Employment law update – Discrimination claims

June 1st, 2012
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By Talita Laubscher

The applicant in Masango v Liberty Group Ltd [2012] 3 BLLR 303 (LC) resigned after she had accused a regional manager of sexually harassing her. She referred an unfair discrimination claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 26 November 2009 and, on 22 December 2009, the CCMA issued a certificate of non-resolution. In January 2010 Masango referred a dispute to the CCMA for arbitration. At the arbitration, on 20 May 2010, the commissioner ruled that the CCMA did not have jurisdiction to determine the dispute, which had to be referred to the Labour Court for adjudication. On 18 June 2010 Masango referred the matter to the Labour Court by way of motion proceedings.

The respondent raised two points in limine, namely that –

  • Masango had failed to refer the dispute to the Labour Court within 90 days of the date on which the certificate of outcome was issued and that the dispute referral was accordingly approximately 87 days late; and
  • Masango had instituted the matter in the Labour Court by way of motion proceedings while, given the disputes of fact, it should have been instituted by way of action proceedings.

In support of the first point in limine, the respondent argued that s 10(7) of the Employment Equity Act 55 of 1998 (EEA), read with s 191(11) of the Labour Relations Act 66 of 1995 (LRA), required Masango to refer the dispute to the Labour Court within 90 days of the date of the certificate.

The Labour Court, per Francis J, disagreed. It noted that Masango’s claim was founded in the EEA and was not a claim for an unfair dismissal. In the circumstances, the provisions of s 191 of the LRA did not apply. This was because s 10(1) of the EEA specifically states that a dispute for purposes of alleged unfair discrimination cases excludes disputes concerning alleged unfair dismissals. While disputes concerning alleged unfair dismissals must be determined in terms of chapter VIII of the LRA, disputes concerning alleged unfair discrimination are governed by parts C and D of chapter VII of the LRA. Section 191 and the time periods prescribed in that section therefore only apply when the applicant brings an unfair dismissal claim. Because parts C and D of chapter VII do not prescribe any specific time periods, the 90-day period does not apply.

Francis J summarised the position as follows: An unfair discrimination dispute may be referred to the CCMA for conciliation within six months from the date of the discriminatory act or omission in question. The CCMA may condone a late referral on good cause shown. If the dispute remains unresolved, the dispute may be referred to the Labour Court for adjudication or, if both parties agree, to the CCMA for arbitration. There is no time limit within which the dispute must be referred to the Labour Court for adjudication. All that is required is that it must be referred within a reasonable time period.

Considering the facts of the matter, the court held that Masango’s dispute was referred to the Labour Court within a reasonable time period and the first point in limine was accordingly dismissed.

As regards the second point in limine, the court agreed with the respondent that Masango should have anticipated that material disputes of fact would arise. Nevertheless, the court held that this did not warrant the case being dismissed and instead noted that r 7(7) of the Labour Court Rules permited it to refer the matter to oral evidence. It accordingly ordered the parties to convene a pre-trial conference.

Reinstatement

The appellant in Visser v Mopani District Municipality and Others [2012] 3 BLLR 266 (SCA) was employed as regional director of fire and emergency services of the municipality. During September 2003 the municipality transferred Visser from Tzaneen to Giyani. Visser accepted this transfer on condition that he was paid a travel allowance. This was because he was not able to relocate to Giyani and was therefore required to travel between Tzaneen, where he lived, and Giyani, where he worked.

The municipality paid him the travel allowance for three months but then terminated the payments. Despite various meetings, the issue was never resolved and, on 21 May 2004, Visser was notified that his services were terminated due to desertion. Visser referred a dispute to the second respondent, the South African Local Government Bargaining Council. The third respondent arbitrator held that Visser’s dismissal was procedurally and substantively unfair and ordered his reinstatement as well as payment of two months’ remuneration as compensation.

The municipality took the matter on review to the Labour Court, which dismissed the review application on the basis that the decision reached by the arbitrator was reasonable. The municipality then appealed to the Labour Appeal Court (LAC).

The LAC, per Davis, Tlaletsi JJA and Hendricks AJA, held that the appropriate approach was not to determine whether it would have found that the dismissal was justifiable, but whether, on the evidence before the arbitrator, the decision the arbitrator reached was reasonable. It held that, indeed, the decision of the arbitrator was reasonable and that there was no basis to interfere with the arbitrator’s finding that Visser’s dismissal was unfair. The LAC then set aside the Labour Court’s ruling and substituted it with an order that the municipality had to pay Visser an amount equal to 12 months’ remuneration.

Visser appealed to the Supreme Court of Appeal (SCA). Snyders JA (Ponnan, Leach, Majiedt JJA and Petse AJA concurring) held that this conduct of the LAC was inappropriate. The LAC had embarked on an investigation of the facts and had acted as if it was sitting as a tribunal of first instance. As such, the LAC ‘misconceived its role’.

The SCA confirmed that consequent to the finding that Visser’s dismissal was substantively unfair, Visser was entitled to be reinstated. This is because reinstatement is the primary remedy and the only way to avoid reinstatement was for the municipality to lead evidence as to why it was not appropriate in the circumstances. This was not done.

Furthermore, even though the matter took six years to reach finality, it was not open to the LAC to substitute the remedy on this basis.

The appeal was accordingly upheld and Visser’s reinstatement order was effectively confirmed.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2012 (June) DR 54.