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[2017] ZALCCT 26
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Kanku and Others v Grindrod Fuelogic (C602/2014) [2017] ZALCCT 26 (21 June 2017)
REPUBLIC
OF SOUTH AFRICA
Reportable
OF
INTEREST TO OTHER JUDGES
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 602/14
In
the matter between:
FRANCIS
KANKU
RICHARD
LINZIE
MANUEL
MATEUS
First
applicant
Second
applicant
Third applicant
and
GRINDROD FUELOGIC
Respondent
Heard
:
24-26 April 2017; 19 May 2017.
Delivered:
21 June 2017
SUMMARY:
Foreign nationals dismissed because
Eskom refused to allow them access to deliver fuel to Ankerlig power
station. Only reason for
dismissal is that Eskom refused foreigners.
Dismissal automatically unfair In terms of LRA s 187(1)(f). Drivers
reinstated. Costs
ordered even though applicants represented
pro
bono
.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The three applicants are foreign nationals who were employed as
drivers by the respondent, Grindrod Fuelogic. They delivered
fuel to
Ankerlig, an Eskom power station in Atlantis. Eskom informed Grindrod
that it would no longer allow foreign drivers on
site. Grindrod
dismissed the employees for operational requirements. They say that
it was automatically unfair. Grindrod says that
they agreed to be
retrenched and that there was no dismissal.
Background
facts
[2]
Francis Kanku is a refugee from the Democratic Republic of Congo
(DRC). Richard Linzie is a Malawian national. Manuel Mateus
is
Angolan. All three of them have South African heavy vehicle driver’s
licenses. They were legally employed as drivers of
fuel tankers,
delivering Diesel to Eskom’s Ankerlig power station in Atlantis
pursuant to a contract between Grindrod Fuelogic
and Eskom.
[3]
Eskom received a contaminated load of diesel at Ankerlig. There is no
evidence that any of the three applicants, or indeed any
Grindrod
employee, or any foreign national was responsible. Yet Eskom wrote to
Grindrod, ostensibly as a result of the contaminated
delivery,
informing it that Ankerlig is a national key point and that it would
no longer accept deliveries by foreign drivers at
Ankerlig.
[4]
Grindrod’s regional manager, Bryan Church, flew to Cape Town
from Johannesburg. He and Lourens Jacobs met Mateus–
and
subsequently, Kanku and Linzie -- in Grindrod’s boardroom at
its Paarden Eiland offices. They had a pre-prepared letter
drafted by
the human resources department with them. They told them about
Eskom’s new requirement; said that that they had
“no
choice” in the matter; and asked the employees to sign a
retrenchment agreement prepared by the human resources
department.
All three did so. None of them received any severance pay.
The
evidence
[5]
Church and the shift manager at the time, Denzil Naicker, testified
for Grindrod. Jacobs did not testify. The three employees
testified
on their own behalf. Linzie and Mateus were represented
pro bono
by Ms Tapiwa Ralehoko of Cheadle Thompson & Haysom. She had
withdrawn as Kanku’s representative and he represented
himself.
Grindrod was represented by Mr Pranav Jaggan.
[6]
Although much of the background
is common cause, there is a major conflict in the evidence on one
aspect: Grindrod says there was
a mutual “retrenchment
agreement” and thus no dismissal; the drivers say they signed
the agreement under duress and
they were, in fact, dismissed without
any consultation as contemplated by s 189 of the Labour Relations
Act
[1]
.
The only reason for their dismissal was their nationality; hence, it
was automatically unfair as envisaged by s 187(1)(f).
[7]
The evidence of the respective witnesses is summarised briefly
insofar as it is relevant to the issues in dispute.
Bryan
Church
[8]
Church was the person
responsible for liaison with Eskom. Grindrod Fuelogic was contracted
to collect fuel in heavy motor vehicles
(fuel tankers) from PetroSA’s
depot at Cape Town harbour and to deliver it to Eskom’s
Ankerlig power station in Atlantis.
[2]
[9]
A rival company, Bakers Transport, previously held the contract but
lost it to Grindrod. Kanku was a driver for Bakers; Grindrod
employed
him to do the same job. The other two drivers had worked for Auto
Carriers, another Grindrod division; they were transferred
to
Fuelogic as an alternative to retrenchment. They were permanently
employed as bulk vehicle operators (i.e. fuel tanker drivers).
Their
employment was not linked to the Eskom contract. They were the only
three foreigners; about 22 South African drivers did
the same job.
[10]
An identified driver delivered 30 000 l of fuel contaminated with
water to Ankerlig. The Eskom plant manager, Rodney Booth,
sent Church
an email informing him that no foreign drivers would henceforth be
allowed on the Ankerlig premises. He claimed that
it was an issue of
national security.
[11]
Church reasoned that Grindrod did not have a choice. If it refused to
comply, it would lose the contract. Under cross-examination,
he could
not explain why he took no further steps to persuade Eskom otherwise;
to point out that none of the three drivers had
been remotely
implicated in the contaminated fuel delivery; or that they had valid
South African heavy duty drivers’ licenses
and work permits.
[12]
He and Jacobs called the three drivers in (first Mateus, and a few
days later, the other two). They signed the retrenchment
agreements.
The agreements had been prepared by the human resources department
before they met the drivers. He denied any duress.
[13]
Church conceded that the drivers were not paid any severance pay. At
the time of the trial, they had still not been paid. They
were only
paid the balance of their salaries for May 2014. Grindrod did not
furnish them with notices in terms of s 189(3) of the
LRA before
calling them to the meetings. Each meeting took about 30 minutes.
Denzil
Naicker
[14]
Naicker was a shift manager at the time of the termination. (He is
now a business unit manager at the Auto Carriers division).
He
confirmed having been informed of Eskom’s requirement. He was
not at the meetings with Church and Jacobs. Grindrod lost
the
Eskom/PetroSA contract in March 2015. He was then transferred to Auto
Carriers.
Richard
Linzie
[15]
Linzie worked for the Auto Carriers division of Grindrod from 2007
until February 2014, when he was transferred to the Fuelogic
division. He was permanently employed and it was not linked to any
contract.
[16]
Early in May 2014
[3]
one Sage, a shift manager, phoned Linzie and told him to report at
the Paarden Eiland office. He was not told why. When he got
there,
Kanku was already there. They were shown to the boardroom where
Church and Jacobs were waiting.
[17] Linzie claimed that Church locked
the door and put the key in his pocket. Church showed them the email
from Eskom. He said
that Grindrod ahd no choice but to retrench them.
Linzie asked to be moved back to Auto Carriers. Church said there
were no vacancies.
He told them to sign the retrenchment agreement as
there was no alternative: “I must take it back with me to
Johannesburg”.
If they refused, Grindrod would lose the Eskom
contract.
[18]
Linzie testified that Kanku got up, saying that he wanted to go to
Eskom to clarify the issue. Church also got up and blocked
his way.
An argument and a scuffle ensued. Church reiterated that he was
leaving for Johannesburg that same day and he wouldn’t
do so
without a signed agreement. Linzie persuaded Kanku that they would
get into trouble if they got into a physical altercation;
that they
wouldn’t be able to leave without signing; and so they signed
the agreement and were allowed to leave.
[19]
Linzie went straight home. He was not paid any severance pay. He was
angry and upset. He did not sign the agreement voluntarily
but under
duress.
Manuel
Mateus
[20]
Mateus is Angolan. He was employed at Auto Carriers in July 2013 and
transferred to Fuelogic in March 2014. He is legally in
South Africa,
has a work permit and a South African driver’s license.
[21]
On 4 May 2014 he was loading fuel at the harbour for delivery to
Ankerlig. Naicker phoned him and told him to report at the
Paarden
Eiland office. When he got there, Jacobs told him that Grindrod
couldn’t continue employing him because of Eskom’s
demand
concerning a national key point. He asked to see Church.
[22]
He returned the next day. He met Jacobs and Church in the boardroom.
He was feeling distressed. They presented him with the
agreement and
told him to sign it; there was nothing they could do. He asked to be
moved back to Auto Carriers. Church said there
were no positions. He
felt like he was in a corner and he was forced to sign the agreement.
They were only in the boardroom for
about 15 minutes. He felt
intimidated by Church and Jacobs; he was there on his own, with no
back-up or representation. There was
no consultation; he was simply
presented with the agreement and told to sign. He felt marginalised.
Kanku
[23]
Francis Kanku is a refugee from DRC. He completed four years of an
electrical engineering degree. He has been in South Africa
for 20
years and he has been transporting fuel for 16 years. He took up
employment with Grindrod when his previous employer, Bakers
Transport, lost the Eskom contract in July 2013.
[24]
On 9 May 2014 Sage called him and told him to go to the office. He
met Linzie, Church and Jacobs there. They went into the
boardroom.
Church locked the door. He and Linzie were seated at the far end,
away from the door; Church and Jacobs were seated
near the door.
[25]
Church showed them the Eskom email and told them they had no choice
but to accept a retrenchment. Kanku wanted to go and see
someone at
Eskom to clarify the issue. Church refused and blocked his way.
Church insisted he had to return to Johannesburg with
the signed
agreements that day.
[26]
An altercation ensued. Church refused to let him go to Eskom. Linzie
tried to keep the peace. He decided to listen to Linzie
and to sign
the agreement, otherwise they would not be allowed to leave. He did
not read the agreement before signing it. Having
signed it, Church
told him and Linzie to leave the premises.
[27]
Kanku found out afterwards that there were other foreign drivers
still making deliveries to Ankerlig, such as one Eric from
Zimbabwe.
Evaluation
[28]
At the outset of the hearing, I dismissed three special please
regarding jurisdiction; joinder; and
lis pendens
. I gave
reasons then and will not repeat them here.
[29]
As to the merits of this application, the Court first needs to
consider if there was a dismissal. If so, it needs to establish
whether it was automatically unfair in terms of s 187(1)(f) of the
LRA; and if not, whether it was nevertheless substantively or
procedurally unfair for want of compliance with s 189.
Was
there a dismissal?
[30]
Mr
Jaggan
argued that, quite simply, the three drivers were
not dismissed
.
When Church explained Eskom’s
requirements to them, they signed voluntary retrenchment agreements.
Their employment was terminated
by agreement. Ms
Ralehoko
argued that they signed the agreements under duress.
[31]
In order to form a view as to
what actually transpired in the boardroom, the Court has to assess
the probabilities at the hand of
the well-known test articulated by
Nienaber JA in
Stellenbosch
Farmers’ Winery
:
[4]
“
The technique generally
employed by courts in resolving factual disputes of this nature may
conveniently be summarised as follows.
To come to a conclusion
on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses;
(b) their reliability;
and (c) the probabilities. As to (a), the court’s finding
on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary
factors, not necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii)
his bias, latent and blatant, (iii)
internal contradictions in his evidence, (iv) external contradictions
with what was pleaded
or put on his behalf, or with established fact
or with his own extracurial statements or actions, (v) the
probability or improbability
of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of
other witnesses testifying
about the same incident or events.
As to (b), a witness’s reliability will depend, apart from the
factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the
quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and
evaluation of the
probability or improbability of each party’s
version on each of the disputed issues. In the light of its
assessment
of (a), (b) and (c) the court will then, as a final
step, determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the
less convincing will be the latter. But when all factors are
equipoised probabilities prevail.”
[32]
Church was the only witness for Grindrod who was in the boardroom. On
the whole, he struck me as a credible witness. He readily
conceded
that he did not issue a s 189(3) notice; that he accepted Eskom’s
demand; and that he presented the three drivers
with an agreement
that had already been drawn up by his human resources division. I
accept that he was a reliable witness. He denied
having locked the
door. But Jacobs was not called as a witness to corroborate this
evidence. It stands alone.
[33]
Kanku and Linzie testified that Church locked the door on the 9
th
May. Mateus did not make the same allegation as regards the 5
th
May.
[34]
Despite the fact that Church’s evidence is not corroborated, I
find it highly improbable that he would have locked
the door,
as alleged by Kanku and Linzie. Both of them testified that Kanku got
up in order to go and see someone at Eskom and
that Church blocked
his way. How was Kanku going to leave the room if the door was
locked? And why would it be necessary for Church
to block him if the
door was locked anyway?
[35]
On this aspect, I find Church’s evidence more credible and
reliable than that of Kanku and Linzie. On the probabilities,
I do
not accept that Kanku and Linzie were physically locked in the
boardroom. But that is not the end of the manner. The question
remains whether they and Mateus signed the agreements voluntarily.
[36]
Duress need not entail a physical threat, such as locking the
employees into a room and physically forcing them to sing an
agreement. Our courts have dealt with a number of more nuanced
examples.
[37]
For example, in
Roberts
v W C Water Comforts (Pty) Ltd
[5]
the employees had signed a retrenchment agreement which, the employer
argued, estopped them from claiming unfair dismissal. Although
that
matter was decided by way of motion and without the benefit of oral
evidence, the following remarks of Revelas J are apposite:
“
In effect, what is argued by
the respondent is that by accepting the monies, the applicants have
waived their right to challenge
the fairness of their dismissal. For
the reasons set out hereinbefore I do not believe that the Court
could come to a finding that
the applicants have waived such rights
on the papers before it. Each case will have to depend on its own
facts but on the evidence
and in the circumstances now before me, I
decline to make such an order.
I was referred to the matter of
GOLIN
t/a GOLIN ENGINEERING v CLOETE
(1996) 17
ILJ
930 (L.C.N.)
by the applicant’s counsel. In this matter, O'LYNN, J, found as
follows:
‘
When a party claims that there
has been full and final settlement, the Court should recognise the
settlement as a termination of
the issues on the merits, once the
Court has, upon investigation of the settlement issue, been satisfied
that there indeed was
a settlement and that the settlement was
voluntary, i.e. without duress or coercion, unequivocal and with
full knowledge of its terms and implications as a full and final
settlement of all the issues. The onus is on the party who relies on
the settlement to prove that the alleged settlement complies
with
these requirements ...
’”
[38]
Did the employees in this case sign the agreements “voluntarily,
i.e. without duress or coercion, unequivocal and with
full knowledge
of its terms and implications as a full and final settlement of all
the issues”?
[39]
On the facts and on the evidence before me, and on the probabilities,
I am not persuaded that Grindrod has discharged that
onus. All three
drivers were called in out of the blue, with no prior warning and
without the benefit of a notice that is required
by law in s 189(3)
of the LRA. They were presented with a
fait accompli
: This is
Eskom’s requirement; there is nothing we (Grindrod) can do
about it; if you refuse, we lose the contract (and put
all the South
African drivers at risk); you have no choice but to sign. Mateus was
on his own, confronted by his two superiors
in their boardroom.
Neither he, nor the other two, were given the opportunity to obtain
union or legal representation. On the probabilities,
I do accept that
Kanku was not given the opportunity to ascertain for himself what
Eskom’s position was, even though I find
it improbable that the
door was locked. And the consistent evidence of all three drivers
that Church insisted on leaving for Johannesburg
with the signed
agreements is also more probable than not. Under those circumstances,
I do not think it can be said that Grindrod
has shown that the
employees accepted the agreement voluntarily, unequivocally and with
full knowledge of its terms and implications.
[40]
The employees in this case had
even less opportunity to consult anyone about the “retrenchment
agreement” that was presented
to them out of the blue than was
the case of the employee at
Adelkloof
Drankwinkel.
[6]
In that case, the employee was also called into a meeting and
presented with a “voluntary retrenchment agreement”.
She
telephoned her mother and then signed it. The Court commented:
“
I am unconvinced that there was
any attempt to comply with the obligations placed upon an employer by
section 189 of the Act.
The applicant was told that her
services had to be terminated on 15 December 2000. She heard
about this for the first time
on that day. Yet the document
setting out her package is dated 11 December 2000, four days
previously, and is titled "Kennisgewing
van aflegging".
She received no such notice, and she was taken to Mr Viljoen
unprepared and unrepresented.”
…
“
The respondent argued in a
special plea that the termination of the applicant's services was
consensual, as she had signed the agreement
in question. Any
shortcomings in the process, which was conceded by the respondent's
advocate or counsel for the respondent,
that preceded the agreement
was cured by the voluntary retrenchment package agreement.
In my view, and for the reasons set
out above, the respondent did not discharge its onus of proving that
the dismissal was for a
valid reason. The procedure was
entirely unfair, high-handed and flawed. In
Bekker v
Nationwide Airlines (Pty) Ltd
1998 2 BLLR 139
(LC) Landman J held
that where an agreement of this nature is reached as a form of
settling a retrenchment, the agreement must
be preceded by
consultation. In this matter, the consultation process was so
flawed that it amounted to no consultation at
all. The
applicant was taken to a building where she was confronted by a
perfect stranger with the news that she had to be
retrenched.
Mr Viljoen had a standardised agreement ready at hand. Even if
she declined the postponement of the meeting,
Mr Viljoen says he
offered, it was clear that she would eventually be retrenched
whether, at this meeting or the next meeting.
The circumstances
in which her signature was procured were oppressive. She was in
shock, needed advice, followed her mother's
advice over the telephone
in circumstances where no one had her interests at heart.
The main objective of that meeting was
to procure the applicant's signature on the agreement, and to
circumvent the requirements
of section 189 of the Act. The
decision to dismiss was taken four days ago.
From the respondent's point of view
there was really nothing to discuss, and Mr Viljoen did nothing to
discuss, other than the amounts
set out in the retrenchment package.
In the end he conceded, when asked about the minutes, the only notes
he made were in relation
to the amounts to be paid. All that
was discussed was the package.
In my view, an agreement obtained in
such unfair circumstances amounts to a nullity. I therefore
find that the dismissal was
both procedurally and substantively
unfair. The applicant should be reinstated.”
[41]
The same sentiments apply to the circumstances of this case. There
was no consultation in the sense of a joint problem-solving
exercise
contemplated by s 189. The three drivers were presented with a
fait
accompli
. They signed the “agreement” in
circumstances where Church made it clear to them that there was
nothing to discuss
and that they had no other option.
[42]
The facts of this case also
bear a similarity to those in
May
v Demag
,
[7]
where the employee signed a retrenchment agreement prepared in
advance. The Court did not accept the employer’s argument
that
she had waived her right to challenge a dismissal:
“
7. Clearly, there was no
consultation whatsoever as envisaged by section 189 of the Labour
Relations Act 66 of 1995 (“the
Act”). None of the
sections were complied with. The applicant was faced with a
fait accompli
. The respondent contends that the
dismissal was not procedurally unfair since the agreement which was
signed, justified the
absence of the process envisaged by Section 189
of the act.
8. Mrs Christoph testified that
the applicant knew full well what she was signing. The applicant said
that she was coerced into
signing the agreement. This Mrs Christoph
disputes. What is however common cause, is that the applicant was at
best induced into
signing the agreement by virtue of the fact that
she would receive the ex gratia payment of R1 000,00 referred to in
paragraph
2.1.4 of the agreement, if she signed the agreement which
purports to be voluntary retrenchment agreement. Mrs Christoph
confirmed that had she not signed the agreement and a normal
retrenchment process would have followed, she would have not received
this amount.
9. The question I thus have to
decide is whether the agreement justifies the absence of a procedure
in terms of section 189
of the Act and whether the dismissal, despite
the agreement, was nonetheless unfair, procedurally.
10. Insofar as the facts of this
matter is concerned, it is important to note that the applicant is
not conversant with the labour
law. Neither was Mrs Christoph,
if regard is had to the manner in which she dealt with the matter.
11. In my view it was unfair to
present the applicant with a fait accompli and such an agreement.
It is also questionable,
whether an employee who is
unrepresented at a meeting, could be required to sign away-so to
speak his or her rights conferred by
the
Labour Relations Act.
12. In
Baudach v United
Tobacco Company
2000 (4) SA 436
(A) this point was illustrated.
The appellant in that matter was informed that his post as manager
had become redundant.
He was offered a settlement package and
told that should he not accept it the usual retrenchment procedures
will apply. As
the package was financially more attractive than
retrenchment, the appellant accepted it. He subsequently
brought an application
in the Industrial Court alleging that the
dismissal was both substantively and procedurally unfair. The
respondent contended that
the matter had been settled by agreement
between the parties and the appellant was thereby barred from
bringing the application.
It was common cause that the
appellant's position had not become redundant and had been filled by
others after his employment had
been terminated. The Supreme Court of
Appeals found that the respondent could not raise the settlement
agreement as a defence.
The court accepted the appellant's submission
that he had accepted an offer of settlement on the respondent's
intentional misrepresentation
that the post had become redundant.
This entitled him to resile from the agreement, and to have the
amount he had already received
taken into account in the calculation
of compensation. It was held that the respondent's intentional
misrepresentation clearly
induced the applicant to accept the
settlement offer and was per se an unfair labour practice. The
appellant thus succeeded
in his appeal and the respondent was ordered
to pay compensation.
13.
In this matter there was no evidence of intentional misrepresentation
on the part of the respondent. However, there was a factor
which had induced the applicant to sign in circumstances where
she
would not have signed otherwise. In this regard it is also
important to refer to the matter of
Becker v Nationwide Airlines
(Pty) Ltd
[1998] 2 139, where Landman J held that where an
agreement such as the one
in casu
is reached as a form of
settling a retrenchment, the agreement must be preceded by
consultation. In this matter, there was
no consultation during
which the parties participated in a process which could have resulted
in a final agreement. In this
regard there is also the useful
article "Out of Court Settlement of Labour Disputes” by
Adolph Landman and Sandro Milo.
Contemporary Labour Law
,
Volume 10, No 6 (January 2001) which deals fully with the law on such
agreements.
14. What also further distinguishes
this matter from the
Baudach
matter, is the fact that the
applicant was presented with a
fait accompli
. Mrs
Christoph said quite clearly that further consultations as envisaged
by the Act (Section 189) would not have made any
difference as a
decision had already been taken.
15. In such circumstances one can
accept that the applicant was induced into signing the agreement
against her better judgment
and that the dismissal was
therefore procedurally unfair.”
[43]
The LAC has confirmed that the
onus rests on the employer:
[8]
“
As the appellant has pleaded
that the termination of the respondents’ employment was
effected in terms of an agreement, it
bore the onus to prove not only
the parties’ common intention to enter into the agreement but
also its specific terms. In
Cotler v Variety Travel Goods (Pty)
Ltd and Others
1974 (3) SA 621
(A), the defendant had, in
defending a claim for damages arising out of a wrongful dismissal,
pleaded that the plaintiff’s
employment had been terminated in
terms of an oral agreement concluded by the parties. In deciding
where the incidence of onus
lay for establishing the existence of the
oral agreement, Wessels JA stated at 628H – 629C:
‘
Variety’s defence was
thus, on the pleadings that the plaintiff had contracted out his
right to insist on three months’
notice of termination of his
employment. In substance, though not in form, Variety’s case is
that plaintiff by his oral agreement
waived his contractual right to
require three months’ notice of termination of his employment.
Proof of the conclusion of
the oral agreement relied upon would have
been the complete answer to plaintiff’s claim against Variety.
… The averment
that plaintiff had contracted out of his right
to three months’ notice of termination of his employment, forms
an essential
part of Variety’s case that plaintiff’s
employment was lawfully terminated. No other form of lawful
termination is
relied upon. In my opinion, therefore, the incidence
of onus in relation to the defence pleaded by Variety is governed by
the second
principle referred to by Davis AJA in
Pillay v Krishna
and Another
, supra at 951. The oral agreement relied upon is in
effect a special plea, and the onus of proof quad that defence would
rest on
Variety’.”
[44]
In this case, the onus was on
Grindrod to prove that the agreements were entered into voluntarily.
On the facts set out above, it
has not discharged the onus on the
probabilities. It is more akin to the position outlined by the LAC in
Manhattan Motors v
Abdulla:
[9]
“
My conclusion on all the
evidence is that there is a marked and substantial preponderance of
probabilities in favour of the respondent’s
version that he was
dismissed. That balance is sufficient to persuade me that the
appellant’s version - the resignation -
is false.”
[45]
On balance, I am not persuaded that the drivers entered into the
agreements voluntarily. They were induced to do so in circumstances
where they were presented with a
fait accompli
, there was no
prior notice and no consultation as prescribed by s 189, and they had
little choice but to sign the pre-prepared
“agreements”
with which they were confronted. They were dismissed.
Dismissal automatically unfair?
[46]
Having found that the drivers were dismissed, the next question is
whether the dismissals were automatically unfair, or alternatively
in
any event substantively and procedurally unfair.
[47]
The drivers say that their dismissals were automatically unfair in
terms of s 187(1)(f) of the LRA:
“
(1) 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 … ethnic or
social origin.”
[48]
The only reason for the drivers’ dismissal was their
nationality. Church conceded that, but for the fact that they were
not South African citizens, they would not have faced retrenchment.
His reasoning was that Grindrod had no choice but to accede
to
Eskom’s requirement that foreign drivers would not be allowed
at Ankerlig.
[49]
This case is remarkably similar
to that in
Chuma
Security.
[10]
In that case, Chuma dismissed a number of female security guards,
ostensibly for operational requirements. The reason was that
Chuma’s
client, Metrorail, requested it to employ fewer women and more men as
security guards. The Court found that their
dismissal was
automatically unfair in terms of s 187(1)(f). But for their gender,
the employees would not have been dismissed.
And the employer had not
shown any justification for the direct discrimination against them.
[50]
The Court in
Chuma
also considered the circumstances where, as
here, the operational requirements relied upon by the employer were
the demands of
a contractor – PRASA in that case, Eskom in this
case. That did not constitute a fair reason for its discriminatory
behaviour.
[51]
Dealing with dismissal at the
behest of a third party, the Court referred to
East
Rand Proprietary Mines Ltd v United People’s Union of SA
[11]
,
a case where the employer dismissed Zulu speaking employees who were
the target of ethnic hostility from the other employees and
whose
safety the employer could not guarantee. The employer argued that the
dismissal was for operational reasons and as such,
the decision to
dismiss lay within the managerial prerogative. The Labour Appeal
Court commented as follows:
““
The argument regarding
the scope of managerial responsibility to direct and reshape an
enterprise in response to operational necessities
cannot be faulted.
That ‘the ultimate decision to retrench is one which falls
squarely within the competence and responsibility
of management’,
where operational reasons for dismissal in fact exist, has been
authoritatively established. See
Atlantis Diesel Engines (Pty) Ltd
v National Union of Metalworkers of SA
[1995] ZASCA 30
;
1995 (3) SA 22
(A) at 28I;
(1994) 15
ILJ
1247 (A) at 1253H-I.
These dismissals were not, however, as
in
Atlantis Diesel Engines
, the product of operational reasons
arising from serious financial difficulties in consequence of a
declining market-share. Nor
were they retrenchments arising from
‘outsourcing’ of a portion of the enterprise’s
business. Nor, again, were
they the product of reorganization or
technological developments or electronic supercession of previous
employee functions. There
was in fact work for these workers to do.
It was urgent that they should return to it. The company could, at
least in the foreseeable
short term, pay them to do it. They were not
dismissed because their jobs disappeared. They were dismissed because
the company
was unable to guarantee their safety at its premises
because of ethnic hostility in the workplace.
The Industrial Court judgment proceeds
on the assumption that the applicable principle was that management
was entitled to decide
regarding an operational reasons termination,
but that it did so prematurely. The argument of both parties
proceeded upon the same
premise. But, in my view, the case sits
uneasily within the operational reasons framework. It is necessary to
be very clear on
what occurred here. At the causal root of the
dismissal of these workers was ethnic hostility to them. …
The court continued:
“
But the court, in examining
what is fair in the circumstances, must draw a distinction between
management’s motives (which
were not impure) and the actuating
causes which formed the background to its action. The court must
distinguish between the forces
of the market and the advances of
electronics or technology (which may render a decision to dismiss
within the competence and responsibility
of management), and
operational reasons which have their roots in opprobrious social
conflict.
There can be no doubt that, for management itself to
dismiss a worker merely because he is Zulu, or because she is Jewish,
or because
he or she has HIV, would be reprehensible.
For
management to dismiss not directly for that reason, but because the
rest of its workforce hold that reason, places management
only at one
remove from the opprobrious consideration
. That remove is of
course not without significance. It means that management will
ultimately, when it truly has no alternative,
be permitted to dismiss
when it cannot guarantee the safety of employees whom the rest of its
workforce, for reprehensible reasons
of ethnic hostility, threaten
with injury or death. But it also means, in my view, that management
truly must have no alternative,
and that no discretionary ‘band
of reasonableness’ can be granted it.
Where a dismissal is actuated by
operational reasons which arise from ethnic or racial hostility, the
court will in my view countenance
the dismissal only where it is
satisfied that management not only acted reasonably, but that it had
no alternative to the dismissal.”
[52]
In this case, Grindrod dismissed the drivers merely because they are
foreigners. For it to have done so because Eskom demanded
it, does
not make it fair. It is still for a discriminatory reason.
[53]
The Court in
Chuma
[12]
also noted that, commenting on the
East
Rand Proprietary Mines
decision, the LAC in
Lebowa
Platinum Mines Ltd v Hill
[13]
stated that in
East Rand
Proprietary Mines
the court
favoured the strict test of necessity where a demand by a third party
leads to the dismissal of an employee in circumstances
where the
dismissal amounts to discrimination. The court went further and
stated that such an approach would have to be examined
to ascertain
whether it is in harmony with the equality and discrimination
jurisprudence of the Constitutional Court.
[54]
There can be no doubt that
nationality as a reason for dismissal is discriminatory. It is, at
the very least, analogous to the listed
ground of “ethnic or
social origin”, if not encompassed by that concept. The same
phrase is used in s9(3) of the Constitution,
as a listed ground
barring discrimination in the Bill of Rights. Currie & De
Waal
[14]
note that the International Convention on the Elimination of All
Forms of Racial Discrimination defines ‘racial discrimination’
as unfair differentiation based on ‘race, colour, descent, or
national
or
ethnic origin’. And Du Toit et al
[15]
note that foreign citizenship has also been accepted as an unlisted
but analogous ground of discrimination under the Employment
Equity
Act.
[16]
[55]
Had it not been for their nationality, they would not have been
dismissed. There were no other operational requirements. They
had
valid drivers’ licenses and work permits. Their performance was
exemplary. The only reason for their dismissal was a
discriminatory
one. It was automatically unfair.
Relief
sought
[56]
The applicants seek retrospective reinstatement. Even though the Cape
Town division of Fuelogic has closed down following the
loss of the
PetroSA / Eskom contract, it still exists in other provinces. The
employees are willing to relocate.
[57]
In her heads of argument, Ms
Ralehoko
also set out a claim for
compensation for unfair discrimination in terms of the Employment
Equity Act. That claim was included
in the statement of claim.
[58]
In
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
[17]
the LAC accepted that an employee can claim compensation for both an
automatically unfair dismissal under the LRA and discrimination
under
the EEA. But Waglay JP set out the following principles:
“
Where claims are made both in
terms of the LRA and the EEA and the court is satisfied that the
dismissal was based on unfair discrimination
as provided for in the
LRA and that the employee was unfairly discriminated in terms of the
EEA, the court must ensure that the
employer is not penalised twice
for the same wrong. In seeking to determine compensation under
the LRA and the EEA, the court
must not consider awarding separate
amounts as compensation but consider what is just and equitable
compensation that the employer
should be ordered to pay the employee
for the humiliation he/she suffered in having his/her dignity
impaired. The employee’s
automatically unfair dismissal is so
labelled because it is based on a violation of his constitutional
right (in this case not
to be discriminated on the basis of his age)
and his claim under the EEA is for exactly the same wrong that of
being discriminated
on the basis of his age.
…
Where there is a single action with
claims under the LRA and the EEA based on the employee being
discriminated against and the court
is satisfied that there has been
an automatically unfair dismissal and that the employer’s
action also constitutes a violation
of the EEA, it must determine
what is a just and equitable amount that the employer should be
ordered to pay as compensation. In
arriving at this determination,
the court should not consider separate compensation under the LRA and
the EEA but what is just
and equitable for the indignity the employee
has suffered. In doing this, it may take various factors into account
inter alia,
as set out in
Tshishonga
, additionally, including
but not limited to the position held by the employee within the
employer’s establishment, the remuneration
he earned, how
reprehensible and offensive was the employer’s conduct, how if
at all did it affect the employee and what
motivated the wrongful
conduct by the employer to act as it did etc. If the claim is
under the LRA only, the court must,
if the amount determined by the
court to be just and equitable exceeds the threshold set in s194(3)
of the LRA, reduce the amount
of compensation to bring it within the
limitation provided in s194(3). The amount will not have to be
reduced though if, like in
this matter, the claim is brought under
both the LRA and the EEA because there is no limit prescribed to the
amount of compensation
that can be awarded under the EEA. The
importance of this is that the employee’s right to claim under
both the EEA and the
LRA is recognised and given effect to while at
the same time the employer is not being penalised twice for the same
wrong as a
single determination is made as to what is just and
equitable compensation for the single wrongful conduct.”
[59]
In this case, the employees seek reinstatement. That is the primary
remedy envisaged by s 193 of the LRA. The exclusions in
s 193(2) do
not apply. They must be reinstated. But I am not persuaded that I
should make a further order of compensation as envisaged
by s 193(3).
The employees must be paid retrospectively to the date of their
dismissal. To order the employer to pay them compensation
over and
above that, would be to penalise it twice.
Conclusion
[60]
The dismissal of the applicants was automatically unfair in terms of
s 187(1)(f) of the LRA. They must be reinstated retrospectively.
That
need not be in the Western Cape; it may be in another division,
provided it is on the same terms and conditions of employment.
Costs
[61]
Ms
Ralehoko
had withdrawn as the first applicant’s
attorney. He continued to represent himself. He did not incur any
legal costs. He is
not entitled to costs in law or fairness.
[62]
The second and third applicants are in an unusual position. They were
successful; the reason for their dismissal is discriminatory;
and
they should, in law and fairness, ordinarily be reimbursed. But Ms
Ralehoko
, to her credit, represented them
pro bono.
She
nevertheless asked for costs.
[63]
That is not an unprecedented
request. This Court has, in
Zeman
v Quickelberge
[18]
,
granted a similar prayer for costs. The Court embarked on a lengthy
discussion of the question whether costs can be awarded in
cases
where litigants are represented
pro
bono
.
[19]
[64]
I shall not repeat all of those arguments here. I stand by my view
that is allowed, and in cases such as this one, should be
awarded. I
will only reiterate some of the principles and precedents cited in
Zeman.
[65]
In a previous unreported
judgment in this Court, Cele J held in
Lorna
Naude v BioScience Brands Ltd
[20]
held:
“
The applicant was represented
on a pro bono basis. The considerations of law and fairness of this
matter suggest that a costs order
should issue against the
respondent. There is no specific provision in the rules of this court
for the awarding of costs in these
circumstances. Rule 40 of the High
Court provides for a costs order for a successful litigant
in
forma pauperis
.”
[66]
As was noted in
Zeman
, the notion of awarding costs to a
litigant who is being represented free of charge, is not alien in our
law, and in fact express
provision has been made in both legislation
and the rules of court in order to level the playing field.
[67]
Jurisprudence in the United
States has also developed to the point where pro bono awards are
routinely made in favour of
pro
bono
litigants, even where
there is no fee arrangement between attorney and client.
[21]
[68]
I still maintain the position in
Zeman
that, if a losing
litigant pays the legal costs occasioned by the lawsuit, it may make
it easier for attorneys to take on more
pro bono matters, and indeed
encourages them to do so.
[69]
In my view, access to justice to indigent clients should be
encouraged, especially in a court of equity such as this one. Should
a successful
pro bono
litigant be awarded costs, the
unsuccessful party is no worse off than would otherwise be the case.
The obverse is also true: A
pro bono
litigant still runs the
risk of an adverse costs order against him or her. The knowledge that
a losing party – usually the
employer – would never run
the risk of an adverse costs order, would have a chilling effect on
the willingness of legal practitioners
to provide their services
pro
bono
.
[70]
The legislature deals with free
legal services in the new Legal Practice Act.
[22]
Erica Emdon
[23]
notes that s 29 of the LPA makes no explicit reference to
pro
bono
legal services. But it
can be read into the “community service” provisions of
that section. However, it still does
not address the question of
costs directly.
[71]
Zeman
was cited with approval by this Court in
Martin
& Hauptfleisch Civils cc
[24]
and in
Abrahams
v Drake & Scull Facilties Management (SA) (Pty) Ltd.
[25]
As far as I am aware, none
of these three judgments has been overturned on appeal. Wallis J also
referred to
Zeman
in
Thusi v Minister of Home
Affairs
[26]
.
He remarked:
“
I have found no authority on
whether the indemnity principle is subject to an exception that
enables an attorney to provide legal
assistance to an indigent
litigant on the basis that an order for costs will be sought and if
obtained will provide the source
from which the attorney will be
remunerated. Nor is there any decisive authority against such an
exception. Cautious though I am
as a single judge in a lower court in
recognising a new exception to the indemnity principle in my view
there is much to be said
in favour of it where the litigant would
otherwise have no means of securing access to the legal assistance
necessary to pursue
a claim. To permit it would not be unduly
prejudicial to the respondents. Litigants bringing similar
proceedings who have the means
to pay their legal representatives are
entitled to obtain orders for costs and to tax them against the
Department. Such litigants
could agree with their attorney that the
latter would wait for the outcome of the case before rendering a
bill. Essentially that
is what the applicants seek. To deny them the
benefit of an exception to the general principle would deny justice
to some who are
amongst the poorest in our society and least able, as
I said at the outset, to deal with an inefficient and heartless
bureaucracy.
It would place them at a disadvantage in relation to
people of means. It would also provide those who are at fault with a
fortuitous
benefit because of the willingness of the attorneys to
undertake these cases at their own risk. In my view that is contrary
to
the spirit, purport and objects of the Bill of Rights.”
[72]
The Supreme Court of Appeal has
also accepted that costs can be awarded
pro
bono
. In
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Others
[27]
,
where the Minister of Justice and Constitutional Development failed
to take steps to arrest and detain, for surrender to the
International
Criminal Court, the President of Sudan, Omar Hassan
Ahmad Al Bashir, and acted inconsistently with South Africa’s
obligations
in terms of the Rome Statute and section 10 of the
Implementation of the Rome Statute of the International Criminal
Court Act 27
of 2002, the SCA ruled that the applicant (an NGO) “is
entitled to the costs of the application on a
pro
bono
basis.”
Order
[73]
I therefore make the following order:
73.1 The dismissal of the
applicants by the respondent was automatically unfair in terms of
s
187(1)(f)
of the
Labour Relations Act.
73.2 The
respondent is
ordered to reinstate the applicants retrospectively to the date of
their dismissal, on the same terms and conditions,
except that they
may be employed elsewhere in South Africa and not necessarily in the
Western Cape.
73.3 The respondent is
ordered to pay the second and third applicants’ costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
SECOND
AND THIRD APPLICANTS: Tapiwa Ralehoko
of Cheadle Thompson & Haysom.
RESPONDENT:
Pravan Jaggan (attorney).
[1]
Act 66 of
1995 (the LRA).
[2]
Ironically,
Eskom – the national power supplier – needed diesel fuel
to power its power plant.
[3]
It appears
to be common cause that this was 9 May 2014.
[4]
Stellenbosch Farmers’
Winery Group Ltd v Martell et cie
[2002]
ZASCA 98
par 5.
[5]
[1998] ZALC
58
par 13-14 (my underlining).
[6]
Corns v
Adelkloof Drankwinkel cc t/a Cellars Drankwinkel
(2002)
23
ILJ
2047 (LC) paras 8, 13-16.
[7]
(2001) 22
ILJ
2019 (LC) paras 7-13.
[8]
Springbok
Trading (Pty) Ltd v Zondani
(2004) 25
ILJ
1681 (LAC) par 46 [Jafta AJA].
[9]
(2002) 23
ILJ
1544
(LAC) par 14 [per Comrie, Nicholson and Mogoeng JJA].
[10]
Numsa and Others v High
Goal Investments CC t/a Chuma Security Services
(C844/15) [2016] ZALCCT 34 (18 October 2016).
[11]
(1996) 17 ILJ 1134 (LAC) at 1149 H [per Cameron J].
[12]
Above par
40.
[13]
(1998) 19
ILJ
1112 (LAC).
[14]
Ian Currie
& Johan de Waal
The
Bill of Rights Handbook
(6 ed 213) at 227.
[15]
Du Toit et
al, Labour Relations Law: A Comprehensive Guide (LexisNexis 6 ed
2015) at 681 and 698, citing
Larbi-Odam
v MEC: Education (Northwest Province)
1997
(12) BCLR 1655
(CC). See also Dupper et al,
Essential
Employment Discrimination Law
(2004)
at 61.
[16]
Act 55 of 1998 [EEA].
[17]
[2015] 11
BLLR 1081
(LAC); (2015)
36
ILJ 2989 (LAC) par 30 – 33.
[18]
(2011)
32
ILJ
453 (LC).
[19]
At paras
55-77.
[20]
C 842/08, 11 March 2010, unreported at paragraph 89.
[21]
See the
cases cited in
Zeman
above.
[22]
Act 28 of
2014. [LPA].
[23]
Erica
Emdon, “More clarity on
pro
bono
under
the Legal Practice Act”
De
Rebus
February 2017 p 26.
[24]
[2011]
ZALCCT 37 (18 October 2011)
[25]
[2012] 5 BLLR 434
(LC); (2012) 33
ILJ
1093 (LC).
[26]
2011 (2) SA 561
(KZP) par 109.
[27]
2016 (4) BCLR 487
(SCA);
[2016] 2 All SA 365
(SCA);
2016 (3) SA 317
(SCA).