THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C496/2023
In the matter between:
ANTHONY CURTIS Applicant
and
ALTRON BYTES MANAGED SOLUTIONS Respondent
Date of Hearing: 2 and 3 February 2026
Date of Judgment: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Labour Court website
and release to SAFLII. The date of handing down judgment is deemed to be 28
August 2026.
Summary: An alleged automatically unfair dismissal claim for instituting a claim
against the employer and a client, as contemplated in sections 5 and 187(1)(d) of the
LRA, where the affected employee would have been appointed team leader for a
client account but was not due to his debt review status. The factual causation test
was met, but not the legal causation test. The proximate cause of the dismissal was
the client's involvement of the client in the dispute, not the institution of claims
against the employer.
(1) Reportable: No
(2) Of interest to other Judges: No
28 August 2026
Signature Date
JUDGMENT
GANDIDZE, J
Introduction
[1] The trial proceedings concerned an alleged automatically unfair dismissal in
terms of section 187(1)(d) 1 of the Labour Relations Act 2, lodged by Mr
Anthony Curtis (Curtis), against his former employer, Altron Managed
Solutions (Pty) Ltd (Altron).
[2] When the claim was filed with this court, Curtis cited Altron and the Standard
Bank of South Africa
3 (SBSA) as respondents. Altron raised the special plea
of misjoinder of SBSA. The issue was addressed at a pre-trial conference on
30 April 2025, and the court, per Haffegee AJ, ordered Curtis to file a notice
withdrawing the dispute against SBSA. On 17 February 2025, Curtis filed the
notice of withdrawal as ordered. Despite this, in a pre- trial minute signed
subsequently and on 22 October 2025, Curtis implored the court to
‘reconsider including SBSA as a second respondent’, contending that he had
withdrawn the dispute against SBSA on this court’s recommendation. The
simple answer is that there is a court order directing Curtis to withdraw the
dispute against SBSA, and he complied with it. This court lacks jurisdiction to
revisit its own orders which a litigant has already complied with.
Background facts
[3] Altron conducts a business providing, inter alia , Information Technology
Solutions to clients throughout the Republic of South Africa. SBSA is one of
its clients.
1 Reproduced later on in the judgment.
2 Act 66 of 1995, as amended.
3 Fo reasons that will emerge later on in the judgment.
[4] Curtis commenced employment with Altron, previously know n as Bytes
Management Solutions (BMS) 4, on 1 May 2014 as a Customer Service
Representative (CSR), following a transfer from Merchant Acquiring, where he
had worked since 4 June 2012. At some point, he was assigned to the
position of Service Technician at Massmart.
[5] In April 2023, Altron advertised a Team Leader position on the SBSA account.
Curtis was encouraged and personally assisted by Mr Ruan Marais (Marais),
the Regional Manager and his line manager , to apply for the position, which
would have been a promotion. Subsequently, Curtis was informed that his
application was rejected because ‘he had become indebted to the client who
is a reputable financial institution, whereby he had been placed under debt
review’. Altron contended that appointing Curtis would constitute a breach of
the Common Terms Agreement (the Agreement) with SBSA, which, inter alia,
provides as follows:
‘27.1 The supplier must perform criminal record check, credit check REDS
list check with the assistance of Standard Bank and any other checks
required by Standard Bank and must provide a detailed summary of
the work experience and qualifications of all personnel, together with
the results of the checks to Standard Bank within a reasonable time
after the signature date. If standard Bank notifies the supplier that any
personnel member is unacceptable to it, on reasonable grounds given
in writing, the supplier will substitute that person with a suitable
replacement. This clause 27.1 will apply to all replacement candidates.
27.2 Grounds on which Standard Bank may object to any personnel
member are:
(1) unsatisfactory results of any credit or other checks required by
Standard Bank.’
[6] Following the decision not to promote him , Curtis referred several disputes to
the Commission for Conciliation, Mediation and Arbitration (CCMA) , alleging,
inter alia , an unfair labour practice, discrimination and ‘various ancillary
inter alia , an unfair labour practice, discrimination and ‘various ancillary
4 A Division of Bytes Technology Group South Africa (Pty) Ltd.
matters’5. He also cited SBSA as a second respondent in some of those
disputes. A subpoena was issued to SBSA officials to appear before the
CCMA, and they complied. The pre- trial minute records, as common cause,
that Curtis involved SBSA despite instructions not to involve a client in an
internal matter. However, in evidence, Curtis alleged that he had cited SBSA
on the advice he received at the CCMA and that he had been misled about
the contents of the pre- trial minute. I will return to this issue later in the
judgment.
[7] On 7 June 2023, Curtis was served with a notice to attend a disciplinary
hearing to answer the charge:
‘Misconduct: Bringing the company name into disrepute in that during June
2023 you involved a 3 rd party (Standard Bank) who is a client of AMS in an
internal employment dispute at the CCMA thereby bringing the company’s
name into disrepute. Your conduct had a detrimental or intolerable effect on
the efficiency, profitability, and/or continuity of the business of AMS who is
your employer.
In acting as allege (sic), you breach the company values of: Openness,
honesty and integrity; Getting things done and enjoy doing it Leading returns
for shareholders and Passionate about employees, customers , partners and
communitie (sic).’
[8] He was found guilty and dismissed on 15 June 2023.
[9] He referred an alleged unfair dismissal dispute to the CCMA. During the
arbitration proceedings, Curtis alleged an automatically unfair dismissal, and
the commissioner seized with the matter advised him to refer the dispute to
this court in terms of section 187 of the Labour Relations Act 6 (LRA). He
withdrew the dispute from the CCMA and referred it to this court , leading to
the trial proceedings addressed in this judgment.
5 As per the pre-trial minute.
6 Act 66 of 1995.
[10] The disputes that Curtis referred to the CCMA before his dismissal were
consolidated and arbitrated as a discrimination claim. In an award dated 1
August 2023, the claim was dismissed.
Curtis’s pleaded case
[11] He completed the CCMA referral forms, citing Altron and SBSA, on the
CCMA's advice. By referring the dispute to the CCMA, he was exercising his
constitutional rights. The CCMA documents relied on as evidence of
misconduct are protected by section 187(1)(d) of the LRA because he was
exercising his right. Without those documents, Altron provided no credible or
legitimate evidence of the alleged misconduct. Accordingly, his dismissal was
automatically unfair.
[12] He sought maximum compensation, as he no longer trusted Altron. He also
sought an order directing Altron to pay his notice and leave pay, to correct the
UI19 form issued to him, to reimburse the costs of engaging a ‘labour law
expert trainer’ to provide training and guidance in the matter, and to reimburse
the costs of travelling from George, where he resides, to Cape Town to file
papers with the court.
Altron’s pleaded case
[13] The contractual arrangement with SBSA required that only employees with a
clean credit record be placed there. Because Curtis did not have a clean
credit record, he could not be placed with SBSA, as doing so would have
breached the Agreement. Curtis was within his rights to refer the dispute to
the CCMA, but by involving SBSA, he disregarded his employer's reputation
and good name. He involved SBSA in disputes at the CCMA, despite
numerous instructions not to involve a client in internal matters. SBSA offic ials
attended the CCMA, causing Altron great embarrassment. SBSA threatened
to cancel the contract. Curtis was informed of the threat, the reputational
damage he was causing, and the disrepute he was bringing on the employer’s
name, but he persisted in involving SBSA in the dispute. His intention in
including SBSA was mala fide and aimed at affecting the employer's good
including SBSA was mala fide and aimed at affecting the employer's good
standing. This is why he was disciplined. He also attempted to coerce a
settlement. The conduct led to an irretrievable breakdown in the employment
relationship and had the potential to permanently damage the relationship
with SBSA.
[14] Curtis was dismissed not for exercising his rights but for his intentional and
malicious conduct in involving SBSA, with the ulterior motive of bullying Altron
by securing a favourable settlement agreement, thereby causing reputational
and financial harm to Altron. He remained defiant, obstinate and
unnecessarily confrontational, and ignored pleas not to involve an important
client in his dispute with the employer. The dismissal was neither
automatically unfair nor unfair for a reason that is not automatically unfair.
Pre-trial minute
[15] Two sets of pre-trial minutes were placed before the court. The first, dated 24
April 2024, is unsigned and will therefore be disregarded. The signed pre- trial
minute, concluded before Melapi AJ, is dated 22 October 2025. The common
cause facts recorded in that minute have already been set out above. In that
minute, Curtis also contended that he became aware of the Agreement
between Altron and SBSA at the CCMA only after he had been dismissed.
Oral and documentary evidence
Curtis’s case
[16] Curtis gave evidence in support of his claim.
[17] He testified that the CCMA commissioner recommended that the employer
settle his dispute, but the employer refused.
[18] The position at SBSA was created specifically for him. His line manager,
Marais, told him he had been appointed and that SBSA wanted to know when
he would be released from Altron. He then received a 17- minute phone call
from HR enquiring about the debt review process he was under. They
informed him that the matter would be discussed with SBSA. Therefore, Altron
involved SBSA in an internal matter. By then, he was already making plans to
move to the Eastern Cape, where the position was based. A week later, he
was informed that he would not be promoted. He was angry. The Lord told
him to go to the CCMA, and the CCMA advised him to request a subpoena
against SBSA. He involved SBSA because it was 100% responsible for his
non-promotion. The Head of Human Resources (HR), Mancy Letuka (Letuka),
informed him that Altron respected his decision to refer the matter to the
CCMA, but matters took a turn for the worse when SBSA officials were
subpoenaed to appear before the CCMA. Altron tried to consolidate the cases
at the CCMA, including a disciplinary hearing against him, which was
trickery.
7
[19] Altron knew he was under debt review, which contributed to his negative
credit score. It was illogical to charge him, as Altron had involved the SBSA.
Altron brought its own name into disrepute by agreeing to the Agreement. In
any case, Altron and the SBSA are intertwined. Marais and Mark Naidoo
(Naidoo) worked for both.
[20] He knew that the outcome of the disciplinary enquiry would be against him.
The chairperson stated that he would seek internal advice before issuing a
ruling. He also said that the disciplinary enquiry was convened because SBSA
had sent a letter to Altron threatening to cancel the contract. Altron’s
representative also said that Curtis would be to blame if SBSA cancelled the
contract. He recorded the proceedings and implored the court to listen to the
recordings. He also referred the court to the summary of the disciplinary
proceedings, which he compiled and submitted into evidence.
[21] The only evidence Altron relied on was the CCMA documents, which could
not be used because of the protection afforded by section 187(1)(d) of the
LRA.
[22] His colleagues and clients held him in high regard, as evidenced by
statements he submitted into evidence. The salary schedules attached to the
UI19 forms contained discrepancies.
7 The relevance thereof was difficult to determine.
[23] Under cross -examination, he stated that he was dismissed for reporting
wrongdoing by Altron and SBSA to the CCMA. He agreed that he needed to
maintain harmonious relationships with clients and colleagues. IT services are
provided at clients’ premises. Had he been promoted, he would have become
a senior employee. He agreed that SBSA decides whom to entrust with its IT
systems. Under his employment contract, he agreed to undergo criminal and
credit checks. The contract with SBSA was due for renewal in November
2023. He had no employment relationship with SBSA. He denied that SBSA
was involved in the dispute to obtain money from Altron. He confirmed that he
cited SBSA in the court proceedings, even after being informed that it was not
his employer. The arbitration award issued by the CCMA found that the
dispute was between him and Altron, not between him and SBSA.
[24] He could not recall being instructed not to involve SBSA and challenged
Altron to prove the instruction. He received no formal instruction not to involve
SBSA. The pre-trial minutes record this as a common- cause fact, but he was
informed that the document merely reflects the parties' perspectives. He was
misled about the contents of the pre- trial minutes. It was Altron that involved
SBSA. Letuka invited him to a meeting, which he declined. Letuka informed
him that he was entitled to refer a dispute to the C CMA. During the
disciplinary hearing, he was informed that he was charged with involving
SBSA in the dispute. He denied that he involved SBSA to ‘poke the bear’
because he was indebted to it. He also disagreed that it is disconcerting for an
employer to have its clients hauled before the CCMA by an employee.
[25] When he referred a dispute to the CCMA challenging a final written warning
issued to him, he was not charged for it.
[26] He did not seek reinstatement because the trust between him and Altron had
broken down over the years.
Altron’s case
broken down over the years.
Altron’s case
[27] Altron called Mr Mohammed Peters (Peters), its Head of Operations. He met
Curtis while working on the Massmart account. In 2023, he was responsible
for the SBSA account. The contract was awarded in 2019 and due for renewal
in 2023. Therefore, 2023 was a critical period for ensuring the contract was
renewed, given the stiff competition for business.
[28] He was aware of Curtis’s dispute. He was concerned that SBSA had been
hauled before the CCMA by an employee. He also received a communication
from SBSA in this regard and informed them that he was dealing with the
matter. SBSA sent Curtis correspondence after the matter was referred to the
CCMA and this court.
[29] Under cross -examination, he stated that SBSA remained a client. He
confirmed that SBSA had sent Curtis a letter after Curtis’s dismissal. He was
briefed on Curtis’s matter and on the fact that Curtis had not been promoted.
[30] In re-examination, he testified that senior people at SBSA were curious about
why Curtis was involving them in an internal matter, and that this was not how
they did business.
[31] The second witness was Alida Stegmann (Stegmann). She is the Lead
Employee Relations at the head office and supports business units on CCMA
matters. She did not attend the conciliation meetings for about 4 of Curtis's 5
disputes. She assisted in consolidating the disputes and represented Altron in
the arbitration concerning the discrimination matter, which was dismissed.
[32] She was informed that Curtis had been instructed not to involve SBSA, but he
refused to comply. Altron had no objection to employees referring disputes to
the CCMA. In 2022, Curtis referred a dispute to the CCMA, which was
decided in his favour. Even then, he was considered for a promotion. He was
dismissed for a lack of commitment to change. He insisted that he had done
nothing wrong.
[33] In cross-examination, she testified that she met Curtis after his dismissal. She
could not recall offering him his job back at the conciliation meeting and said
that offering reinstatement would have been unusual. She applied to
consolidate all disputes, but the commissioner refused to do so.
[34] The third witness was Martinus Van Deventer (Van Deventer). He was
employed as Senior Manager, Compliance and Risk. Curtis submitted four
referrals to the CCMA, citing SBSA in each, despite being told not to involve a
client. He attended the first conciliation meeting at the CCMA on 19 May
2023. An SBSA employee attended the meeting and appeared visibly irritated.
After the SBSA employee left, he informed Curtis, in the commissioner's
presence, not to involve SBSA, as it may consider cancelling the contract .
Curtis responded that Altron and SBSA were colluding to hide something and
that he would take the matter to the Labour Court.
[35] He initiated the disciplinary enquiry against Curtis. During the hearing, Curtis
stated that they could do as they wished and that he would take the matter to
the Labour Court.
[36] In cross- examination, he testified that before the referrals to the CCMA, he
had dealings with Curtis after Curtis's mobile phone was stolen, but Curtis
refused to file a claim. He sent e- mails to Curtis requesting a meeting. Curtis
put to him that he had not denied being asked not to involve SBSA but had
denied that they had pleaded with him not to do so, and that he had told them
they would not get away with what they had put him through. He responded
that they sat as two adults and implored Curtis to consider his actions and
their consequences. In the disciplinary hearing, he did not provide proof of
damages or of the effects caused by the alleged misconduct. It was put to him
that he had been upset during the disciplinary hearing when Curtis asked who
the chairperson was, and he denied this. It was also put to him that, during the
disciplinary hearing, Curtis stated that the relationship with SBSA was
precarious due to several issues, including SBSA's involvement in internal
matters. He denied this. It was also put to him that SBSA was cited as a
respondent in the first two referrals to the CCMA and that the witness did not
respondent in the first two referrals to the CCMA and that the witness did not
attend the first conciliation meeting held on 17 May 2023. He stated that
SBSA was cited in all the referrals.
[37] In re -examination, he stated that Curtis committed misconduct by involving
SBSA in his dispute with Altron.
[38] The fourth witness was Maphula Tebogo Gloria Mohlampe (Mohlampe). She
was employed as a Senior HR Partner. Her duties included ensuring
compliance with legislation and company procedures. She had dealings with
Curtis regarding the vacancy at SBSA, but Curtis was not appointed because
company policy required credit checks before confirmation. She formed the
view that Curtis might not be aware of the processes and therefore decided to
guide him. She and another employee, Jessica Mbacaza, telephoned Curtis
and advised him not to involve a client. This was before the referrals to the
CCMA. Curtis did not want to hear anything, believing he was right to involve
a client. They also attempted to convene a meeting with Curtis, but he
declined. Curtis referred disputes to the CCMA, citing SBSA as a respondent.
[39] Under cross-examination, it was put to her that Curtis had been informed he
had the job and had asked whether he was serious about it. She responded
that she had no knowledge of the discussion. She denied telling Curtis that
the debt review would not be a problem, as she knows the requirements for
financial institutions. She attended the disciplinary enquiry, and the
chairperson alluded to potential damage to the business and the client
relationship. She could not recall that, during the disciplinary hearing, Van
Deventer was upset that Curtis denied committing misconduct, and that
Peters received a letter from SBSA stating that going to the CCMA was
upsetting. In re- examination, she clarified that she was referring to the
chairperson's findings after considering the mitigating and aggravating factors,
as well as the finding that a client does not get involved in the recruitment
process. She also referred to a CCMA referral form citing three SBSA
employees.
Parties' respective closing submissions
[40] Curtis prepared written closing submissions , which formed part of his bundle,
in which he submitted as follows:
in which he submitted as follows:
‘The applicant would like to end his case by stating that it is the applicant's
constitutional right as a South African citizen to do an affidavit and to
complete application forms 7.11 and 7.13 as per the CCMA process.
These are proper and acceptable behavior and processes used to involve a
NON-PREJUDICE, UNBIASED sitting between allegedly disputing parties
and therefore cannot be deemed as misconduct according to section
187(1)(d of the LRA . The disciplinary inquiry in question is automatically
unfair and disregarded and the applicant submits the request for relief of 24
x months gross salary shown in the applicant's latest salary schedule as
compensation including all expenses incurred.’
[41] He also presented oral arguments in which he submitted that he exercised the
right to refer the dispute to the CCMA, and that referring the matter to the
CCMA did not constitute misconduct. He was informed in a meeting not to cite
SBSA in referrals to the CCMA , but no formal instruction to that effect was
issued. The employer did not suffer any damages, and instead, the damage
was to him. He was unaware of the Agreement , which had not been disclosed
to employees. All he was informed was that the employer needed to clear
internal hurdles. There was no evidence that SBSA had rejected his
application or that it stopped the process.
[42] Mr Soldatos for Altron submitted that the narrow issue for determination was
whether the dismissal was automatically unfair. Altron was entrusted with the
entire SBSA infrastructure, and the contract with SBSA was jealously
guarded, given that it was due for renewal in late 2023. If it was not renewed,
more than 400 employees working on the SBSA account risked losing their
jobs. Curtis was justified in feeling aggrieved that he was not promoted after a
superior had prematurely told him the job was his, and in referring the dispute
to the CCMA. However, he was not charged or disciplined for referring a
dispute to the CCMA. He had previously referred a dispute to the CCMA and
was not charged. He was charged for insisting on involving SBSA, even after
he was specifically instructed not to. He was advised not to involve SBSA
he was specifically instructed not to. He was advised not to involve SBSA
even before he went to the CCMA; therefore, he could not rely on the CCMA's
advice to cite SBSA. He ought to have withdrawn the disputes against SBSA.
He involved SBSA because it placed him u nder debt review and then closed
the door on his promotion. He joined the SBSA to make life uncomfortable for
Altron in order to secure the maximum settlement package, as he was
unhappy with his employment. He abused the CCMA processes by citing
SBSA when no relief could be obtained against it. He remained defiant by
citing the SBSA in the court proceedings, and it took a Judge to order him to
withdraw the dispute against SBSA.
[43] He also submitted that the test to be applied i s set out in South African
Chemical Workers Union and others v Afrox Limited 8 (Afrox). In this case,
Curtis was dismissed for persisting in vexatious litigation against SBSA.
[44] As regards the pre- trial minute, Curtis is not an ordinary layman. He was
employed in a senior position and was afforded the opportunity to read the
pre-trial minute carefully before signing it.
The legal principles
[45] Section 187(1)(d) of the LRA provides as follows:
‘187 Automatically unfair dismissals
(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;
[46] For the purposes of this dispute, the relevant portions of section 5 of the LRA
provide as follows:
‘5 Protection of employees and persons seeking employment
(1) No person may discriminate against an employee for exercising any
right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following-
8 (1999) 20 ILJ 1718 (LAC).
(a) …..
(b) prevent an employee or a person seeking employment from
exercising any right conferred by this Act or from participating in any
proceedings in terms of this Act; or
(c) prejudice an employee or a person seeking employment because of
past, present or anticipated-
(iv) failure or refusal to do something that an employer may not
lawfully permit or require an employee to do.
[47] Therefore, read with section 5, section 187(1)(d) of the LRA provides that a
dismissal is automatically unfair if, in dismissing the employee, the employer
acted contrary to section 5 of the LRA, or the reason for the dismissal was
that the employee took action against the employer by exercising a right
conferred by the LRA or by participating in proceedings under the LRA.
[48] In National Union of Metalworkers of SA & Others & Aveng Trident Steel (A
Division of Aveng Africa (Pty) Ltd) & Another 9 (Aveng Trident), the court
commented on sections 5 and 187 of the LRA as follows:
‘[78] …. This requires courts to interrogate and determine, among various
factors, what the cause of the dismissal is…’
[79] The Labour Appeal Court in Department of Correctional Services v
Police & Prisons Civil Rights Union held:
‘The reason contemplated and to be sought by the court is the objective
reason in a causative sense . The court must enquire into the objective
causative factors which brought about the dismissal, and should not
restrict the enquiry to a subjective reason, in the sense of an explanation
from one or other of the parties.’ (Emphasis added.)
[80] This requires the courts to determine the probable cause of the
dismissal by examining the facts before them and assessing whether
that cause is the main or dominant, or proximate, or most likely cause
of the dismissal. As a result, there is no logical reason why the Afrox
test, which in essence seeks to distinguish automatically unfair
dismissals from those that are not automatically unfair, cannot similarly
9 (2021) 42 ILJ 67 (CC).
be applied in the context of s 187(1) (c). This is further buttressed by
the fact that the section itself uses the language ‘if the reason for the
dismissal is’, making it clear that establishing the true and dominant
reason for the dismissal is paramount. In doing so, it clearly denotes
that an examination of the reason, which can be ascertained through a
causal analysis, must be established in order to determine whether or
not the section has been contravened. Since the section itself implies
a causation requirement, it is apposite to utilise the causation test as
articulated in Afrox.10
[49] Therefore, the test for determining the true reason for the dismissal is the one
set out in Afrox and approved by the Constitutional Court in Aveng Trident.
[50] Another consideration is that in dismissal disputes, section 192 of the LRA
requires the employee to prove that a dismissal occurred. Once a dismissal is
established, the burden shifts to the employer to show that it was for a fair
reason. In Afrox, the court stated that the employer’s burden:
‘[25] …would include proving, in the case of an alleged automatically unfair
dismissal under section 187(1), that the dismissal was not contra ry to
section 5, nor for any of the reasons set out in section 187(1)(a)-(f).’
[51] In Afrox, the question for determination was whether the employees were
dismissed for participating in a protected strike (a prohibited reason) or for
operational reasons (a fair reason). The court set out the test to be applied as
follows:
‘[31] The first enquiry in such a case would be to determine the reason for
the dismissal of the striking employees. If that reason is for
participation or support (or intended participation or support) of a
protected strike, and not for operational requirements, the dismissal
will be automatically unfair (section 187(1)(a)).
[32] 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
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
10 See also para 81.
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilised here (compare S v Mokgethi and
others 1990 (1) SA 32 (A) at 39D-41A; Minister of Police v Skosana
1977 (1) SA 31 (A) at 34). 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? Put another way, would the dismissal have occurred if
there was no participation or support of the strike? If the answer is
yes, then the dismissal was not automatically unfair. If the answer is
no, that does not immediately render the dismissal automatically
unfair; the next issue is one if legal causation, namely whether such
participation or conduct as 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 (compare S v
Mokgethi, above, at 40). I would respectfully venture to suggest that
the most practical way of approaching the issue would be to
determine what the most probable inference is that may be drawn
from the established facts as a cause of the dismissal, in much the
same way as the most probable or plausible inference is drawn from
circumstantial evidence in civil cases. It is important to remember
that at this stage the fairness of the dismissal is not yet an issue (see
paragraph [33] below). Only if this test of legal causation also shows
that the most probable cause for the dismissal was only participation
or support of the protected strike, can it be said that the dismissal
was automatically unfair in terms of section 187(1)(a). If that probable
inference cannot be drawn at this stage, the enquiry proceeds a step
further.’
[52] In Aveng Trident11, the Constitutional Court stated the following about the test
set out in Afrox for determining the true reason for dismissal:
‘[70] Determining the reason for a dismissal is a question of fact and the
‘[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 . … I will demonstrate
below that, in determining what the true reason for the dismissal is, the
Afrox test is most useful
.’
11 Supra footnote 9.
[73] To resolve the issues that arise from the facts of this matter, the Labour
Appeal Court relied on the Afrox causation test to determine the true
cause for the dismissal. For those cases where it is not easy to
determine what the true reason is, I agree that a useful analysis is found
in the Afrox test.
[53] The case before the Constitut ional Court in Aveng Trident concerned section
187(1)(c) of the LRA, 12 and relying on Afrox , the court reiterated the test for
determining the true reason for a dismissal in the following terms:
[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.
[77] The Afrox test has been endorsed and applied in various cases dealing
with s 187(1) dismissals that are automatically unfair in contrast to s 189
dismissals for operational reasons that are not automatically unfair.
Admittedly, some of these cases, like Afrox , concerned s 187(1) (a)
versus s 189; not s 187(1) (c). In my view, it is not controversial to apply
the Afrox test with equal force in the context of s 187(1) (c). This is
supported by the string of cases that reveals how the Afrox test has
been accepted and applied by the Labour Appeal Court in the context of
other subsections of s 187(1). In any event, the Afrox test is employed
more generally when the courts are required to ascertain the true
reason for dismissals.
12 Which provides that:
187 Automatically unfair dismissals
reason for dismissals.
12 Which provides that:
187 Automatically unfair dismissals
(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-
(c) a refusal by employees to accept a demand in respect of any matter of mutual interest between
them and their employer;
[54] Commenting on factual causation, the court stated this:
‘[88] …Factual causation, as I understand it, concerns a particular kind of
link or connection between at least two facts or sets of facts. As with
all facts, factual causation is something that either exists or does not.
The court usually determines the test on the basis of evidence and
probabilities before it. The Labour Appeal Court rightly enquired into
the circumstances that led to the dismissal. In doing so it relied on the
knowledge of the facts as well as reliable evidence. This approach
resonates neatly with the Afrox test.’
[55] Later in the judgment, the court also stated this:
‘[91] Causation seeks the true cause for the dismissal and it does so by
interrogating the reason for the dismissal. In this case the causation
test seeks the ultimate cause of the dismissal — whether it is because
of the refusal of a demand or due to operational requirements. The
causation test accepts that in some scenarios there may be more than
one possible outcome.’
[56] Therefore, determining the true reason for dismissal requires first establishing
factual causation; if the answer is in the affirmative, the inquiry ends, as the
dismissal will not be automatically unfair. However, if the answer to factual
causation is in the negative, the second stage is to determine legal causation,
which is the true, dominant, or proximate reason for the dismissal.
Evaluation
[57] The issue for determination is whether Curtis was dismissed for a reason that
renders the dismissal automatically unfair under section 187(1)(d) of the LRA.
While Curtis contended that he was dismissed for exercising his right to refer
disputes to the CCMA and for challenging the decision not to promote him,
the employer contended that he was dismissed for misconduct, namely, for
involving SBSA in the dispute he referred to the CCMA. Therefore, the
question is whether he was dismissed for taking action agai nst the employer
question is whether he was dismissed for taking action agai nst the employer
by exercising a right conferred by the LRA, namely, by referring disputes to
the CCMA.
[58] Applying the causation test as set out in Afrox , the first step is to determine
factual causation by asking whether the referral of the disputes to the CCMA
was a prerequisite or a sine qua non for the dismissal. Put differently, would
Curtis have been dismissed if he had not referred the disputes to the CCMA?
The answer to that question must be no. Accordingly, the second stage,
determining legal causation, must be undertaken to establish whether the
dismissal was automatically unfair.
[59] The second stage requires the court to ask whether the referral of the
disputes to the CCMA was the "main", "dominant", "proximate", or "most
likely" cause of the dismissal. The court must determine the most probable
inference that may be drawn from the established facts as the cause of the
dismissal, or the probable cause of the dismissal.
[60] I am unable to find that the referral of the disputes to the CCMA was the
proximate or probable cause of Curtis’s dismissal. This conclusion rests on
the undisputed evidence that Curtis was advised of his right to challenge the
decision not to promote him, subject only to the condition that he not involve
the SBSA.
[61] Although Curtis initially denied being instructed not to involve the SBSA, he
conceded during Van Deventer's cross -examination and in his closing
submissions that he had been instructed as alleged. He sought to argue that
there was no formal instruction and that they did not plead with him . The
meaning of a "formal instruction" was not clarified, and, as the employer,
Altron did not have to plead with him not to involve a client in an internal
matter. The facts established that h e was instructed not to involve the SBSA,
and he chose to ignore that instruction. Therefore, the pre- trial minute
accurately records the issue as common cause.
[62] There is merit in the contention that his intentions in involving the SBSA were
mala fide, as he knew or ought reasonably to have known that no relief could
mala fide, as he knew or ought reasonably to have known that no relief could
be granted against SBSA, which was not his employer. Even if he believed
that SBSA was 100% to blame for failing to grant the promotion he was
promised, he was told that SBSA was not his employer and therefore should
not involve them in the dispute. The fact that two other named employees
worked for both Altron and SBSA did not mean that Curtis was also an
employee of SBSA. He was also made aware that SBSA threatened not to
renew the contract, which would have put hundreds of other employees' jobs
at risk. Even this did not prompt Curtis to reconsider his approach. His
intentions in involving the SBSA officials were to embarrass Altron, which
justified charging him. Once again, the pre-trial minute correctly recorded the
issue as common cause. For these reasons, it is unnecessary to make any
findings on the settlement negotiations or on whether Curtis sought to obtain
the maximum settlement package from Altron by involving its client.
[63] The proximate cause of the dismissal was the insistence on involving SBSA in
the dispute against Altron, rather than referring the disputes to the CCMA. His
own account was that things soured when SBSA officials were issued
subpoenas to appear before the CCMA. Therefore, the referral of the disputes
to the CCMA was not the proximate cause of his dismissal.
[64] Curtis was informed of the alleged misconduct during the disciplinary hearing,
yet he persisted in asserting that he had done nothing wrong by bringing both
the employer and the SBSA before the CCMA.
[65] Previously, he had referred a dispute to the CCMA, challenging the final
written warning he had received. He faced no reprisal for making the referral.
In this case, he was specifically encouraged to refer the dispute to the CCMA
but not to involve SBSA. He ignored the instruction at his own peril.
[66] The contention that he cited SBSA as a respondent on the CCMA's advice is
rejected. The evidence established that, even before he went to the CCMA,
Curtis was advised and instructed not to involve SBSA in the dispute. He
therefore made a conscious decision to involve SBSA before approaching the
CCMA, because he strongly believed that both Altron and SBSA were at fault
CCMA, because he strongly believed that both Altron and SBSA were at fault
for his non- promotion. He made this clear when he alleged that the CCMA
referral forms were protected by his constitutional right to lodge a dispute
regarding wrongdoing by both Altron and SBSA. His attempts, in closing
argument, to present a different case, namely that SBSA did not stop his
promotion and that Altron was solely to blame because it should not have
agreed to the Agreement, contradict the pleaded case that both Altron and
SBSA were to blame for the decision not to promote him. The submission was
carefully presented in a last -minute attempt to distance himself from having
involved SBSA in the matter, and it is rejected.
[67] Even after the CCMA dismissed the discrimination claim, Curtis referred a
dispute to this court, citing SBSA as a respondent. An order was issued for
him to withdraw the dispute against SBSA, and he complied. Despite this, in
these proceedings he insisted that SBSA be joined as a party, even though it
was not an employer. This further proves that he was intentional in citing
SBSA in his referrals to the CCMA, rather than acting on the CCMA's advice.
[68] The contention that Altron involved the SBSA in the dispute has no merit.
Altron did not contend that the SBSA should be joined to the proceedings
against it. The contrary is true. Altron engaged the SBSA regarding Curtis’s
debt review status because all appointments at the SBSA were subject to,
inter alia , credit checks. Based on the evidence, I accept that Altron was
aware, or reasonably ought to have been aware, of Curtis’s debt review status
before he applied for the promotional position. However, this fact alone did not
entitle Curtis to be promoted under the terms of the Agreement. Even if Curtis
learnt of the Agreement only at the CCMA, he was informed that he could not
be appointed as the SBSA Team Leader because he was under debt review.
It was a term and condition of his employment that he be subjected to credit
checks.
[69] The court is satisfied that the involvement of the SBSA was the most pressing
consideration
13 in deciding to charge Curtis. That was the proximate cause of
Curtis’s dismissal. Therefore, Altron has discharged the burden of proving that
Curtis’s dismissal was not for a prohibited reason.
Curtis’s dismissal was not for a prohibited reason.
[70] That must be the end of the matter, as Curtis did not allege that the dismissal
was unfair for a reason that is not automatically unfair . Although he raised
issues about the fairness of the disciplinary process, the only pleaded claim is
13 See Aveng Trident at para 97.
for an automatically unfair dismissal . In Motor Industry Staff Association &
Another v Great South Autobody CC t/a Great Sout h Panelbeaters; Solidarity
on behalf of Strydom & Others v State Information Technology Agency SOC
Ltd14, the court made it clear that procedural fairness does not arise where the
pleaded claim is for an automatically unfair dismissal. It stated this:
‘[128] … The effect of s 188, read with s 187, is that a dismissal cannot be
rendered automatically unfair simply because a fair procedure was not
followed by the employer but a dismissal that is not automatically
unfair will be unfair on either a substantive ground only or on a
procedural ground only or on both substantive and procedural
grounds.
[129] The opening part of s 188 expressly excludes an automatically unfair
dismissal when the section places upon the employer the burden to
prove that the dismissal was effected in accordance with a fair
procedure. Therefore, it can be said with confidence that the unfair
dismissal regime or dispensation that the LRA created does not
require that an employer proves that an automatically unfair dismissal
was effected in accordance with a fair procedure. That requirement
only applies to the other dismissals dealt with under s 188. In my view,
that is the law as it presently stands. The constitutionality of the LRA’s
exclusion of the requirement of a fair procedure in respect of
automatically unfair dismissals was not challenged in the present case.
It is, therefore, not necessary to express a view on its constitutionality.
Therefore, it seems to (sic) that rightly or wrongly the LRA does not
impose on an employer the duty to comply with a fair procedure where
a dismissal is for a reason that would ordinarily render the dismissal
automatically unfair.’
[71] Therefore, the court need not determine whether the dismissal was
procedurally unfair.
[72] The claim for correction of the UI forms was not pleaded in clear terms,
[72] The claim for correction of the UI forms was not pleaded in clear terms,
thereby preventing the court from understanding the nature of the required
14 (2025) 46 ILJ 481 (CC).
corrections. If the correction relates to the ‘reason for termination’, the order
sought cannot be granted given what is set out above.
[73] Curtis also pleaded that he was owed leave days and notice pay. As he was
summarily dismissed, he was not entitled to notice pay. The claim for leave
pay was not substantiated, and Curtis led no evidence in support of it.
Accordingly, the claim cannot be granted.
Costs
[74] In this court, costs do not follow the result. An appropriate order, in
accordance with the requirements of law and fairness contemplated in section
162 of the LRA, is that each party pay its own costs. It cannot be said that
Curtis’s pursuit of the claim was frivolous, given that his line manager told him
that ‘between them’ the job was his, only for Altron HR to later deliver the bad
news that, because he was under debt review, the Agreement did not allow
him to be appointed to render services to SBSA. Mr Soldatos correctly
conceded that Curtis’s anger at the decision was justified.
[75] The costs incurred by Curtis in hiring a labour consultant to ‘guide and train’
him are not recoverable in this court. As for the costs of travelling to Cape
Town to institute proceedings, these could have been avoided by e- mailing
the documents to the Registrar and sending the originals by registered mail.
The trial proceedings were held virtually, at Curtis’s request. Accordingly, no
costs order will be made in favour of Curtis.
[76] In the premises, I make the following order:
Order
1. The applicant’s claims are dismissed.
2. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances
For the applicant: In person
For the Respondent: Mr Soldatos
Instructed by: Soldatos Cooper Inc Attorneys