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[2019] ZALCJHB 79
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FEDCRAW and Others v Jane Furse Builders Supply CC (JS727/2017) [2019] ZALCJHB 79 (18 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no:
JS 727/2017
In
the matter between:
FEDCRAW
First
applicant
ALFRED
MAHLATSI AND 2 OTHERS
Second to fourth applicants
And
JANE
FURSE BUILDERS SUPPLY CC
Respondent
Heard:
29 and 30 November 201
8
Delivered:
18 April 2019
Summary:
Reason for dismissal – misconduct – applicants conceded
to the incidents that led to the charges and consequent
dismissal –
automatically unfair dismissal claims in terms of
section 187(1)(d) of the LRA was unsubstantiated – no lawful
union activities.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
In
this matter, the first applicant Federal Council of Retail and Allied
Workers (FEDCRAW) alleges that the respondent, Jane Furse
Builders
Supply CC, victimised and dismissed its members; Mr Alfred Mahlatsi
(Mr Mahlatsi), Mr Amos Phasha (Mr Phasha) and Mr David
Mokoatjane (Mr
Mokoatjane) who are the second to fourth applicants (applicant
employees) respectively. FEDCRAW’s main claim
is that the
applicant employees’
dismissal
was automatically unfair in terms of section 187(1)(d) of the Labour
Relations Act (the LRA)
[1]
as
they were dismissed
for
being trade union members and for participation in the lawful
activities of the trade union.
[2]
The respondent’s case, on the hand,
is that the true and real reason for the dismissal of the applicant
employees is that
they were found guilty of misconduct.
Background
facts
[3]
FEDCRAW had been organising the respondent’s
employees since 2015. At some stage it had a membership of 25% of the
total number
of the employees in the employ of the respondent. The
respondent accordingly afforded FEDCRAW basic organisational rights
in terms
of section 12 and 13 of the LRA. As such, it had access to
the respondent’s workplace and the respondent deducted union
subscriptions
and levies on its behalf.
[4]
It was the respondent’s evidence that, when
FEDCRAW membership dropped to 22% of its total workforce, the basic
organisational
rights were withdrawn.
FEDCRAW
was duly notified of that fact on 20 March 2017 and the withdrawal of
organisational rights was effected on 1 April 2017.
This evidence was
never disputed.
[5]
On 11 April 2017, the applicant employees were
dismissed for misconduct. Mr Mahlatsi was charged as follows:
‘
2.1 Making
false statement in that on 03-03-2017, 04-03-2017, 05-03-2017,
06-03-2017, 07-03-2017 and 08-03-2017 you claimed
to have checked
your truck in terms of the company checklist for delivery vehicles,
however no physical check was made.
2.2
Alternatively, Gross Negligence in performance of your duties in that
you failed to properly check your vehicle
on 03-03-2017, 04-03-2017,
05-03-2017, 06-03-2017, 07-03-2017 and 08-03-2017 in terms of the
rules of the company.
2.3 Gross
Negligence in the performance of your duties in that you allowed an
assistant to check the delivery vehicle
on your behalf, which conduct
is not allowed.’
[6]
Messrs Pasha and Mokoatjane were charged as
follows:
‘
2.1.
Gross Negligence in the performance of your duties in that on
05-03-2017 you started/operated the delivery vehicle
without having
licence or authority to do so.
2.2
Alternatively, Misuse of company property in that on 05-03-2017 you
started/operated the delivery vehicle
without having a licence or
authority to do so.’
[7]
The applicant employees did not challenge the contents of their
charge sheets or sought
further particulars during the disciplinary
hearing. In fact, Mr Thabo Magatla (Mr Magatla), the respondent’s
Manager: Human
Resources, testified that the incidents referred to in
the charge sheets were captured in a video clip that was produced
during
the disciplinary hearing.
[8]
The applicant employees conceded that the incidents did take place.
Their defence was that
it was an established practice within the
respondent to allow the assistant drivers to help out by checking the
trucks. However,
this was disputed by the transport manager, Mr James
Moloto (Mr Moloto). Mr Moloto testified that the applicant employees
had been
verbally warned for the same transgressions previously. He
was adamant that the assistants were not allowed to drive the trucks
even if they had a valid driver’s licence.
Legal
principles in relation to
automatically unfair
dismissals
[9]
In order to determine whether the dismissal was automatically unfair,
one must establish
the real reason for the dismissal of the applicant
employees. In terms of section 187(1)(d) 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:
‘
(a)-(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.’
[10]
Ordinarily,
where it is common cause that there was a dismissal, the employer
bears the onus to prove that the dismissal was for
a fair reason
permitted in terms of section 188 of the LRA. However, where an
employee alleges that a dismissal was automatically
unfair, it is
incumbent upon that employee to demonstrate,
prima
facie
,
the said claim. In
Kroukam
v SA Airlink (Pty) Ltd,
[2]
the LAC per Davies AJA, (as he then was), stated that:
‘
In
my view, s187 imposes an evidential burden upon the employees 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 s187 for constituting an
automatically unfair dismissal.’
[11]
When
examining whether an automatically unfair reason was the “dominant”
or “more likely” reason for the
dismissal of the
employee, the test is one of causation. Both factual and legal
causation must be satisfied.
[3]
Analysis
[12]
Applying
the test of factual causation (the 'but for' test) in this case, to
succeed in their claim, the applicant employees must
at least show
that they were victimised for exercising any right to participate in
FEDCRAW’s lawful activities in contravention
of sections 4 and
5 of the LRA.
[4]
[13]
In this instance, it is common cause that the applicant employees
were not shopstewards. Mr Themba Mthembu
(Mr Mthembu), FEDCRAW
official and organiser, testified that the applicant employees were
organisers and hence they were targeted.
Consequent to their
dismissal, the union membership dropped drastically, so he further
testified. In fact, the whole applicants’
case is hinged on the
allegation that the respondent is anti-trade unions and did all in
its powers, including the dismissal of
the applicant employees, to
rid itself of FEDCRAW.
[14]
However, the respondent’s evidence demonstrated clearly that
FEDCRAW was not the first nor the last
trade union to organise its
employees. Its successor, UCEMESHAWU, has since gained the basic
organisational rights. Clearly, the
allegation that the respondent is
anti-trade unions has no substance. Mr Magatla testified that
Mr Mthembu’s last visit
at the respondent’s premises was
seven months prior to the dismissal of the applicant employees. It is
not surprising that
FEDCRAW membership declined to an extent that it
lost the basic organisational rights.
[15]
I find it strange that the applicant employees would accuse the
respondent of victimisation for union activities
when they were not
even shopstewards. It was Mr Magatla’s undisputed evidence that
Mr Mthembu had introduced to him two gentlemen,
Leshoka and Collins,
as FEDCRAW shopstewards. In any event, there could not have been any
recognised union activities as FEDCRAW
was not a majority trade union
and by the time the applicant employees were charged it had lost even
the basic organisational rights
because its membership was declining.
[16]
To my mind, the applicants’ claim suffered its demise the
moment they conceded to the incidents that
led to the applicant
employees’ charges and dismissal. Therefore, there is no merit
in the applicants’ submission that
the charges were trumped-up.
I am persuaded that the real reason for the applicant employees’
dismissal is that they were
found guilty on charges of misconduct.
Conclusion
[17]
In view of the above, the applicants failed to discharge the
evidential burden by placing sufficient evidence
to show that the
dominant or more likely reason for the dismissal of the applicant
employees was that they were victimised for
participating in
FEDCRAW’s lawful activities. Put differently, they failed to
prove a case of an automatically unfair dismissal
in terms of section
187(1)(d) of the LRA.
Costs
[18]
There is no reason why FEDCRAW should not pay costs. It pursued an
automatically unfair dismissal claim which
was patently
unmeritorious. I also took note of the fact that there is no
collective bargaining relationship between FEDCRAW and
the
respondent, of which a costs order would offend.
[19]
In the circumstances, I make the following
order:
Order
1.
The applicants’ automatically
unfair dismissal claim is dismissed with costs.
__________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mr
Jan Nel
Union
official from: FEDCRAW
For
the Respondents: Advocate RG
Beaton SC
Instructed
by: De
Villiers & Du Plessis Attorneys
[1]
Act 66 of 1995, as amended.
[2]
(
2005)
26 ILJ 2153 (LAC) at para 28.
[3]
SA
Chemical Workers Union and others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC) at para 32.
[4]
Section 4(2)(a) states that every member of a trade union has the
right, subject to the constitution of that trade union to
participate in its lawful activities. Section 5(1), on the other
hand, states that no person may discriminate against an employee
for
exercising any right conferred by the LRA.