Article 53/2022

The scenario is as follows: an employee files a grievance against a colleague and, after investigating such grievance and dismissing it, the employer charges the employee with several counts of misconduct relating to making false accusations of assault against such colleague, leading to her dismissal.  On what basis did the labour appeal court recently find that s187(1)(d) of the LRA, dealing with automatically unfair dismissals, does not concern the filing of a grievance in the aforesaid circumstances?

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In DBT Technologies (Pty) Ltd v Garnevska (2020) 31 SALLR 143 (LAC); [2020] 9 BLLR 881 (LAC), the labour appeal court adopted the following approach:

  • s187(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.’
  • s187 of the LRA lists reasons for which employees may not be dismissed and categorises such specific reasons as automatically unfair. The categorisation of the reasons specified in s187(1) of the LRA as automatically unfair means that they cannot be conceived as reasons related to misconduct, incapacity or operational requirements. If it is established on the evidence that the reason for the dismissal was one of those proscribed in s187(1) of the LRA, there are two advantages. The employer can raise no general justification based on general principles of fairness, and the employee can claim increased compensation in terms of s194(3) of the LRA (24 months of remuneration) in the event that she does not want reinstatement. Additionally, in terms of s191(5)(b), only the labour court and not the Commission for Conciliation, Mediation and Arbitration (‘the CCMA’) has jurisdiction to determine an automatically unfair dismissal
  • to reiterate, the respondent’s pleaded cause of action was that she had been dismissed on the prohibited ground in s187(1)(d) of the LRA. The appellant said that the reason for her dismissal was dishonest misconduct
  • whether a dismissal is automatically unfair is essentially an enquiry into its causation and whether the reason for the dismissal was one of the grounds listed in s187(1) of the LRA. The essential inquiry under s187(1)(d) of the LRA is whether the reason for the dismissal was “that the employee took action, or indicated an intention to take action, against the employer” by exercising any right conferred by the LRA or participating in any proceedings in terms of the LRA
  • the test for determining the true reason is that laid down in SA Chemical Workers Union v Afrox Ltd (1999) 20 ILJ 1718 (LAC); [1999] 10 BLLR 1005 (LAC) (see also Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC), paragraph 26 et seq). 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
  • there was no evidence of any kind on record indicating that, at the time of the respondent’s dismissal, she had taken action or indicated an intention to take action against the appellant. Her referral of a dispute (about her dismissal) to the CCMA in terms of the LRA was the only action she took against her employer and was subsequent to her dismissal. It was, in any event, not the respondent’s case that she had been dismissed because she had taken action, or indicated an intention to take action against the appellant. The respondent’s case was that the disciplinary process leading to her dismissal was instituted against her as a result and as a direct consequence of the grievance she had filed in terms of the appellant’s grievance procedure
  • a grievance complaining about a fellow employee’s conduct, filed in terms of a contractually agreed grievance procedure, at first glance does not constitute taking action against an employer, nor, ordinarily, does it involve the exercise of any right conferred by the LRA or the participation in any proceeding in terms of the LRA. The LRA does not expressly confer rights upon employees to file grievances, nor does it establish a mechanism or proceeding for the resolution of grievances filed by employees. The only reference to the processing of grievances in the LRA is found in s115(3)(b) of the LRA which provides that the CCMA may provide employees, employers and their bargaining agents with advice or training relating to ‘preventing and resolving disputes and employees’ grievances’. Hence, the only right that the LRA confers in relation to employee grievances is the right to approach the CCMA for training
  • in our law and practice, therefore, the right to file a grievance and to have it processed is based in contract and is derived either from any applicable grievance procedure incorporated as part of the implied terms of the individual contract of employment or from a collective agreement enforceable in terms of s23 of the LRA
  • where an employee files a grievance under a grievance procedure forming part of a collective agreement binding in terms of s23 of the LRA, it is perhaps arguable that she exercises a right conferred (albeit indirectly) by the LRA. It does not seem that the grievance procedure applicable in this case formed part of a collective agreement
  • as said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employer’s conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.