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[2018] ZALCJHB 278
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N v Sky Services (Pty) Ltd (JS778/15) [2018] ZALCJHB 278; [2019] 5 BLLR 504 (LC) (21 August 2018)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 778/15
In the matter between:
S
N
Applicant
and
SKY SERVICES (PTY)
LTD
Respondent
Heard: 28 August 2017
to 30 August 2017
Delivered: 21 August
2018
JUDGMENT
MAHOSI
J
Introduction
[1] The applicant seeks
an order to the effect that his dismissal be declared automatically
unfair on account of discrimination.
[2] This matter was heard
from the 28
th
of August 2017 until the 30
th
of
August 2017. The parties had until 8 September 2017 to file the heads
of argument, however, the applicant failed to meet the
deadline for
the submission of the heads of argument as he only filed them on 22
September 2017.
Background facts
[3] The salient feature
of this matter may be summed thus. The respondent employed the
applicant as a picker/packer in 2009. The
applicant’s job was
highly physical in that it involved operating a forklift to load and
offload cargo from trucks, manually
packing and unpacking pallets of
perishable cargo and loading and offloading cargo into cold rooms. He
was further required to
do housekeeping of the warehouse and cold
rooms.
[4] It is common cause
that the applicant was absent from work during 2014 and 2015 because
of ill health. Around March and April
2015, the respondent sent the
applicant for medical assessments. Following a final medical
assessment by HSP Group (Pty) Ltd, the
applicant was issued with the
examination results dated 19 June 2015 in terms of which he was
declared medically unfit.
[5] On 27 August 2015,
the applicant was invited to a meeting where he was informed of his
dismissal. The applicant alleges that
the reason for his dismissal
was that he was HIV positive. Dissatisfied with dismissal, the
applicant referred an unfair dismissal
dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA). The dispute was
conciliated unsuccessfully and a
certificate of outcome, classifying
the dispute as unfair discrimination, was issued by the conciliating
commissioner. This prompted
the applicant to refer the current
dispute.
Issues for
determination
[6] The main issues for
determination as
per
the parties’ pre-trial minutes are
as follows:
‘
5.1
Whether or not the Court has the necessary jurisdiction to determine
the dispute referred;
5.2 If the Court
determines that it has the necessary jurisdiction to determine the
dispute, whether or not the Applicant’s
dismissal was
automatically unfair;
5.3 What the appropriate
relief is in the circumstances, should the Court find that the
applicant’s dismissal was automatically
procedurally and/or
substantively unfair.’
Preliminary issue
[7] As aforesaid, in the
pre-trial minute and at the beginning of the proceedings, the
respondent raised a preliminary question,
which the court had to
consider. The preliminary point raised by the respondent was in
relation to the lack of jurisdiction of
this Court. The respondent
contended that the applicant was dismissed for incapacity and not
because of his HIV status, which deprived
this Court of jurisdiction
to determine the dispute.
[8]
The court ruled that because the pre-trial conference minutes did not
disclose a set of facts that would have enabled it to
determine
whether an automatically unfair dismissal took place, it decided to
hear the merits of the case. It relied on the unreported
Labour
Appeal Court (LAC) judgment of
Booysen
v NUMSA
[1]
where the Court stated as follows:
‘
Because
the existence of an alleged automatically unfair dismissal is a
jurisdictional prerequisite to the Labour Court hearing
a trial, it
must logically follow that it is incumbent on a court to enquire into
whether such a case has indeed been articulated
for its adjudication,
whether that question is raised by the litigants or not. This enquiry
is not to be confused with an enquiry
into the contested merits of
the allegations and counter-allegations, which is the purpose of the
trial itself.
If a
proper interpretation of the pleadings and any common cause facts put
before the court demonstrates the absence of a set of
circumstances
that can support a conclusion that a dismissal took place that was
automatically unfair then the court lacks jurisdiction
and ought to
refuse to hear the matter.’
[9] Having made a ruling
that the merits of the matter be heard in order to determine whether
an automatically unfair dismissal
occurred, parties led evidence
through their respective witnesses to which I now turn.
Evidence
of parties
[10] Five witnesses led
evidence for the respondent and the applicant testified in support of
his case. I should mention that the
testimonies of the respective
parties would be limited to facts relevant to the automatically
unfair dismissal claim.
Respondent’s
witnesses
Mr Bernd Julicher
[11]
Mr Bernd Julicher testified that he is the respondent’s
managing director and that whilst he was not involved in the
day-to-day of the respondent’s warehouse, he was aware of the
applicant’s regular absenteeism during 2014 to 2015.
The
applicant’s regular absenteeism was discussed in the management
meetings and
was also recorded in the respondent’s
Biometric Scanning system that monitored employee attendance records.
[12]
He further testified that he was aware that the applicant’s
managers were concerned about his health and that they had
tried to
assist him by arranging and booking his medical examinations, at the
respondent’s expense. However, that the applicant
had refused
to attend these appointments.
[13]
Furthermore, he stated that he did not know the applicant’s HIV
status and neither did Mr de Klerk nor Mr van den Berg
mention it to
him at any stage. At no stage during his employment did the applicant
ever disclose his HIV status and none of the
medical records
indicated the reason for his ill health.
[14]
Mr Julicher testified that he was advised that the applicant had
collapsed at work, though he could not recall exactly when
the
incident took place. The respondent subsequently placed the applicant
on light duties whenever he fell ill. This included using
him as an
assistant truck driver even though there was no permanent position of
this nature.
[15]
Mr Julicher further testified that whilst the applicant had initially
refused to medical assistance, he (the applicant) eventually
advised
him in June 2015 that he had become too ill to continue working. He,
in turn, advised the applicant that it would be necessary
for the
respondent to follow a proper process. It was in that regard that the
applicant agreed to go for a full medical examination
at respondent’s
expense.
[16]
Under cross-examination, Mr Julicher conceded that the applicant had
not stated that he wanted to resign nor that the respondent
forced
him to resign. Mr Julicher thereafter involved Paul Rautenbach, the
respondent’s Human Resource Manager, and requested
that he set
up all the necessary medical appointments.
[17]
The applicant was attended to at the HSP Group on the 19th of June
2015 and went for further medical examinations on the 19th
of June
2015. The medical results were received in late August and they
indicated that the applicant was unfit for duty as a packer.
[18]
A meeting was scheduled around the 27 or 28 August with Mr Julicher,
Mr Rautenbach, Mr van den Berg, Mr de Klerk and the applicant
to
discuss the results. A colleague, Pearl Sigasa, was called to assist
the applicant and interpret for him. Mr Julicher further
testified
that the managers were called to the meeting because they had been
involved with the applicant over the years.
[19]
At the meeting, the applicant was advised that he was declared unfit
to work as a packer; that there were no alternative positions
for him
because the “assistant driver” position was not a
permanent position. He was further advised that his services
would,
therefore, be terminated. The applicant was requested to sign
relevant documentation and to take his UIF documents, which
he
refused to do.
[20]
Mr Julicher testified that the applicant referred a dismissal dispute
relating to incapacity to the CCMA. However, at the CCMA,
the
applicant stated that he had been dismissed due to his HIV status. Mr
Julicher indicated that that was the first time he had
heard that the
applicant was HIV positive.
Andre
De Klerk
[21]
Mr de Klerk, testified that he was the respondent’s Warehouse
Manager and that he was the applicant’s direct line
manager. He
confirmed Mr Julicher’s evidence that the applicant was ill
during the course of 2014 to 2015, usually taking
off a substantial
amount of time and on occasion not informing management.
[22]
He testified that the applicant’s absence had a detrimental
effect on the team and the respondent occasionally had to
employ
casuals to fill in for him. Further that the respondent had offered
to assist the applicant by providing medical assistance
at its own
expense, which assistance he refused.
[23]
Mr de Klerk denied the allegation that the respondent wanted to do so
in order to establish the applicant’s HIV status.
Neither did
the respondent force the applicant to go for medical examination. He
also testified that he first heard of the applicant’s
HIV
status when the matter proceeded to this Court.
[24]
The applicant had collapsed at work sometime during December 2014, a
peak period in the respondent’s line of business.
As a result,
the applicant was admitted at the hospital and was given additional
10 days leave earlier than anticipated. He only
returned to work on 4
January 2015. He remained ill in 2015 and had been placed on light
duties.
[25]
Mr De Klerk further testified that the applicant approached Mr
Julicher in June 2015 as he decided that he wanted to stop working
due to his ill health. The applicant thereafter agreed to go for
medical examinations and subsequently declared unfit to continue
with
his work. A meeting was held with the applicant in August 2015 where
he was advised that he was not fit for duty, as per the
medical
results.
[26]
Mr De Klerk testified that it would have been a risk to the
respondent to allow the applicant back at work, particularly as
he
drove the forklift and could have injured himself or others. He was
also not aware of the applicant’s HIV status and that
was not
mentioned at the August 2015 meeting.
[27]
He testified that although the applicant initially refused to take
his UIF documents, Mr de Klerk later contacted him and told
him to
collect them. The respondent arranged for their driver to take the
applicant to the Department of Labour to assist him with
his UIF
claim. The respondent generally did this for its personnel to help
them with these matters.
Paul
Rautenbach
[28]
Paul Rautenbach, the respondent’s Human Resource Manager,
confirmed evidence led by both Mr Julicher and Mr de Klerk.
He denied
being the person who had approached the applicant in March/April 2015
regarding doctors’ appointments. He testified
that the
applicant had not laid any complaint against him about discrimination
or anyone in management, despite the respondent
having a Grievance
Procedure.
[29]
He further testified that he was not aware of the applicant’s
HIV status at that stage. He advised the applicant that
he could not
be allowed him to continue working once he had been declared
medically unfit as this would be a risk to both him and
the
respondent. Mr Rautenbach confirmed that there was no discussion, at
the meeting, about blood spilling on products. He denied
that he had
said that even President Zuma would not be able to overturn the
certificate of fitness and therefore the respondent
had to comply
with the doctor’s findings.
[30]
He further stated that there were no other suitable positions for the
applicant as he had already been on light duties. Mr
Rautenbach
denied that the applicant had begged him for an alternative job.
Further that Pearl Sigasa had been called to the meeting
to assist
the applicant and interpret for him. He confirmed that the parties at
the meeting had a good relationship with each other
and the purpose
of having the management there was due to them all having been
involved throughout his ill health.
[31]
In relation to the procedure followed in dismissing the applicant, he
testified that the meeting was not a formal disciplinary
hearing
where witnesses would be present as the process was an incapacity
process, not a disciplinary process.
[32]
He confirmed that the applicant refused to sign the termination
letter documents and left the meeting without it. He denied
that
there was any intent to “trick” the applicant into
signing any documents;
[33]
He also testified that the first time he became aware that the
applicant was HIV positive was at the CCMA. Under cross-examination,
it was put to Mr Rautenbach that the applicant suspected that Mr John
Ramotsaletsi had told him about the applicant’s HIV
status, an
allegation that Mr Rautenbach denied.
Pearl
Sigasa
[34]
Pearl Sigasa, the respondent’s Administrative Clerk, testified
that the applicant was very ill during the years 2014
and 2015. She
also confirmed that she had heard about the applicant’s
collapse at work.
[35]
Further that she was a close friend of Mr. John Ramotsaletsi, but he
had at no stage advised her of applicant’s HIV status.
She,
therefore, did not know the cause of applicant’s illness.
[36]
She was called to a meeting in August 2015 to assist the applicant
with interpretation. The letter declaring him unfit for
duty was read
to him at the said meeting. There was no discussion about HIV or
blood spilling on products at the meeting. She also
confirmed that
she was not called as a witness for the applicant. The applicant was
given a copy of the documents, which he took
with him. Further that
applicant was advised to come to work to collect his UIF documents
but he refused to do so.
Jaco
Van Den Berg
[37]
Jaco van den Berg, the respondent’s Branch Manager, confirmed
evidence led by Mr Julicher, Mr de Klerk, Mr Rautenbach
and Ms
Sigasa. In particular, that the applicant was ill and that he had
initially refused to go to doctors. Further that the applicant
was
placed on light duties and that this happened prior to the meeting in
August 2015.
[38]
He denied all statements that were made in the applicant’s
pleadings regarding his knowledge of the applicant’s
HIV status
and denied that Mr John Ramotsaletsi had approached him at any stage
to discuss the applicant’s HIV status and/or
HIV medication.
The meeting held in August 2015 was to discuss the applicant’s
medical fitness and the respondent offered
to assist the applicant
with UIF, an offer that the applicant refused. No mention was made of
HIV or of contamination of fruit
and vegetables at the said meeting.
Applicant’s
testimony
[39]
The applicant confirmed that his duties included all the duties
listed in the Pre-trial Minute. However, at the trial, he added
that
he was an assistant driver on a regular basis.
[40]
He testified that he shared a locker with Mr John Ramotsaletsi and
that he disclosed his HIV status to him. Further that none
of the
other employees knew of the applicant’s HIV status.
[41]
The applicant stated that he initially refused medical assistance
because his illness was his secret. He eventually changed
his mind
when Paul Rautenbach approached him and told him he would be given
strong medication for his illness. The applicant admitted
going to
the HSP Group for testing.
[43]
He further testified that he was called to a meeting on 27 August
2015, where Mr Julicher, Mr Rautenbach, Mr de Klerk and Mr
van den
Berg were present. He was requested to sign documents but he refused
and instead requested copies thereof. He was only
given a copy of the
medical report. He also asked that he be assigned lighter duties but
Mr Paul Rautenbach told him that he would
contaminate produce with
his blood. Mr Rautenbach pressurised him to consult a doctor and that
led him to suspect that Mr John
Ramotsaletsi told him about his HIV
status
[43]
He testified that he was dismissed on 27 August 2015 and not 31
August 2015 as stated by the respondent.
[44]
The applicant stated that he is fit for work and that he seeks
reinstatement.
Legal principles and
Evaluation
[45]
As indicated above,
the applicant seeks relief
arising from his alleged automatically unfair dismissal on the ground
of his HIV status.
In terms of section 187(1)(f) of the LRA, 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-
(f) that the employer
unfairly discriminated against an employee, directly or indirectly,
on any arbitrary ground, including, but
not limited to race, gender,
sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
political opinion, culture,
language, marital status or family responsibility.’
[46]
The question is whether the applicant’s dismissal was
automatically unfair. If so, this Court has the jurisdiction to
hear
the matter and the next issue for determination will be the
appropriate relief that should be granted. If the applicant was
dismissed for incapacity, his dismissal dispute must be arbitrated by
the CCMA in terms of section 191(5)(a)(i) of the LRA.
[47]
It is common cause that the applicant was absent from work during
2014 and 2015 because of ill health. It was further common
cause that
the respondent subjected the applicant to a medical assessment and
that following final medical examination by HSP Group
(Pty) Limited,
he was declared medically unfit to continue working. These factors
must be considered against the applicant’s
claim that the main
reason for his dismissal was because he was HIV positive.
[48]
In
IMATU
v City of Cape Town,
[2]
the
Court stated as follows;
‘
80. The approach
to unfair discrimination to be followed by our courts has been spelt
out in
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC).
Although the
Harksen
decision concerned a claim under section
9 of the Constitution (the equality clause), there is no reason why
the same or a similar
approach should not be followed under the EEA.
81. The
Harksen
approach contains a specific methodology for determining
discrimination cases. The first enquiry is whether the provision
differentiates
between people or categories of people. If so, does
the differentiation bear a rational connection to a legitimate
governmental
purpose? If it does not, then there is a violation of
the guarantee of equality. Even if it does bear a rational
connection, it
might nevertheless amount to discrimination. The
second leg of the enquiry asks whether the differentiation amounts to
unfair discrimination.
This requires a two staged analysis.
Firstly, does the differentiation amount to “discrimination”?
If it is on
a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or not
there
was discrimination would depend upon whether, objectively, the
ground was based on attributes and characteristics which had the
potential to impair the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious
manner.
Secondly, if the differentiation amounted to “discrimination”,
did it amount to “unfair discrimination”?
If it is found
to have been on a specified ground, unfairness will be presumed under
the Bill of Rights by virtue of the provisions
of section 9(5) of the
Constitution, which transfers the onus to prove unfairness to the
complainant who alleges discrimination
on analogous grounds. As I
read section 11 of the EEA, no similar transfer of onus arises under
the EEA. In other words, whether
the ground is specified or not the
onus remains on the respondent throughout to prove fairness once
discrimination is shown. In
the context of the EEA section 6(2)(b)
also permits justification on the basis of an inherent requirement of
a job, in which event
the discrimination is deemed not to be unfair.
The onus in this respect is also on the employer.’
[49]
The question is whether the respondent discriminated against the
applicant, and if so, whether it was based on his HIV status.
For the
applicant to succeed in his claim, he has to show that the real
reason for his discrimination was that he was HIV positive.
The
applicant’s legal representative, Advocate Matome Sehunane,
relied on
Kroukam
v SA Airlink (Pty) Limited
[3]
where the LAC dealt with the evidential burden in automatically
unfair disputes and stated as follows:
‘
In
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 s 187 for constituting
an
automatically unfair dismissal.’
[50]
In
Wardlaw
v Supreme Moulding (Pty) Limited
[4]
the
LAC stated as follows:
[23]
The significance of sec 191(5)(a) and (b) seems to be this. What is
contemplated by the scheme of the Act is that, if the employee
has
alleged a certain reason as the reason for dismissal and that reason
is one that falls within sec 191(5)(b) and the Court does
not at any
stage think that that reason is not the reason for dismissal, the
Court proceeds to adjudicate the dispute and delivers
a judgement.
Where as a reason for dismissal, the employee has alleged a reason
that falls within sec 191(5)(b), the Court provisionally
assumes
jurisdiction but, if the Court later takes the view or it later
becomes “
apparent
” to the court that the reason
for dismissal is one that falls under sec 191(5)(a), it then declines
jurisdiction and follows
the sec 158(2)(a) or (b) route.
[24]
In the light of the above it seems to us that the employee’s
allegation of the reason for dismissal as contemplated in
sec 191(5)
is only important for the purpose of determining where the dispute
should be referred after conciliation but the forum
to which it is
referred at that stage is not necessarily the forum that has
jurisdiction to finally resolve the dispute on the
merits. That may
depend on whether it does not later appear that the reason for
dismissal is another one other than the one alleged
by the employee
and is one that dictates that another forum has jurisdiction to
resolve the dispute on the merits. Once a dispute
has been referred
to, for example, the Labour Court, the Labour Court provisionally
assumes jurisdiction. That assumption of jurisdiction
is conditional
upon it not later becoming “
apparent
” to the Court
within the contemplation of sec 158(2) of the Act that the reason for
the employee’s dismissal is one
that falls within sec 191(5)(a)
of the Act. We say it is provisional or conditional because if it
later becomes “apparent”
that the dispute is one that
ought to have been referred to arbitration, the Court will decline
jurisdiction and have the dispute
referred to arbitration.
[51]
In the current case, the applicant’s case is that he was
dismissed because he was HIV positive. His allegation was based
on
the assumption that his colleague, Mr John Ramotsaletsi, informed the
respondent’s management of his HIV status. Although
the
applicant submitted proof that he was HIV positive, he could not show
that the respondent was aware of his HIV status.
[52]
There is no indication on the pleadings or evidence that Mr John
Ramotsaletsi informed any of the managers and colleagues that
the
applicant was HIV positive and most importantly that he was dismissed
for being HIV positive. In his own words, the applicant
testified
that he initially refused medical assistance from the respondent
because he viewed his illness as a private matter.
[53]
From the medical report the respondent relied on, it appears that the
applicant was declared medically unfit to work. The applicant
took
issue that the said certificate was issued by a midwife and not Dr
Stuart. But my view is that nothing turns on that. The
applicant
conceded that on 27 August 2015, he refused to sign the termination
notification for incapacity due to ill-health. It
is, therefore,
apparent that the reason for the applicant's dismissal is incapacity.
[54]
The applicant’s argument that he was dismissed without any
formal hearing and/inquiry speaks to the merits of the matter
which
can be properly ventilated at arbitration. His dispute must be
referred to the CCMA for arbitration in terms of section 158(2)(a)
of
the LRA, where he will have a full and fair hearing. At the
arbitration, both parties will be afforded an opportunity to lead
evidence for the arbitrator to determine whether the applicant’s
dismissal was fair or not.
Costs
[55]
With regard to costs, I am of the opinion that the requirements of
law and fairness dictate that there should be no order as
to costs.
Order
[56]
Accordingly I make the following order:
56.1 The proceedings are
stayed in terms of section 158(2)(a) of the Labour Relations Act and
the dispute is referred to arbitration
under the auspices of the
Commission for Conciliation, Mediation and Arbitration.
57.2 There is no order as
to costs.
__________________
Mahosi
J
Judge
of the Labour Court
Appearances
:
For
the applicant:
Adv M. Sehunane
Instructed
by
Sehunane Attorneys
For
respondent:
Adv M. Pye
Instructed
by
Pearson Attorneys
[1]
JA13/13
delivered
on 13 May 2014
[2]
[2005] 11 BLLR 1084 (LC).
[3]
(JA3/2003)
[2005] ZALAC 5
(26 September 2005) at para 28.
[4]
[2007] 6 BLLR 487
(LAC).