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[2017] ZALCJHB 423
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Bakulu v Isilumko Staffing (Pty) Ltd and Others (JS105/16) [2017] ZALCJHB 423; [2018] 2 BLLR 169 (LC); (2018) 39 ILJ 597 (LC) (15 November 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case No: JS 105-16
In
the matter between:
SERGE
BAKULU
Applicant
and
ISILUMKO
STAFFING (PTY) LTD
Respondent
SHOPRITE
CHECKERS (PTY) LTD
Respondent
ACMS
CONTRACT MANAGEMENT
SERVICE (PTY)
LTD
Respondent
Heard
:
13-15 November 2017
Delivered
:
15 November 2017
Summary:
(Absolution from the instance – automatically unfair dismissal
claim – race – insufficient
evidence to establish prima
facie case – absolution on the basis of alleged lack of
employment relationship inappropriate)
REASONS
FOR JUDGMENT
LAGRANGE
J
Background
[1]
After the applicant in this matter, Mr S Bakulu (‘Bakulu’)
led his evidence, and after cross-examination and further
evidence
led by the applicant in lieu of re-examination, the respondents
applied for absolution from the instance. The applicant
had claimed
that he had been automatically unfairly dismissed on the basis of his
race. All three respondents (‘Isilumko’,
‘Shoprite’
and ‘ACMS’) claimed that Bakulu had failed to make out a
prima facie
case that he was dismissed on account of his race.
Shoprite also contended that he had failed to make out a
prima
facie
case that it was also his employer. It was common cause
that Isilumko and ACMS were both employers of Bakulu by virtue of
section
198(3) of the Labour Relations Act, 66 of 1995 (‘the
LRA’).
[2]
After hearing argument from all the parties the following order was
made:
“
Order
1. Absolution from the
instance is granted to the respondents.
2. No order is made as to
costs.”
Brief reasons for the
judgement are set out below.
Reasons
The
legal test for absolution
[3]
In
Commercial
Stevedoring Agricultural & Allied Workers Union on behalf of Dube
& others v Robertson Abattoir
[1]
the LAC reaffirmed the general principles applicable to applications
for absolution from the instance:
“
Absolution from
the instance
[16] It is important to
bear in mind that this appeal is based on a grant of an order of
absolution from the instance. Accordingly,
the test which must be
determined is whether firstly there was a dismissal and secondly
whether the appellant has provided evidence which raises a
credible possibility that the dismissal in question fell within the
scope
of s 187(1)(c) of the LRA. This approach has been confirmed
by this court in Kroukam v SA Airlink (Pty) Ltd:
‘
In
my view, s 187 imposes an evidential burden upon the employees to
produce evidence which is sufficient to raise a credible possibility
that an automatically unfair dismissal has taken place. It then
behoves G 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 circumstance envisaged in s 187 for constituting an
automatically unfair dismissal.’
[17] This dictum, which
sets out the law insofar as unfair dismissals are concerned, should
be read together with the general legal
position relating to an
application for absolution from the instance at the end of the
plaintiff’s case. In this connection,
the correct approach was
set out by Harms JA in Gordon Lloyd Page & Associates v Rivera &
another as follows:
‘
The test for
absolution to be applied by a trial court at the end of a plaintiff’s
case was formulated in Claude Neon Lights
(SA) Ltd v Daniel
1976 (4)
SA 403
(A) at 409 G-H in these terms:
“…
(
W)hen absolution from
the instance is sought at the close of plaintiff’s case, the
test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which a Court,
applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff
. (Gascoyne v Paul and Hunter 1917 TPD
at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958 (4) SA 307
(T)).”
This
implies that a plaintiff has to make out a prima facie case —
in the sense that there is evidence relating to all the
elements of
the claim — to survive absolution because without such evidence
no Court could find for the plaintiff
(Marine & Trade
Insurance Co Ltd v Van de Schyff
1972 (1) SA 26
(A) at 37G-38A;
Schmidt Bewysreg 4th ed at 91-2). … The test has from time to
time been formulated in different terms, especially
it has been said
that the Court must consider whether there is “evidence upon
which a reasonable man might find for the plaintiff”
(Gascoyne
(loc cit)) — a test which had its origin in jury trials when
the “reasonable man” was a reasonable
member of the jury
(Ruto Flour Mills). Such a formulation tends to cloud the issue. The
Court ought not to be concerned with what
someone else might think;
it should rather be concerned with its own judgment and not that of
another “reasonable”
person or Court. Having said this,
absolution at the end of a plaintiff’s case, in the ordinary
course of events, will nevertheless
be granted sparingly but when the
occasion arises, a Court should order it in the interest of justice.’
This appeal must be
determined on the basis of this clear statement of the law as to when
it is legally appropriate to grant an
order of absolution.”
[2]
(emphasis
added – footnotes omitted)
Absolution
on the basis that no case was made out that Shoprite was an employer
party
[4]
Shoprite’s counsel,
Mr Itzkin
, argued that on the common
cause facts of the pre-trial minute only the first and third
respondents could be considered to be Bakulu’s
employers.
Whereas Isilumko provided temporary labour services to ACMS and in
terms of the deeming provisions of section 198 (3)
ACMS was deemed to
be his employer, neither the contents of the pre-trial minute nor the
evidence of the applicant supported the
contention that he was also
an employee of Shoprite. In the pre-trial minute, Bakulu denied that
there was no contractual relationship
between Isilumko and Shoprite
or between himself and Shoprite.
[5]
It is true that he led no evidence on the contractual relationship,
though he insisted that when he had applied for the position
of a
shift supervisor at Shoprite’s Centurion distribution centre,
which is managed by ACMS, he was interviewed by Shoprite.
It is also
true that other aspects of his evidence tended to suggest that ACMS
owned and managed the distribution centre in Centurion.
[6]
However, Bakulu was not challenged under cross-examination on these
issues and at the very least he should have been challenged
on his
claim that he was also an employee of Shoprite. It was also never put
to him that it was not possible to regard ACMS as
a supplier of
labour to Shoprite, which Shoprite argued was the only other possible
basis on which it could be deemed to be his
employer. It ill-behoves
Shoprite to simply make submissions on the issue in support of its
application for absolution on this
ground, particularly when dealing
with a layperson. In the circumstances, I am not satisfied that
Shoprite was entitled to obtain
absolution on this ground, even
though it obtained absolution in relation to the merits of the
automatically unfair dismissal claim.
Absolution
on the basis that a prima facie case of automatically unfair
dismissal was not established
[7]
s 187(1)(f) of the LRA reads:
'A dismissal is
automatically unfair ... if the reason for the dismissal is - ...
(f)
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.'
[8]
In a case
involving the dismissal of male prison warders on account of wearing
dreadlocks, one of the grounds of automatically unfair
dismissal was
that female prison warders were allowed to sport dreadlock hairstyles
but were not subjected to any discipline. The
LAC pointed out that in
order to succeed on the ground of gender discrimination, “…
it would need to be shown
that
the disadvantage the respondents suffered arose on account of their
gender
.”
[3]
(Emphasis added). The court also held that:
“
[34] The
respondents have rightly submitted that the explanation for the
dismissal tendered or suggested by the employer (or
for that matter
the employee ) can never without more simply be accepted as the
reason postulated by the section.
The
reason contemplated and to be sought by the court is the objective
reason in a causative sense. The court must enquire into
the
objective causative factors which brought about the dismissal, and
should not restrict the enquiry to a subjective reason
, in the sense of an explanation from one or other of the
parties.”
[4]
[9]
Thus, in order to establish a basis for his case of automatically
unfair dismissal, Bakulu needed to adduce some evidence that
would
tend to suggest that the real reason for his dismissal was not
incapacity, which was the reason given by Isilumko, but was
possibly
his race.
[10]
Bakulu’s problems with the first and third respondents started
when he successfully applied for a job as a shift supervisor
with
ACMS. Without relating all the detail of this process, it is
sufficient to say that the contract he felt compelled to sign
appointed him only as a supervisor and instead of being offered R
45-00 per hour was only offered R 33-14 per hour. It was during
one
of these interactions with management personnel of Isilumko and ACMS
that Bakulu asked if he did not qualify for a better wage
because he
was black. Shortly after that he received a warning for sleeping on
duty and later other disciplinary action for different
conduct
followed. One of the incidents concerned him reporting physical stock
shortages which did not match inventory records of
the distribution
centre directly to Shoprite by email without sending the same
communication to the first and third respondents.
[11]
When Bakulu arrived late for an incapacity enquiry on 6 August 2015
an altercation arose when he was informed by Isilumko’s
HR
manager, Markus van Loggerenberg (‘van Loggerenberg’),
that he would forfeit a week’s pay for arriving late
at the
enquiry resulting it in it being postponed. Bakulu claims he told him
he was heartless and wicked. He claims that van Loggerenberg
then
threatened to destroy his career and that in their business, “blacks
do not talk to us like this, blacks beg.”
He further threatened
to suspend Bakulu’s next payment and told him to get out of his
sight.
[12]
Despite this, the incapacity hearing resumed on 13 August 2 015,
Bakulu testified that van Loggerenberg said that he was hard-working
and capable. Furthermore, at that hearing Isilumko tabled alternative
proposals to accommodate Bakulu in one of two positions.
One
alternative was for Bakulu to go back to his previous position as an
inventory clerk, and the other was for him to move to
another centre
because his relationship with his immediate supervisor had allegedly
deteriorated badly. Bakulu was not willing
to accept what he
understandably saw as a demotion if he went back to his former
position and did not want to accept the alternative
posting unless he
was paid a higher hourly rate of pay in order to make up for the fact
that he would be working shorter hours
at the other venue. The
incapacity hearing adjourned and on 21 August 2015 it reconvened and
Bakulu was told that he was “guilty
of incapacity” (as he
expressed it) and the alternative positions were again offered to
him. Allegedly, it was agreed that
he would be offered the other
supervisory post at R 80-00, but that subsequently Shoprite rejected
this and he was dismissed.
[13]
In Bakulu’s pleaded case, which was set out in great factual
detail, no mention was made of van Loggerenberg’s
alleged
racist outburst. This was despite the fact that Bakulu had amended
his statement of claim and had been given an opportunity
to plead his
case in even greater detail. In so far as race was mentioned as a
cause of his dismissal, Bakulu perceived it to be
the reason because
he had asked for a rate of pay commensurate with his qualification (a
diploma in Supply chain Management) and
he interpreted their failure
to offer him a better rate to be because he was a black person.
During his evidence he repeatedly
asserted that, by comparison with
himself, van Loggerenberg was paid a salary commensurate with his
position as an HR manager.
Even if the pleaded version of the alleged
racial discrimination as the basis of his dismissal is considered, no
evidence was advanced
to show that any white person occupying a
supervisory post in the distribution centre on the same level to that
which Bakulu aspired
had been employed on a permanent basis or at a
better rate. Had he done that there might have been some evidentiary
foundation
laid for his claim that when a black person like himself
sought similar treatment, making such a demand would result in
dismissal.
[14]
I do appreciate that much of Bakulu’s frustration and anger was
directed at Shoprite for whom he had effectively worked
for 17 years
without ever being afforded permanent employee status because he was
always engaged through labour brokers. The absurdity
of being treated
as a temporary employee for such a length of time might well have
provided the basis for a claim for unfair discrimination
in relation
to his terms and conditions of employment. However, his evidence in
this regard did not suggest a link between his
employment status and
his dismissal, let alone a link between his race and his dismissal,
even on the most generous interpretation
of it.
[15]
In relation to the alleged racial outburst by van Loggerenberg as
evidence of race as the reason for his dismissal, his own
evidence in
that regard does not support an inference that race was a factor in
his dismissal. This is because it is clear that
under the first
option offered to Bakulu in the incapacity enquiry, Isilumko
effectively offered to retain him in his previous
position. That is
simply incompatible with any intention to dismiss him on account of
his race. It may well be that he has an arguable
case that his
dismissal for incapacity was nonetheless unfair, but he has brought
his case to this court on the basis that the
real reason was because
of his race and he needed at least to provide sufficient evidence to
raise a credible possibility that
his dismissal in question fell
within the scope of s 187(1)(f). Moreover, his evidence of that
outburst is difficult to accept
as credible, given that it was never
mentioned once in all the versions of his case which he elaborated on
in his amended pleadings
and in the pre-trial minute. Had he wished
to make out his case on a racially based reason for dismissal
relating to that alleged
incident he had ample opportunity to amend
his pleaded case accordingly.
[16]
In the circumstances, I am satisfied that the applicant did not make
out a
prima facie
case that his dismissal was for a reason
related to his race in the sense that a court might find in his
favour on the basis of
his evidence alone.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
Applicant:
In
person
First
and Third Respondents:
L
Erasmus instructed by
Kirchmanns
Inc.
Second
Respondent:
R
Itzkin instructed by ENS
Africa
[1]
(2017) 38 ILJ 121 (LAC )
[2]
At 126-7.
[3]
Department
of Correctional Services & another v Police & Prisons Civil
Rights Union & others
(2011) 32
ILJ
2629 (LAC ) at 2641.
[4]
Ät 2645.