In Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana [2020] 1 BLLR 24 (LAC), the employee was employed by Pilanesberg Platinum Mines (the company) as a Socio-Economic Development Manager. As part of her duties and responsibilities, she was required to ensure that new employees employed at the company’s mine were members of the local community. This was because the community was a material shareholder of the company and there was an agreement between the company and the community that the company would look after its interests by offering new employment opportunities to local residents.
During 2012, the community became severely aggrieved as it believed that its members were not given preference when posts became available at the company’s mine. The community alleged that the employee had effectively ‘sold’ proof of residence to individuals that were not members of the community and was accordingly ‘selling’ jobs in return for money. The community was so outraged at the employee’s conduct that they were intent on visiting violence on her. Given the serious nature of the allegations against the employee, the company escorted the employee to her place of residence and instructed her to stay there for her own safety. She was neither suspended nor was her salary withheld.
During a period of eight months, the company consulted with the employee. The employee alleged that she had been ‘illegally and unprocedurally’ removed from the workplace without any explanation. The company stressed that, despite its meetings with the community, it was unable to resolve their concerns about the employee’s presence and it was not prepared to allow the employee to continue working for her own personal safety and the company’s interests within the community. The company furnished the employee with a settlement agreement offering her four month’s salary so as to amicably part ways. The employee rejected this offer and proposed that she be paid an amount equal to what she would have earned over a period of five years. The company rejected this counter offer and terminated the employee’s employment. The reason it offered for the termination was its ‘operational reasons’.
The employee claimed that her termination ‘based on operational requirements’ had breached her employment contract, which required the company to give her one month’s written notice of termination, provided that the company complied with the pre-dismissal procedures as set out in the Labour Relations Act 66 of 1995 (the LRA), unless there was sufficient reason in law to summarily dismiss her. The employee instituted an application in the Labour Court (LC) in terms of s 77 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) seeking orders declaring that –
Alternatively, that the company pay damages equal to the amount she would have earned ‘until the date of her retirement age’.
The LC found that the decision by the company to terminate the employee’s employment was a breach of her employment contract and ordered the company to reinstate the employee and to pay her remuneration from the date of her dismissal. The company instituted an appeal against the LC’s judgment. Although it failed to lodge its appeal timeously in accordance with the court rules, the Labour Appeal Court (LAC) condoned the company’s non-compliance having regard to the company’s prospects of success on the merits of the matter.
The LAC found that the complaints from the community against the employee were of a serious nature involving employing people from outside of the community by subterfuge creating the impression that the employees were in fact from the community. This amounted to the company failing to implement its agreement between it and the community by consciously employing people who were disqualified. The community was so enraged that some had threatened violence against the employee.
Despite all of the community’s complaints being brought to the employee’s attention, on her own version, she adopted a rather malicious approach. She simply did not respond to these allegations and challenged the company to prove the allegations against her. In the circumstances, the company decided, pursuant to traversing the issues with the community, that the only option it had was to terminate the employee’s employment so as to continue its relationship with its material shareholder and to ensure no harm was visited upon the employee.
While the company labelled the employee’s termination as one for ‘operational reasons’ and the employee immediately equated this to be a dismissal based on the company’s ‘operational requirements’ as contemplated by s 189 of the LRA, the court held that this was erroneous. There was no reason for the parties to classify the form of dismissal. All the company was required to do was to set out the facts and provide reasons for its decision. The reason why the company terminated the employee’s employment was that it was confronted with a conflict between its material shareholder and its employee and was left with no option but to dismiss the employee. In the circumstances, the court held that the termination of the employee’s employment could not constitute an unlawful termination.
The court went on further to state that whether the employee’s dismissal was unfair was not what the LC was called on to decide. The employee disavowed reliance on the LRA when it pursued a breach of contract claim in terms of the BCEA rather than approaching the Commission for Conciliation, Mediation and Arbitration (CCMA) on the basis of an unfair dismissal. The onus was accordingly on the employee to satisfy the court that there was a breach of contract. She failed to do so. The court found that the provisions of her employment contract on which the employee relied, related to a dismissal based on the employee’s conduct or capacity. The employee was not dismissed for either of these reasons. The court held that the employee’s dilemma was her proceeding in terms of the BCEA instead of the LRA’s unfair dismissal jurisdiction.
Even if the employee had proved a breach by the company of her employment agreement, the only relief available to her was an order for either specific performance or damages. The court held that specific performance would have been inappropriate in the circumstances and to simply demand damages in the amount that the employee would earn until her date of retirement was misconceived. There was a duty on the employee to prove the quantum of her damages and she failed to do so, nor did she allege that she had been out of work from the date of her employment being terminated.
The appeal was upheld with no order as to costs.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2020 (March) DR 34.
