Employment law update – Q&A

April 1st, 2017
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Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Question:

I would like to know if it is procedurally fair for an employer to charge you for misconduct after you lodged a grievance pertaining to the same fact which the employer is charging you for. If not, what is the recourse?

Answer:

The paucity of factual information in your question, particularity around the details of the grievance and the nature of the charge brought against the employee, prevents me from expressing a definitive view.

Nevertheless, I shall attempt to assist you and the readers in general by outlining circumstances wherein a dismissal subsequent to, and as a result of, an employee lodging a grievance would be deemed automatically unfair and thereafter, set out the context where a dismissal, under similar circumstances, would be deemed fair.

Automatically unfair dismissal

In Mackay v Absa Group and Another (2000) 21 ILJ 2054 (LC) the employee referred an automatically unfair dismissal, in terms of s 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA), alleging he was dismissed as a result of lodging a grievance against his superior.

Section 187(1)(d) reads:

‘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.’

On a plain reading of the above section, the question before the court was whether an agreed upon grievance procedure, found in either an employer’s policy or in an employment contract, falls within the ambit of either a ‘right’ or ‘proceedings’ as contemplated in
s 187(1)(d)(i) or (ii).

Adopting a purposive approach in interpreting the LRA and considering international charters, to which South Africa is a signatory to, Mlambo J held:

‘Therefore in keeping with the main object of the Act, ie of resolving all labour disputes effectively, and with the constitutionally guaranteed right to fair labour practices it must follow that a purposive interpretation of s 187(1) would mean that the exercise of a right conferred by a private agreement binding on the employer and employee as well as participation in any proceeding provided for by such agreement was also contemplated in that section. As in casu, the participation by an employee in a privately agreed grievance procedure, must have been contemplated as a proceeding in terms of this Act, ie when s 187(1)(d) was enacted. This is on the basis that the disputes specifically mentioned in
s 187(1) are of the same kind as the dispute in casu.’

Subsequent to this judgment the Labour Court (LC) per Steenkamp J in De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC), followed the principle in the Mackay case. The employee in that matter also relied on s 187(1)(d) when she was dismissed for lodging a grievance against her manager. The employer raised three exceptions against the employee’s statement of claim, one being that s 187(1)(d) does not refer to a grievance as a ‘right’ contemplated in the LRA nor can a grievance be considered ‘proceedings’ envisaged in the LRA. In dismissing this ground the LC held:

‘I am not persuaded that the purposive interpretation adopted by Mlambo J is clearly wrong. It does seem anomalous that an employee in the position of Ms de Klerk or Mr Mackay should not enjoy special protection. Why would a whistleblower enjoy special protection in terms of s 187(1)(h), but not an employee who lodges a grievance in terms of her own employer’s procedures?

In the absence of any finding to the contrary by the LAC, I consider the interpretation adopted by Mlambo J to be sufficiently persuasive not to prevent the applicant from pursuing her claim in those terms. The interpretation in Mackay appears to me to give effect to the constitutional values discussed in the quoted passage. I am not in a position to disagree with the learned judge’s finding on the legal position.’

Fair dismissal

However, should an employee lodge a grievance accusing a fellow employee or superior of serious misconduct which, when tested or investigated are deemed false; then an employee making such accusations could well be disciplined and even fairly dismissed.

In SACWU and Another v NCP Chlorchem (Pty) Ltd and Others [2007] 7 BLLR 663 (LC) an employee was dismissed for falsely accusing his manager of being a racist. An arbitrator found his dismissal substantively fair and on review, the LC held the following:

‘One can hardly think of many, if any, circumstances under which an employee who has been found guilty of being a racist or displaying racist attitudes to fellow employees will avoid being dismissed. This is likely to be so as one can hardly imagine that any employer could reasonably be expected to continue to employ such offending employee in the workplace. It is likely to cause racial disharmony. I believe it is similarly difficult to imagine under what circumstances an employee who without just cause or a reasonable basis therefore, and accordingly unjustifiably, accuses another employee of being a racist, or that he or she was displaying a racist attitude, would easily escape dismissal. Such conduct strikes at the heart of racial harmony. It cannot be emphasised enough that to accuse somebody of being a racist, or of displaying racist attitudes, is to be regarded as a very serious allegation.’

While your question speaks to procedural fairness, the primary inquiry in my view, turns on the substantive fairness of disciplining an employee after having lodged a grievance. If there were genuine grounds to lay the grievance and it can be shown, at a prima facie level, that dismissal was imposed with punitive intent, then the dismissal may well be automatically unfair. If, however, it is found that there was no reasonable basis for lodging a grievance and it was the employee who lodged the compliant with malicious intent, then dismissal under these circumstances may well be deemed fair.

This article was first published in De Rebus in 2017 (April) DR 41.

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