In Sweet (James) v Namcon Logistics (Pty) Ltd [2021] 1 BLLR 104 (LC) an employee was summarily dismissed for negligence. This dismissal occurred shortly after the employee lodged a grievance regarding the employer’s failure to submit an occupational injury claim to the Compensation Fund in respect of an injury that the employee sustained on duty. The employee also alleged that he was being victimised. On the other hand, the employer argued that there was a valid basis to dismiss the employee for misconduct as he had, in his capacity as warehouse manager, repeatedly loaded incorrect materials from the warehouse onto trucks.

The Labour Court (LC) had to determine whether the employee was in fact dismissed for misconduct or whether the reason for his dismissal was that he had lodged grievances. According to the employee, he had asked the employer to assist him with his injury on duty claim in January 2017 but was informed that he should rather claim from his medical aid. His medical aid did not cover the injury and he was liable to pay the medical expenses personally. He again followed up with the employer in May 2017 regarding the claim and alleged that the employer contravened the Compensation for Occupational Injuries and Diseases Act 130 of 1993 in that the claim was not submitted within seven days of the injury. When he followed up about this he was informed that the claim was in fact lodged in January 2017 when he initially reported the injury but this transpired to be incorrect.

Later that month the employee received a notification to attend a disciplinary inquiry and was issued with a written warning for failing to report a broken wheel as per policy. The employee then lodged another grievance in about July 2017 relating to the employer’s failure to lodge his injury on duty claim and on the basis of being issued with unfair disciplinary warnings in response to having lodged a grievance. About a week later, he was issued with a final written warning in relation to the performance of his duties in that he had loaded clothing on a truck without the employer’s permission. The employee’s trade union representative then followed up on the status of the injury on duty claim and was provided with a claim number. Shortly thereafter, the employee was issued with a notice to attend another disciplinary inquiry and was charged with negligence in the performance of his duties. This related to his failure to ensure that the correct number of boxes was loaded onto a truck. He was summarily dismissed and lodged a grievance regarding victimisation and intolerable working conditions. The employee’s legal practitioner also sent a letter to the employer stating that the Compensation Commissioner had advised that the claim had not been lodged in January 2017 and had only been lodged in May 2017 after the employee lodged the grievance. The letter from the legal practitioner called on the employer to provide reasons for the late submission to the Compensation Commissioner.

The LC considered whether this amounted to an automatically unfair dismissal under s 187(1)(d) of the Labour Relations Act 66 of 1995 and made reference to a recent judgment of DBT Technologies (Pty) Ltd v Garnevska [2020] 9 BLLR 881 (LAC) handed down by the Labour Appeal Court (LAC). In this case it was held that to determine whether a dismissal was an automatically unfair dismissal under s 187(1)(d) of the LRA one had to determine 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. This requires the court to determine factual causation and ascertain whether the dismissal would have arisen had the employee not taken action against the employer. The dismissal would not be automatically unfair in circumstances where the dismissal would have taken place in any event whether or not the employee took action against the employer. If the dismissal would have not taken place but for the employee taking action against the employer, then one would still need to determine legal causation. This would require determining whether the employee taking action against the employee was the dominant, proximate or most likely cause of the dismissal. In the DBT Technologies case it was found that the employee was not dismissed for having taken action against the employer and the dismissal was accordingly not automatically unfair.

The LC found that this case was distinguishable from DBT Technologies in that in the DBT Technologies case the employee had demonstrated no intention to take action against the employer whereas in this case the employee had clearly indicated that he intended to take action against the employer for the failure to lodge the claim in accordance with the Compensation for Occupational Injuries and Diseases Act. The employee lodged grievances with the employer and submitted a complaint to the Department of Employment and Labour, as well as involved his legal practitioners in the case. The LC found that this brought the matter within the ambit of s 187(1)(d) and the dismissal was accordingly automatically unfair. Compensation equal to 24 months’ remuneration was ordered and the employer was ordered to pay the employee’s legal costs.

Temporary employment service employees in a service provider arrangement

In the case of Victor and Others v Chep South Africa (Pty) Ltd and Others [2021] 1 BLLR 53 (LAC), the Labour Appeal Court (LAC) considered whether a service provider, C-Force, providing pallets to a logistics company, Chep, was a temporary employment service as opposed to a service provider. The appellants in this case were initially engaged to repair wooden pallets for Chep in terms of a labour brokering agreement. This was subsequently changed to a service level agreement. In terms of this service level agreement, Chep was engaged as an independent contractor to re-condition pallets and manage the staff at the plant where the pallets were being repaired.

The appellants approached the Commission for Conciliation, Mediation and Arbitration (CCMA) seeking to be deemed employees of Chep in terms of s 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA) on the basis that they alleged that they were labour broker employees who earned below the prescribed annual earnings threshold and had worked for Chep for longer than three months. They also sought to be treated on the whole not less favourably than Chep employees performing the same or similar work on the basis of s 198A(5) of the LRA.

Chep argued that the deeming provisions in s 198A of the LRA did not apply as C-Force was a service provider and in order for C-Force to constitute a temporary employment service it would need to provide labour at the behest of Chep as opposed to provide a service with a specific output or result. The CCMA found that the appellants were labour broker employees and directed that the matter be set down for arbitration to determine whether the appellants were entitled to the same conditions as Chep’s employees. This award was set aside by the Labour Court (LC) on review as the LC found that C-Force provided a service in the form of repairing pallets as opposed to the provision of employees.

On appeal, the LAC had to determine whether C-Force was a temporary employment service, which provided labour to work for Chep for reward. The LAC rejected the LC’s reasoning that a temporary employment relationship cannot exist if the employees are involved in providing a service as opposed to simply being provided as labour. According to the LAC, this interpretation is too restrictive and would allow parties to circumvent s 198A of the LRA, which would undermine its purpose to protect vulnerable employees. The LAC found that the CCMA correctly took into account the following factors when making the assessment as to whether or not the appellants were temporary employment service employees –

• the requisite raw materials, plant and equipment were supplied and maintained by Chep;
• pallet conditioning formed an integral part of Chep’s business;
• C-Force did not enjoy any discretion as to how the work was to be performed;
• Chep prescribed the desired results and the manner in which these results were to be achieved;
• Chep prescribed the working hours and the work was to be performed in accordance with Chep’s policies and instructions;
• Chep exercised control over the workers’ activities and determined performance targets;
• Chep had the right to require a worker to cease providing services; and
• Chep had the right to institute disciplinary proceedings against the workers.

It was held that the CCMA had correctly assessed the degree of control that Chep exercised over the employees and the level of integration of the employees in Chep’s organisation and had, therefore, correctly found that the appellants were temporary employment service employees. The appeal was accordingly upheld.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2021 (March) DR 35.