Summary of Judgment

1. Introduction

The proceedings were an unopposed review application in the Labour Court in which the applicant, Justice Mmakau (the employee), sought the review and setting aside of an arbitration award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (the CCMA). The second respondent was Frank Naidoo N.O. (the commissioner who issued the award), and the third respondent was Mantis Security (Pty) Ltd (the employer).

The matter originated as an unfair discrimination dispute referred to the CCMA in terms of the Employment Equity Act 55 of 1998. The employee alleged that the employer unfairly discriminated against him on the ground of disability, arising from the fact that he is a stutterer. The commissioner dismissed the referral on the basis that the employee had not shown, on the evidence, that the alleged adverse treatment was motivated by disability.

The Labour Court was therefore asked to consider whether the commissioner’s award should be reviewed and set aside, and, if so, what remedy—particularly compensation—should follow under the Employment Equity Act.

2. Material Facts

It was common cause that the employee was employed by the employer as a security guard, and that, consistent with industry practice, he was placed at a client’s premises. At that placement, the employee occupied a position that involved interaction with members of the public.

The employee’s case was that the employer moved him to another location because of his disability. The alleged discriminatory conduct was thus framed as a work placement decision: the employee contended that he was removed from a public-facing role and moved elsewhere due to the fact that he stutters.

In the arbitration proceedings, the employer conceded a legal proposition relevant to the dispute. It accepted that, if it could be shown that the decision to move the employee from a role involving public interaction to another location was motivated by the employee’s disability, then a case of unfair discrimination would be established. On that basis, the commissioner treated the critical question as factual, namely whether the move was motivated by disability or by some other reason.

The commissioner ultimately found that the employee failed to show on the evidence that the move was based on disability, and the referral was dismissed. In the Labour Court, the employee’s review challenge was directed at the manner in which the commissioner dealt with the evidence, rather than advancing a reformulation of the underlying claim.

3. Legal Issues

The central legal questions the court was required to determine were whether a basis existed to review and set aside the arbitration award, given the employee’s challenge to the commissioner’s treatment of the evidence, and whether the award should be substituted with an order granting relief to the employee.

Flowing from the court’s decision to interfere with the award, a further legal issue arose regarding remedy, namely what “just and equitable compensation” should be awarded under section 50(2)(a) of the Employment Equity Act 55 of 1998, having regard to the employee’s remuneration and the circumstances of the discrimination dispute as placed before the court.

As framed in the arbitration and reflected in the judgment, the dispute turned materially on the application of law to fact in the sense that the employer’s concession reduced the enquiry to a factual determination about the motivation for the transfer, while the Labour Court’s remedial enquiry required a value judgment about a just and equitable quantum of compensation under the statute.

4. Court’s Reasoning

The court recorded that the commissioner had treated the decisive issue at arbitration as a factual enquiry: whether the employee’s move was motivated by his disability or by another reason. The commissioner had found that the employee had not shown, on the evidence, that disability was the reason for the move and dismissed the claim.

In the review application, the employee attacked how the commissioner dealt with the evidence. The court held that a proper case was made out for review of the award. The judgment did not set out a detailed reconstruction of the evidence or a granular critique of specific factual findings; however, it expressly accepted that the commissioner’s approach to the evidence justified interference with the award.

Having decided that the award should be reviewed and set aside, the court turned to remedy. It identified section 50(2)(a) of the Employment Equity Act 55 of 1998 as the source of the power to award compensation, and it noted that the employee earned R6 160.00 per month at the time the dispute was referred to the CCMA. The court characterised the remedy as just and equitable compensation for the infringement of the employee’s right not to be unfairly discriminated against.

In considering quantum, the court was referred (by counsel for the employee) to Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC), a matter involving discrimination on the basis of disability where the employee had been prevented from returning to work. The court used that matter as a comparator to contextualise the appropriate relief. It distinguished the present circumstances on the basis that the employee sought only compensation, and that this was “probably because he retained his employment.” On that footing, and “in all the circumstances,” the court concluded that compensation equal to four months’ remuneration was appropriate.

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 and substituted it with an order awarding the employee compensation.

The substituted award granted the employee compensation equal to four times his monthly remuneration of R6 160.00, totalling 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 Labour Court held that a proper case had been made for the review of the CCMA arbitration award dismissing the employee’s unfair discrimination claim, because the employee’s challenge to the commissioner’s handling of the evidence warranted setting the award aside. The court substituted the award with an order granting the employee just and equitable compensation under the Employment Equity Act in the amount of R24 640.00, and it ordered that each party bear its own costs.

LEGAL PRINCIPLES

The judgment applied the principle that an arbitration award may be reviewed and set aside where the commissioner’s treatment of the evidence justifies interference by the Labour Court, and that the court may, where appropriate, substitute the award with an order reflecting the outcome it considers warranted on review.

The judgment further applied the remedial principle under section 50(2)(a) of the Employment Equity Act 55 of 1998 that an employee whose right not to be unfairly discriminated against has been infringed is entitled to just and equitable compensation, with the amount determined by the court as a matter of evaluative assessment having regard to the circumstances, including the employee’s remuneration and the fact (in this matter) that the employee appeared to have retained employment and sought compensation only.