DBT Technologies (Pty) Ltd v Garnevsha (LAC) (unreported case no JA61/2018, 18-5-2020) (Murphy AJA with Sutherland JA and Waglay JP concurring)

In terms of s 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA), a dismissal is automatically unfair if the reason for the dismissal is 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’.

In Mackay v Absa Group and Another (2000) 21 ILJ 2054 (LC) the Labour Court (LC), in adopting a purposive interpretation, held that the above section allowed an employee who alleges that, as a reprisal for lodging a grievance against their supervisor, they had been dismissed; to claim an automatically unfair dismissal. Although the Labour Appeal Court (LAC) overturned the court’s decision, they did so on the basis that the employee in that matter failed to establish on the facts that the predominant reason for her dismissal was because she had lodged a grievance. Thus the LAC dispensed with the appeal without having to consider the court’s reasoning in respect of an employee claiming an automatically unfair dismissal in such circumstances.

Following and relying on the principle set out in Mackay, the LC in De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (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 facts in this matter are analogous to the facts presented in the Mackay and De Klerk cases. The employee, in a meeting with various people had a disagreement with a colleague where after the latter, according to the employee, hit her over the head with a file while on his way out of the meeting.

The employee lodged a grievance in terms of the employer’s grievance policy. Her grievance was chaired by an external chairperson who found the employee had failed to prove her claim, so too did the chairperson of the appeal grievance hearing. Thereafter the employee was charged and dismissed for falsely accusing another employee of assault and preventing others from performing their duties.

Invoking s 187(1)(d), the employee referred an automatically unfair dismissal alleging she was dismissed for lodging a grievance against her colleague. The LC found that the predominant reason for the employee’s dismissal was in accordance with the reason she alleged, and not for falsely accusing a co-worker of assault as argued by the employer. To this end the court granted the employee nine months compensation for an automatically unfair dismissal.

Central to the issue before the LAC on appeal was whether s 187(1)(d), interpreted correctly, contemplated a dismissal as claimed by the employee. Otherwise stated, could an employee who believes that the true reason for their dismissal is because they lodged a grievance, claim an automatically unfair dismissal.

On this score, the LAC held:

‘A grievance complaining about a fellow employee’s conduct, filed in terms of a contractually agreed grievance procedure at first glance does not constitute taking action against an employer, nor ordinarily, does it involve the exercise of any right conferred by the LRA or the participation in any proceeding in terms of the LRA. The LRA does not expressly confer rights upon employees to file grievances. Nor does it establish a mechanism or proceeding for the resolution of grievances filed by employees.’

Continuing with this point the LAC stated that the right to follow a grievance process is based either in the employee’s employment contract in that the employer’s grievance process is incorporated into the employment contract as an implied term, alternately it is a right derived from a collective agreement, which prescribes a grievance process. While the grievance process initiated by the employee in this matter was set out in an internal policy, the LAC in passing nevertheless addressed circumstances where an employee, following a grievance procedure set out in a collective agreement, claims they had been dismissed for such action. In those circumstances, according to the LAC, it may be argued that the employee was exercising a right (albeit indirectly) conferred by the LRA, however, the employee must still prove that they intended to take action or took action against the employer prior to being dismissed and that such action was the proximate cause for their dismissal.

Reiterating its stance in respect of this matter, LAC held:

‘As said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employer’s conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision.’

Although appreciating the fact that it may well be found to be unfair if an employer dismissed an employee for lodging a grievance, the LAC stated that the Commission for Conciliation, Mediation and Arbitration (CCMA) would be the correct forum to deal with those dismissal disputes under s 191(5)(a) of the LRA and not to the LC as an automatically unfair dismissal.

In respect of the earlier precedent, the LAC found that there was no reason for the court in Mackay to read into s 187(1)(d) an additional species of automatically unfair dismissals under circumstances where an employee, armed with such a claim, has recourse by referring a dismissal dispute to the CCMA under s 191(5). Moreover, Mackay was distinguishable from the facts of this case. The LC in Mackay found that the employee was dismissed for lodging a grievance. The LAC on appeal, as is the case in casu, found that on the facts there was nothing to support the contention that the employee had been dismissed for lodging a grievance.

The LAC upheld the appeal and set aside the LC’s finding with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2020 (Aug) DR 42.