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[2018] ZALCJHB 23
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Garnevska v DBT Technologies (Pty) Ltd t/a DB Thermal (JS581/15) [2018] ZALCJHB 23 (26 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
CASE
NO: JS 581/15
In
the matter between:
MARIELA
GARNEVSKA
Applicant
and
DBT
TECHNOLOGIES (PTY) LIMITED t/a
DB
THERMAL REG NO. 2006/028250/07
Respondent
HEARD:
19 - 23 June 2017 (
Heads
of Argument filed
:
24 August 2017
[1]
)
Delivered:
26 January 2018
Summary:
[Dismissal dispute in terms of section 187(1)(d)
of the LRA, onus of
proof – application granted –no costs order]
JUDGMENT
MABASO,
AJ:
Introduction
:
[1]
The
applicant’s claim is that her dismissal is one that is
classified as automatically unfair in terms of section 187(1)(d)
[2]
of the Labour Relations
Act (the LRA)
[3]
. The statement
of claim, under the legal issues, among other things, posed this
question :
“
Was the
disciplinary process that was instituted against the Applicant and
which led to her dismissal, instituted as a result and
a direct
consequence of the grievance she filed in terms of the Respondent’s
grievance procedure ’and the exercising
of a right in terms of
the Act?
[4]
The
respondent’s response to this question, among other things,
reads thus,
“
[It] …denies
that the disciplinary process was instituted against the Applicant
was as a result and the direct consequence
of the grievance initiated
by the Applicant;...[It] was entitled to initiate disciplinary
proceedings against the Applicant in
light of allegations of
misconduct by the Applicant”.
[5]
[2]
The
applicant is Ms Mariela Garnevska (the applicant). The respondent is
DBT Technologies (Pty) Limited (the respondent).
[3]
The
applicant was dismissed by the respondent after being found guilty of
the following charges,
“
Gross
misconduct/dishonesty: Other and Social Offences-
1.1
Attempting to or causing
the name of the Company, or the name of a fellow employee, to be
brought into disrepute-
1.1.1 In that you
falsely implicated/accused Mr Gregg Mailen, a fellow employee of
assault and subsequently initiated
criminal charges against him at
the South African Police Service;
1.1.2 Your
conduct described in 1.1.1 above effectively has a direct potential
to bringing Mailen’s name
into disrepute, and/or threatening
his livelihood and prejudicing the Company”
[6]
(
Charge 1)
and
Gross misconduct:
Other
and Social Offences
1.2
interfering, obstructing
or preventing other employees from performing their duties-
1.2.1 In that you
have been appointed as the Senior Financial Planning and Analysis
Manager and consequently,
you are in possession and control of
critical and important information which is required timeously when
requested;
1.3
You have frustrated
access to critical information to Paul Viljoen, Gregg Mailen, Rachel
Govendar, Conrad Steyn and Carol Lombard
despite requests,
effectively obstructing/preventing them from performing their
duties”.
[7]
(Charge
2)
The pleadings:
[4]
On
6 February 2015, the applicant lodged a grievance wherein
she specifically referred to an incident that allegedly took
place on
2 February 2015, which according to the grievance she was
hit over her head, and the possible perpetrator was
Mr Gregory Mailen
(Mr Mailen). She asked that Mr Mailen “
be
subjected to
a
disciplinary hearing
[8]
on
a charge of physically assaulting an employee, and nothing less
…
,
and more specifically in terms of misconduct … (Assault)
”
.
[9]
[5]
Following
the submittal of the grievance, the respondent appointed Ms Lameeza
Jean-Pierre (the investigator) to preside over the
grievance
investigation and, in turn, the investigator concluded that the
applicant’s complaint had no merits.
[10]
.
[6]
Subsequently,
the respondent summoned the applicant before a disciplinary inquiry,
chaired by Adv Sibanda, to answer to 4 charges,
namely charges 1, 2,
3 and 4 (the latter charge was withdrawn). Charge 3 involves an
incident that allegedly took place on 02 February 2015.
At
the conclusion of the disciplinary inquiry, Mr Sibanda concluded that
the employee was guilty of charges 1 and 2, but found
not guilty on
charge 3. Adv Sibanda proceeded to recommend dismissal as an
appropriate sanction. The applicant unsuccessfully appealed
this
outcome, thereafter the respondent proceeded to terminate her
services.
[7]
The
applicant, thereafter, declared an unfair dismissal dispute at the
Metal and Engineering Industries Bargaining Council (MEIBC)
against
the respondent, where the dispute was unsuccessfully conciliated, she
then opted to refer the dispute to this Court claiming
that her
dismissal is the one that falls under the provisions of section
187(1)(d) of the LRA.
Summary of the
evidence
:
[8]
The
dismissal of the applicant was not in dispute in this matter,
therefore, the issue that had to be decided was whether the dismissal
was fair, in order to decide on this aspect one had to take into
account that the respondent had the onus of proving that the
dismissal was substantively fair, on the other hand, the applicant
had to “
sufficient[ly]
raise a credible possibility”,
that the dismissal related to her exercising her rights as contained
in the LRA.
[9]
In his
opening statement, Mr Schoeman on behalf of the applicant, stated
that the applicant’s case is based on the provisions
of section
187(1) (d) of the LRA in that she was assaulted by Mr Mailen, lodged
the grievance and thereafter she was called before
the hearing which
led to her dismissal, therefore, her dismissal was as a result of the
grievance that she instituted. Whereas
the case for the respondent
was that she was charged because she falsely accused Mr Mailen of
assault, therefore, she was dishonest
(charge 1)and was an obstinate
employee who did not want cooperate in her role(charge 2).
Mr
Asher Sayed’s(Mr
Sayed) evidence
:
[10]
The
evidence of this first witness for the respondent, can be summarised
as follows: in respect of charge 1: he shared the office
with the
applicant. He was present during the meeting that took place at the
boardroom on 02 February 2015. Mr Mailen
was seated
diagonally across the applicant, nothing obstructed his view from the
applicant. Mr Mailen joined the meeting much later,
and he did not
have much to say, he eventually stood up and left the meeting. He
observed Mr Mailen leaving the room, and denied
that the latter had
physical contact with the applicant when leaving the boardroom. After
the meeting the applicant left the boardroom
and later when he went
into the office, which they were sharing, she found the applicant
with tears in her eyes and she looked
distressed and the applicant
said to him “
did
you see what [Mr Mailen] did
”
his response was “
no
I did not. What did he do?”
[11]
During
cross-examination it was put to him that when one Mr Viljoen was
trying to convey on the whiteboard, the applicant asked
a question as
she did not understand something this irritated Mr Mailen who even
took a marker pen from Mr Vijoen and said to the
applicant “
this
is a simple mathematics how is it possible that you do not understand
it?
”,
Mr Sayed confirmed this statement.
[12]
In respect
of charge 2, his evidence was that: the applicant in interacting with
her colleagues, when requested to provide information,
she was
sometimes difficult to deal with, and when she is busy will simply
say “
not
now, I am busy come back later type of thing”
.
And when asked specifically about the incident of Ms Carol Lombard (
Ms Lombard), he said Ms Lombard once came to the office of
the
applicant to learn where some files had been stored, the applicant’s
response was that the applicant had shown her the
first time what to
do or where the “stuff” is located. [The latter version
is in line with the applicant’s version,
as appearing below]
Ms Lombard’s
evidence
[13]
She joined
the respondent in August 2014 as the cost engineer, she was
tasked by one Daryl Jooste (Mr Jooste) to do reconciliation,
and she
informed the applicant about it in September 2014. She found
that the server where all documents were filed was not
user-friendly,
as she was not familiar with the system. At the beginning of
October 2014, the applicant assisted her by giving
her the
conciliation-form which had already been completed and “
this
assisted [her] a lot
”.
[14]
She had
three meetings with the applicant, wherein the applicant mentioned
that she was missing “credit notes” and after
each
meeting, she would have to unsuccessfully go back and try to find the
credit notes, but she does not blame the applicant for
this. So
according to her, this delayed her to do her job. When the applicant
was informed that this witness was on assignment
on the
reconciliation of Tubular during September 2014, she gave her
notes in October 2014. When she was asked as to
whether the
applicant was that helpful or obstructive, her answer was that “
it
was helpful because I could do a cross-check against what I had
already done”.
[15]
When the
question was posed to her as to what extent the applicant was
obstructive in her assignment, her answer was that “
She
was obstructive because she kept on mentioning in meetings about
credit notes that did not exist”
therefore “
preventing
[her] from completing the task”.
According to her, the other obstructive thing that was done by the
applicant was that she did the presentation on the slide and
instead
of sending a slide direct to her and the applicant told her where to
find the link, which was very difficult in order to
access the site
mode. This witness partly blamed Mr Jooste, as she said he did not
see to it that there was a proper handover.
[16]
She further
confirmed that she received the training from the applicant, whereby
she was directed where the files are saved, and
the applicant further
offered to provide her with more training, when she was asked as to
whether she made use of such an offer
her answer was that at some
stage she had tried to sit with the applicant, however, the applicant
was not available because she
had month-end commitments. The other
correspondences which were brought to the attention of this witness
during cross-examination,
included an email dated 23 January 2015
from the applicant to this witness which she confirmed that the tone
of the email
shows that she has been assisted. And further that an
email dated 26 January 2015 from the applicant to Mr
Mailen, her
and cc'd others was “
informative
and cooperating”
.
When she was approaching the applicant for assistance the applicant
was very cold and unhelpful, but she did not raise this with
the
applicant instead approached the likes of Mr Mailen.
[17]
In respect
of charge 1, she testified that she did not see anything that could
suggest that Mr Mailen assaulted the applicant on
02 February 2015,
she further stated that when Mr Mailen left the boardroom he had with
him a couple of pages.
Gregory Steward
Mailen”s (Mr Mailen) evidence:
[18]
His
evidence was that: he denied assaulting the applicant, as a result of
this accusation he ended up discontinuing his employment
in South
Africa before the end of his assignment, he was diagnosed with a
terminal illness and all of this was a result of the
accusations. He
denied being aggressive during the meeting of 02 February 2015
and that he was irritated.
[19]
During
cross-examination, confirmed that he could only speak about the
applicant’s conduct post September 2014. He stated
that
was advised that the applicant was unwilling to cooperate or
communicate with the cost engineer, Ms Lombard, in providing
information she needed to assist in the financial analysis, status of
the project and invoicing progress.
[20]
He further
stated that there were no more incidents that he could identify
during 2014, and he verbally reported this once off conduct
of the
applicant to Mr Marcus Latz, the then manager of the applicant, in
order to figure out how to make the process work better.[Mr
Latz did
not testify]. According to the witness, this was not a complaint.
When he was specifically asked as to whether he had
any complaints
about the applicant, in respect of charge 2, for January 2015.
His answer was that the applicant did not participate
in meetings as
requested.
[21]
This
witness further confirmed that the applicant was cooperating in
preparation for the meeting of January 2015 and requested
further information so that in the meeting of January or
representatives of DBT can be well informed. He confirms that on
26 January 2015
the applicant sent a correspondence to him
saying “
please
let me know if you need more verification
”,
and he confirmed that this was not a sign of being obstructive. Under
re-examination, Mr Mailen stated among other things
that “
I’m
not certain that I ever stated that the applicant was obstructive”
,
but
said the applicant was uncooperative.
Mr Petrus Hendrik
Kruger:
[22]
The
evidence of Mr Kruger, the Human Resource Director for the
Respondent, whose department initiated the disciplinary hearing
against the applicant can be summarised as follows: following the
grievance, an investigation was conducted which revealed that
there
were no grounds in terms of the allegations of assault. He confirmed
that Mr Mailen did not launch any grievance against
the applicant as
he was satisfied with the outcome of the grievance. And they studied
the grievance outcome, “
despite
the view of Mr Mailen …certain facts came to the fore”
,
they then proceeded with the investigation against the applicant.
Part of his testimony, during examination-in- chief, is captured
thus,
“
Adv Cook:
And your investigations
after the grievance process what did it
reveal in respect of the applicant’s application the veracity
of that allegation
or the truthfulness of the alleged assault what
did you discern?
Mr Kruger:
To my understanding
that there was no grounds in terms of the
allegations around the assault, that there was no grounds.
We
had discussions around it and said that you know if there is grounds
you know when there is other incidents or potential incident
of
misconduct, that we should then investigate and facilitate the
process to see if they is a need to proceed with other matters
”
.(Own
emphasis)
This
testimony made it easy to understand as to what exactly prompted the
respondent to institute charges against the applicant.
[23]
Under
cross-examination when he was asked as to what were those facts, he
started by saying “
I
cannot give the facts to you now”
and later said “I
cannot
answer your question”
,
as he said he was not actively involved in the investigation but
relied on feedback from his team. Therefore, he neither provided
those facts nor any team member testified. When it was put to him
that those facts that he was referring to were “
the
outcome of the grievance
”
he confirmed this.
[24]
He
confirmed that the applicant, by lodging a grievance, was exercising
her rights in terms of the grievance procedure which is
in accordance
with the provisions of the LRA, and that his department of its own
accord decided to initiate the disciplinary process,
without a
grievance being lodged by any of the staff members.
Mr
De Velliers’s
evidence
[25]
This
witness was not an employee of the respondent but was part of the
meeting where the alleged assault took place. His evidence
was that
Mr Mailen did not assault the applicant.
Ms
Rachel Govender’s
evidence
[26]
Summary of
her evidence is as follows: She is employed by Impulse International,
she worked for the respondent as a cost engineer
between April 2014
and beginning of 2017. Her duties required her to interact with the
applicant, and the applicant came across
as somebody that is
unapproachable, and said for example, in April 2014 when she
needed assistance about a document called
IT-11 which is regarded as
a very complex document, the applicant was not willing to assist her.
When she was asked as to how this
affected her performance, she said
she enjoyed the challenge, it was difficult but she found ways to get
the information on her
own. And after this incident, she took a
decision that she was not going to approach the applicant again. She
reported this incident
to her direct line manager as well as the
project manager. She also did not lodge a grievance against the
applicant.
[27]
At the
beginning of the examination-in-chief, Mr Cook explained to this
witness the purpose of cross-examination and more specifically,
that
assertions were to be made by Mr Schoeman, and that she should
indicate as to whether she agrees or disagrees with such. Under
cross-examination, she confirmed that she was only approached 11
months later (March 2015), after the applicant had lodged the
grievance, this encounter with the applicant took place in
April 2014. I must mention that no evidence was presented as to
why the respondent waited until March 2015 to charge the
applicant with an incident that took place in April 2014.
[28]
She
confirmed that following the vacancy left by one Usha, she was
appointed to assist the respondent with the continuation of a
project
in order for “
the
timeframes and the necessary files created
”.
Some information was saved in a shared folder, and the divisional and
departmental managers were owners of their respective
folders. This
witness further confirmed that she worked with a financial
accountant, Mr Geoffrey Varkey, who had been assigned
by the
applicant. And it was put to her that the applicant was to testify
that she “
offered
her assistance to [Ms Govender] once she familiarise [herself] with
the contents of the files and if [she has] familiarised
[herself]
with the files and [she] still need assistance [she] can approach
her”
and
her answer to this was “
She
did say that to me, yes”.
It was put to this witness that the applicant was to testify to the
effect that indeed she was approached by this witness for assistance,
but she did not assist this witness as at that stage she had not
complied with the condition of familiarising herself with the
files.
The applicant’s
evidence
[29]
Can be
summarised as follows: In respect of charge 2, she denied the charge
against her. Mr Viljoen, Ms Lombard and Ms Govender
were not
reporting to her. Mr Conrad Styen was her line manager, and Mr Mailen
was not her direct superior. The applicant neither
obstructed nor
prevented the respondent’s witnesses from executing their
duties.
[30]
Charge 1:
on 2 February 2015 she, Mr Mailen and people from US
Finance team had a telephone conference wherein the discussion
was
around the risk assessment, and both her and Mr Mailen expressed
conflicting statements during this conference and this angered
the
latter. After this telephone conference, Mr Mailen came to the office
and he looked at her in an intimidating manner. And this
witness said
“
if
[he] could kill me with his eyes he would have done that. I also
greeted him, and he did not greeted me back”.
Later
that day she and Mr Mailen attended the meeting, as mentioned above,
and when she did not understand a question by Mr Viljoen
she
requested that the question be repeated for her, that is when Mr
Mailen acidly responded.
[31]
Later,
whilst attending to her laptop she was suddenly hit over her head
although she could not state that Mr Mailen is the one
who hit her,
he was the only person around her at the time and she sustained
injuries. The applicant consulted her attorneys of
record who advised
her to lay criminal charges against Mr Mailen. In her affidavit in
support of the complaint, amongst other things
she stated that,
“
although I do not wish to
speculate the motive as to why the suspect assaulted me, I remain to
record that the suspect was, on occasions,
thereby the aggressive
towards me in the workplace and the telephone conference preceding
the meeting and the assault on me involved
a conversation in which we
expressed divergent views what our superiors who took part in the
telephone call.”
“
I wish a charge (s) of
common assault and/or assault with intent to cause grievous bodily
harm and to be investigated and formulated
against the suspect”.
The principles and
application thereof
:
[32]
As
mentioned above, paragraph 8, in an unfair dismissal dispute, an
employee has the onus to show that he or she was dismissed and
once
this has been successfully discharged, the employer will then have
the onus of proof calling upon it to show that the dismissal
was for
a fair reason. However, evidential burden depends on the nature of
the dismissal dispute that has to be determined. The
LAC’s
judgment of
Kroukam
v SA Airlink (Pty) Limited
[11]
(“Kroukam”)
is a
proper authority
in
casu
,
as its paragraph 28 reads thus,
“…
my view, section 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 circumstance envisaged in section 187 for
constituting an automatically unfair dismissal”.
[12]
(Own emphasis)
[33]
The
Constitutional Court said the following, in the matter of
National
Union of Public Service and Allied Workers obo Mani and others v
National Lotteries Board (Mani)
,
[13]
“
In conclusion,
the
dominant, if not the sole
,
reason for the dismissal of the employees in the present case is that
they engaged in conduct in which the LRA entitled them to
engage”.
[14]
(Own
emphasis)
[34]
Before this
Constitutional Court’s decision(Mani), the LAC by Davis AJA (as
then he was) in
Kroukam
’s
case, held as follows, regarding automatically unfair dismissal
dispute where an employee, as a party who has evidential
burden, has
presented some evidence,
“
the court would determine
whether, upon an evaluation of all the evidence, … was the
“
dominant”
or
most likely
cause of the dismissal
”(Own
emphasis)
[35]
The
preceding
obiter
dictum
is partly in line with what the same court said in
SA
Chemical Workers Union & Others v Afrox Ltd
,
[15]
where it was held that,
“
The enquiry into the reason
for the dismissal is an objective one, where the employer’s
motive for the dismissal will merely
be one of a number of factors to
be considered. This issue (the reason for the dismissal) is
essentially one of causation and I
can see no reason why the usual
two fold approach to causation, applied in other fields of law should
not also be utilized here
…. The first step is to determine
factual causation: was participation or support, or intended
participation or support,
of the protected strike a sine qua non (or
prerequisite) for the dismissal? Put another way, would the dismissal
have occurred
if there was no participation or support of the strike?
If the answer is yes, then the dismissal was not automatically
unfair.
If the answer is no, that does not immediately render the
dismissal automatically unfair; the next issue is one of legal
causation,
namely whether such participation or conduct was the
‘main’ or ‘dominant’, or ‘proximate’,
or ‘most likely’ cause of the dismissal. There are no
hard and fast rules to determine the question of legal causation
(compare S v Mokgethi at 40). I would respectfully venture to suggest
that the most practical way of approaching the issue would
be to
determine what the most probable inference is that may be drawn from
the established facts as a cause of the dismissal, in
much the same
way as the most probable or plausible inference is drawn from
circumstantial evidence in civil cases. It is important
to remember
that at this stage the fairness of the dismissal is not yet an issue
… Only if this test of legal causation
also shows that the
most probable cause for the dismissal was only participation or
support of the protected strike, can it be
said that the dismissal
was automatically unfair in terms of s 187(1)(a)? If that probable
inference cannot be drawn at this stage,
the enquiry proceeds a step
further.
”
[36]
In order to
determine this case fairly, I have to be guided by SCA
dictum
in the matter of
Cooper
and Another v Merchant
Trade Finance Ltd
,
[16]
where it was held that,
“
It is not incumbent upon the
party who bears the onus of proving an absence of an intention to
prefer to eliminate by evidence all
possible reasons for the making
of the disposition other than an intention to prefer. This is so
because the court, in drawing
inferences from the proved facts, acts
on a preponderance of probability. The inference of an intention to
prefer is one which
is, on a balance of probabilities, the most
probable, although not necessarily the only inference to be drawn.
…
If the
facts permit of more than one inference, the court must select the
most “plausible” or probable inference. If
this favours
the litigant on whom the onus rests he is entitled to judgment. If on
the other hand an inference in favour of both
parties is equally
possible, the litigant will have not discharged the onus of proof”
[17]
(Own
emphasis)
[37]
It is
prudent at this stage to state that the evidence presented suggests
that there was no physical contact between the applicant
and Mr
Mailen when the latter left the meeting on 02 February 2015.
I further took into account the evidence of all the
witnesses that
testified before this Court in the respect of charge 1, more
importantly, the evidence of two witnesses, namely
Mr Sayed and Mr De
Velliers. Mr Sayed also indicated as to what happened before the
alleged incident took place, in that at some
stage Mr Mailen was
irritated during the meeting, prior to the alleged incident, as he
grabbed the marker pen and said to the applicant
this “
was
a simple mathematics
”.
[38]
Although Mr
Mailen disavowed this statement, in order to determine the matter of
this nature one is not only limited to what Mr
Mailen said as it was
the applicant’s case that she was assaulted therefore she had
the burden to present evidence in support
of the allegations. I am
required to take into account the totality of evidence that was
presented before this Court. The applicant’s
case had a lot of
shortcomings in respect of the alleged assault with intent to cause
bodily harm, for example, whether she had
any bump and clearly, the
evidence pointed that her evidence in this regard was highly
improbable, as even the medical report from
the hospital did not
support her version.
[39]
At the same
time, I need to remind myself the issue before this Court, which the
applicant and the respondent agreed that this Court
should decide is
“
Whether
the applicant’s dismissal was automatically unfair in terms of
section 187(1) (d) [the LRA]
”.
[18]
In deciding this issue, I
had to be guided by the principles mentioned above, as it was brought
by the LAC that the court has to
look at “
dominant
or [the] most likely cause of the dismissal”.
And that the LAC instructively concluded thus,
“
... I am of the view that,
where, as in this case, the reason or reasons for the dismissal of an
employee
comprise
one or more reasons
that would render the dismissal automatically unfair
and
one or more reasons that would not render the dismissal automatically
unfair
but
the reason or reasons that would render the dismissal automatically
unfair can be said to be the dominant reason or reasons,
the
dismissal is automatically unfair
.
[40]
My
understanding of
Kroukam’s
principle
in respect of a dismissal dispute of this nature, is not to say such
dismissed employees did not commit the alleged offence
to one has to
determine the dominating and/or most likely cause of the
dismissal, meaning what motivated the employer, among
other things,
to take action against the employee which necessitated the
dismissal.
[19]
In deciding such a
matter, the totality of the circumstances have to be taken into
account, as in this matter, (a) all the original
charges against the
applicant; (b) the timing of charging the applicant by the
respondent if the charges included something
which was not part
of the grievance lodged, and (c) the evidence presented during the
trial, especially by both the applicant and
Mr Kruger.
[41]
Initially,
the applicant was charged with four counts of gross misconduct which
among other things included an incident that allegedly
took place on
2 February 2015.
[20]
Parties had agreed before
the disciplinary hearing that this charge was not going to be
proceeded with. In the respect of charge
two, wherein it was alleged
that the applicant interfered, obstructed or prevented other
employees from performing their duties,
the respondent’s
testimony through Ms Lombard was that there was only one incident
whereby the applicant obstructed her from
doing her job. This witness
confirmed that at the beginning when she joined the respondent, she
was provided with the necessary
information by the applicant however
what she viewed as obstructive is that the applicant would keep on
saying there were “credit
notes” missing. This witness
confirmed these credit notes were available with SAP system, and she
was not blaming the applicant
for that. In respect of this charge,
what is most important is that the alleged obstruction by the
applicant took place in 2014
but the respondent did not charge the
applicant then but had to wait until the applicant lodged a
grievance. No explanation was
given for this.
[42]
Mr
Kruger confirmed in
respect of charge1, that Mr Mailen did not lodge a grievance against
the applicant. Same with charge 2, there
was no formal grievance that
was lodged with his department, instead his department decided on its
own accord to charge the applicant,
according to him, when he was
asked as to what prompted such step he said “
we
studied the outcome of it in certain facts came to the fore and such
we continued with an investigation into various allegations”
.
When he was quizzed further as to “what facts” that came
to the fore he started by saying “
I
cannot give the facts to you now as I was not actively involved”
referring to the investigation. Later, when this question cropped out
again his answer was that “
I
cannot answer your question”
.
Taking into account the excerpt in paragraph 22 above, clearly
the answer to the question in paragraph 1 above is that the
“dominant” cause of the applicant’s dismissal is
one that falls within the perimeters of section 187(1)(d) of
the
LRA.
[21]
[43]
Further, no
witness testified from Mr Kruger’s department as to what other
facts were available which prompted the Human Resource
Department to
institute charges including charge 2 against the applicant. In
looking at the grievance outcome as considered by
Mr Kruger that
there were no other facts except the grievance outcome that led to
the applicant being charged, and the explanation
that he provided as
mentioned in paragraph 22 above. Clearly, one cannot be faulted for
concluding that following the applicant’s
grievance being
lodged against Mr Mailen and the outcome necessitated the respondent
to now investigating things which were not
even raised with its Human
Resource Department.
[44]
Clearly
following the grievance the respondent even approached Ms Govender,
who had lodged no grievance, as she testified that she
was approached
11 months after the alleged incident. In amplifying this, Mr Kruger
stated that as Human Resources Department only
really acted on the
grievance lodged and he was coyly in the respect of stating the
alleged “facts” that came forth.
Looking at the grievance
outcome I could see no statements which support charge 2.
[45]
I have no
doubt that the applicant’s evidence in respect of the
allegation of assault that she had asked the employer
to investigate
against Mr Mailen and “
be
subjected to a disciplinary hearing on a charge of physically
assaulting an employee, and nothing less
”,
the alleged “physical assault”, did not take place.
[46]
The
respondent as an employer will be justified to take action against an
employee who commits a misconduct. I had to take into
account the
totality of the circumstances of this case, as the applicant claims
that her dismissal was automatically unfair, taking
into account the
summary of evidence that is mentioned above, that following the
lodging of the grievance and the outcome of the
grievance the
applicant was summoned before a disciplinary hearing not only with
charge 1, but two other charges in which it was
found that she did
not commit charge 3, but guilty of charge 1 and 2.
[47]
Evidence
presented before me in respect of charge 2 clearly indicates that the
respondent reacted to the grievance that the respondent
had lodged
whereby she was exercising her rights, and most importantly the
evidence of Mr Kruger as conceded that the decision
to call the
applicant before a disciplinary hearing and what led to her dismissal
was the outcome of the grievance hearing. As
I have mentioned that
the outcome therein suggests nothing and/or raises the allegations in
charge 2. In addition to the above,
I have taken into account the
evidence of Ms Govender that she was only asked in March 2015
about an incident that took place
in April 2014, clearly, this
came about as a result of the applicant exercising her rights.
[48]
If my
conclusion above, paragraph 42, is wrong that the “dominant”
cause of the dismissal is that of automatically unfair,
I still
insist that a probable inference to be drawn from the
established facts is that it has been shown that the reason
for
dismissal renders it to be automatically unfair, I believe that
the respondent fails to discharge its onus, being guided
by the
authority cited in paragraph 39 above (
Copper’s
matter), as I have indicated that the applicant was not
physically assaulted, and taking into consideration that the onus
of
proof in terms of the provisions of section 192(2) of the LRA was on
the respondent to prove that the dismissal was fair, as
mentioned in
paragraph 36 above that “
If…
an inference in favour of both parties is equally possible, [the
party who has onus of proof] will not have discharge
the onus of
proof
”.
[49]
The
applicant, during the trial, indicated that she is no longer pursuing
reinstatement but compensation.
Costs:
[50]
The
applicant asked for the punitive costs order against the respondent,
on the other hand the case the respondent asked that the
applicant be
ordered to pay costs on the ordinary scale. Costs order in this court
does not automatically follow the results, as
this is the court where
you mostly find an employer and an employee litigating against each
other and should not be discouraged
to do so for fear of being
ordered to pay costs. This court has to be guided by section 162 of
the LRA and I conclude that this
is a case which does not justify
costs order to be made against the respondent.
Order:
[51]
Wherefore,
I make the following order:
1.
The
dismissal of the applicant was automatically unfair.
2.
The
respondent is ordered to pay the applicant compensation equivalent to
9 months of her remuneration calculated at the time of
her dismissal.
3.
The above
amount must be paid within 30 days of this order.
4.
There is no
orders as to costs.
_______________________
S Mabaso
Acting Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicants:
Mr Schoeman
Instructed
by:
Schoeman and Associates
For
the Respondent: Adv
Cook
Instructed
by:
Cliffe Dekker
Hofmeyer Inc.
[1]
Applicant submitted heads of argument
of 220 pages.
[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)…”
[3]
Act 66 of 1995
[4]
Pleadings, page 7, at para 26.2
[5]
Ibid, , page 84, at paras 4.24.2 and
4.24.3.
[6]
Discover bundle 1 of 3, at page 78.
[7]
Ibid.
[8]
Ibid.
[9]
Bundle 1 of 3, page 38.
[10]
Pre-trial minutes, para 4.8 to 4.10.
[11]
(2005) 12 BLLR 1172
(LAC
)
[12]
Ibid, ( by Davis AJA). As cited
therein, this dictum was in line with, Lord Justice Griffiths
finding, in the matter of
Maund
v Penwith Disctict Council
[1984] ICR 143:
‘
[I]t
is not for the employee to prove the reason for his dismissal, but
merely
to
produce evidence sufficient to raise the issue or, to put it another
way,
that raises
some doubt about the reason for the dismissal
.
Once this evidential burden is discharged, the onus remains upon the
employer to prove the reason for the dismissal.’(Own
emphasis)
[13]
(2014) 35 ILJ 1885 (CC)
[14]
Ibid, at para 202.
[15]
(1999) 20 ILJ 1718 (LAC). Cited in
Kroukam.
[16]
(474/97)
[1999] ZASCA 97
(1 December
1999).
[17]
Ibid, at para 7. See also TRANSCASH
SWD (PTY) LTD v SMITH
[1994]
1 All SA 163
(C), where it was held that : In the absence of any
objective evidence supporting either party’s version I am
unable to
find that the one is inherently more probable than the
other. In this regard the admitted failure by Bingham and Ewald to
observe
any of the formalities prescribed by the Act in connection
with the appointment of Ewald as a director in my judgment lessens
the probability of Bingham’s version and precludes a finding
that it is more probable than respondent’s version.
Clearly,
if the two versions are equally probable the party bearing the onus
cannot succeed
.
[18]
Page 91, pre-trial conference.
[19]
Kroukam’s case. Paras 90 and
91.
[20]
Discovery bundle 1 of 3, (outcome of
the disciplinary hearing), at page 105.
[21]
Further exchange was as follows: “Mr
Schoeman: I put to you the outcome of the grievance here and that is
it. You agree
with me? There were not thereafter any further facts
that came.
Mr Kruger:
Yes.”