In Railway Safety Regulator v Kekana [2024] 1 BLLR 40 (LAC) a senior manager was dismissed after lodging a grievance about the Chief Executive Officer’s (CEO’s) alleged unlawful conduct. In this regard, the CEO had sent an official who was not a qualified investigator and did not have the necessary experience to investigate a train incident, together with another contractor. This same official then later issued an order prohibiting setting up a commission of inquiry when there was a second accident. After the employee lodged grievances relating to this, he was suspended and was issued with charges of misconduct.
The disciplinary hearing was held in the employee’s absence as he could not attend due to ill health and a disciplinary tribunal recommended dismissal. On appeal, the recommendation was that the matter be heard again by another person. The CEO did not follow this recommendation and the employee was dismissed. The employee then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and subsequently to the Labour Court (LC).
When the matter was before the LC the employee alleged that the dismissal was automatically unfair and the LC ordered reinstatement.
The matter was then taken on appeal to the Labour Appeal Court (LAC) where the employer argued that the LC did not have the jurisdiction to determine an automatically unfair dismissal dispute as –
The LAC found that the employee was permitted to claim at a later stage that the dismissal was automatically unfair notwithstanding that the referral had initially been as an ‘ordinary’ dismissal. As regards the argument that the dispute had not been conciliated at the CCMA, it was found that this was not correct because the very same dismissal had been referred to and conciliated in the CCMA. It was also found that if an employee demonstrates a prima facie case that he or she has made a protected disclosure and that there is a causal link between the dismissal and that protected disclosure then the employer is required to prove that the dismissal was for a fair reason. In this case, it was found that the employee had established the causal link particularly because the disciplinary action was taken seven days after the disclosures were brought to the attention of the board and the alleged misconduct related to an incident three months earlier. It was found that the dismissal was automatically unfair as on the facts it appeared that the employee had been dismissed because of the complaints lodged. This was demonstrated by the fact that the employee was found guilty in his absence and the recommendation of the appeal chairperson was rejected.
As regard to the remedy, it was found that the employee’s testimony that he wanted to be reinstated was inadmissible as it was inconsistent with the pleadings. It was, however, found that the employer’s conduct justified the award of maximum compensation. Compensation equal to 24 months’ salary was accordingly awarded.
In GB Engineering (Pty) Ltd v Mbongo and Others [2024] 1 BLLR 14 (LAC) there was a large-scale retrenchment governed by s 189A of the Labour Relations Act 66 of 1995, which involved a facilitated consultation with the union, National Union of Metalworkers of South Africa (NUMSA).
As part of the consultation process certain employees concluded voluntary severance packages. In addition, a settlement agreement was concluded between the employer and NUMSA in respect of those employees who did not opt for voluntary severance packages. In this regard, it was agreed that the employer would pay severance packages to those who took early retirement or were retrenched, and the employer paid those packages. The settlement agreement was to the effect that the employees whose names were reflected in the annexure to the agreement had agreed to be retrenched and were paid a ‘sweetener’. This sweetener was never paid back by the employees nor was the settlement agreement set aside.
The employees then referred unfair dismissal claims to the Labour Court (LC). The employer argued that the LC did not have jurisdiction to determine the dispute because a settlement agreement had been concluded and the settlement agreement was in full and final settlement of all claims. The employees argued that they did not give NUMSA a mandate to agree to the settlement agreement and that they were no longer members of the union but there was no evidence that they were not members at the time that the settlement agreement was concluded.
It was held by the Labour Appeal Court (LAC) that the employees were bound by the settlement agreement as a settlement agreement resolves an underlying dispute unless there was misrepresentation or duress, which was not found to be the case. Therefore, the settlement agreement was in full and final settlement of the s 189A large scale retrenchment process. It was remarked that it weighs against duress if the party to the settlement agreement fails to repay the settlement amount. Reference was also made to the fact that the Constitutional Court has held when parties reach a full and final settlement the courts have a powerful interest in enforcing the agreement and parties should not be lightly released from such agreements. The LAC also found that the settlement agreement was a collective agreement and therefore the LC had erred in determining an unfair dismissal dispute, which had already been settled. It was accordingly held that the LC did not have jurisdiction to determine a dispute over the fairness of the dismissals and the LAC substituted the LC’s order with an order that it did not have jurisdiction to determine the disputes referred to it.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2024 (March) DR 46.
