the company’s goodwill, bring the company
into disrepute with its biggest
client and create risk of serious
financial loss for the company.
In the circumstances, the
company can only hope and trust that it was not your intention to
embarrass the company or cause it any
harm and the company will be
communicating a request to SAMSUNG to ignore your letter.
…
.”
[10]
A grievance meeting was held on 11 and 12 July 2012.
The applicant, Hugh Kim, Ms Seran Synn, the Head of
Human Resource of
Cheil Worldwide Global, the parent company, attended the meeting.
Seran Synn acted as the chairperson of the
meeting. Hugh Kim, the
target of complaints was asked to leave the meeting, as the applicant
was ‘bothered by his presence’.
[11]
It appears that the meeting did not yield results that were
satisfactory to the applicant. On 23 July 2012, the
applicant’s erstwhile representatives (Ndlebe Consulting) sent
correspondence to the respondent, requesting the outcome of
the
grievance and/ or report of the grievance meeting,
[12]
On 13 August 2012, the applicant referred a dispute to the
CCMA, alleging unfair labour practice related to promotion.
Conciliation having failed on 7 September 2012, a
certificate of non-resolution was issued and the matter was referred
to arbitration on 3 December 2012.
[13]
During November 2012, the respondent commissioned a forensic
investigation to test the allegations as contained in the
applicant’s
grievance letter. The applicant contends that the forensic
investigators made no findings. At about the same
time or thereafter,
Hugh Kim left the respondent’s employ.
[14]
The dispute referred for arbitration was scheduled for 12 February
2013. The Commissioner reverted to conciliation. At these
proceedings, the applicant produced a document as evidence, which was
the respondent’s 2012 annual review and incentive proposal.
The
document included details of all personnel of the respondent, their
salaries, annual review ratings and performance bonuses.
When
attempts at conciliation failed, the matter proceeded to arbitration.
After the arbitration process, the Commissioner issued
a ruling to
the effect that the Commission lacked jurisdiction to adjudicate the
matter, in view of the applicant’s case
being related to
disparities in salaries.
[15]
Hugh Kim, was replaced by Kangji Kim, who had on 14 February 2013
scheduled a meeting with the applicant wherein
she was questioned
about how she came to be in possession of the annual review and
incentive proposal which she had produced at
the CCMA. The applicant
refused to divulge the source of the information. On the same day,
Kangji Kim confiscated the applicant’s
laptop, and the services
of KPMG were engaged to investigate how the document ended up in the
applicant’s possession.
[16]
On 19 February 2013, Kangji Kim again questioned the
applicant as to how she came into position of the document.
The
applicant’s response was that she had found it on her desk.
Kangji Kim requested her to return the document as it was
a sensitive
document and contained confidential information. The applicant then
requested to consult with her legal representative.
[17]
At a later stage, the applicant dispatched an email to Kangji Kim,
indicating that the document would not be returned as it
was to be
utilised in future litigation. Kangji Kim then sent her an e-mail,
recording the prior requests to disclose the source
of the
information and to return same as well as her refusal to do so.
[18]
The applicant was thereafter on 5 March 2013 issued with a
notice to attend a disciplinary enquiry to be held on
11 March 2013.
The allegations against her were:
“
CHARGE 1
1. On
or about 12 February 2013 you disclosed confidential financial
information of Cheil SA at the Commission
for Conciliation, Mediation
and Arbitration (“CCMA).
2. The
document that you disclosed included
inter alia
details of all
personnel of Cheil SA’s 2012 Annual Review and Incentive
Proposal (“the document”).
3. The
document included
inter alia
details of all personnel of Cheil
SA and their salary, annual review ratings and performance bonus.
4. The
information contained in the document is highly confidential and you
were not authorised or permitted to
have the document in your
possession.
5. You
were not authorised or allowed to directly or indirectly reveal or
disclose the contents of same to any
person or entity.
6. You
were not authorised or allowed to remove the document from the
offices of Cheil SA.
7. Your
aforesaid conduct resulted in you having breached the Secrecy and
Confidentiality Undertaking as contained
in your Letter of
Appointment signed by you on 6 October 2011.
8. Your
aforesaid conduct resulted in you having breached Confidentiality and
Intellectual Agreement signed by
you on 6 October 2011.
9. Your
possession and use of the confidential information contained in the
document:
a.
Was done for your personal gain and not in the best interest of Cheil
SA;
b.
Was unauthorised and unlawful as you were not authorised or allowed
to directly or indirectly reveal or disclose
the contents of the same
to any person or entity.
c.
Was unauthorised and unlawful as you were not authorised or allowed
to remove the document from the office
of Cheil SA.
10. As result you
are guilty of gross misconduct in that you breached one or more or
all of the following duties:
a.
Your duty of confidentiality owned to Cheil SA:
b.
Your fiduciary duties;
c.
Your duty to respect your employer’s interest in confidential
information;
d.
Your duty to avoid a conflict of interest;
e.
Your duty to act with authority;
f.
Your duty to act with good faith;
g.
Your duty to act with due care;
h.
Your duty to act in accordance with express or implied contractual
duties to
inter alia
act in good faith with due and proper
care and due regards to policies of Cheil SA;
i.
Your duty to respect employer’s property rights and interest;
j.
Your duty to respect employer’s interest, good name and
reputation;
k.
Your duty to respect employer’s personal interest;
l.
Your duty to maintain the fabric of the relationship;
CHARGE 2
11. On or about 14
February 2013 Mr KJ Kim, the Managing Director of the Company asked
you directly how you had obtained the
document. You refused to reveal
how you had obtained same.
12. On or about 19
February 2013 you were requested by Mr, KJ Kim to return the
document. You refused to return the document.
13. This was
recorded in an email Mr KJ Kim on the same date.
14. You confirmed
you your refusal in an email to Mr KJ Kim wherein you indicated:
“
1) Regarding
the return of return of the document in question
My counsel has advised me
that we will not returning this, as we will be using it in future
litigation”
15. Your aforesaid
refusal to return the document is a direct disobeyance of Mr KJ Kim’s
direct and lawful command,
order or instruction and was without
justification. You are accordingly guilty of gross insubordination.
16. Your aforesaid
refusal to return the document, which is the property of Cheil SA
resulted in you having breached the Confidentiality
and Intellectual
Property Agreement signed by you on 6 October 2011.
17. As a result of
your aforesaid refusal you are guilty of gross misconduct in that you
breached one or more or all of the
duties set out in paragraph 10
a-l.
CHARGE 3
18. On or about 11
February 2013 you opened confidential documents on Cheil SA’s
computer and/ or network, such documents
were opened
via
your
own personal optical media, of which you were not authorised to have
in your personal possession.
19. The documents
that were opened are:
a.
Cheil Global Compliance Guidelines (dated July 2012);
b.
Cheil’s Global Compliance Guideline (dated 29 August 2012);
c.
Cheil’s Worldwide Code of Business Conduct;
20. Your aforesaid
conduct resulted in you having breached Cheil’s Electronic
Communications Policy which was signed
by you on 22 February 2012.
21. As a result of
your aforesaid conduct you are guilty of gross misconduct in that you
breached one or more or all of the
duties set out in paragraph 10
a-l.
CHARGE 4
22. On or about and
during the period April 2012 to September 2012 you used Cheil SA
electronic mail and internet system to
send out copies of your
curriculum vitae to other prospective employers.
23. The use of
Cheil SA electronic mail and internet system is there to assist you
in the performance of your job and for
the use of official Company
business. It is not intended for persistent personal use.
24. Your aforesaid
conduct in persistently utilising Cheil SA electronic mail and
internet system for personal use resulted
in you having misused and
breached Cheil’s Electronic Communications Policy.
25. As a result of
your aforesaid conduct you are guilty of gross misconduct in that you
breached one or more or all of the
duties set out in paragraph 10 a-l
CHARGE 5:
(Added over the course of the hearing)
26. On or about 25
ay 2012, you used Cheil SA electronic mail and internet system for
your personal use to send out forbidden
content to another person.
27. The use of
Cheil SA electronic mail and internet system is there to assist you
in the performance of your job and for
the use of official Company
business. It is not intended for persistent personal use.
28. Your aforesaid
conduct resulted in you having misused and breached Cheil’s
Electronic Communications Policy which
was signed by you on 22
February 2012.
29. As a result of
the aforesaid conduct you are guilty of gross misconduct in that you
breached one or more or all of the
duties set out in paragraph a-l.
[17]
At the conclusion of the disciplinary enquiry, the applicant was
found guilty of the charges preferred against her and a sanction
of
dismissal was imposed. Aggrieved by the outcome of the disciplinary
enquiry the applicant referred an unfair dismissal dispute
to the
Commission. On 27 May 2013, conciliation failed and the matter was
brought to this court by way of a statement of claim.
The
trial proceedings:
[18]
The Court is required to determine whether the dismissal of the
applicant was automatically unfair as contemplated in section
187 (1)
(d) and section 187 (1) (h) of the LRA. In the alternative, the court
must determine whether the dismissal was fair.
[19]
The salient features of the applicant’s testimony are as
follows;
19.1
When the Commissioner on 12 February 2013 suggested
that
the parties should revert to conciliation, she had handed in the
respondent’s annual review and incentive proposal in
support of
her case, and those documents had not been disclosed to anyone
outside of the conciliation process;
19.2
She had found the documents on her desk, and there was no
reason for
her to return them as they were only used at the conciliation
process.
19.3
The request by Kangji Kim to return the documents constituted
harassment, and she deemed his instruction in that regards as being
unlawful, as she intended to produce the document in support
of her
grievance, and to use it meaningfully in order to find a settlement
of the dispute. It was necessary for her to use the
document at the
CCMA as the respondent had not been honest in dealing with her
grievance.
19.4
In response to the allegations against her that led to the
disciplinary enquiry, she confirmed that she had declined to give
evidence at the internal enquiry in regard to the charges relating
to
the document in question, as her understanding was that she had acted
in good faith when she produced the documents at the CCMA;
19.5
She had not signed the respondent’s Electronic Communication
Policy, and according to her, the document was in any event not
confidential as she had downloaded other documents in order to
prove
her case.
19.6
Regarding the allegation pertaining to the use of the respondent’s
e-mail and internet service to send out copies of her CV to other
prospective employers, the applicant’s response was that
she
initially sent out her CV on her personal e-mail from the
respondent’s account.
19.7
Under cross-examination, she conceded that she was bound by
the terms
of her contract of employment, and further conceded that the document
in question contained personal information of other
employees which
was confidential. She further conceded that she took the confidential
document home, and that there was a potential
of damage to the
respondent if the documents got in the wrong hands. She however
reiterated that she had treated the nature of
the document as
confidential.
19.8
She denied when it was put to her that she was not entitled
to have
possession of that document. She further testified that upon
receiving the document on her desk, she did not ask anyone
about it.
19.9
The applicant also conceded that she had obtained other documents
from the respondent in preparation for her case through a subpoena,
and that the same process was available at the CCMA. She reiterated
that although the respondent had the Electronic and Communication
Policy, she did not sign it and did not regard herself bound
by it as
it was meant to give the respondent leverage and to be used against
her.
19.10
On being asked what was the protected disclosure he had made in view
of the
fact that Hugh Kim had left the respondent’s employ at
the time that the dispute was lodged, her response was that the
disclosure
was in respect of the grievance he had laid against Kim,
but conceded that the protected disclosure arose subsequent to Kim
leaving.
She nevertheless conceded that Kim was dismissed from the
respondent’s employ because of her grievance
19.11
The applicant conceded that there were two meetings held in respect
of her
grievance, including one attended to by the respondent’s
senior employees from its overseas operations, and further that the
grievance was entertained which resulted with an outcome. She
nonetheless contended that the ‘injustices’ against her
were not rectified subsequent to the meetings.
19.12
On being asked the reason her grievance had led to her dismissal, her
response
was that the same grievance had not been resolved, even by
Kim’s successor, and her conditions of employment had become
more
intolerable. Her contention was that the fact that she had laid
a grievance against Kim was the reason that she was dismissed, and
not for misconduct.
19.13
The applicant further conceded that at the time that she got
possession of
the documents in question, she already knew that two
other male colleagues were paid more than her. She however contended
that
the document was meant to prove that the respondent had been
lying about disparities in wages.
[20]
The evidence of the respondent as presented by Kangji Kim through an
interpreter (Ms Yubin Jung) was as follows;
20.1
He was appointed as Managing Director of the respondent on
1 January 2013
and oversees the respondent’s South
African operations. He had heard of the applicant’s grievances,
even though they
were addressed to his predecessor. He also knew the
applicant having interviewed her in November 2012 as part of an
audit
conducted in the respondent’s branches in South Africa.
20.2
On 13 February 2013, the respondent’s COO, Denis
Chang brought
it to his attention that a confidential document was
presented in the CCMA, and he was concerned as to how the applicant
could
have obtained it, as only himself, the HR Manager, CFO and two
other people from the finance division were the only ones entitled
to
have knowledge or possession of the document. Other than these
individuals, personnel in the respondent’s Human Resources
in
Dubai also had access to such documents, and even then, they treated
such them with confidentiality.
20.3
Kim enquired from the applicant as to how she got to be in possession
of the
document, and she had refused to reveal her source. About two
or three days later Kim had again asked the applicant where she got
the document and her response was that she found it on her desk. Upon
being instructed to return the document, the applicant refused.
20.4
When the applicant refused to return the document, Kim in writing
again instructed
her to return, and she again refused, stating that
she had obtained legal advice and was informed that she should keep
it for future
litigation. It was upon her response that KPMG was
brought in to investigate the matter, and the applicant’s
laptop was confiscated.
These events were followed by the institution
of disciplinary proceedings against her.
20.5
Kim’s contention in regard to the document was that the
applicant had
no authority to have it in her possession, nor was she
entitled to remove it from the respondent’s premises or reveal
it
to anyone.
20.6
In regard to the alleged disparities in wages, Kim testified that the
one person
that the applicant compared her salary to was the
Executive Creative Director, who was entitled to earn more than her,
as creative
personnel earned more than her. There was therefore no
basis for the applicant to compare her salary with this individual.
The
second individual that the applicant compared her salary to
(Chris Lee), was a Korean expatriate, who was a special case as all
personnel in that category had different packages.
20.7
Under
cross-examination, it was put to Kim that the applicant could not
have been charge in view of the fact that the document in
question
was disclosed within the confines of Rule 16 (1) of the CCMA
Rules
[1]
. His response was that
the issue that led to the applicant being charged was how she had
obtained the documents, the fact that
she refused to return them to
date, and that it was not known what she had done with them. He
disputed when it was put to him that
his instruction to the applicant
to return the document or to reveal her source was unlawful.
20.8
Kim further conceded that there was no evidence to suggest that the
applicant
had accessed the document through her laptop. He however
contended that her version that she found it on top of her desk was
not
probable, as if this was the case, she should have disclosed this
the first time that she was asked. Kim added that even if this
was
the case, she was supposed to report the issue to management. In view
of the confidential nature of the document.
20.9
In response to a question whether the applicant ought to be dismissed
based
on the allegations against her, Kim’s contention was that
there were five charges against the applicant, and the first, second
and third were of a serious nature. He conceded that the charges
pertaining to the abuse of e-mail were not serious to warrant
a
dismissal. He denied however that any of the charges were a witch
hunt against the applicant.
The
arguments and evaluation:
[21]
As already
indicted, the applicant’s claim is based on three grounds,
being, automatically unfair dismissal within the meaning
of section
187(1)(d) and
section 187(h)
of the
Labour Relations Act 66 of
1995
[2]
, and in the alternative,
that the dismissal was unfair.
(a)
The
section 187
(d) claim:
[22]
The salient issues raised in argument on behalf of the applicant are
as follows;
22.1
What was said in the conciliation is confined to the conciliation
room, and
it is impermissible for anyone to reveal what was said
within the ambit of the conciliation.
22.2
The confidentiality was broken by Chong when he revealed what took
place at
conciliation, which breach was followed by Kim when he
instituted an investigation into what Chong had reported back from
the conciliation,
which investigation had in turn led to the
dismissal of the applicant.
22.3
If the court did not hold that the charges could not be brought
against the
applicant, then it would follow that the sanctity of the
conciliation proceedings would be breached, and this would allow
employees
to be dismissed for what they had revealed in conciliation.
In this case, the applicant was dismissed for having disclosed the
document to her attorneys, which was then produced at conciliation,
and that subsequent charges flowed from that disclosure.
22.4
The causal connection in this case was that but for the disclosure of
the document
at conciliation, the investigation would not have taken
place and the charges (3 – 5) would not have been brought
against
the applicant.
22.5
In view of
the above factors, the applicant was therefore dismissed as a result
of first, having exercising her right in terms of
the LRA, i.e., by
referring an unfair labour practice dispute, and taking part in the
conciliation proceedings, which was contrary
to the provisions of
section 187
(d) (ii) of the LRA read together with
section 138
(3) of
the LRA
[3]
, and second, having
disclosed a document to her attorney and counsel, which was produced
during conciliation proceedings (which
is a protected disclosure),
and this was contrary to
section 187
(h) of the LRA.
22.6
The first disclosure as above was shielded by the confidentiality of
the conciliation
proceedings, which matter had already been
pronounced by Steenkamp J in his judgment in respect of the three
exceptions raised
initially by the respondent, and the charges were
therefore impermissible, as was the investigation that had followed
as a result
of the breach of confidentiality.
[23]
The respondent’s arguments about the
section 187
(1) (d) of the
LRA are as follows;
23.1
The dismissal of the applicant was not connected to her referral to
the CCMA,
and in order to sustain this claim, she had to rely on a
conspiracy between the respondent and the chairperson of the internal
enquiry, Adv. YF Saloojee. In this case however, there was no
evidence of conspiracy in that the issue referred to the CCMA
pertained
to a salary discrepancy between what the applicant earned
and what the other two comparators.
23.2
In any event, there was justification for the disparities in wages as
testified
upon by Kim, which evidence was not disputed by the
applicant. It was further pointed out that the applicant had not
provided any
factual support for a conclusion that she reasonably
believed that the contents of the confidential document showed, or
tended
to show that she was being discriminated against.
[24]
In
instances where a dismissal is alleged to fall within the ambit of
section 187(1)
of the LRA, the starting point is that the evidentiary
burden to produce evidence that is sufficient to raise a credible
possibility
that an automatically unfair dismissal has taken place
rests on the applicant. If the applicant succeeds in discharging this
evidentiary
burden, it is then for the respondent to demonstrate that
the reason for the dismissal did not fall within the ambit of that
provision
by
section 187(1)
of the LRA
[4]
.
[25]
In further
addressing the question of onus in respect of automatically unfair
dismissal claims under
section 187
of the LRA, the Labour Appeal
Court in
Kroukam
v SA Airlink (Pty) Ltd
[5]
held that:
‘
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.”
[19]
To the
extent that the applicant alleged that it was as a consequence of
lodging a grievance against Hugh Kim that she was dismissed,
it can
now be accepted as settled that the lodging of a grievance does
indeed constitute an exercise of a right conferred by the
LRA for the
purposes of a claim under
section 187
(1) of the LRA. This was
confirmed in
Mackay
v ABSA Group and another
[6]
,
where
it was 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.”
[20]
To conclude
on this issue, it is accepted that an employee who lodges an internal
grievance should enjoy protection under the provisions
of section 187
(1) (d) of the LRA. This is because the act of lodging a grievance is
merely an assertion of a right not to be treated
unfairly, something
which is guaranteed under the protection of fair labour practices
enshrined in section 23 (1) of the Constitution
and section 185 (b)
of the LRA. Support for this view as also correctly pointed out on
behalf of the applicant is further found
in
Jabari
v Telkom SA (Pty) Ltd
[7]
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.”
[21]
The
approach to be followed, (
albeit
it was formulated within the context of an automatically unfair
dismissal based on section 187(1) (g) of the LRA) in establishing
whether a dismissal is automatically unfair is that as set out in
Van
der Velde
[8]
by Van Niekerk AJ (as he then was) in the following terms;
“
In summary, and in
an attempt to crystallise these views and to formulate a test that
properly balances employer and worker interests,
the legal position
when an applicant claims that a dismissal is automatically unfair
because the reason for dismissal was a transfer
in terms of section
197 or a reason related to it, is this:
·
the applicant must prove the existence of a dismissal and establish
that
the underlying transaction is one that falls within the ambit of
section 197;
·
the applicant must adduce some credible evidence that shows that the
dismissal
is causally connected to the transfer. This is an objective
enquiry, to be conducted by reference to all of the relevant facts
and circumstances. The proximity of the dismissal to the date of the
transfer is a relevant but not determinative factor in this
preliminary enquiry;
·
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.
·
if the reason for dismissal was not the transfer itself (because, for
example,
it was a dismissal effected in anticipation of a transfer
and in response to the requirements of a potential purchaser of the
business)
the true reason may nonetheless be a reason related to the
transfer;
·
to answer this question (whether the reason was related to the
transfer)
the Court must determine whether the dismissal was used by
the employer as a means to avoid its obligations under section 197.
(This is an objective test, which requires the Court to evaluate any
evidence adduced by the employer that the true reason for
dismissal
is one related to its operational requirements, and where the
employer's motive for the dismissal is only one of the
factors that
must be considered).
·
if in this sense the employer used the dismissal to avoid it section
197
obligations, then the dismissal was related to the transfer; and
·
if not, the reason for dismissal relates to the employer’s
operational
requirements, and Court must apply section 188 read with
section 189 to determine the fairness of the dismissal.
[22]
In my view there is no reason why the above principles should not
find application in alleged automatically unfair dismissal
disputes
under section 187 (1) (d) of the LRA. In the same manner as with
section 187 (1) (g) disputes, the applicant must;
19.1
prove the existence of a dismissal and establish that there was
underlying
grievance which led to her dismissal;
19.2
adduce some credible evidence that shows that her dismissal was
causally connected
to the lodging of the grievance in question;
19.3
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’
.
[23]
If the
applicant succeeds in discharging these evidentiary burdens, the
respondent must establish the true reason for dismissal,
being a
reason that is not automatically unfair. This requirement is in
tandem with the principle 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
[9]
.
[24]
In this case, it was common cause that the applicant was dismissed.
Having past the first hurdle, it can also be accepted that
the
applicant had lodged a dispute as illustrated in the common cause
facts and via evidence summarised elsewhere in this judgment.
The
issue remains whether the dismissal was because of the grievance that
was lodged.
[25]
I accept that the disciplinary proceedings against the applicant came
about as a result of what transpired at the CCMA on 12 February 2013.
However, having assessed the overall evidence presented, the history
and background to this dispute, the complaints that led to
the
grievances and the grievance meetings held, and the ultimate referral
of the dispute, it is my view that the applicant has
not demonstrated
that there is a credible possibility that her dismissal was due to
her having lodged the grievance or having referred
dispute to the
CCMA. In essence, the lodging of the grievance or the referral of a
dispute to the CCMA was not the ‘
dominant or most likely
cause’
of her dismissal. My conclusions in this regard are
based on the following observations;
i.
In regard to the grievance lodged, it is common cause that the target
of the complaints
was Hugh Kim, whom the respondent conceded had a
fraught relationship with the applicant. It is further common cause
that at least
two grievance meetings were convened by the respondent
in order to resolve the grievance in question. This had included the
involvement
of the respondent’s overseas based personnel, and
there can be no doubt that the matter was viewed in serious light by
the
respondent.
ii.
Significant with these grievances meetings are its outcomes and the
applicant’s
views in regard to these outcomes. It is further of
relevance to note that the initial referral to the CCMA on 13 August
2012 came
about whilst on the applicant’s own version, she was
still waiting for the outcome of the grievance hearing held on
11 and 12 July 2012.
Further on her own version,
the referral was lodged due to the reason that the applicant had
appointed an expatriate to the position
which formed part of her
grievance.
iii.
The dispute referred was unsuccessfully conciliated on
7 September 2012.
Arising from her grievance, Cheil
Worldwide Global had initiated a forensic investigation into the
respondent. Resulting from these
investigations, Hugh Kim then left
the respondent’s employ in February 2013, having served
notice. At the time that
the arbitration proceedings were convened on
13 February 2013, Hugh Kim had left.
iv.
The applicant, despite conceding that attempts were made by the
respondent to resolve
her grievance, and which had resulted in an
outcome, including the departure of Hugh Kim, nonetheless contended
that the ‘
injustices against her were not rectified’
,
and that her conditions of employment had become more intolerable. As
to what these ‘injustices’ were or how her conditions
of
work became more intolerable remains unclear. If the alleged
injustices related to the disparities in wages, this issue was
then
in my view, sufficiently dealt with and explained by Kangji Kim in
his evidence.
[26]
To summarise then, and in view of the timeline between the lodging of
the grievance, the referral of the dispute and the convening
of
proceedings before the CCMA, I am not satisfied that the applicant
has adduced some credible evidence that shows that her dismissal
was
causally connected to the lodging of the grievance in question. I am
further satisfied that as shall further be illustrated
in this
judgment, the facts and the evidence point to more than one reason as
the reason for the dismissal. Be that as it may,
the applicant failed
to demonstrate that the lodging of the grievance was the ‘
dominant
or most likely reason for the dismissal’.
[27]
To the extent that the applicant had lodged the grievance, I am
satisfied that the respondent had sufficiently dealt with that
grievance internally. The outcome may not have been to the
applicant’s satisfaction for reasons that at best appear
unexplained
or dubious. In my view, it is not sufficient to simply
allege that ‘injustices’ have persisted after a grievance
was
dealt with, without elaborating upon what those ‘injustices’
were. To the extent that any further grievances may have
persisted in
relation to wage disparities, the CCMA had declined to determine the
matter in any event, and in these proceedings,
Kangji Kim had
proffered a perfectly reasonable explanation which was
uncontroverted, as to the reasons the disparities in salaries
existed. In circumstances where the respondent had explained the
disparities in wages, which formed the nub of the applicant’s
referral, I fail to appreciate the reason it would dismiss her for
that reason.
(b)
The section 187 (1) (h) claim:
[28]
The above provisions renders a dismissal automatically unfair if the
reason for the dismissal is a contravention of the Protected
Disclosure Act by the employer, on the basis that the employee had
made a protected disclosure. Again, the principles set out in
Van
Der Velde
as stated elsewhere in this judgment find application
in such a claim.
[29]
The
applicant’s starting point, to the extent that the provisions
of Rule 16 of the CCMA Rules were relied upon, was that
in his
judgment
[10]
when dealing with
the respondent’s exceptions, Steenkamp J had confirmed that
disclosures of the document in question at
conciliation proceedings
were shielded by Rule 16 (1). The respondent’s argument on the
other hand was that it was deeply
ironic that the applicant
opportunistically sought to be shielded from her misconduct by the
provisions of Rule 16(1) which, in
a limited manner, accords privacy
and confidentiality to conciliation proceedings, when it was her
intention to use the confidential
document in arbitration
proceedings.
[30]
The starting point in the determination of this issue is that section
138 (3) of the LRA permits a Commissioner at the CCMA
to suspend
arbitration proceedings with the consent of the parties and to revert
to conciliation. In my view, once the Commissioner
does so, there can
be no doubt that the provisions of Rule 16 would ordinarily apply,
irrespective of the fact that the matter
was scheduled for
arbitration.
[31]
As I understood Steenkamp J’s judgment, the learned Judge had
merely confirmed the legal position in regard to Rule 16
(1) without
pronouncing on whether the disclosure made at conciliation in this
case was shielded by confidentiality enshrined in
that rule, or
whether the disclosure made was protected under the PDA. This much
can be gleaned from paragraph 18 of the judgment
where it was held
that ‘
Whether or not the disclosure was a
protected one as defined in the Protected Disclosures Act is best
determined after hearing evidence
at trial
’.
[32]
The relevant provisions of the PDA are as follows;
Section
5 provides that
“
Any
disclosure made-
a)
to a legal practitioner or to a person
whose occupation involves the giving of legal advice; and
b)
with the object of and in the course of
obtaining legal advice, is a protected disclosure.”
A ‘disclosure’
within the definition section of the PDA
“
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:
(f)
unfair discrimination as contemplated in the Promotion of Equality
and Prevention of Unfair Discrimination Act, 2000 (Act 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;”
[33]
It was argued on behalf of the applicant
that the document in question was disclosed to the respondent during
conciliation to show
differences in salaries and to point to
discrepancies between the applicant’s version and that of the
respondent, and that
it was of no consequence how the document was
obtained or whether she was entitled to it.
[34]
There are however inherent difficulties in
the applicant’s approach. Inasmuch as it is appreciated that
the disclosure of
the document would ordinarily have been shielded by
the provisions of rule 16 (1), the difficulty is that the document,
to the
extent that it revealed the discrepancies between the
applicant’s wages and the other two individuals she had
compared herself
with, would not have provided any proof of anything
beyond what was known to the respondent, and which Kangji Kim had
fully explained
in these proceedings. Furthermore, the applicant had
conceded that she also had prior knowledge of the wage disparities in
the
sense that she had the necessary information in respect of the
two people she had compared herself against. As to how the applicant
could
reasonably have believed that the contents of the
confidential document showed, or tended to show, that she was being
discriminated
against in circumstances where the alleged disparities
or differences in wages were on the evidence justified is something
that
remains unexplained. Ultimately,
there was
therefore no need for the applicant to produce any document to prove
a fact known to her and acknowledged by the respondent.
[35]
A further difficulty is that is that the
document contained personal details and information of other
employees who had nothing
to do with the grievance or dispute between
the applicant and the respondent. I am therefore inclined to hold
that the disclosure
of such information, which in large parts was
irrelevant for the purposes of the applicant’s case was not
made
bona fide
with the intention of proving her case.
[36]
To conclude on this issue, and for reasons
advanced above, even though the disclosure of the document in
question at conciliation
proceedings would ordinarily be shielded by
the provisions of rule 16 (1) of the CCMA Rules, and further since
the disclosure would
have been protected under section 5 of the PDA,
in the end, I am not satisfied that this disclosure was the
‘
dominant
or most likely reason for the dismissal’.
[37]
It was correctly pointed out on behalf of the respondent that the
purpose of Rule 16, inasmuch as the provisions of the PDA,
is not to
prevent and shield employees from the consequences of their
misconduct. I am further in agreement with the submissions
made to
the effect that Rule 16 is not sacred, or inviolate, and that a
conciliation forum is meant for parties to attempt to settle
their
disputes, in good faith, and not absolve themselves from their
misconduct. Thus, if in the course of making a protected disclosure
at conciliation proceedings or for the purposes of the PDA, an
employee commits acts of misconduct, it would be untenable to turn
a
blind eye to the misconduct in question and then merely look at the
disclosure itself. Inasmuch as employees enjoy certain protections,
employers are equally entitled to appropriately and fairly deal with
acts of misconduct in the workplace.
[38]
Thus, even if it is accepted in this case that the disclosure of the
document at the conciliation proceedings ultimately led
to the
institution of disciplinary proceedings against the applicant, and
that but for events at the conciliation proceedings,
the disciplinary
proceedings would not have taken place, ultimately it is not the
disclosure of the documents at the CCMA that
led to the dismissal of
the applicant. In my view, it is more the events subsequent to the
conciliation proceedings which ultimately
led to her dismissal.
Accordingly, the claim in terms of section 187 (1) (h) of the LRA
should fail.
(c)
The unfair dismissal claim:
[39]
To the extent that the applicant has not established or produced
sufficient evidence to raise a credible possibility that an
automatically unfair dismissal has taken place, 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.
[40]
It was submitted on behalf of the applicant that in respect of charge
one, the possession of the document could not have been
the basis for
any disciplinary action on the basis that
inter alia
, there
was no suggestion that the applicant had obtained it through any
other means other than what she testified to, namely that
it was left
on her desk. It was further submitted that there was further no
evidence that the applicant had used the document for
any other
reason other than at the conciliation, and that no confidentiality
was breached as she had only revealed the document
to her legal
advisors.
[41]
The above approach however in my view misses the point. The starting
point is that the applicant was less than candid about
how she had
obtained the document. The probability that someone might have left
the document on her desk in order to assist her
with her case is more
than unlikely, or at worst, too much of a coincidence. Even if some
good Samaritan had anonymously left the
document on desk, there was
no reason for her to keep Kim guessing as to the source of the
document when he initially asked her.
That lack of candour on her
part in my view and as further attested to by Kim, put a strain on
the trust relationship.
[42]
As to how she had obtained the document is however secondary, in that
on Kangji Kim’s undisputed version, even if someone
had left
the document on her desk, she had an obligation, in view of its
confidential nature, to bring it to Kim’s attention.
She
nevertheless neglected to do so and kept the document for her own
personal reasons.
[43]
Even if the possession of the document under suspicious circumstances
was not a serious offence, it is more the applicant’s
interaction with Kim after the CCMA proceedings over the document
that in my view broke the employment relationship. It was common
cause that Kim as the Managing Director was the highest authority in
the respondent. On no less than two occasions, the applicant
was
instructed by Kim to return the documents as she was not authorised
to have them in her possession. It is common cause that
she had
refused to do so.
[44]
The applicant’s refusal to return the document clearly
constituted direct disobedience of a direct and lawful instruction
by
a superior, and ultimately, gross insubordination. How the applicant
could have construed the instruction as unlawful or harassment
in
circumstances where she ought to have been aware that she was not
entitled to be in possession of the document is beyond comprehension.
[45]
Whether the applicant refused to obey the instruction because of her
counsel’s advice is neither here nor there. The
applicant had
an employment relationship with the respondent as represented by Kim,
and not her legal counsel. She was therefore
obliged to obey a simple
instruction from Kim. The fact that to date she had failed to return
the documents says a lot about her
resolve to keep the document in
defiance of Kim’s instructions.
[46]
Charges three to five relate to events after the applicant’s
laptop was confiscated from her. Investigations and search
on her
laptop in an attempt to establish where the document in question was
sourced, had revealed that she had utilised the laptop
for other
purposes including copying company policy documents, which employees
were prohibited from copying, from the company server
onto her own
personal device; sending her CV to prospective employers, and sending
personal messages of explicit sexual nature
on her work e-mail. Kim
had confirmed that these charges on their own were not dismissible
offences.
[47]
I accept
that charges three – five would never have been preferred
against the applicant but for the fact that her laptop
was
confiscated with a view of establishing the source of the document. I
further accept that even if the cumulative nature of
these charges
called for a disciplinary sanction, at most, a lesser penalty would
have sufficed. The matter however does not end
there in view of the
conclusions made in respect of charges one and two as above.
Regarding allegations of gross insubordination,
one always finds
guidance in
Palluci
Home Depot (Pty) Ltd v Herchowitz and Others
[11]
where
the Labour Appeal Court had the following to say;
“
. . . [A]cts of
mere insolence and insubordination do not justify dismissal unless
they are serious and wilful. The failure by an
employee to comply
with a reasonable and lawful instruction of an employer or an
employee’s challenge to or defiance of the
authority of the
employer may justify dismissal, provided it is wilful (deliberate)
and serious. Likewise, insolent or disrespectful
conduct towards an
employer will only justify dismissal if it is wilful and serious. The
sanction of dismissal should be reserved
for instances of gross
insolence and gross insubordination as respect and obedience are
implied duties of an employee under contract
law, and any repudiation
thereof will constitute a fundamental and calculated breach by the
employee to obey and respect the employer’s
lawful authority
over him or her.”
[48]
Applying the above principles to the facts of this case, the
applicant’s conduct in the light of Kim’s instructions
was not a case of mere insolence and insubordination. The refusal to
obey Kim’s instruction was serious, wilful and persistent,
and
there is no doubt that it was in defiance of his authority. The
applicant, including in these proceedings, failed to appreciate
the
error of her ways and portrayed herself as the helpless victim. Not
once did she appreciate that her battle was with Hugh Kim,
and it
should have ended when he left the respondent’s employ
following upon her grievance and the internal audit conducted
by the
respondent. In my view, the applicant was the ultimate author of the
circumstances she now finds herself in, and I am satisfied
that the
respondent has discharged the onus placed on it to prove that the
dismissal was the appropriate sanction, particularly
in view of the
conclusions made in respect of charges one and two. Further after a
consideration of the requirements of law and
fairness, I am not
satisfied that in view of the circumstances of this case there is
cause for a cost order.
Order:
[49]
In the premises, the following order is made;
1.
The applicant’s claim of an automatically unfair dismissal as
contemplated in
sections 187
(1) (d) and
187
(1) (h) of the
Labour
Relations Act is
dismissed.
2.
The dismissal of the applicant was fair.
3.
There is no order as to costs.
______________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. MA Lennox
Instructed
by:
Stewart-Garden Attorneys
For
the Respondent:
Adv. A Snider
Instructed
by:
Kramer Villion Norris Attorneys
[1]
Which provides;
16
Conciliation proceedings may not be disclosed
(1)
Conciliation proceedings are private and
confidential and are conducted on a without prejudice basis. No
person may refer to anything
said at conciliation proceedings during
any subsequent proceedings, unless the parties agree in writing.
(2)
No person, including a commissioner, may
be called as a witness during any subsequent proceedings in the
Commission or in any
court to give evidence about what transpired
during conciliation.
[2]
187.
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)
…
..
(g)
…
..
(h)
a contravention of the
Protected
Disclosures Act, 2000
, by the employer, on account of an employee
having made a protected disclosure defined in that Act.
[3]
138.
General provisions for arbitration proceedings
(3)
If all the parties consent, the commissioner may suspend the
arbitration
proceedings and attempt to resolve the
dispute
through conciliation.
[4]
Van der
Velde v Business and Design Software (Pty) Ltd and Another (2006) 27
ILJ 1738 (LC).
See
also
Viney
v Barnard Jacobs Mallet Securities (Pty) Ltd (2008) 29 ILJ 1564 (LC)
at
para 48, where the Court 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”
[5]
[2005] 12 BLLR 1172
(LAC) at para 28
[6]
[1999]
12 BLLR 1317
(LC)
at para 18. See also
Barbara
De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ
2887 (LC)
[7]
(2006)
27 ILJ 1854 (LC)
at
1869
[8]
at 1748-9
[9]
See
Kroukam
v SA Airlink (Pty) Ltd
(supra);
NUMSA
& Others v Driveline Technologies (Pty) Ltd & Another
2000 ILJ 142 (LAC) at 152J;
Van
der Velde v Business Design Software (Pty) Ltd & Another
at
1745 I; and
Jabari
v Telkom SA (Pty) Ltd
at 927A-B.
[10]
Reported
under
Rahn
v Cheil South Africa (Pty) Ltd (2015) 36 ILJ 2657 (LC)
where it was held that;
‘
[17]
The respondent argues that, as a matter of law, the applicant has
not established that she was entitled to be in possession
of the
document or that she obtained it lawfully. Mr Boda argued that her
use of the document at conciliation could not amount
to a protected
disclosure nor was it lawful.
[18] Whether or not the
disclosure was a protected one as defined in the
Protected
Disclosures Act is
best determined after hearing evidence at trial.
Mr Lennox, for the applicant, suggested that the disclosure of the
document
at conciliation was, quite simply, shielded by
rule 16
of
the CCMA rules. I agree. That rule reads as follows:
“
1.
Conciliation proceedings are private and confidential and are
conducted on a without prejudice basis. No person may refer to
anything said at conciliation proceedings during any subsequent
proceedings, unless the parties agree in writing.
2. No person, including
a commissioner, may be called as a witness during any subsequent
proceedings in the Commission or in any
court to give evidence about
what transpired during conciliation.”
[19] The intention of
the rule was confirmed in Hofmeyr v Network Healthcare Holdings
(Pty) Ltd. And in Van Metzinger v Conservation
Corporation the court
held that
rule 16
does not permit reference to any discussions held
during conciliation in subsequent proceedings and evidence relating
to such
discussions must therefore be rejected. As Van Niekerk J
pointed out in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v
CCMA:
“
The
dispute resolution system established by the LRA places a premium on
conciliation.”
[20] Part of this
premium must be that the parties at conciliation can speak freely
and refer to documents without a residual
fear that they could be
disciplined as a result thereof. As the learned authors note in
Labour Relations Law: A Comprehensive
Guide, the term ‘said’
in CCMA
rule 16
probably includes documents disclosed during
conciliation.’
[11]
[2015]
36 ILJ 1511 (LAC)
at para 22