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[2018] ZALCJHB 173
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Kabe v Nedbank Ltd (JS633/13) [2018] ZALCJHB 173; (2018) 39 ILJ 1760 (LC) (8 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JS633/13
In
the matter between:
NKGADIMANG
EUGINIA
KABE
Applicant
and
NEDBANK
LTD
Respondent
Heard
:
23-24 April 2018
Delivered
:
8 May 2018
Summary:
A referral in
terms of which the applicant allege that she was automatically
unfairly dismissed. An employee who alleges automatically
unfair
dismissal is required to produce credible evidence showing that he or
she has been subjected to an automatically unfair
dismissal.
Ordinarily, the employer is the one knowing the reason why it
dismissed an employee. In
casu
,
the respondent states that it dismissed the applicant for misconduct.
The applicant on the other hand alleges that the true reason
for her
dismissal is that because she had made a protected disclosure or
alternatively that she took action against the respondent,
thus
automatically unfairly dismissed within the contemplation of section
187 (1)(d) and (h) of the LRA
[1]
as amended. An employee must produce credible evidence showing that
he or she has been subjected to an automatically unfair dismissal
before an employer is behoved to show that the dismissal is not for a
prohibited reason. Should an employee fail to do so, absolution
from
the instance is an appropriate order to be made. As to costs, the
Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and others
[2]
did not necessarily strip this court of its discretion to award costs
against employees. All it did was to remind this court of
what was
said by the LAC in
MEC
for Finance: Kwazulu Natal and another v Dorkin NO and another
[3]
.
Where the
referral is frivolous and vexatious an order awarding costs is
appropriate, particularly where an employee unreasonably
refuses a
with prejudice offer of settlement.
Held: (1)
Absolution from the instance is hereby granted. Held: (2) The
applicant to pay the respondent’s costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a referral
in terms of section 191 of the Labour Relations Act
[4]
(‘the Act’). The applicant alleges that the respondent
subjected her to an automatically unfair dismissal within the
contemplation of section 187 (1)(d) alternatively (h) of the Act as
amended. On the other hand, the respondent disputes that the
applicant was subjected to an automatically unfair dismissal.
Instead, the respondent contends that the applicant was dismissed
for
misconduct.
Background
facts
[2]
The essential facts are that at the time of dismissal, the applicant
was employed as an Assistant Relationship Governance and
Compliance
Officer. On or about October 2011 a ‘Tip-off’ anonymous
was compiled by the applicant and other two employees.
This followed
a meeting with one Dlamini where guidance was sought in reporting
alleged irregular conduct by one Ms Brenda Chetty
(‘Chetty’).
The Tip-off was forwarded to the Ethics Officer with an instruction
to lodge it with the Deloitte and Touché
anonymous line.
[3]
On 18 November 2011, a Tip-off anonymous meeting was held. In
attendance was the Employment Equity Chairperson: Nedbank Group
and
the Human Resources Risk Executive. On the same day, the applicant
and the other two employees addressed a letter to Mr Phillip
Wessels
(‘Wessels’) requesting protection. In the said letter the
applicant and others alleged that the respondent
was failing in its
legal duties. Wessels provided a response to that letter on 22
November 2011.
[4]
On 16 December 2011, the applicant was requested to provide a
Financial Services Board (‘FSB’) rejection report
for the
period 16-31 December 2011. Following that, the applicant lodged a
grievance of victimisation against Mr Beyers (‘Beyers’)
and also referred a dispute of an alleged unfair labour practice to
the Commission for Conciliation Mediation and Arbitration (‘CCMA’).
On 24 February 2012, such a referral was withdrawn.
[5]
On 4 January 2012, upon request to provide feedback on the request by
Beyers, the applicant indicated that she had not performed
the task
as she did not consider the task to be critical. On 6 January 2012,
the applicant was instructed to submit minutes of
the departmental
meetings held on 20 and 21 December 2011. The said minutes were
delivered on 25 January 2012. On 18 January 2012,
the applicant
lodged a second grievance against Beyers alleging victimisation. The
respondent rejected the grievance as it fell
outside the scope of the
grievance policy. On 23 January 2012, Beyers issued a written warning
against the applicant for unacceptable
behaviour during a meeting.
Following that the applicant referred a dispute to the CCMA regarding
the second grievance against
Beyers. On 24 January 2012, she withdrew
the referral.
[6]
On 1 February 2012, the applicant lodged a third grievance against
Beyers. On 3 February 2012, the applicant failed to provide
minutes
of the meetings within seven days of the meeting being held.
Following a discussion with her, she undertook to deliver
minutes of
meetings within seven days of a meeting as required.
[7]
On 19 March 2012, the applicant distributed the FAIS Governance Forum
minutes to the incorrect person despite having been informed
of the
attendees on 2-6 March 2012. The applicant provided shoddy work which
resulted in the department missing the review deadlines.
[8]
On 19 April 2012 a performance discussion took place with the
applicant and Human Resources aimed at addressing the applicant’s
shortcomings. On 16 July 2012, it was decided that the applicant
would be placed on a performance programme known as PCP. On 30
July
2012, an attempt was made to finalise a three months PCP. The
applicant thwarted this attempt and opted to lodge another grievance
against her manager. The respondent elected to proceed with the PCP
but the applicant refused to take part. This despite numerous
requests for her to partake.
[9]
On 3 August 2012, a meeting was scheduled to discuss the PCP
programme to which the applicant sought a postponement. Thereafter
the applicant continued to refuse to partake in the programme. Her
performance did not improve. In the meanwhile, the applicant
had
lodged a fourth grievance against Beyers on 16 July 2012.
[10]
On 7 August 2012, the Grievance Committee appointed Advocate Mosime
(‘Mosime’) to investigate and resolve the grievance.
On
10 August 2012, Mosime issued a report pertaining to the grievance.
He made findings and recommendations therein.
[11]
On 03 October 2012, the applicant lodged yet another grievance
against Beyers. On 9 November 2012, the applicant escalated
her
alleged harassment claim to the respondent’s Chief Executive
Officer (‘CEO’). On 11 November 2012, the applicant
was
arraigned to attend a disciplinary hearing on allegations of poor
work performance. On 14 November 2012, the hearing commenced.
Following the conclusion of the hearing the applicant was found
guilty and dismissed.
[12]
Aggrieved by her dismissal, the applicant referred an alleged unfair
dismissal (dubbed an ordinary dismissal) to the CCMA on
13 December
2012. On 9 January 2013, the said dispute was conciliated and
remained unresolved. The applicant requested the CCMA
to resolve the
dispute through arbitration. The applicant was legally represented at
the time of the referral. The arbitration
hearing was scheduled for 5
March 2013. It was subsequently postponed at the instance of the
applicant. It was then scheduled for
three days on a date mutually
agreed upon.
[13]
An attempt to settle failed as the applicant rejected the
respondent’s proposal. The arbitrator narrowed down the issues.
Owing to absence of the applicant’s bundle of documents, the
hearing was stood down to the following day. At the agreed time,
the
applicant failed to provide the bundle. The applicant then made a
volte face
and decided to refer an automatically unfair
dismissal dispute to this court. Resultantly, the arbitrator issued a
ruling declining
jurisdiction to arbitrate the newly formulated
dispute.
[14]
On 30 July 2013, the
applicant filed a statement of case in this court. On 23 October
2013, the matter was enrolled for a
point
in limine
hearing. My sister, Justice Lallie granted a postponement with an
order to pay the wasted costs. The matter was again enrolled
before
my brother Justice Lagrange on 12 March 2014. On 24 March 2014,
Justice Lagrange issued a judgment and an order condoning
the late
referral, declining jurisdiction to entertain allegations of any
unfair labour practice based on alleged occupational
detriment which
occurred prior to 11 December 2012, being the date of dismissal,
upholding an exception to the statement of claim
and granting the
applicant leave to amend the statement of case.
[5]
[15]
On 5 December 2014, my brother Justice Steenkamp issued an
ex
tempore
judgment and order condoning the late amendment, granting
the applicant further leave to amend her statement of case and issued
directions on the further conduct of the matter. He reserved the
issue of costs. On 24 February 2015, my sister Justice Whitcher
endorsed that the parties filed a pre-trial minute. On 7 August 2017,
the matter was crowded out and was postponed to the 23
rd
April 2018. The matter was then allocated to me.
[16]
Prior to the commencement of the trial I issued an order upholding
the points
in limine
raised by the respondent. The reasons for
the order were given
ex tempore
. It is not necessary to repeat
them in this judgment. In addition, the respondent openly made an
unconditional offer to pay to
the applicant the sum of R200 000.00
in full and final settlement. In an open court, the applicant
rejected the offer for
reasons that in her own calculations 12
months’ remuneration amounts to R204 000.00. She did not
make any counter offer.
Instead she retorted that she was willing to
take a risk despite a potential order of costs. The respondent
submitted that at the
end it would be praying for costs since the
referral is vexatious and frivolous and the rejection of an open
offer was wholly unreasonable.
In retort, the applicant stated that
she is willing to take that risk.
[17]
The applicant, for reasons better known to her, had caused a
subpoena
to be issued directly to Justice Baqwa. The learned
Justice, correctly so, addressed correspondence to this court
indicating that
the
subpoena
ought to have been served on the
Judge President of the High Court as opposed to him directly. He
added that he had nothing to
add as he had left Nedbank some 7 years
ago. May I state upfront that the
subpoena
of irrelevant
witnesses was used as a stratagem by the applicant to scare, as it
were, the respondent. Unfortunately, this stratagem
has for reasons
that shall follow later earned her a costs order.
Evidence
Led
[18]
I may state upfront
that what I had recorded under background facts was in fact common
cause facts
[6]
,
which automatically served as evidence before me. The plan of the
applicant was to lead evidence of the
subpoenaed
witnesses and not lead evidence herself as she had presented a bundle
to the court. The applicant became the only witness in her
own case.
Owing to the fact that she was unrepresented, although qualified in
law, I was at pains to direct her to the issues relevant
to the
matter before me. She was burdened to furnish evidence which raises a
credible possibility that the real reason for her
dismissal was one
that is prohibited and that the respondent has subjected her to an
automatically unfair dismissal.
[19]
Despite these efforts, the applicant canvassed issues of a case she
consciously abandoned at the CCMA. She read back her statement
of
case. She was argumentative and did not present facts that supports
her case. For that reason, it may not be necessary to punctiliously
recount her evidence in chief.
[20]
In cross-examination
she testified that she completed her law degree and had in fact
litigated against her principal to interdict
the termination of her
contract as a candidate attorney. Such an application was dismissed
with costs, which she has still not
paid. She further testified that
the tip-off and the string of grievances she lodged amounts to a
disclosure in terms of the Protected
Disclosures Act
[7]
(PDA). She agreed that the last grievance was irrelevant because at
the time disciplinary steps were commenced against her. She
conceded
that when she lodged the grievances she was seeking a resolution of a
grievance as opposed to reporting any unbecoming
conduct. She
admitted that effectively the tip-off was more of a grievance against
Chetty. She attempted to refute the common cause
facts laid out in
the pre-trial minute.
[21]
She admitted that at
the disciplinary hearing a spreadsheet
[8]
supported by close to 500 pages was presented by the respondent. She
accepted that the transcript of the hearing was a true reflection
of
what transpired. The transcript reveals that she and her
representative at the hearing conceded that the respondent had a
legitimate
cause for concern.
[9]
[22]
She was ambivalent when it was put to her that what she is suggesting
was the respondent together with Mosime were part of
a greater
conspiracy and the disciplinary hearing and the grievance
investigation were all shams. Classic, she sought permission
to
re-examine herself. She then closed her case without calling any
further witnesses.
Application
for absolution from the instance
[23]
At the close of the applicant’s case, the respondent through
its representative, Advocate Orr (‘Mr Orr’)
launched an
application for an absolution from the instance. The application was
pegged on two legs. Firstly, that the grievances
do not amount to a
disclosure within the contemplation of the PDA. Secondly, the
applicant failed to cross the first hurdle in
an automatically unfair
dismissal claim. He cited authorities emanating from this court and
the Labour Appeal Court (‘LAC’)
in support of those two
legs.
[24]
In opposing the application, the applicant relied on her written
heads she had filed in 2017. As it shall be expected when
reliance is
placed on heads which predates this application, the applicant argued
as if the entire merits were heard. She conceded
though that with
regard to her alternative claim no
iota
of evidence was led by
her in that regard.
[25]
Mr Orr pressed on the issue of costs and submitted that punitive cost
order was warranted. He submitted that the applicant
as a trained
lawyer ought to have known that her referral was frivolous and
vexatious. She initially referred an ordinary dismissal
and wrongly
dragged the respondent to this court after the third day of
arbitration. A reasonable offer was made which would have
averted
trial costs. The offer remained open until the end of the applicant’s
evidence in chief.
Evaluation
[26]
The applicant’s
case is that she was subjected to an automatically unfair dismissal
principally because the real reason for
her dismissal was that she
had made a protected disclosure in terms of the PDA.
[10]
In the alternative her case is that the reason for her dismissal is
that she had referred an unfair labour practice dispute to
the
CCMA.
[11]
She attempted to bolster this alternative claim, from the bar of
course, by suggesting that when she lodged the grievances she
was
exercising her rights conferred by the Act.
[27]
This alternative
claim can be quickly disposed of in that she conceded that there was
no evidence to remotely suggest that that
was the reason why she was
dismissed. On the common cause facts, she withdrew the referral to
the CCMA months before her dismissal.
Again on the common cause facts
Mosime did something about her grievance although to her mind he did
not investigate the grievance.
She went to the lengths of reporting
Mosime to the Bar Council, an act which is wholly unjustified. If the
respondent was unhappy
that the applicant had exercised her rights by
lodging a grievance, it would not have taken the trouble to enlist,
at a cost, the
services of a senior member
[12]
of the bar to listen to the grievance. The first hurdle in respect of
this alternative ground has not been crossed and therefore
the
respondent is not behoved.
Are
the grievances disclosures?
[28]
Section 187 (1)(h) is clear. It refers to disclosures as defined in
the PDA. Therefore, the starting block is the definition
section of
the PDA. Section 1 of the PDA provides thus:
‘
Disclosure
means
any disclosure
of information
regarding any conduct of an employer, or an employee of that
employer, made by any employee who has reason to believe that the
information concerned shows or tends to show one or more of the
following:
(a)
That a criminal offence
has been committed, is being committed or is likely to be committed;
(b)
That a person has failed,
is failing or is likely to fail to comply with any legal obligation
to which that person is subject;
(c)
That a miscarriage of
justice has occurred, is occurring or is likely to occur;
(d)
That the health or safety
of an individual has been, is being or is likely to be endangered;
(e)
That the environment has
been, is being or is likely to be damaged;
(f)
Unfair discrimination as
contemplated in the
Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000
; or
(g)
That any matter referred
to in paragraphs (a)-(f) has been, is being or is likely to be
deliberately concealed.
[29]
The
grievances by the applicant do not meet the definition set out above.
At a workplace, it is awaited that employees would be
aggrieved now
and then. It is for that reason that a good practice dictates that an
employer should have in place a dedicated procedure
to deal with
employees’ grievances. Some grievances have merit whilst others
do not. Regard being had to the preamble
[13]
of the PDA, it was not enacted to allow employees to disparage
[14]
their employers. Ordinarily, grievances are more about personal
feelings of employees. The PDA is not intended to deal with personal
feelings but with criminal and irregular conduct. It is largely
concerned with more serious breaches of legal obligations.
[30]
The common
cause facts has shown a tendency of the applicant to fend off request
to perform her duties by lodging a grievance. She
was quick to lodge
a grievance at a drop of a hat. That cannot be disclosures but
personal gratification steps. The applicant bore
the
onus
to show that her grievances amount to disclosures as defined. She
failed to show that. The fact that the legislature used the phrase
“
any
disclosure of information”
[15]
does not suggest that even unmerited and merited for that matter
grievances amount to a disclosure. The section must be interpreted
purposefully and contextually.
[31]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[16]
,
the SCA had aptly said the following:
‘
Interpretation
is the process of attributing meaning to words used in a document, be
it legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision in
the light of the
document
as a whole
and the circumstances attendant upon its coming into existence.
Whatever the nature of the document consideration must be given
to
the
language
used
in the light of the ordinary rules of grammar and syntax; the
context
in which
the provisions appear; the
apparent
purpose
to which it is directed and the material known to those responsible
for its production’. [My underlining and emphasis].
[32]
Since the applicant failed to show that the grievances amount to a
disclosure, application for absolution is good on this reason
alone.
Did
the applicant cross the first hurdle?
[33]
Even if I were to assume, an assumption I am not making, that
the grievances amount to a disclosure, that is not the end of the
enquiry. In order to behove the respondent, the applicant was
burdened to produce evidence that demonstrates a credible possibility
that the respondent committed an automatically unfair dismissal. To
my mind the applicant has failed to cross this first hurdle.
[34]
It is common cause that the applicant did not perform as
expected. In terms of
section 188
of the Act, misconduct and
incapacity are fair reasons for dismissal. The applicant chose to
abandon a case that would have compelled
the respondent to prove
those reasons as obligated by
section 192
of the Act. The alleged
disclosures on the evidence before me, applying the causation test,
cannot be the reason for the dismissal.
The tip-off was made in
October 2011 and the applicant was dismissed in December 2012, a year
and some months later. The reaction
of the respondent instead was to
hold a meeting on 18 November 2011. Even after the applicant and
others disclosed their identity
on 18 November 2011, nothing happened
to the applicant and others.
[35]
On the applicant’s own version, the other employees were
transferred instead. She was not transferred and she was unhappy.
Even when she lodged grievance after grievance, the conduct of the
employer was to deal with the grievance as opposed to dismissing
her.
Therefore, the disclosures are not the real reason for her
dismissal.
[36]
Determining
the reason or the principal reason of a dismissal is a question of
fact. As such it is a matter of either direct evidence
or of
inference from the primary facts established by evidence. The reason
for dismissal consists of a set of facts, which operated
on the mind
of the employer when dismissing an employee
[17]
.
They are within the employer’s knowledge. The employer knows
better than anyone else in the world why it dismissed an employee.
[37]
When
an employee positively asserts that there was a different and
automatically unfair reason for his or her dismissal, he or she
must
produce some evidence supporting the positive case, such as having
made a disclosure or taken action. An employer who dismisses
an
employee has a reason for doing so. He or she knows what it is and
must prove what it is.
[18]
[38]
What
applies is the test set out in
Kroukam
v SA Airlink (Pty) Ltd
[19]
,
which
is that
,
the employee must produce credible evidence that shows that an
automatically unfair dismissal has occurred. This, I call, the first
hurdle. Should an applicant fail to cross this hurdle such an
applicant must to my mind fail as well.
[20]
[39]
Recently the Labour
Court per Lagrange J in
Bakulu
v Isilumko Staffing (Pty) Ltd and another
[21]
,
had the following to say, to which I associate myself with:-
[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
race
[15] …But
he has brought his case to this court on the basis that the real
reason was because of his race
and he needed to raise a credibly
possibility that his dismissal in question fell within the scope of
section 187(1)
(f). [My emphasis]
[40]
The applicant has failed to cross the first
hurdle. For this reason too, absolution from the instance is
justifiable and ought to
be granted.
The
issue of costs
[41]
What
remains is the issue of costs. Since the judgment of
Zungu
[22]
there seem to be a growing view that this court has been stripped of
its discretion to award costs against employee parties. This
view is
incorrect. What the Constitutional Court did was to remind this court
of what was said in
Dorkin
[23]
.
The
discretion to award costs remains intact.
[42]
As a reminder, the LAC in
Dorkin
had the following to say:
[19]
With regard to costs I have been tempted to award costs against the
second respondent
because the second appellant has had to come to
court to seek to alter the sanction imposed upon the second
respondent but, I think
that, having obtained a sanction of final
written warning which was not his decision but that of the first
respondent- he was entitled
to come to Court and seek to defend it.
Indeed, he was successful in the Court below.
The rule of practice
that costs follow the result does not govern the making of orders of
costs in this Court
. The relevant statutory provision is to the
effect that orders of costs in this Court are to be made in
accordance with the requirements
of the law and fairness. And the
norm ought to be that
cost orders are not made unless those
requirements are met.
In making decisions on cost orders this
Court should seek to strike a fair balance between on the one hand,
not unduly discouraging
workers, employers, unions and employers’
organisations from approaching the Labour Court and this Court to
have their disputes
dealt with, and on the other
, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court.
That is a balance that is
not always easy to strike but, if the Court is to err, it should err
on the side of not discouraging
parties to approach these Courts with
their disputes. In that way these Courts will contribute to those
parties not resorting to
industrial action on disputes that should
properly be referred to either arbitral bodies for arbitration or
Courts for adjudication.
[43]
The
LAC was acutely aware that what is required is not a blanket approach
but a striking of a balance, a process that is not easy.
To my mind
if the evidence is overwhelming that the case is frivolous the scale
must tip in favour of making an order as to costs.
Allowing parties
to bring frivolous cases does not only affect the opposing party but
it also affects the administration of justice,
the business of the
court and judges. The resources of this court, judges that is, are
thinly spread country wide. If this court
were to allow those thinly
spread resources to be abused, then the provisions of section 34 of
the Constitution
[24]
will be severely compromised.
[44]
The applicant before me is not a lay person. She
is a qualified lawyer. She has a penchant of litigating without fear
and or reprieve.
She has even litigated against her principal as a
candidate attorney and was mulcted with costs. She did not learn from
that experience.
At the CCMA, she was legally represented and she
chose to fire her legal team only to undo what she was advised to do
– to
challenge the “ordinary dismissal”.
[45]
Had she continued with the arbitration, even if
she would have failed to disprove as it were the fairness of the
dismissal, she
would have left without a cost order. Her decision to
approach this court with a frivolous case was unwise. I hasten to
mention
that the order of costs is not to punish her for the unwise
decision but to confirm that indeed her case in this court was
frivolous.
[46]
Judging by the manner she litigated this matter, I
am of a firm view that this case lacked merits from the get go. The
team that
represented her and subsequently fired by her must have
been aware of this fact hence the referral from the get go was that
of
an “ordinary dismissal”. They were right if it all
they advised so because workers should not be discouraged from
bringing
their matters to the correct forum – the CCMA. The
applicant amended her case a number of times. This is indicative of
the
fact that she had no case from the get go. She struggled to
fashion out her case that she finally placed before me. I agree with
Mr Orr that the automatically unfair dismissal claim was nothing but
an afterthought.
[47]
In litigation, the interest of the opposing party
matters too, particularly, when it comes to costs. Litigation is not
cheap. The
opposing party cannot in fairness be dragged to a court of
law to defend a case without merit. It cannot be said that the
opposition
of this matter was unwarranted, since to my mind
this referral was frivolous. The applicant knew that her case in this
court
was manifestly insufficient or futile. I was tempted to award
punitive costs. However, there is no sufficient evidence before me
that the applicant was egregiously careless.
[48]
What made matters worse is the applicant’s
refusal of what was patently a generous and reasonable offer. Again,
I hasten to
say that the applicant is not punished as it were for
having refused to settle. Settling a dispute saves parties’
litigation
costs. In a settlement there is no winner or loser. Both
parties become winners with regard to litigation costs. The applicant
openly refused the offer and contented with the risk attached to
litigation-to be mulcted with costs.
[49]
In
Kopel
v Safeway Stores PLC
[25]
,
the
Appeal Tribunal in rejecting an appeal aptly said the following:
18
From those decisions and from a reading of the Rule itself, it does
not follow that a failure by the
appellant to beat a
Calderbank
offer, should by itself, lead to an order for costs being made
against the appellant. The Employment Tribunal
must
first conclude that the conduct of an appellant in rejecting the
offer was unreasonable before the rejection becomes a relevant
factor
in the exercise of its discretion under Rule 14
[26]
.
We respectfully adopt and repeat the observations of Lindsay P in
Monaghan
when he observed that:
“
Whilst
we would not want to deter the making and acceptance of sensible
offers, it became a practice such that an applicant who
recovered no
more than two thirds of the sum offered in a rejected Calderbank
offer was, without more, then to be visited with
costs of the
remedies hearing or some part of them, Calderbank offers would be so
frequently used that one would soon be in a regime
in which costs
would not uncommonly be treated as they are in the High Court and
other Courts. Yet it is plain that throughout
the life of the
Employment Tribunals the legislature has never so provided. It can
only be that that was be that that was deliberate.”
19 This
case was, however, far removed from the circumstances considered by
the Appeal in Monaghan. This appellant
had claimed $ 22, 000 and
awards for injury to feelings and aggravated damages. She had a
generous offer and had included in her
claim a manifestly
misconceived claim under Article 3 and 4 of the European Convention
on Human Rights.
The Employment Tribunal in fact, concluded that
the rejection of the offer was unreasonable. Subject, therefore, to
the alleged
error of fact, which we consider in a moment that was a
conclusion to which the Employment Tribunal was entitled to come.
[50]
To
my mind, the rejection of the offer of settlement was wholly
unreasonable. Section 162
[27]
of the LRA involves exercise of discretion. In exercising my
discretion, I choose to take the unreasonable rejection into account.
For all the above reasons, I am minded to award costs against the
applicant.
[51]
In the results, I make the following order:
Order
1.
The respondent is absolved from the instance;
2.
The applicant is to pay the costs including those
reserved on 5 December 2014.
_______________________
GN
Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: In Person
For
the Respondent
: Advocate C Orr
Instructed
by
: Cliffe Dekker Hofmeyer, Sandton.
[1]
Act 66 of 1995, as amended.
[2]
(CCT136/17)
[2018] ZACC 1
(22 January 2018)
[3]
[2008] 6 BLLR 540 (LAC)
[4]
Ibid 1 above
[5]
Written judgment delivered on 24 March 2014 per Lagrange J.
[6]
See Pre-trial minute signed on 24 February 2015 paragraphs 5-55.
[7]
Act 26 of 2000.
[8]
Pages 5-9 Volume 1 of the respondent’s bundle.
[9]
Volume 7 pages 692-3 and Volume 8 page 741.
[10]
Section 187 (1) (h) provides that…if the reason for dismissal
is (h) a contravention of the
Protected Disclosures Act, 2000
, by
the employer, on account of an employee having made a protected
disclosure defined in that Act.
[11]
Section 187 (1) (d) provides that…if the reason for dismissal
is (d) that the employee took action…against the
employer by
(i) exercising any right conferred by this Act, or (ii)
participating in any proceedings in terms of this Act.
[12]
Advocate Mosime has acted as Justice in this court.
[13]
And in order to-
·
Create a culture which will facilitate the disclosure of information
by employees relating to criminal and other irregular conduct in the
workplace in a responsible manner…
·
Promote the eradication of
criminal and other irregular conduct
in organs of state and private bodies. [My underlining and
emphasis].
[14]
Ross v Commissioner Stone No and others.
[15]
Section 1
of the
Protected Disclosures Act.
[16
]
Ibid 37.
[17]
Abernethy
v Mott, Hay and Anderson
[1974]
ICR 323.
See also
K
Screene v Seatwave
Ltd Appeal No. UKEAT/0020/11/RN delivered on 26 May 2011.
[18]
See
Kuze
v Rouche Products Ltd
[2008] EWCA Civ 380
(17 April 2008)
[19]
[2005]
26 ILJ 2153 (LAC).
[20]
Tshivhase-Phendla v University of Venda Case JS 1145-12
delivered 12 October 2017.
[21]
Case JS 105-16 delivered on 15 November 2017
[22]
Ibid 2
[23]
Ibid 3
[24]
Constitution of the Republic of South Africa, 1996
[25]
[2003] UKEAT 0281-02-1104
(11 April 2003)
[26]
Rule 14
Where, in the opinion of the Tribunal, a party has in bringing the
proceedings, or a party or a party representative has in conducting
the proceedings, acted vexatiously, abusively, disruptively or
otherwise unreasonably, or the bringing or conducting of the
proceedings by a party has been misconceived, the Tribunal shall
consider making, and if it so decides, may make- (a) an order
containing an award against that party in respect of the costs
incurred by the other party.
[27]
Section 162 (1) The Labour Court may make an order for the payment
of costs, according to the requirements of the law and fairness
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account-
(a) Whether
the matter referred to the
Court ought to have been referred to
arbitration in terms of this Act
and, if so extra costs incurred
in referring the matter to the Court; and
(b) The
conduct of the parties-
(i)
In proceeding with or defending the matter before Court; and
(ii)
During the proceedings before Court.