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[2018] ZALCJHB 377
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Ledwaba v Laxness (Pty) Ltd (JS571/16) [2018] ZALCJHB 377 (16 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JS571/16
In
the matter between:
NOMALANGA
LEDWABA
Applicant
and
LANXESS
(PTY)
LTD
Respondent
Heard
:
14-16 May 2018 and 18, 20, 21, 26 and 27
September 2018
Delivered
:
16 October 2018
Summary:
A referral in terms of which the applicant alleges 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 operational
reasons. The applicant on the other hand alleges that the
true
reason
for her dismissal is that she took action or
indicated an intention to take action against the respondent by
exercising a right
conferred to her by the LRA. 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.
Held:
(1) The applicant was not automatically unfairly dismissed. Held: (2)
The dismissal of the applicant is procedurally fair
but substantively
unfair. Held: (3) The respondent is ordered to pay to the applicant
an amount equivalent to eight months’
salary. Held: (4) The
applicant to pay the respondent’s trial costs on a party and
party scale.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a
referral in terms of section 191 of the Labour Relations Act
[1]
(LRA). The applicant alleges that the respondent subjected her to an
automatically unfair dismissal within the contemplation of
section
187 (1) (d) of the LRA as amended. In the alternative, the applicant
alleges that the dismissal was both procedurally and
substantively
unfair. 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 based on its
operational requirements.
Background
facts
[2]
The respondent is a legal entity involved in the mining industry. It
has its head offices in Germany. The applicant was employed
as a
Human Resources Manager at the Lanxess Chrome Mine situated in
Rustenburg. Given the conflict between the applicant and the
Mine’s
CEO, the applicant was offered and subsequently accepted a new
position known as BBBEE Social Projects Manager: (SPM)
South Africa
(SPM). Due to operational reasons, the SPM was restructured and the
position was rendered redundant. Thereafter, the
applicant was
dismissed after a consultation process. Prior to her dismissal, the
applicant had lodged a grievance against Mr Ferreira,
the Chief
Executive Officer (CEO) of the Mine, which grievance was not pursued,
after the applicant was convinced not to pursue
it. Aggrieved by her
dismissal, the applicant referred an automatically unfair dismissal
dispute and alternatively an ordinary
unfair dismissal claim
.
Evidence
Led
[3]
For some reasons, the parties agreed that the respondent should give
evidence first. The respondent tendered evidence of five
witnesses.
One of the witnesses testified
via
video link from Germany.
For the purpose of this judgment, it is not necessary to set out in
any details the evidence of all the
five witnesses. Suffice to
mention that this Court was particularly impressed with the evidence
of the respondent’s witnesses.
They were honest, forthright and
straightforward in their testimony. On the other hand, the applicant
was the only witness in her
own case. The Court was far from being
impressed with her testimony. She failed to give direct answers to
direct questions. She
was at times longwinded even where a question
was simple and straightforward.
[4]
In summary, Mr Qodashe testified that as the Head of Human Resources,
he represented the respondent during the consultations
process. Prior
to the consultation process, he was in discussion with the Country
Managing Director regarding the reviewing of
the applicant’s
position as a SPM. It was picked up that the centralised role was no
longer relevant given the duplication
and overlap of functions at the
various sites performed by the local managers. He gave account of the
consultation meetings that
took place between November 2015 up to and
including January 2016. Regarding the applicant’s previous
position at the Mine,
he testified that the applicant did not show
interest in that position since her departure was acrimonious. When
he joined the
respondent in August 2015, various positions were
restructured. He was part of the team that reviewed the applicant’s
position
as a SPM. He assumed that the applicant did not wish to
return to the position of Head of Human Resources at the Mine. Had
she
raised her hand, she would not have been dismissed. The position
was not offered to the applicant as it was vacant at the relevant
time. She was suitably qualified for the position but because she did
not raise her hand she was not offered the position.
[5]
Mr Strydom had dealings with the applicant. He testified about the
minibus request from a particular school. He did not agree
with the
applicant’s objection to lend a support to the school. On 23
October 2015 a meeting took place and the issue of
the minibus was
discussed. There was a heated exchange between him and the applicant
over the issue. The system that was in place
before the creation of
SPM was more efficient for him. Had he been consulted when the SPM
position was created, he would have not
agreed to its creation.
[6]
Dr Gassen, testifying through video link gave evidence around the
three main reasons why the SPM was created. A proper process
was
followed when the new position was created. At a meeting at the Mine,
the position was offered to the applicant and the applicant
accepted
it. As he was about to leave the company, he discussed with Mr Marais
as to how the position would function. He never
promised the
applicant that she would take over the position of Mr Govender once
he, Mr Govender, retires. Given the fact that
SPM was his brainchild,
he would have opposed its restructuring if he was still employed. He
did not pressurise the applicant not
to proceed with the grievance.
The functions in Mr Govender’s position are different and
technical in nature, thus, it was
impossible to have promised the
applicant his position upon retirement.
[7]
Mr Ferreira, was employed to turn the Mine around as it was not doing
well financially. The applicant was already in the employ
of the Mine
when he took up the position as the CEO. There was never a good
working relationship between him and the applicant.
She undermined
him and refused to follow his instructions. The relationship between
them was “totally broken down”.
The frustration almost
led him to leave his position. He documented his complaints to Dr
Gassen and others. He was not aware of
any investigation of
irregularities conducted by the applicant. In any event there was a
prescribed procedure for investigations,
which he was not aware that
the applicant had followed. He was not involved in the transfer of
the applicant, nor was he aware
of the grievance that the applicant
lodged against him. He will not be able to work with the applicant,
particularly because of
the issue of the suspension of Ezekiel.
[8]
Mr Marais is the CEO of the respondent’s operations in South
Africa and he was part of the process leading to the transfer
of the
applicant to Greenside. The transfer was prompted by the friction
between the applicant and the CEO at the Mine. It was
discussed in a
meeting and an agreement was reached that Dr Gassen should deal with
the transfer process. Following a meeting on
or about 18 March 2015,
Dr Gassen and Tedesco met with the applicant and gave her an offer
which she accepted. It was agreed that
the applicant would commence
at Greenstone as soon as possible. However, the applicant only
reported at the post after 28 April
2015. The issues that held up her
reporting related to the benefits attached to the post and the title
of the post. Those issues
were addressed by Tedesco. He was never
part of a discussion where the applicant was promised the position of
Mr Govender upon
retirement. At a point in time, a conclusion was
reached that the SPM was not adding value since there was duplication
of functions.
The applicant was thus dismissed for operational
reasons and not any other reason related to the minibus issue nor the
grievance
which was not pursued by her.
[9]
The position, SPM was created as an alternative to a possible
dismissal at the Mine. The dispute around the minibus was not
about
roles but about whether the minibus must be bought or not.
[10]
The applicant testified about her qualifications and experience. She
performed the functions of Mr Govender before his appointment
as head
of BBBEE. She was a useful and reliable resource. The new position,
SPM, she was appointed to was not advertised as it
is the norm to do
so. The conflict between her and the CEO of the Mine was sparked by
the management and appointment of service
providers. She had
questioned certain appointments. The CEO initiated and orchestrated
industrial actions aimed at removing her
from her post as Human
Resources Manager at the Mine. When the new position was discussed
with her she was promised the position
of Mr Govender when he
retires. She only accepted the position on 29 April 2015, when she
signed the appointment letter. She accepted
the position because she
was compelled by Mr Marais. A week after the heated discussion over
the minibus issue, she received a
section 189 (3) of the LRA notice.
In the consultation process, she disputed the redundancy of the
position as she was hoping that
the position would develop. She
suggested that she be taken back to the vacant position of Human
Resources Manager at the Mine.
The suggestion was brushed off and she
was not offered that position. She considered the transfer to SPM as
part of the succession
plan. She wished to be reinstated. During
cross-examination, she conceded that in a conflict situation, an
employer is entitled
to take steps to address the conflict. Such
steps may include transfer and a job offer. Also, she conceded that
the respondent
knew that the grievance was not being pursued by her
anymore.
Argument
[11]
At the conclusion of the evidence, both
representatives delivered oral submissions. I however, allowed the
representatives to augment
the oral submissions in writing. They did
so. I considered those submissions for the purposes of this judgment
and wish to thank
both representatives for the helpful submissions
and the collated authorities.
Evaluation
[12]
This is one of those matters where the true reason
for the dismissal is being disputed. As pointed out elsewhere in this
judgment,
the respondent contends that the applicant was dismissed
for operational requirements. The applicant contends that the true
reason
for her dismissal is because she took action by exercising her
rights conferred by the LRA.
[13]
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
[2]
.
They are within the employer’s knowledge. The employer knows
better than anyone else in the world why it dismissed an employee.
[14]
When
an employee positively asserts that there was a different and
inadmissible reason for his or her dismissal, he or she must
produce
some evidence supporting the positive case, such as taking action by
exercising rights conferred by the LRA. 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.
[3]
Was
the dismissal of the applicant automatically unfair or not?
[15]
In
all automatically unfair dismissal instances in section 187, they are
preceded with the phrase “
if
the reason for the dismissal is
”
.
What
applies is the test set out in
Kroukam
v SA Airlink (Pty) Ltd
[4]
,
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.
[16]
It
is not sufficiently clear what the applicant’s case is in this
regard. Her pleaded case was that she was victimized for
exercising
her Constitutional and Statutory rights by, amongst others, reporting
irregularities and taking action against senior
management,
instituting a grievance against the CEO of the Mine, insisting on
following procedures and policies and protocol, and/or
reporting the
unacceptable conduct of Mr. Strydom and escalating her grievance
against him to Lanxess: Germany.
[5]
[17]
It
is not her case that she was dismissed because she had made a
protected disclosure. In her written submissions, reliance was
placed
on the decision of this Court in
Mackay
v ABSA
[6]
.
It is therefore apparent that the applicant contends that she was
dismissed for having lodged a grievance. The only formal grievance
lodged was one against the CEO of the Mine. It is common cause that
this grievance was not pursued by the applicant. That being
the case,
I fail to understand how the respondent can respond with a dismissal
against a non-existent grievance. After Dr Gassen
convinced the
applicant not to pursue the grievance, there was nothing to be
worried about. Put differently, the applicant was
no longer seeking
to exercise the rights conferred by the LRA.
[18]
With regard to the roles complaint, the applicant
did not lodge a formal grievance. All she did was to inform some
employees in
Germany of how she views her functions and such
employees agreed with her. I do not consider that to be an exercise
of a right
conferred by the LRA. I do not agree with the applicant’s
counsel that there was a clear causal connection between the exercise
of rights and her dismissal. Therefore, I conclude that the applicant
was not automatically unfairly dismissed.
Was
the applicant’s dismissal procedurally and substantively
unfair?
[19]
With regard to procedure, the applicant’s
pleaded case was that of
fait accompli
,
failure to provide sufficient information to enable her to
meaningfully participate and premature implementation of the decision
to retrench. The evidence before me suggests that the applicant was
not confronted with a
fait accompli
.
No final and immutable decision was arrived at prior to a
consultation process. It cannot be said that the consultation process
was a sham. It was meaningful. Regarding the issue of sufficient
information, this Court was not told what that information was.
The
provisions of section 16 of the LRA applies in a consultation
process. There is no evidence before me that the applicant attempted
to invoke the provisions of section 16 of the LRA. With regard to
premature dismissal, I fail to understand why such is a procedural
irregularity. Accordingly, I am not satisfied that there was any
procedural unfairness.
[20]
With
regard to substance, the applicant’s counsel conceded rightly
so that the respondent had commercial rationality. The
mandated test
is that of fairness as opposed to the correctness of the commercial
decision. The obligation to avoid a dismissal
based on a no fault
reason lies with an employer
[7]
.
Had the respondent offered the applicant the vacant Human Resources
Manager position at the Mine, the applicant’s dismissal
could
have been avoided. The assumption that the applicant would have not
accepted the offer because of the conflict is not a reasonable
assumption to have been made. There is no specific reason shown why
the applicant should have applied for the vacant position.
There is
uncontested evidence that the applicant suggested to be taken back as
a measure to avoid her dismissal. What was required
was to offer the
applicant the vacant position and if she rejects it for any reason,
then the respondent would have discharged
the obligation to avoid the
dismissal. Dismissing the applicant in the circumstances where a
suitable position existed is dismissing
her for no fair reason.
Accordingly, her dismissal was substantively unfair.
The
issue of the relief - practicability of reinstatement.
[21]
The
applicant testified that she wishes to be reinstated. Reinstatement
is a primary remedy. It can only be denied if the provisions
of the
LRA are met. The relevant section of the LRA in this regard is
section 193(2) (c)
[8]
. The
dictionary meaning of the word ‘practicable’
means-
capable
of being effected, done, or put into practice; feasible
.
Reasonable has as its meaning to be
being
within the bounds of common sense, not excessive, extreme or fair.
[22]
So
to my mind the phrase
reasonably
practicable
means that which is effectively fair. An objective value judgment
predicated on some evidence is thus required. In
casu
,
it is common cause that the position that the applicant held does not
exist anymore. Reinstatement means putting back the employee
into the
same job or position he/she occupied before the dismissal on same
terms and conditions.
[9]
[23]
The position of SPM does not exist anymore.
Therefore, it is impracticable to place the applicant in the
position. Re-employment
is not the same as reinstatement. It is only
in a re-employment context that an employee may be placed in other
reasonably suitable
work. To my mind, for re-employment in such
circumstances to be reasonably practicable, there must be a
reasonably suitable work.
In other words, there must be evidence that
a reasonably suitable work does exist. The issue is not whether
vacant positions exist
to have avoided a dismissal but whether at the
time the court considers the relief of re-employment, there exists a
reasonably
suitable work. Before me, there is no evidence that a
reasonably suitable work exists. Accordingly, re-employment is not
reasonably
practicable as well.
[24]
The
only available relief is that of compensation. Section 194 (1) of the
LRA becomes the guiding section. The LAC has already observed
that a
determination of what is just and equitable is a difficult horse to
ride. I agree. It is instructive to note what the LAC
said in
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
.
[10]
It said:
‘
[22]
The compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice, may be awarded is
not aimed at
making good the patrimonial loss that s/he suffered. The concept of
loss or patrimonial loss may play a role to evince
the impact of the
wrong upon the employee and thus assists towards the determination of
appropriate compensation, but compensation
under the LRA is a
statutory compensation and must not be confused with a claim for
damages under the common law, or a claim for
breach of contract or a
claim in delict.
Hence, there is no need
for an employee to prove any loss when seeking compensatory relief
under the LRA.
[23] Compensatory relief
in terms of the LRA is not strictly speaking a payment for the loss
of a job or the unfair labour practice
but in fact a monetary relief
for the injured feeling and humiliation that the employee suffered at
the hands of the employer.
Put differently, it is a payment for the
impairment of the employee’s dignity. This monetary relief is
referred to as a
solatium
and it constitutes a solace to
provide satisfaction to an employee who’s constitutionally
protected right to fair labour
practice has been violated. The
solatium
must be seen as monetary offering or pacifier to
satisfy the hurt feeling of the employee while at the same time
penalizing the
employer. It is not however a token amount hence the
need for it to be “just and equitable” and to this end
salary
is used as one of the tools to determine what is “just
and equitable”.
[24] The
determination
of the quantum of compensation is limited to what is “just and
equitable”.
The determination of what is “just and
equitable” compensation in terms of the LRA is a difficult
horse to ride…In
my view, and as I said earlier, because
compensation awarded constitutes
solatium
for the humiliation
that the employee has suffered at the hands of the employer and not
strictly a payment for a wrongful dismissal,
compensation awarded in
unfair dismissal or unfair labour practice matters
is more
comparable to a delictual award for non-patrimonial loss.
While a
delictual action…for non-patrimonial loss is fashioned as a
claim for damages, it is no more than a claim for a
solatium
because it is not dependent upon patrimonial loss actually suffered
by the claimant. Hence, awards made under a delictual claim
for
non-patrimonial loss may serve as a guide in the assessment of just
and equitable compensation under the LRA. In
Minister of Justice &
Constitutional Development v Tshishonga
,
this court in an
award of
solatium
referred to a delictual claim
made under the
actio iniuriarum
for guidance in
what would constitute just and equitable compensation for
non-patrimonial loss in the context of an unfair labour
practice
.
It stated that since compensation serves to rectify an attack on
one’s dignity, the relevant factors in determining the
quantum
of compensation in these cases included but not limited to:
“…
the
nature and seriousness of the iniuria, the circumstances in which the
infringement took place, the behaviour of the defendant
(especially
whether the motive was honourable or malicious),
the
extent of the plaintiff’s humiliation or distress
,
the abuse of the relationship between the parties, and the attitude
of the defendant after the iniuria had taken place…”
[25] The above
dictum
should serve as an appropriate guideline
in determining what
is just and equitable compensation that can be awarded under s 194
(3) of the LRA’.
[25]
In the circumstances of this case, it is clear to
me that the respondent laboured under an impression that the
applicant would not
be interested in measures aimed at avoiding her
dismissal. Granted, that impression was wrong. It was probably
reasonable for the
respondent to have made that assumption, but such
did not exonerate it from the duty to avoid the dismissal. Given the
undisputed
conflict between the applicant and the CEO at the Mine, it
may not be unfair to assume that even if the applicant was offered
the
position, she may have been dismissed shortly thereafter. There
is no doubt in my mind that the conflict would have continued perhaps
to a point of incompatibility. With that in mind, what I consider to
be just and equitable is an amount equivalent to eight months’
salary as compensation.
[26]
I now turn to the issue of costs. Section 162 of
the LRA guides me. One of the factors to be taken into account is the
conduct of
a party in proceeding with or defending a matter. The
respondent had prior to the commencement of the trial made an offer
to pay
to the applicant compensation equivalent to 12 months’
salary. The offer was rejected by the applicant. Rule 22A (7)
provides
that an offer may be taken into account in making an order
for costs. Had the applicant accepted the offer, the trial costs
would
have been avoided. The applicant failed in her quest for an
automatically unfair dismissal and did not obtain a higher
compensation
than the one offered. Accordingly, in fairness, the
respondent is entitled to its costs. Proceeding with the matter in
the face
of maximum compensation offer, is, to my mind, frivolous and
vexatious. I am not persuaded that the respondent is entitled to
punitive
costs. Therefore, I am minded to make an order as to costs.
[27]
In the results, I make the following order:
Order
1 The dismissal of the
applicant is not automatically unfair.
2
The
dismissal of the applicant is procedurally fair but substantively
unfair.
3
The
respondent is ordered to pay to the applicant an amount equivalent to
eight months’ salary as compensation.
4
The
applicant is to pay the respondent’s trial costs.
_______________________
GN Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant
: Advocate L Nowosenetz
Instructed by
: Bester Rhoodie Attorneys, Irene.
For
the Respondent
: Mr P Fouche of Fasken (incorporated in South
Africa as Bell Dewar
Inc)
[1]
Act
66 of 1995 as amended.
[2]
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.
[3]
See
Kuze
v Rouche Products Ltd
[2008] EWCA Civ 380
(17 April 2008)
[4]
[2005]
26 ILJ 2153 (LAC).
[5]
Paragraph 3.1 statement of case.
[6]
[2000] 21 ILJ 2054 (LC)
[7]
See
SAA
v Bogopa and Others
[2007] 11 BLLR 1065
(LAC) and
Oosthuizen
v Telkom SA Ltd [
2007]
28 ILJ 2531 (LAC)
[8]
The Labour Court or the arbitrator must require the employer to
re-instate or re-employ the employee unless-
(a)…
(b)…
(c) It is not
reasonably
practicable
for the employer to re-instate or re-employ the
employee.
[9]
Equity Aviation Services (Pty) LTD v CCMA & others
[2008] 12
BLLR 1129
(CC)
[10]
[2015] 36 ILJ 2989 (LAC)