Summary of Judgment

1. Introduction

This matter concerned an unopposed review application brought in the Labour Court to review and set aside an arbitration award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA). The review was directed at an award made by the second respondent commissioner in an unfair discrimination dispute referred in terms of the Employment Equity Act 55 of 1998.

The applicant was Justice Mmakau, an employee employed as a security guard by the third respondent, Mantis Security (Pty) Ltd. The first respondent was the CCMA, and the second respondent was Frank Naidoo N.O., the commissioner who issued the award under review. The respondents did not appear, and the application proceeded unopposed.

The dispute arose from the employee’s contention that the employer unfairly discriminated against him on the ground of disability, specifically that the employee is a stutterer. The employee alleged that he was moved from a position involving interaction with members of the public to another location due to this disability. The commissioner dismissed the discrimination claim at arbitration, and the employee sought review on the basis that the commissioner’s treatment of the evidence was defective. The Labour Court ultimately reviewed and set aside the award and substituted it with an award of compensation.

2. Material Facts

It was common cause that the employee was employed by the employer as a security guard, and that, consistent with the norms of the security industry, he was placed at the premises of a client of the employer. In that role, the employee was placed in a position where he interacted with members of the public.

The employee’s case was that the employer subsequently moved him to another location, and that this move occurred because of his disability (his stutter). The judgment indicates that the factual controversy at arbitration concerned the reason for the relocation.

A material undisputed feature of the arbitration proceedings was the employer’s concession that, if it were shown that the decision to move the employee from a public-facing position to another location was motivated by the employee’s disability, then the elements of unfair discrimination would be established. The dispute before the commissioner therefore turned on whether the relocation was in fact motivated by disability or by some other reason.

The commissioner found that the employee failed to show on the evidence that he was moved on the basis of his disability, and on that basis the commissioner dismissed the referral. In the review proceedings, the employee challenged the commissioner’s handling of the evidence, and the Labour Court held that a proper case had been made for review.

For purposes of relief, the Court recorded that the employee earned R6 160.00 per month at the time he referred the dispute to the CCMA. The judgment further recorded that the employee sought compensation (and not damages), in circumstances where it appeared that the employee retained his employment.

3. Legal Issues

The central legal question was whether the arbitration award should be reviewed and set aside, based on the way the commissioner dealt with the evidence in determining the factual reason for the employee’s relocation. Although the judgment does not elaborate on a particular review test or enumerate the commissioner’s specific errors, it identifies the employee’s challenge as being directed at the commissioner’s treatment of the evidence.

A further legal issue arose only once reviewability was accepted, namely the appropriate remedy in terms of the Employment Equity Act, specifically the determination of just and equitable compensation under section 50(2)(a). This required the Court to make an evaluative assessment of quantum, informed by the facts recorded and the authority to which the Court was referred.

In the Court’s framing, the key controversy at arbitration was primarily a factual issue (the true motivation for the employee’s move), whereas the determination of compensation involved the application of law to fact together with an evaluative judgment about what was “just and equitable” compensation in the circumstances.

4. Court’s Reasoning

The Labour Court noted that, at arbitration, the employer accepted that a finding that the relocation was motivated by the employee’s disability would establish unfair discrimination. The commissioner, however, dismissed the claim on the basis that the employee had failed to prove that the move was disability-related. In the review application, the employee attacked the commissioner’s approach to the evidence, and the Court concluded that a proper case had been made out to review the award.

Having reached that conclusion, the Court proceeded directly to the question of remedy under the Employment Equity Act. It approached the remedy as one of compensation for the infringement of the employee’s right not to be unfairly discriminated against. The Court located this remedial inquiry in section 50(2)(a) of the Employment Equity Act and recorded the employee’s monthly remuneration as R6 160.00, which formed the basis for calculating any remuneration-linked award.

In determining what compensation was appropriate, the Court considered comparative guidance from Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC), a matter involving disability discrimination where the employee had been prevented from returning to work. The Court noted that, in Smith, the Labour Court awarded 24 months’ remuneration as damages and six months’ remuneration as compensation. The Court distinguished the present matter in that the employee sought only compensation, which the Court understood to be linked to the fact that the employee likely remained employed.

On the Court’s assessment of all the circumstances recorded in the judgment, it found that compensation equal to four months’ remuneration was appropriate. This represented the Court’s evaluative determination of what was “just and equitable” compensation, and it formed the basis for substituting the commissioner’s dismissal with a monetary award calculated from the employee’s monthly salary.

5. Outcome and Relief

The Labour Court reviewed and set aside the arbitration award issued by the commissioner under CCMA case number GATW 4804-21. The award was substituted with an order that the employee be paid compensation equal to four times his monthly remuneration of R6 160.00, amounting to R24 640.00.

The Court made no order as to costs.

Cases Cited

Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC).

Legislation Cited

Employment Equity Act 55 of 1998, section 50(2)(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Court held that the employee had made out a proper case for the review of the commissioner’s award dismissing the unfair discrimination claim. The arbitration award was therefore set aside and replaced with an award of compensation for unfair discrimination, quantified at four months’ remuneration (R24 640.00). The Court declined to award costs.

LEGAL PRINCIPLES

The judgment applied the principle that, where an employee alleges unfair discrimination on the ground of disability under the Employment Equity Act, the factual enquiry may turn on whether an adverse employment decision (here, relocation from a public-facing role) was motivated by the disability or by another reason, particularly where the employer concedes that disability motivation would establish unfair discrimination.

The judgment further applied the remedial principle that, once unfair discrimination is established and relief is considered under section 50(2)(a) of the Employment Equity Act, the Court may award just and equitable compensation, assessed with reference to the circumstances of the case and guided, where relevant, by compensation awards in comparable matters, without necessarily awarding damages where compensation alone is pursued.