166336
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J247/99
In the matter between:
TRUDY NGALEKA Appli
cant
And
SCAROB MARKETING t/a FRIENDLY GROCER
BANBURY CROSS
Resp
onde
nt
JUDGMENT
STELZNER AJ
1. This matter came before me as a result of an allegation made
by applicant that her dismissal by respondent was automatically
unfair. She alleged in her statement of claim that respondent’s
reason for dismissal was based on an infringement of her
fundamental rights to join a trade union and was motivated by
her role in having recruited other employees to become members
of the trade union. She alleged further that there was no
substantive reason for the dismissal in that there was no gross
misconduct by applicant as contemplated by the provisions of
Schedule 8 of the Labour Relations Act, No 66 of 1995 (“the
Act”). Respondent, on the other hand, alleged that applicant had
correctly been found guilty of serious misconduct for which
dismissal was the appropriate penalty. The parties filed a pre-
trial minute in which it was recorded that the issue of procedural
fairness was not in dispute.
2. In the circumstances I am called on to decide whether or not
applicant was properly found guilty of serious misconduct and
whether, if so, the penalty of dismissal was fair. Secondly, I am
called upon to decide whether the dismissal of applicant
amounted to an automatically unfair dismissal.
3. Applicant was employed by respondent on 10 November 1997
in the position of supervisor on the floor. She was dismissed on 4
August 1998 following upon a disciplinary hearing held on 3
August 1998. At the time of her dismissal she was earning
R1750-00 per month. At the disciplinary hearing applicant was
found guilty of improper and contemptuous conduct and being
absent from work without authorisation. The penalty of dismissal
was only imposed in respect of the first charge, namely, improper
and contemptuous conduct. A final written warning was imposed
in terms of the second charge. The background to and facts
leading up to the dismissal are summarised hereunder based on
the evidence which was placed before me.
4. Respondent carries on business in the retail trade as a
supermarket and commenced business towards the end of
November 1997. It was common cause that the respondent
relied on the services of a labour consultant to assist it in regard
to most matters pertaining to industrial relations and the
employment of staff. Both Herman Breedt and Peter de Leeuw,
(hereinafter referred to as “Breedt” and “Leeuw” respectively), of
the firm of labour consultants assisted respondent from time to
time.
5. The three members of the close corporation which carries on
the business are John Rosser, Gary Carlton and Clive Rautenbach,
(hereinafter referred to as “Rosser”, “Carlton” and “Rautenbach”
respectively). Rosser and Carlton are active in the running of the
business, while Rautenbach is a “silent partner”.
6. Rosser testified that he was advised by the labour consultants
that employment contracts and a Code of Conduct ought to be
put in place. These documents were not ready at the time that
the business commenced its operation. Breedt confirmed that he
prepared the documents for respondent but that the documents
prepared by him were drafts, first to be commented on by the
employer so that appropriate changes could be made to suit the
requirements of the business. Thereafter his recommendation to
the employer was that the documents be put forward for
discussion with either the union, if a union existed, or with the
employees themselves. At the time there was no union at the
workplace and sometime in March 1998, draft contracts and a
draft Code of Conduct were handed out to all staff members for
comment. The Code of Conduct formed part of the documents
handed to me in evidence but I did not have sight of the draft
contracts.
7. It was common cause, however, that the draft contracts
handed to employees contained a three month probation clause.
Rosser explained in his testimony that these were included
because it was intended that the contracts, once finalised, would
be used for all future employees. The documents were not
presented to employees for their signature but for their
comments.
8. It was also common cause that applicant immediately reacted
to the inclusion of the probation clause on the basis that it would
be unfair to expect existing employees to sign a contract
containing a probation clause, when they had already been in the
employ of the respondent for some time. Rosser testified,
however, that employees were advised at the time that the
probation clause was not applicable to existing employees. This
was apparently conveyed to the staff by de Leeuw when he
attended at respondent’s premises to discuss the draft
documents which had been handed to the employees the day
before. Applicant, however, it appears, attributed a sinister
motive to respondent by virtue of the inclusion of a probationary
clause in the draft contract. Nevertheless, she also agreed when
giving evidence that the contracts were not put into effect but
that de Leeuw had undertaken to revert in due course with
revised contracts.
9. As a result of her concerns arising from the introduction of
employment contracts at the workplace, applicant testified that
she thought that the employees needed some form of
representation. If respondent was going to be represented by
labour consultants, in her view, the employees needed a union.
Accordingly, she approached Mr Sebola, of the Security, Retail,
Transport and Allied Workers Union of South Africa (hereinafter
referred to as “the union”), and actively began recruiting union
members at the workplace. It was also not in dispute that a
number of respondent’s employees joined the union as a result of
applicant’s initiative. On or about 24 April 1998 the union wrote
to respondent supplying membership forms and requesting the
implementation of stop order facilities. Applicant testified that
shortly before that Rosser approached her with a request for a
list of union members. She perceived this as an attempt by him
to access the names of the new recruits so that he could
victimise them, as she put it. She refused to supply the list and
told Rosser to contact the union in that regard. Rosser testified
that he wanted the list of names as part of the process of
verification of union representivity and certainly not because he
wished to victimise union members. Applicant clearly had
nothing more than a suspicion, unsubstantiated by any facts.
10. At more or less the same time an incident occurred in
which applicant accidentally caught sight of the salaries of
certain other employees at the workplace while meeting with one
of the human resources personnel in the office. The person
concerned had left her computer screen on, thus affording
applicant sight of the information. Applicant’s evidence to the
effect that she did not deliberately gain access to the computer
in order to have sight of this information was never placed in
dispute by respondent and I accept that the information came to
her attention accidentally. Nevertheless, having come into
possession of this information accidentally, applicant proceeded
to divulge the information which she had seen to, on her own
version, at least one co-employee, being her roommate, one
Joyce. Respondent’s version was that she divulged the
information to a large number of employees at the workplace,
indeed, that the information spread more or less throughout the
workplace. Two other employees of respondent gave evidence
during the proceedings, namely Candy Khaselele and Allan
Sibande (hereinafter referred to as “Khaselele” and “Sibande”
respectively). Both Khaselele and Sibande confirmed that the
information had become generally known amongst employees at
the workplace and that they, personally, had been given the
information by applicant. The information concerned the exact
salary details of the manager of the butcher department, one
Jose, and the blockman in the butcher department, one Jack.
Applicant was aggrieved when this information came to her
attention as both Jack and Jose were earning more than what she
earned whereas she perceived that as the supervisor on the floor
she should at least have been earning more than Jack, the
blockman.
11. It was further not in dispute that respondent had
consistently advised all employees that salaries were to be
regarded as confidential and should not be discussed or disclosed
amongst each other. Indeed, applicant herself agreed under
cross-examination that the fact that she was not happy with her
salary and would have been happy to share information about
her salary with her colleagues did not detract from the principle
that salaries were confidential.
12. As a result of this incident there was unhappiness on the
shop floor and Rosser testified that both Jack and Jose
complained to him that the entire workforce appeared to know
exactly what they earned. In consequence thereon, respondent
convened a disciplinary hearing at which applicant was charged
with “improper conduct relating to disclosure of salaries to co-
employees”. She was found guilty and a penalty of a final written
warning was imposed. Applicant appealed against this decision,
the issue was reconsidered on appeal and the decision and
penalty were upheld. De Leeuw chaired the initial hearing and
Breedt chaired the appeal. Thereafter applicant referred a
dispute under Part B of Schedule 7 of the Act to the CCMA. A
conciliation hearing was scheduled in respect of this dispute for
26 June 1998 and it was common cause that no one from
respondent attended the conciliation meeting. Rosser testified to
the effect that he had never seen the notice to attend a
conciliation meeting. He accepted that the notice could well
have been telefaxed to respondent’s premises but that at the
time a new secretary had been employed and administration was
in a state of confusion. Furthermore, the fax machine was in a
back office where the printouts were collected in a large box and
thus even had the notification been faxed it might well have not
come to his attention. Although this does not appear to be an
issue of decisive relevance in the matter it was also noteworthy
that applicant’s representative was unable to supply the court
with proof, in the form of a telefax transmission slip or otherwise,
to the effect that the notification had indeed been sent to
respondent.
13. In the meantime, however, applicant testified that she
was asked by Rosser to remain behind after work on 19 June
1998 for the purposes of a meeting with himself and Rautenbach.
Rosser testified to the effect that the purpose of the meeting was
a further attempt to counsel applicant on her unacceptable
behaviour and conduct at the workplace both towards
management and co-employees. Rosser testified that applicant
had an attitude problem and tended to be aggressive and
confrontational and to regularly pick fights with other employees
on the shop floor. He testified that he had counselled her
verbally in this regard on numerous previous occasions. The
purpose of calling Rautenbach in to the meeting was in the hope
that the introduction of a third party who was not involved in the
daily running of the business would introduce an element of
objectivity and neutrality. Applicant had always been a good
worker, he testified, and he was hoping that a good working
relationship could be restored as a result of this initiative.
14. Applicant, however, placed an entirely different light on
the meeting of 19 June 1998. She testified that she had been
approached by Rosser and advised that his partner, Rautenbach,
wanted a meeting with her that evening. When the meeting
commenced Rosser asked her how many children she had and
when she responded that she was the mother of two, he said that
she must think about her children’s future and what she wanted.
He stated further, according to applicant, that he could not afford
to have the union or the CCMA running his business. He then
proposed giving her an increment in her salary provided that she
was prepared to forget about the union and drop her case with
the CCMA. When she advised Rosser that she was not prepared
to do this and that she was simply exercising her rights, she
testified that Rosser told her that she could have some time to
reconsider her position.
15. Following on from that incident applicant testified that
when she returned from attending at the CCMA on 26 June 1998,
Rosser called her in and asked her where she had been. When
she told him that she had been at the CCMA he immediately
responded to the effect that he had decided to demote her
because she had, as she put it, “stabbed him in the back”. She
testified further that she asked Rosser to put this in writing and
that she subsequently received the letter dated 1 July 1998 which
forms part of the bundles which were placed before me.
16. It is common cause that applicant was demoted from
the position of supervisor to that of merchandiser (or shelf
packer) and, further, that this was without loss of salary. What
was not common cause, however, was the context in which this
demotion took place. Applicant would have it that the demotion
occurred as a result of her refusal to drop her case against
respondent with the CCMA and testified further that Rosser told
her that she would get her old position back if she gave up her
union activities. Rosser, however, testified that he did not speak
with applicant at all on 26 June 1998 when she came back from
the CCMA. He could not recall the exact date on which he had
advised her of her demotion but said it would at most have been
a day or two before handing her the written demotion letter of 1
July 1998. Furthermore, he testified that the decision to demote
applicant came about after numerous counselling sessions
(including the one of 19 June 1998) had failed to improve her
behaviour and attitude. The letter read as follows:
“It is the decision of management to demote you from Floor
Supervisor to Merchandiser on the grounds that the relationship
between yourself and Management has become untenable and is
affecting the performance of staff and undermining the authority
of Management.
Your constant rebuttal of management discipline has not been an
example of your peers and subordinates.
Counselling has been done on numerous occasions regarding
your objection to Management decisions.
Management respects your position as Shop Steward and the
role that this position places upon you; however, we feel that
you are unable to separate the two functions, (i.e. one as role
model Floor Supervisor and the other as fair representative of the
Labour Union and Staff).
A letter written by yourself on behalf of some of the staff
members indicates your racial bias and your underhandedness
as some signatories admitted that they were not privy to the
contents, which is an indictment on your ability to handle staff
issues with fairness and transparency.
This demotion will not mean a reduction in your salary however
we wish to stress that there is opportunity to redeem your status
as Floor Supervisor and this will be based entirely on your
attitude in the future and periodic reviews of your position.
We trust you view this matter with concern and that you will
endeavour to improve the relationship between yourself and
Management.”
17. Rosser testified that applicant was demoted without loss
of salary and that the door was specifically left open for her to
become a supervisor again in the event of her attitude and
behaviour improving. He also denied categorically that the
demotion had anything whatsoever to do with her referral of a
dispute to the CCMA or her union activities.
18. The incident which finally resulted in applicant’s
dismissal took place on 30 July 1998. Applicant was in the store
shortly before opening time, being 8am. It does not appear to
have been in dispute that Rosser walked past applicant on two
occasions during that period of time. Nor was it in dispute that
applicant did not greet Rosser on either of these occasions.
Rosser’s version was that she appeared to be deliberately
ignoring him which led him to believe that there was some
problem. In any event, it was not in dispute that after the second
occasion on which applicant failed to greet him, Rosser called
applicant to come with him to his office which is situated at the
front of the shop near the tills. The office is a small enclosed
area with a door but is glass from about shoulder height upwards
so that the person in the office can see out into the shop.
Furthermore, the top of the office is not enclosed so any loud
noise from within the office can be heard within the shop.
19. Once both Rosser and applicant were in the office the
applicant’s version and the respondent’s version differ as to what
took place. Applicant testified that Rosser immediately asked her
who she thought she was not to be greeting him. Her response
was: “Oh John, I’m not in the mood for this”, meaning that she
did not want to get into an argument with him. Applicant
testified that Rosser’s response was “who do you fucking think
you are”, that he grabbed her and shoved her hard against the
door. He then forcibly removed her from the office and refused
her attempts to come back in to discuss the issue with him.
Rosser’s version was that he asked applicant to come into the
office and to close the door whereafter he asked her what was
the matter because he had noticed that she was not greeting
him. In response, stated Rosser, “applicant went berserk”. She
started screaming and shaking her finger in his face and asked
him who he was to question her attitude. He asked her to stop
because he was concerned that other people in the store would
hear the argument. (On the evidence I am satisfied that the
store was already open at the time and that there would have
been at least some customers in the store at the time.) He told
her that if she did not stop he would ask her to leave. She did
not react and he therefore opened the door in order to insist on
her leaving. In do doing, because of the confined space in the
office he had to squeeze past her and this would have resulted in
him coming into bodily contact with her. He denied, however,
grabbing her or shoving her. When he opened the door, he said,
the staff were gathered around to see what was going on and he,
being quite shocked at what had happened, did not know quite
what to do. He closed the door and went back into the office in
order to contemplate how he should react further. Before
anything further could happen, however, applicant flung the door
open again shouting “do you think I am your fucking slave, fuck
you John”. Once again, Rosser testified that he was at a loss for
words or as to how he ought to react. He therefore simply closed
the door and telephoned his labour consultant for advice.
20. The labour consultant, after listening to his description
of what had happened, advised him to suspend applicant with
immediate effect on full pay pending the holding of a disciplinary
hearing. While he was discussing the matter with his labour
consultant he observed applicant from the office walk to Jose and
then leave the store. It transpired that applicant had sought
permission from Jose to leave the store for five minutes to clear
her head. Not long afterwards she returned to the store but then
approximately 20 minutes later walked out again and was absent
for some time, in the region of three-quarters of an hour. Rosser
testified that Jose informed him that applicant had requested
permission to leave the store the first time but not the second
time, hence the addition of a third charge to the disciplinary
notice regarding being absent without permission.
21. Rosser’s version of the incident was corroborated in all
material respects by the evidence of Khaselele and Sibande.
Although they could not testify as to each and every aspect of
what happened, the issues on which they did testify, accorded
with the testimony of Rosser. For instance, they both heard
applicant’s voice being raised and her shouting at Rosser but did
not hear shouting from Rosser. The words themselves as used
by applicant were also confirmed. Sibande, in particular made a
very good impression as a witness, responding well under cross-
examination and making concessions when called for. I have
little hesitation in accepting the veracity of his evidence in its
entirety.
22. It was common cause that applicant was then
suspended by way of a letter dated 30 July 1998 and that she
then received a notice to attend a disciplinary hearing concerning
the following allegations:-
22.1 Gross insubordination;
22.2 Unauthorised absenteeism;
22.3 Improper/contemptuous conduct.
There was some dispute in regard to the date of the notice to
attend a disciplinary hearing. It was common cause that the
applicant was handed the notice after the incident of 30 July
1998 and that the disciplinary hearing subsequently took place
on 3 August 1998. However, the notice to attend a disciplinary
hearing was dated 27 July 1998. Applicant sought to infer from
the aforesaid date that respondent had planned the incident
which ultimately resulted in her dismissal. She argued that it was
clear that the notice had been prepared on 27 July 1998 and that
Rosser had thereafter orchestrated the incident which led to her
being charged and then dismissed. Rosser’s explanation,
corroborated by the testimony of Breedt, was that he sought
advice from his labour consultants in regard to the wording of the
notice and that, indeed, the notice was prepared by the
consultants after the conversation with Breedt following shortly
after the incident of 30 July 1998. Breedt testified that in such
situations he made use of pro forma notices which were already
on his computer, making the necessary changes required by the
facts and circumstances. It quite frequently happened, he said,
that a detail such as the date in the heading was not changed.
Therefore, he said, the fact that the notice was dated 27 July
1998 was most likely because he had used as a precedent a
document which was prepared on that date and had omitted to
alter the date before faxing same through to his client.
23. While applicant was initially charged with the three
separate allegations set out above, de Leeuw, who chaired the
hearing, determined that the allegations of gross insubordination
and improper/contemptuous conduct in fact amounted to the
same thing based on the evidence and therefore found applicant
guilty of improper/contemptuous conduct, for which the penalty
of dismissal was imposed. In regard to the unauthorised absence
from the workplace a penalty of a final written warning was
imposed, in line with the provisions of the Code of Conduct. In
his finding he made reference to the fact that applicant already
had a final written warning for improper conduct arising out of
the disclosure of salaries issue. Applicant’s representative
sought to argue that the decision to combine the charges of
gross insubordination and improper/contemptuous conduct was a
further attempt by respondent to mastermind applicant’s
dismissal. He argued that if applicant had been found guilty of
gross insubordination instead of improper conduct then the
appropriate penalty would have been a final written warning
rather than dismissal. By terming her conduct improper conduct
and by relying on the previous final written warning for improper
conduct, respondent was able to achieve her dismissal.
24. Subsequent to her dismissal applicant laid a charge of
assault against Rosser with the South African Police. Rosser
testified that he was visited by the police who took his statement
and spoke to other employees at the workplace. He followed up
on the issue and was subsequently advised that the charges had
been dropped due to insufficient evidence. It cannot be said that
the mere fact that applicant saw fit to lay such a charge takes
her case any further, where the charge appears to have been
without substance on the evidence before me and was similarly
regarded by the SAP after investigation. It is also significant that
no mention of the alleged assault is made in applicant’s
statement of case.
25. Applicant also raised certain other issues/incidences in
support of her allegation that she was being subjected to
victimisation by respondent. For instance, she said that when
she came to work for respondent she was provided with
accommodation behind the store in a flat owned by Rautenbach.
However, at the time when she was busy with her CCMA
application and after she had recruited union members, she was
told to vacate the premises on short notice. Rosser’s evidence
on this issue was that applicant had originally come to
Johannesburg and found accommodation of her own but had then
been evicted from that accommodation. In an effort to help her
he had arranged accommodation at short notice for her in
Rautenbach’s flat. The reason for her being required to vacate
the flat was that the unit had been sold and had nothing to do
with her union activities or exercising her rights to complain to
the CCMA. Furthermore, he testified that the arrangement in
terms of which she was renting Rautenbach’s flat was never
intended to be a permanent one. There appears to be no reason
to disbelieve Rosser’s evidence on this point when I am inclined
to accept his evidence in general.
26. Applicant alluded further to respondent’s refusal, as she
put it, to grant her a loan to pay the deposit on her
accommodation subsequent to her being required to leave
Rautenbach’s flat. She testified that she had had to obtain a loan
from her sister’s employer. Rosser’s evidence in this regard was
that applicant had come to him with a cheque in the sum of
R3500,00 which had been made out incorrectly, apparently by
her sister’s employer, in respect of the deposit for her
accommodation. The sister’s employer was out of the country at
the time and she was unable to have the cheque corrected.
Under the circumstances Rosser testified that he agreed to
advance her the money until such time as the cheque could be
altered as required. Had Rosser been intent upon victimising
applicant, as alleged by her, he would as likely as not have
refused to assist her on this occasion. He was clearly under no
obligation to do so. If anything, therefore, Rosser’s actions on
this occasion tend to support respondent’s rather than
applicant’s case.
27. I turn then to deal with the applicable legal principles.
In terms of s187(1) of the Act a dismissal is automatically unfair if
an employer, in dismissing the employee, acts contrary to section
5 of the Act. In terms of s 5(1) of the Act employees are afforded
protection against discrimination for exercising any right
conferred by the Act. This general protection is amplified in s
5(2) to encompass, inter alia, a specific prohibition against
prejudicing an employee because of past, present or anticipated
membership of a trade union, participation in forming a trade
union or in the lawful activities of a trade union, exercising any
right conferred by the Act or participation in any proceedings in
terms of the Act.
28. Section 10 of the Act deals with the question of the
burden of proof and states as follows:
“In any proceedings –
a party who alleges that a right or protection conferred by the
Chapter has been infringed must prove the facts of the conduct;
and
the party who engaged in that conduct must then prove that the
conduct did not infringe any provision of the Chapter.”
In this matter, therefore, applicant bears the onus suggested by s
10(a) and respondent that suggested by s 10(b).
29. In regard to the allegations made under the various
provisions of section 10, it was submitted by Mr Sebola, who
appeared for the applicant, that I ought to draw an inference
from the sequence and timing of the various factual events which
occurred, as set out in some detail above. His argument was that
the fact that disciplinary steps followed upon applicant’s
activities in recruiting union members and her referral of a
dispute to the CCMA was in itself sufficient to establish the
factual basis for a claim based on victimisation under section 5
and thus also the claim based on an automatically unfair
dismissal.
30. In the alternative, he argued that applicant’s refusal was
unfair in the sense contemplated by section 188 of the Act in
that, specifically, the requirements of item 2(1) read with item
3(1) of Schedule 8 to the Act had not been met. In short, he
argued that the offence for which applicant was dismissed was
not sufficiently serious to warrant dismissal.
31. Ms De Jongh, who appeared for respondent, argued that
respondent had put up a rational explanation for the various
steps it had taken against applicant, including her ultimate
dismissal.
32. In applicant’s statement of case as well as her evidence
she attempted to link the final written warning she received in
respect of the salaries incident to the fact that she was victimised
because of her attempt to introduce the union to the workplace.
The respondent’s case was, however, that the issue of salaries
was a confidential one and was at all times treated as such. The
rule in this regard was stressed by the employer to all
employees, including the applicant. This the applicant admitted.
However, despite the rule, applicant discussed the salaries of co-
employees, Jack and Jose, with other staff, even on her own
version at least with her room-mate. Jose and Jack were unhappy
and complained to Rosser who decided (with the assistance of his
labour consultants) to convene a disciplinary enquiry. At the
enquiry applicant was found guilty of improper conduct and was
issued with a final written warning in terms of the respondent’s
Code of Conduct.
33. Applicant further alleges that she was prejudiced by
respondent in that she was demoted as a result of her referral of
a dispute to the CCMA. Respondent’s case in this regard is that
applicant was counselled verbally over a period of time and on
numerous occasions in respect of her improper and
confrontational behaviour in the workplace towards both
management and fellow staff members. The demotion,
confirmed by way of a letter dated 1 July 1998, was a further
attempt to correct this behaviour, without loss of pay. The
decision to demote her was reached after a counselling session
held prior to the issuing of the letter. Applicant conceded during
cross-examination that she indeed had several meetings with
management where her behaviour was addressed but she
perceived these meetings as victimisation.
34. Finally applicant claimed that her dismissal was pre-
planned by respondent. She relied in this regard on the fact that
the date of the disciplinary enquiry notice was 27 July 1998 when
the incident in respect of which she was disciplined only took
place on 30 July 1998. It was submitted that respondent
adequately explained that the incorrect date was as a result of a
bona fide error. If respondent had seriously pre-planned
applicant’s dismissal in the fashion suggested by her it would
have made a concerted effort to cover its tracks and would
hardly have let slip a mistake in regard to the date of the letter.
The version contended for by applicant is thus improbable in the
extreme.
35. As regards the incident of 30 July 1998, on applicant’s
own version there was an incident which preceded her dismissal.
The contradictory versions have already been set out in detail
above. Not a single witness was called by applicant to verify her
version, where both the other shop steward at the time and
fellow union-members ought, on her version, to have been able
to corroborate what she says took place.
36. There was every reason to believe the version put up by
respondent on the facts, both in regard to the incident of 30 July
and those that took place prior thereto. There was thus nothing
sinister or suspicious in regard to the sequence of events. Apart
from the far-fetched nature of some of the averments made by
applicant in her evidence, she failed to call any witnesses to
corroborate her version even in circumstances where it was clear
that such witnesses ought to have been or were available. On
her own version, Eddie, the other shop steward at the time, was
in regular contact with her. Furthermore, in response to bold
allegations made by applicant in the witness box respondent
issued an open invitation to make available to applicant as
witnesses any union members currently employed by
respondent. Applicant and her representative failed to take up
this invitation.
37. As a result, it was submitted, and I accept, that
applicant has failed to discharge the onus which rested upon her
to prove the facts of the alleged infringement or prejudice. She
thus failed to make out a case for relief based on an
automatically unfair dismissal.
38. In regard to the alternative claim based on an
“ordinary” unfair dismissal, Ms De Jongh submitted that I did not
have jurisdiction to entertain the claim because applicant came
to court on the basis of a claim based on an automatically unfair
dismissal. On this aspect I am satisfied that applicant pleaded
the issues sufficiently widely to encompass the alternative cause
of action and that I can thus entertain the alternative cause of
action. Furthermore, it appears appropriate that being seized
with the matter, I deal also with the alternative cause of action
even though on its own it would be a matter falling within the
jurisdiction of the CCMA.
39. Ms De Jongh submitted in the alternative and in any
event, however, that even on a consideration of the principles
applicable to an “ordinary unfair dismissal”, where respondent
bears the onus of proving that the dismissal was fair (it being
common cause that applicant was dismissed), that onus had
been discharged on the facts. I have already accepted
respondent’s version of the events which led to applicant’s
dismissal. The question that remains, therefore, is whether or
not the penalty of dismissal was appropriate in the
circumstances. Here Ms De Jongh submitted that I should not
lightly interfere with the sanction imposed by the employer
unless the employer acted unfairly or unreasonably in imposing
the sanction. I was referred to the decision of the Labour Appeal
Court in Nampak Corrugated Wadeville v Khoza (1999) 29 ILJ 578
(LAC).
“There is a band of reasonableness within which one employer
may reasonably take one view: another quite reasonably take a
different view. One would quite reasonably dismiss the man.
The other would quite reasonably keep him on. Both views may
be quite reasonable. If it was quite reasonable to dismiss him,
then the dismissal must be upheld ad fair; even though some
other employer may not have dismissed him.”
40. I do not think that respondent’s decision in this case can
be said to be unreasonable. Rosser’s evidence was that his
authority had been challenged and that he had been treated with
disrespect in front of a number of other employees. Applicant
had previously challenged management’s authority (on occasions
where it was felt that counselling was the preferred response in
an attempt to correct her behaviour) and had received a final
written warning for improper conduct in regard to the disclosure
of salaries incident. Although not by any means identical I am
satisfied that both incidents demonstrated in different ways a
challenge to the authority and instructions of management. Even
if I am wrong in regarding the incidents as sufficiently similar
then I am nevertheless satisfied that in regard to the incident of
30 July 1999 alone applicant’s conduct was sufficiently serious to
warrant dismissal. Certainly respondent’s decision in that regard
cannot be regarded as falling outside the band of reasonable
responses. Applicant treated her employer with a complete
disregard for mutual respect. The Code of Good Practice
(Schedule 8 to the Act) recognises the need for mutual respect in
the employment context in Item 1(3) thereof:
“The key principle in the Code is that employers and employees
should treat one another with mutual respect. A premium is
placed on both employment justice and the efficient operation of
the business.”
(See also Lefifi v SA Breweries (1999) 20 ILJ 1327 (CCMA) at
1328D-F).
41. In my view respondent was justified in dismissing
applicant because her conduct was such that she was
jeopardising the efficient operation of the business and
respondent had made efforts to correct her behaviour, to no
avail. The incident of 30 July 1999 may be said to be the straw
that broke the proverbial camel’s back. The conduct was
nevertheless so gross on that occasion that it probably justified
dismissal without reference to any previous misconduct. It was
also clear from the wording of the Code of Conduct that the
penalties suggested therein were in the nature of guidelines
rather than immutable prescriptions. A penalty of dismissal in
the circumstances of this case, even had the offence been
regarded as one of gross insubordination, would thus not
constitute an unacceptable departure from the provisions of the
Code. I thus find nothing improper, unfair or prejudicial to
applicant in the respondent having treated the offence in the
manner in which it did.
42. On the issue of costs, Mr Sebola submitted that even if I
were to find against applicant I should make no order as to costs
as she is still unemployed and was represented at court by the
union. Ms De Jongh, on the other hand, submitted that if an
innocent employer is dragged into court proceedings to defend
itself it should not be out of pocket as to costs, especially where
the allegations against which it was required to defend itself were
allegations of victimisation and where not only was she unable to
substantiate those allegations but applicant was in the end found
to have been guilty of serious misconduct.
43. Ordinarily this court is reluctant to make costs orders
where applicants come to court with genuine disputes. This court
does not want to inhibit those kinds of disputes from being
properly aired and resolved. In this matter, however, I have
come to my decision on the basis that applicant’s version has
been rejected. She was not honest with the court in all respects.
This is not a matter where applicant has lost simply because she
was wrongly advised on the law. In all likelihood she was advised
to proceed on the basis of her false version of what happened. In
the circumstances I believe that it would accord with the
requirements of law and fairness if some form of costs award
were made in respondent’s favour. Applicant is, however,
unemployed and ought not to be penalised unduly with a costs
order that is too onerous.
44. In the result I make the following order:
44.1 The dismissal of the applicant was both procedurally
and substantively fair.
44.2 The application is dismissed with costs, such costs to
be taxed on the lowest scale applicable in the Magistrate’s Court.
S STELZNER
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 2 - 5 August 1999
DATE OF JUDGMENT: 23 August 1999
APPEARANCE FOR APPLICANT: Mr S Sebola
OF: Security, Retail, Transport &
Allied Workers Union of
South Africa
APPEARANCE FOR
RESPONDENT:
Ms M M De Jongh
INSTRUCTED BY: