THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Reportable
Case No . JS562/22
In the matter between:
NOMVULA MQIKELA Plaintiff
and
PRISTO RESPONSE TRADING Defendant
Heard: 29 - 30 May 2025
Heads of Argument: 13 June 2025
Delivered: 18 June 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand- down is deemed to be 18 June 2025.

JUDGMENT

MAKHURA , J

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[1] The plaintiff, Nomvula Mqikela , referred a n automatically unfair dismissal claim in
terms of section 187(1)( d) of the Labour Relations Act1 (LRA) against the
defendant, Pristo Response Training.
[2] The facts of this matter are not controversial. The defendant provides security
services. The plaintiff was employed by the defendant as a Human Resource
Manager with effect from 3 June 2019. On 18 November 2020, she lodged a
grievance against Samson Stimela Mapalakanye (Mapalak anye), the sole
director and managing director of the defendant. T he plaintiff complained about
alleged unfair treatment including victimisation , abusive behaviour, favouritism
which includes increasing other employees’ salaries except hers , short payment
of annual bonuses to the employees who in turn raised complains to her, being
sidelined from human resources duties and meetings and the defendant’s
alleged failure to pay her “bonus, salary adju stment and incentive bonus” .
[3] The plaintiff complained that when Mapalakanye recruited her, they agreed that
her salary would be adjusted during the salary increase of security officers and 8
months had elapsed since the adjustment of the security officers’ salaries. She
further complained that she had not been paid her bonus four months after her
one year anniversary , and when she raised this issue with Mapalakanye, the
conversation turned sour. On the incentive bonus, the plaintiff alleged that after
the defendant made a huge saving, she and another employee suggested that the incentive bonus be added to their salaries , but they had received no
response from Mapalakanye.
[4] The solution required by the plaintiff included a request for Mapalakanye to
refrain from autocratic leadership and to treat the employees equally . The
grievance was sent to Sello Moses Munyuku (Munyuku) by email. Munyuku was
the plaintiff’s line manager and the defendant’s Operations Manager. Munyuku
forwarded the grievance to Mapalakanye on the same day, 18 November 2020.

1 Act 66 of 1995, as amended.
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[5] Nothing happened insofar as the grievance was concerned until a year later
when the plaintiff discussed it with Gideon Joubert Louw (Louw), the defendant’s
labour consultant. After their discussi on, the plaintiff forwarded the grievance to
Louw on 2 December 2021. Louw’s company was engaged by the defendant in
2020 to provide human resources and industrial relations services. In her
evidence, the plaintiff said that she had made enquiries with Munyuku since she
lodged her grievance and was hoping for an amicable solution. She testified that
Munyuk u informed her that Mapalakanye was busy and that she decided to
remain patient , hoping that the grievance would be resolved.
[6] On 19 January 2022, Louw addressed an email to Mapalakanye. He wrote:
‘I saw the email below from Nomvula and thought long and hard on how the
grievance can best be resolved. I thought it best that a neutral person assist in
the facilitation of this grievance and propose a colleague of mine Liselette
Loubser who can assist in facilitation and making recommendations in this
grievance. Her services will be included in your retainer hours with us.
Let me know if this is suitabl e to all parties concerned. I will then let her make
contact to arrange for a suitable date for facilitation of this grievance.’
[7] On 27 January 2022, Louw addressed a further email to Mapalakanye and
copied the plaintiff . He recorded that he was appointed to assist the defendant
with general human resources a nd industrial relations matters , which included
the facilitation of grievances. Further, that since the matter involved human
resources and the director of the defendant, he did not want to get involved and
proposed someone neutral. He continued:
‘Be that as it may, I was advised by Mr Mapalakhanya (sic) today that he is not
prepared to entertain this grievance.
In general, once a grievance has been lodged the agreed procedure needs to be
followed in order to resolve the matter as soon as possible to bring closure to the process. If either management or the employee involved is not prepared to
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resolve the matter as per the procedure there is nothing I can do further to ass ist
or facilitate in this grievance internally.’
[8] On the same day, the plaintiff responded to Louw’s email, expressing her
appreciation for his intervention in her grievance and indicating that she would
proceed to seek external intervention.
[9] Mapal akanye was asked during cross -examination why he did not want to
entertain the plaintiff’s grievance. His response was that he was stressed and that the grievance was about personal matters and not work -related. In his
evidence in chief , however, he disputed that he did not want to entertain the
grievance. He said that he had a meeting with Munyuku and replied to the
grievance. He also said that he gave Munyuku authority to deal with the grievance and appoint a neutral person to facilitate the grievance.
[10] On 31 January 2022, the plaintiff declared an unfair labour practice dispute and referred it to the Commission for Conciliation, Mediation and Arbitration (CCMA). She recorded that the dispute arose when she enquired about a salary increase
and an incentive bonus , and sought that the defendant pay her the increase from
2020 and the incentive bonus per the agreement.
[11] Both t he plaintiff and Louw testified that on 1 February 2022, Louw contacted the
plaintiff telephonically and informed her of the possible retrenchment. The plaintiff
testified that Louw informed her that Mapalakanye instructed him (Louw) to
retrench her. It is common cause that Louw addressed an email on the same day
informing the plaintiff that he was approached by Mapalakanye “to look into the possibility of retrenching [her] as the HR manager as he want [s] to outsource this
function” . She then subsequently joined the union, the United Private Sector
Workers Uni on (UPSWU) , on the same day . The union appointed D ivhani Ndou
(Ndou) , the current attorney of record, who was a union official at the time , to
represent the plaintiff in the contemplated retrenchment .
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[12] On 2 February 2022, Louw addressed an email to Ndou. He recorded that the
defendant had not commenced the retrenchment process and that he had
suggested a meeting between the plaintiff and Mapalakanye to discuss their
differences and i f necessary to negotiate a mutual separation agreement.
[13] During trial, the defendant put to the plaintiff that she knew of the possible retrenchment before 1 February 2022. In particular, it was put to her that Mapalakanye informed the employees of the possible retrenchment after the defendant lost a “big” contract with the Department of Water and Sanitation
(DWS) in September 2021. The plaintiff disputed knowledge of this and indicated that that could be a meeting where she was not invited, which was part of her grievance. The plaintiff also disputed that the defendant lost a contract with the DWS and testified that the work with DWS was ongoing at the time of her dismissal . Mapalakanye, who was in Court during the cross -examination, test ified
that the contract the defendant lost was with the Department of Arts and Culture
(DAC) , not DWS. This led to the defendant’s legal representative applying to
recall the plaintiff to the witness stand. The application was granted. In dealing
with this aspect, the plaintiff admitted that the DAC contract ended. She however said that the contract ended in June 2021 , not September 2021 as alleged.
Mapalakanye said that this contract had over 300 employees, an allegation that was disputed by the plaintiff who testified that under the DAC contract, the
defendant had 99 employees.
[14] With regard to the contemplation to retrench, Mapalakanye testified in chief that the defendant contemplated retrenching after the contract with DAC ended. He
said that he called the employees in November 2021 to inform them of the loss of
the contract and the possible retrenchment. However, the employees who were
appointed under the DAC contract were transferred to the new service provider
after the expiry of the defendant’s contract.
[15] During cross- examination, Mapalakanye said that he contemplated retrenching in
January 2022. He was referred to the statement of defence, where the defendant
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alleged that it contemplated retrenching as early as beginning of December
2021. Mapalakanye then said that the defendant contemplated retrenching in
2021.
[16] On 11 February 2022, the defendant issued a notice in terms of section 189(3) of
the LRA . The notice was served on the plaintiff on 14 February 2022. The reason
for the contemplated retrenchment was recorded as:
‘The Employer experiences financial difficulties in the company and do not
foresee that it will improve in the near future due to loss of contracts. A decision
has therefore been taken to scale down and outsource certain functions an[d] positions.’
[17] The alternatives considered by the defendant were recorded as “salary
reductions and short time” and these were rejected because they were not
viable. The number of employees affected was one due to redundancy. In his
evidence, Louw testified that he heard for the time about the retrenchment
around 1 February 2022 when Mapalakanye asked him to draft the notice. Further, he testified that Mapalakanye informed him that the defendant had lost the contract and that it had outsourced the human resource services to Louw’s
company and therefore he did not need the position of the human resource
manager.
[18] Despite Louw’s evidence that he drafted the notice after discussion with
Mapalakanye, Mapalakanye’s evidence was that the notice was prepared by Munyuku after his discussion with him ( Munyuku) and the instruction to prepare
the notice. Mapalakanye also contradicted the 189(3) notice insofar as the issue
of alternatives was considered. His evidence during the trial was that he would
have “accept ed” the salary reduction as an alternative and when he was referred
to the notice, he said that there was a typing error. Further, Mapalakanye
disputed the reason for the retrenchment insofar as it referred to the defendant outsourcing human resource functions. He said that the reason is “ wrong” .
Mapalakanye testified that despite having sight of the notice, he did not notice
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these errors at the time and that he trusted Louw and Munyuku. He testified that
there are no human resource duties at the site where the plaintiff was based and
that is the reason for her retrenchment . This was however not part of the pleaded
case nor was it put to the plaintiff . It was also not part of the reason contained in
the section 189(3) notice.
[19] At least two retrenchment meetings were held, on 3 and 25 March 2022. T he
plaintiff had made it clear in these meetings that the retrenchment process was,
as she put it, a “mechanism ” to get rid of her . She maintained that the
retrenchment was in retaliation to her grievance and the referral of the unfair labour practice dispute to the CCMA .
[20] She was notified of her dismissal o n 1 April 2 022, on a month’s notice until end of
April 2022. She referred an unfair dismissal dispute to the CCMA and subsequently referred the matter to this Court.
[21] The plaintiff has approached this Court claiming automatically unfair dismissal
because she was dismissed for exercising her right in terms of section 187(1)(d)
of the LRA. This section provides that:
‘(1) A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5 or, if the reason for the dismissal is –
…
(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; ’
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[22] The right referred to by the plaintiff in this case is her referral of an unfair labour
practice dispute to the CCMA , not the grievance2. In the present case, there can
be no doubt that whilst the plaintiff lodged a grievance in terms of the defendant’s
grievance procedure and/or the contract of employment, she also went further
and referred a dispute to the CCMA in terms of section 186( 2) of the LRA.
Therefore, by referring this dispute, the plaintiff exercised her LRA right , which
brings the claim squarely within section 187(1)(d) . It is irrelevant whether her
unfair labour practice dispute has prospects or not, as long as the dispute or
claim is not frivolous or vexatious or the referral was not made mala fide.
[23] The defendant disputes the plaintiff’s claim of automatically unfair dismissal and
submits that the reason for her dismissal was related to its operational
requirements and therefore fair. The plaintiff has not pleaded her case in the
alternative, that is, that if the dismissal is not automatically unfair, it was
nevertheless unfair in terms of section 188(1)(ii) read with section 191(5)(b)(ii) of
the LRA. Therefore, if she fails to prove her case in terms of section 187(1)(d),
that is the end of the enquiry and her claim should be dismissed.
[24] In Baxter v Minister of Justice & Correctional Services & others3 (Baxter), the
Labour Appeal Court ( LAC) , relying on its judgment in S outh African Chemical
Workers Union and others v Afrox Limit ed4 (Afrox), reiterated the test as follows:
‘The test for determining the true reason is that laid down in SA Chemical
Workers Union & others v Afrox Ltd. The court must determine factual causation
by asking whether the dismissal would have occurred if the employee had not
made the protected disclosure. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no that does not immediately render the
dismissal automatically unfair ; the next issue is one of legal causation, namely

2 Contrast with DBT Technologies (Pty) Ltd v Ga rnevska [2020] ZALAC 26; (2020) 41 ILJ 2078 (LAC),
where the LAC held that a grievance, which is lodged and processed under a grievance procedure and/or
a contract of employmen t, relates to the employer’s internal procedures and does not involve the direct
exercise of a statutory right against the employer. This Court also followed the above LAC judgment in
Mkokeli v Blo omberg L P (Pty) Ltd [2021] 6 BLLR 611 (LC) ; (2021) 42 ILJ 1224 (LC) at paras 16 – 20.
3 (2020) 41 ILJ 2553 (LAC) ; [2020] 10 BLLR 968 (LAC).
4 [1999] ZALAC 8; (1999) 20 ILJ 1718 (LAC).
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whether such disclosure was the main, dominant, proximate or most likely cause
of the dismissal. Thus, the court must enquire into the main, dominant, proximate
or most likely reason for the dismissal. The employee bears the onus to establish
at least a ‘credible possibility’ that the dismissal was for a proscribed reason. If
the employee fails to discharge that onus, the Labour Court at its discretion may
proceed to determine the substantive and procedural fairness of the dismissal in
terms of s 158(2) of the LRA, as happened in this case.’5
[25] In National Union of Metalworkers of SA & others & Aveng Trident Steel (A
Division of Aveng Africa (Pty) Ltd) & another6 (Aveng) , the Constitutional Court
endorsed Afrox . It held that:7
‘[70] Determining the reason for a dismissal is a question of fact and the
enquiry into the reasons for the dismissal is an objective one. One of the
ways this can be done is to apply the test in Afrox . There is no basis on
which to exclude an employer’s operational requirements from consideration as a possible reason for dismissal. The causation analysis
espoused in Afrox was premised on the fact that s 187(1)(c) use the
phrase “if the re ason for the dismissal is” and not the nature of the rights
at play. While, admitt edly, the provision itself does not place an injunction
to utilise the Afrox test per se, I will demonstrate below that, in
determining what the true reason for the dismissal is, the Afrox test is
most useful. ’
…
[74] In Afrox the issue was whether the dismissal occurred as a result of the
employees’ participation or support (or intended participation or support)
in a protected strike in terms of s 187(1) (a) or whether it was based on
the employer’s operational needs by virtue of ss 188(1) and 189. The
court held:

5 Baxter at para 60.
6 (2021) 42 ILJ 67 (CC) ; [2021] 1 BLLR 1 (CC) .
7 Ibid at paras 70 – 76.
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‘The enquiry into the reason for the dismissal is an objective one, where
the employer’s motive for the dismissal will merely be one of a number of
factors to be considered. This issue (the reason for the dismissal) is
essentially one of causation and I can see no reason why the usual
twofold approach to causation, applied in other fields of law, should not
be utilized here.’
[75] And went on to state that:
‘The first step is to determine factual causation: was participation or
support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? … [T]he next issue is
one of legal causation, namely whether such participation or conduct
was the “main” or “dominant”, or “proximate”, or “most likely” cause of the
dismissal. There are no hard and fast rules to determine the question of
legal causation.’
[76] In such cases, the court would determine what the factual and legal
causes of the dismissal were by first asking whether the dismissal would
have occurred if the employees had not refused the demand. If the
answer is in the affirmative, the dismissal does not amount to an automatically unfair dismissal. If the answer is in the negative, the second
leg is necessary: is such refusal the main, dominant, proximate or most
likely cause of the dismissal? This means, as the Labour Appeal Court
found, that the merits of the employer’s decision in such circumstances
must be examined.’

[26] Therefore, based on the test as formulated in Afrox , explicated in Baxter and
endorsed in Aveng, the question is whether the plaintiff’s dismissal would have
occurred if she had no t referred the unfair labour practice dispute to the CCMA. If
the dismissal would have occurred, the plaintiff’s claim should fail. If not, the next
question is whether the referral of the unfair labour practice dispute was the
main, dominant , proximate or most likely cause for the dismissal. If the latter
question is answered in the positive, the plaintiff’s claim should succeed.
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[27] In casu , the plaintiff lodged a grievance on 18 November 2020. This grievance
was ignored by the defendant. The plaintiff’s testimony that she made enquiries
with Munyuku who informed her that Mapalakanye was busy was not disputed. The grievance remained unattended by the defendant until she discussed it with Louw in November 2021. The plaintiff remained employed by the defendant.
[28] Louw sought to have the grievance facilitated by an independent faci litator. On
19 January 2022, Louw sought to make arrangement to start the process of facilitation of the grievance. On 27 January 2022, Louw addressed an email to
Mapalakanye in terms of which he recorded that Mapalakanye was not prepared
to entertain the grievance. The plaintiff, who was copied on the email, noted the
contents of Louw ’s email and stated that she would seek assistance externally.
Mapalakanye did not respond to the email fro m Louw nor did he respond to the
plaintiff’s email indicating her intention to seek external intervention. The plaintiff
referred an unfair labour practice dispute to the CCMA on 31 January 2022.
Within 24 hours of her referral, she was informed by Louw that the defendant
intended to retrench her.
[29] The r ationale for the retrenchment was financial challenges and the decision to
outsource human resources services. The financial challenges were allegedly
brought about by the loss of the DAC contract. This contract was lost in June
2021 acco rding to the plaintiff’s version or i n September 2021 according to the
defendant . The plaintiff disputed that the defendant had addressed a meeting
where she was present about the contemplated retrenchment. Mapalakanye’s
evidence regarding the contemplated retrenchment changed with each question.
In his evidence in chief, he contemplated retrenchment in November 2021. In
cross- examination, it was in January 2022. However, he settled for what is set
out in the statement of defence which was in 2021. Considering his evidence that
the employees were transferred to the new service provider after the lapse of the
DAC contract which ended in September 2021 on his version, his evidence that
he held a meeting with the employees in November 2021 is rejected as
improbable.
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[30] Louw ’s evidence was that he was informed by Mapalakanye of the intention to
retrench the plaintiff on 1 February 2022, which is the same day he contacted the
plaintiff .
[31] As to the outsourcing of the human resources services, this was first
communicated to the plaintiff by Louw on 1 February 2022 in an email where
Louw informed the plaintiff that Mapalakanye asked him to look into the possibility of retrenching her because he wanted to outsource human resources. This was later recorded in the section 189(3) notice. Mapalakanye ’s contradiction
in this regard was emphatic. He said the section 189(3) notice was “wrong” . He
did not outsource the services. According to him, there was no human resources job in Pretoria, which is where the plaintiff was based. He said that there was no work because the defendant’s clients are based outside the Gauteng province.
This was , however not the case pleaded by the defendant nor was such a
version put to the plaintiff .
[32] Insofar as the consideration of alternatives is concerned, Mapalakanye said that he would have accept ed a salary reduction, contradicting the section 189(3)
notice, which said that this alternative was considered but rejected as not viable.
Once again, the section 189(3) notice contained an error according to
Mapalakanye. This is further contradictory of the defendant’s new case that there
was no human resources function in Pretoria. If the defendant would have accepted a salary reduction to save her job, that suggests that the work
remained available.
[33] There is no correlation between the section 189(3) notice, the case pleaded by the defendant in its statement and the evidence led by Louw and Mapalakanye
on behalf of the defendant. Louw and Mapalakanye also contradicted
themselves. Whilst Louw sought to have the differences between the plaintiff and
Mapalakanye resolved amicably , Mapalakanye testified that there were no issues
between him and the plaintiff. Louw’s testimony was that he drafted the section
189(3) notice after discussion with Mapalakanye. M apalakanye was , however , of
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the view that the notice was prepared by Munyuku because that is whom he
discussed the retrenchment with. There is in fact a disjuncture in the defendant’s
case from the time of issuing the section 189 (3) notice to the oral evidence. The
defendant’s defence to the automatically unfair dismissal claim and its attempted
justification of the retrenchment were incoherent and not credible.
[34] The evidence that the defendant contemplated retrenchment in 2021 is rejected
as improbable. The probabilities, which I accept as true, are that the defendant
contemplated the retrenchment of the plaintiff after receipt of the CCMA referral form on 31 January 2022.
[35] Having considered the evidence as analysed above, the defendant would not have embarked on a retrenchment process affecting the plaintiff only, if she had
not referred the unfair labour practice dispute. I am satisfied that the most readily
apparent and acceptable inference to be drawn from the evidence presented by
both parties is that the plaintiff's referral of the unfair labour practice dispute is the
main, dominant, proximate or most likely cause of her dismissal . The
retrenchment was a façade, designed to hide the true reason to get rid of the
plaintiff . The plaintiff has successfully established that her dismissal was
automatically unfair within the meaning of section 187(1)(d) of the LRA.
[36] In her opening statement, the plaintiff submitted that she seeks maximum
compensation, which is 24 months . In her closing arguments, she now seeks 20
months' compensation. Section 194(3) of the LRA provides that:
‘The compensation awarded to an employee whose dismissal is automatically
unfair must be just and equitable in all the circumstances, but not more than the
equivalent of 24 months' remuneration calculated at the employee's rate of
remuneration on the date of dismissal .’
[37] Dismissing an employee for exercising her legal right using a disguised reason
amounts to a misrepresentation of the true reason for the dismissal. The
employer knows that the true reason is against the law and/or unsustainable and
unfair and deliberately manufactures another reason to dismiss the employee.
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The plaintiff has testified that she remained unemployed more than 36 months
after her dismissal. Considering this evidence, her request for 20 months would in my view amount to a just and equitable compensation.
[38] The plaintiff earned R15 000.00 per month at the time of her dismissal. She is
therefore entitled to R300 000.00, calculated as follows: R15 000.00 x 20 = R300
000.00.
[39] The plaintiff seeks costs of suit . The defendant left the issue of costs in the hands
of this Court. The issue of costs is within this Court ’s discretion in terms of
section 162 of the LRA . The plaintiff had to approach the Court to vindicate her
right, whilst the defendant continued in its attempt to justify the
misrepresentation. The Court must frown upon litigants who come before it with
dirty hands. The requirements of law and fairness dictate that the plaintiff should
not be out of pocket for vindicating her right . The defendant must be ordered to
pay the plaintiff’s costs.
[40] In the premises, the following order is made:
Order
1. It is declared that t he dismissal of the plaintiff by the defendant on 1 April
2022 is automatically unfair .
2. The defendant is ordered to pay the plaintiff compensation in the amount of R300 000.00, being an equivalent of 20 months ’ remuneration.
3. Payment of the above amount must be made into the plaintiff’s bank
account (to be provided by her within 5 days of this judgment ), within 21
court days of this judgment and order .
4. The defendant is ordered to pay the costs of suit .


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____________________
M. Makhura
Judge of t he Labour Court of South Africa


Appearances:
For the Plaintiff : Mr D. Ndou
c/o Morudu D. Ndou Attorneys
For the Defendant : Mr S.J. Van Vuuren
Instructed by: M.R. Phala Attorneys