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[2017] ZALCJHB 363
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Mtetwa v Howden Africa (Pty) Ltd (JS90/16) [2017] ZALCJHB 363 (28 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JS90/16
In the matter between:
SOLANI MTETWA
Applicant
and
HOWDEN AFRICA (PTY)
LTD
Respondent
Heard: 17 August
2017
Delivered: 28
September 2017
Summary:
Reason
for dismissal - Automatically unfair dismissal in
terms of section
187(1)(f) of the LRA or Operational requirements in terms of section
189A of the LRA - Failure to plead the grounds
of discrimination is
fatal to applicant’s claim - Dismissal based on the respondent
operational requirements is substantively
fair.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This
case concerns the determination of the real reason for the
applicant’s dismissal. The applicant alleges that she was
discriminated against and that the dismissal is automatically unfair
in terms of section 187(1)(f) of the Labour Relations Act
[1]
(the LRA). The
respondent, on the other hand, alleges that the applicant was
dismissed for operational reasons. It is common cause
that the
procedure that led to the applicant’s retrenchment was
undertaken under the auspices of the Commission for Conciliation,
Mediation and Arbitration (CCMA) in accordance with section 189A(3)
and (4) of the LRA.
[2]
The
applicant’s claim is summarised in her amended statement of
claim as follows:
"6.1
an unfair retrenchment of the applicant as
inter alia
:
6.1.1 the respondent
was utilising S189A retrenchment process to hide/cover up an unfair
dismissal, which in essence
was not based on operational reason and
did not fit the criteria for such a dismissal.
6.1.2 …
and/or Alternatively
6.2.1 as the
respondent was not entitled to directly or indirectly discriminate
against the Applicant by impairing
her dignity and standing, and her
reliance on the LRA and the law, and then attempt unfairly to utilise
the provision of section
189A of the Labour Relations Act to dismiss
the Applicant, when history and circumstances in which the parties
were in, would not
have fairly allowed for such.”
Background
facts
[3]
The
applicant was employed as a Statutory Accountant. She was dismissed
on 30 November 2015. According to the respondent, the reason
for the
applicant’s dismissal was its operational requirements. It is
common cause that the respondent conducted three phases
of
retrenchments in 2015. There were 25 employees affected during the
second phase, including the applicant. Given the number of
affected
employees, a section 189A
[2]
process was undertaken under the auspices of the CCMA.
[4]
The
unionised employees were represented by the NUMSA and UASA. Whilst
the non-unionised, including the applicant, were duly represented
by
co-employees during the consultation process. At the end of
consultation, a retrenchment agreement was concluded between the
respondent, UASA and the non-unionised employees on the terms and
conditions of the retrenchment of the affected employees.
Applicant’s
case
[5]
The
applicant stated that she had been a victim of discrimination
subsequent to an incident that happened on 18 December 2014, when
she
failed to release wages to employees. As a result, employees embarked
on an unprotected strike and the respondent suffered
a loss of R7175
in bank charges. She was suspended and later charged with negligence.
On 15 January 2015 she was found guilty and
a penalty of a final
written warning was imposed. Two weeks later, she was suspended again
on charges of insolence and unauthorised
absence from work. On 25
January 2015 she was found guilty and another penalty of a final
written warning was imposed.
[6]
According
to the applicant, it became clear as from that time that the
respondent intended to get rid of her and the following
occurrences
bolstered her belief:
6.1 Initially her
role included internal audit, integrated reporting and taxation. She
was reporting directly to Mr Kevin
Johnson (Johnson), the Chief
Financial Officer (CFO). Her role changed in 2011, when the Group
Financial Manager, Ms Mary-Ann Shongwe
Musekiwa (Shongwe Musekiwa),
was employed. As a result, for three years (2011, 2013 and 2014) she
never received a salary increase
because she was allegedly over paid.
6.2 The respondent
inconsistently applied discipline. Ms Mainella Vigoroux (Vigoroux)
failed to release VAT and as result
the company incurred a loss of
R1.5 million. However, Ms Vigoroux was never disciplined because she
is white. Conversely, Ms Shongwe
Musekiwa accused the applicant of
poor performance and denied her a bonus in 2014.
6.3
Upon her return from the second suspension in January 2014, she was
shocked to find Mr Kulani Mlambo (Mlambo)
occupying her desk. She was
informed that he was employed to assist. The applicant trained Mr
Mlambo on how to do an integrated
report, a Johannesburg Stock
Exchange (JSE) requirement, despite him being a Chartered Account
(CA). She was also expected to drop
Mr Mlambo home in Soweto when
they worked till late at night. Upon the departure of Ms Shongwe
Musekiwa, Mr Mlambo was appointed
to act in her stead.
6.4
The applicant’s relationship with Ms Shongwe Musekiwa turned
sour after the disciplinary
hearings. On April 2015, she sought Mr
Johnson’s intervention. He responded by changing the
applicant’s role and reporting
lines. Subsequently, the
applicant reported directly to Mr Johnson. The discussion on the
details of the new role became unpleasant.
The applicant escalated
her complaint to the Chief Executive Officer (CEO), Mr Thomas Bawarld
(Barwald), who in turn offered her
three months’ salary as an
exit package. She refused the offer and insisted that clarity be
given on the new role. She was
told that she was an Assistant
Accountant and that she had to relocate to the JHH finance area.
6.5
Sometime in July 2015, she was relocated to a working area that was
humiliating. Mr Mlambo
moved her to another work station but Mr
Johnson did not approve of her move. She raised her concern with the
manner she was treated
which was distressing and made the work
environment unhealthy.
[7]
On 23 July
2015 the applicant was served with a section 189A notice as a last
resort to get rid of her. She told the respondent
that she was not
supposed to be part of the people selected for retrenchment. She had
experience to perform all the duties of a
Group Financial Manager and
that a CA requirement was not necessary. As a result, the respondent
should have selected Mr Mlambo
for retrenchment had they used last in
first out (LIFO), which is a fair and objective selection criteria.
Respondent’s
case
[8]
Ms
Archerien Du Plessis (Du Plessis), the respondent’s Human
Resource Executive, gave evidence that the respondent conducted
three
separate retrenchment processes in 2015. The applicant was affected
by the second retrenchment. The total number of employees
that were
identified was 25. The respondent consulted with the affected
employees collectively by way of representation. The applicant,
a
non-unionised employee, was represented by a nominated fellow
employee. There were feedback sessions with all employees.
[9]
The
applicant could not have been considered for the position of a Group
Financial Manager because she was not a CA, a requirement
for the job
as the respondent is a JSE listed company. Both Mr Mlambo and Ms
Shongwe-Musekiwa are CA’s. Ms Du Plessis denied
that the
applicant raised her unhappiness with the section 189A process and
sought to be consulted separately. The issue of LIFO,
in relation to
Mr Mlambo’s credentials, was raised for the first time during
the CCMA conciliation.
[10]
The
retrenchment was not a sham as the respondent was restructuring
globally. Immediately after the conclusion of the second
retrenchment,
the third retrenchment commenced. The applicant’s
position was redundant. The respondent, as a multinational company,
was
affected by the economic downturn not only in South Africa, but
also in other countries where it is operating. Also finances had
been
centralised with some functions moved to other countries.
Legal
principles in relation to
automatically
unfair dismissals
[11]
Section
187(1) (f) of the LRA provides that a dismissal is automatically
unfair if the reason for the dismissal is that the employer
unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but not limited to race,
gender, sex,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, political opinion,
culture, language,
marital status or family responsibility.
[12]
Ordinarily,
where it is common cause that there was a dismissal, the employer
bears the onus to prove that the dismissal was for
a fair reason
permitted in section 188 of the LRA. However, where an employee
alleges that a dismissal was automatically unfair,
it is incumbent
upon that employee to demonstrate,
prima
facie
,
the said claim.
[3]
[13]
In
Bank
v Finkelstein t/a Finkelstein and Associates,
[4]
the court dealt amply with the applicable test in a case of
automatically unfair dismissal as contextualised in different
decisions
of this Court and the LAC. The Court referred with
approval,
inter
alia
,
to
Van
der Velde v Business and Design Software (Pty) Ltd and Another
[5]
where
it was stated:
”
At
this point, the tests of factual and legal causation become relevant.
Assuming the test of factual causation (the 'but for' test
referred
to in
Afrox
)
to be satisfied, the enquiry is into legal causation, or put another
way, whether the transfer or a reason related to it is the
dominant,
proximate or most likely cause of the dismissal. In
Kroukam's
case,
it is in respect of this latter requirement (legal causation) that
there appears to be a difference in approach, one
that relates to the
degree of dominance, proximity or likelihood that the automatically
unfair reason was the reason for dismissal.
On both approaches, it is
clear that the automatically unfair reason need not be the sole
reason for dismissal.
On
the approach adopted by Zondo JP, it would appear to be sufficient
that the transfer or a reason related to it
significantly
influenced
the
employer's decision to dismiss. The test postulated by Davis AJA
would appear to require more than 'significant influence'
This
approach would seem to require that the court first determine the
dominant or principal reason for the dismissal, and if that
reason
falls within the ambit of those reasons categorized by the Act as
automatically unfair, to find that the dismissal is automatically
unfair. Even if an automatically unfair reason did not constitute the
principal or dominant reason for dismissal and in this sense
constituted an ancillary reason, the dismissal is unfair if an
automatically unfair reason influenced the employer's decision to
dismiss to a 'significant degree
”
(
My emphasis)
Analysis
[14]
Applying
the test of factual causation (the 'but for' test) in this case, to
succeed in her claim, the applicant must at least show
that she was
discriminated against on a listed ground in terms of section 187(f)
of the LRA or unlisted grounds analogous to the
listed grounds.
[6]
[15]
The
applicant’s counsel’s submission that the applicant was
discriminated against because she was viewed as a problem
employee
who was challenging her superiors is not supported by the pleadings.
At paragraph 5.4 of the amended statement of claim
the applicant
pleads that:
“
5.4
In 2015, prior to the Respondent’s Section 189A letter dated 23
July 2015 to the applicant,
the allegation the commencement of
section 189 process, the Respondent has unfairly:
5.4.1 disciplined,
5.4.2 sidelined,
5.4.3 changed the
Applicants job description,
5.4.4 changed the
Applicants working conditions,
5.4.5 humiliated the
Applicant by moving her from the Respondent’s Executive Area to
be placed by the kitchen,
with a new employee taking over her work,
with total disregard to the Applicant and her dignity.
5.4.6 attempted to have
the Applicant in or about April 2015, accept a termination agreement
based on her job performance,
work relationships and alleged
complaints;
5.4.7 engaged a new
employee who began to do the work that the Applicant previously did;
5.4.8 employed a new
employee to do the Applicant’s work, despite the Applicant
remaining in the employment of
the Respondent.”
[16]
At
paragraph 6.2.2 of the amended statement of claim, the applicant
pleads that she was “discriminated on arbitrary ground,
directly or indirectly, within the meaning of and automatically
unfair dismissal, as she failed and/or refused and/or objected
to the
proposals and unfair manner in which the respondent chose to dismiss
her which she was entitled to do.”
[17]
Other than
listing numerous incidents as instances of the alleged
discrimination, the applicant failed to plead with particularity
the
grounds of discrimination. This on its own is fatal to the
applicant’s case. An applicant who alleges an automatically
unfair dismissal in terms of section 187(1)(f ) is expected to do
more than simply allege that the discrimination was on arbitrary
grounds without pleading one or more of the grounds listed in section
187(1)(f ) or any unlisted ground analogous to the listed
grounds.
[7]
In essence, in a claim like the present one, the statement of claim
must establish a connection between the differentiation and
a listed
or an unlisted ground.
[18]
The
applicant’s case as pleaded cannot succeed.
[19]
To the
extent that the applicant sought to rely on all the above listed
incidents collectively as an unlisted ground of discrimination,
even
though as vaguely pleaded, I it deem appropriate to deal with the
claim for completeness sake. As stated above, unlisted grounds
are
considered as acts of discrimination if they are analogous to the
listed grounds.
[8]
In
Stojce v
University of KZN (Natal) and Another,
[9]
the
court articulated the test to be applied when considering unlisted
grounds of discrimination and stated that:
“
The test is that the
differentiation must impair the fundamental dignity of people as
human beings because of attributes or characteristics
attached to
them. Not every attribute or characteristic qualifies for protection
against discrimination. Smokers, thugs, rapists,
hunters of
endangered wildlife and millionaires, as a class, do not qualify for
protection. What distinguishes these groups from
those who deserve
protection? The element of injustice arising from oppression,
exploitation, marginalisation, powerless, cultural
imperialism,
violence and harm endured by particular groups or the worth and value
of their attributes are qualifying characteristics
that distinguish
differentiation from unfair discrimination. (Davina Cooper
“Challenging Diversity” 2004:3 and Iris
Marion Young
“Justice and Politics of Difference” (1990) 15–44).
An employee who relies on an unlisted
ground as being discriminatory must establish the difference, show
that it defines a group
or a class of persons and that the difference
is worthy of protection. To warrant protection, the applicant must
show that the
conduct complained of impacts on him as a class or
group of vulnerable persons, such as persons with disabilities or
family responsibility,
or that the conduct is inherently pejorative
as a racist or sexist utterance might be.”
[20]
Even though
in
Stojce
the court dealt with discrimination within the context of section
6(1) of the Employment Equity Act
[10]
(EEA), this test is applicable to a case of automatically unfair
dismissal in terms section 187(1)(f), particularly where the
applicant relies on unlisted grounds.
[21]
Applying
the above test in the present case, even if I were to accept that the
contention that the applicant was viewed as a problem
employee who
was challenging her superiors, she failed to show how that is akin to
any of the listed grounds. Also, she failed
totally to show that she
was treated differently relative to one or more employees.
[22]
In view of
the above, despite having no onus to prove the reason for her
dismissal, the applicant failed to discharged the evidential
burden
by placing sufficient evidence to show that the dominant or ancillary
reason for her dismissal was that the respondent discriminated
against her based on one or more of the listed grounds or an
analogous ground in terms of section 187(1)(f). Put differently, the
applicant has failed to show,
prima
facie
,
that her dismissal was automatically unfair.
[23]
This
matter must then be decided on the basis that the reason for the
applicant’s dismissal was indeed due to the respondent’s
operational requirements.
In
this regard, the applicant challenged the selection criterion that
was adopted during the section 189A process. In essence, it
was her
evidence that if LIFO had been applied, Mr Mlambo would have been the
one selected for retrenchment. However, this challenge
was abandoned
by the applicant’s counsel during her closing submissions. In
view of that, it is clear that the respondent’s
reasons for the
retrenchment remain unchallenged.
Costs
[24]
I
have considered that the applicant is an individual litigant and that
she spent a considerable time unemployed. I therefore deem
it
appropriate that costs should not follow the result.
[25]
In
the circumstances, I make the following order:
Order
1.
The
applicant’s claim that her dismissal is automatically unfair is
dismissed.
2.
The
applicant’s dismissal based on the respondent’s
operational requirements is substantively fair.
3.
There
is no order as to costs.
__________________
P.Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For The Applicant:
Advocate S Saunders
Instructed
by:
Chiba Attorneys
For the
Respondents: Advocate
A Fourie
Instructed
by:
Joubert Galpin Searle Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Section 189A of the LRA.
[3]
Kroukam v SA Airlink (Pty) Ltd
(
2005)
26 ILJ 2153 (LAC) at para 27.
[4]
[2016] ZALCJHB 428 (26 October 2016) at paras 17 to 19.
[5]
(
2006) 27 ILJ 1738 (LC.) at 1746G-1747F.
[6]
Harksen v Lane NO and Others
1998 (1) SA 300 (CC)
at paras 47 to 48;
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997
(6) BCLR 759
; (1997 (3) SA 1012) (CC);
Ntai
and Others v SA Breweries Ltd
(2001) 22 ILJ 214 (LC) at
paras 72 to 73;
National Union of Metalworkers of SA and
Others v Gabriels
(
Pty
)
Ltd
(2002)
23 ILJ 2088 (LC)
4
at paras 12, 16 and 20;
Aarons
v University of Stellenbosch
[2003] 7 BLLR 704
(LC) at para 16
to 17;
Independent Municipal and Allied Workers Union and
Another v City of Cape Town
(2005) 26 ILJ 1404 (LC) at
paras 89 to 90;
Stojce v University of KZN (Natal) and Another
[2007] 3 BLLR 246
(LC) at para 25.
[7]
[7]
Aarons v University of Stellenbosch
[2003] 7 BLLR 704
(LC) at
para 16;
[8]
Ibid.
[9]
[2007] 3 BLLR 246
(LC) at para 26 to 27.
[10]
Act 55 of 1998.