• Is it automatically unfair dismissal in terms of s187(1)(d) of the Labour Relations Act, 66 of 1995 (“LRA”)?
  • Does the grievance amount to taking action against the employer?

Section 187(1)(d) of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is ‘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.’
In the matter of DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020], the Appellant appealed against the judgment of the Labour Court (Mabaso AJ) handed down on 26 January 2018 which held that the Respondent’s dismissal was automatically unfair in terms of section 187(1)(d) of the LRA. The Applicant was therefore ordered  to pay compensation equivalent to nine months remuneration.
The Respondent commenced employment with the Appellant in January 2010. At the time of her dismissal, she was employed as the Senior Financial Planning and Analyses Manager. On 2 February 2015, a meeting was held in the Appellant’s boardroom to resolve a contractual dispute between the Appellant and one of its subcontractors. Prior to the meeting, the Respondent and one of her colleagues, in the employ of the Appellant, had a disagreement during a conference telephone call. The said colleague was also in attendance at the meeting and they openly differed about the contractual dispute during the meeting. The Respondent alleged that as her colleague was leaving the meeting, he hit her over the head with a file. The Respondent instituted a grievance against her colleague and further reported that incident to the South African Police Services . A grievance inquiry was convened and chaired by an external chairperson. The inquiry held that the alleged assault was not proved and dismissed the grievance.
This led to the Appellant charging the Respondent with various counts of misconduct. Following the disciplinary enquiry, the Respondent was found to have committed gross misconduct for having falsely accused Mailen of assault. As a result,  the chairperson of the enquiry recommended that the Respondent be dismissed. The Respondent was therefore subsequently dismissed. Following a failed conciliation, the Respondent referred a dispute to the Labour Court in terms of section 191(5)(b) of the LRA alleging that her dismissal was automatically unfair in terms of section 187(1)(d) of the LRA.
The Labour Appeal Court (“LAC”) was tasked to determine whether the Applicant’s dismissal was automatically unfair in terms of section 187(1)(d) of the LRA and whether the disciplinary process that was instituted against the Applicant and which led to her dismissal, instituted as a result and a direct consequence of the grievance she filed in terms of the Respondent’s grievance procedure and the exercising of a right in terms of the Act? The test for determining the true reason was laid down in SA Chemical Workers Union v Afrox Ltd: the court must determine factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the employer. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether the taking of action against the employer was the main, dominant, proximate or most likely cause of the dismissal.
During argument, the Labour Appeal Court was referred to the decision of the Labour Court in Mackay v Absa Group and another (“Mackay”) holding that the exercise of a right to lodge a grievance conferred by a private agreement between the employer and the employee falls with the ambit of section 187(1)(d) of the LRA. The Labour Court, in that case, accepted that the LRA does not make explicit provision protecting an employee who lodges a grievance against his employer in terms of an internally agreed document such as a grievance procedure or code. It held, however, that one of the main objects of the LRA is to give effect to and regulate the fundamental rights conferred by the Constitution of the Republic of South Africa, 1996,  including the right to fair labour practices. The LRA, the judge reasoned, is intended to regulate, and govern the relationship between employee and employer. The LAC held that the reasoning of the Labour Court in Mackay is, with respect, misdirected. It further held that there is no need to read into the language of section 187(1)(d) of the LRA an additional species of automatically unfair dismissal in order to give effect to the constitutional right to fair labour practices or to advance effective dispute resolution. The Mackay decision of the labour court was overturned by the LAC.
The Respondent faced a hurdle in showing that she was dismissed because she took action or intended to take action against the Appellant prior to her dismissal and that such pre-dismissal action was the proximate reason for her dismissal.
After applying the test laid down in SA Chemical Workers Union v Afrox Ltd, the LAC held that there was no evidence that the Respondent took any action against the Appellant which led to her dismissal, with the result that no automatically unfair dismissal occurred on the facts. Filing a grievance against the conduct of a fellow employee does not amount to taking action against the employer. The appeal was accordingly upheld.
Author: Mihlali Mzileni