Employment law update – Dual claims under the Employment Equity Act and the Labour Relations Act

August 1st, 2018

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

In Simmadari v ABSA Bank Ltd [2018] 7 BLLR 710 (LC), the applicant referred two claims to the Labour Court – an unfair discrimination claim in terms of the Employment Equity Act 55 of 1998 (EEA), and an automatically unfair dismissal claim in terms of the Labour Relations Act 66 of 1995 (LRA). These claims were subsequently consolidated.

The respondent raised a point in limine alleging that the applicant sought relief for an unfair dismissal and not relief for alleged unfair discrimination and that the claim under the EEA and the claim under the LRA arose from the same facts and constituted the same dispute. Thus, it was alleged that the court did not have jurisdiction to determine the claim under the EEA. The respondent raised this point in limine on the basis that s 10(1) of the EEA excludes disputes about unfair dismissals. The court found that reference to an unfair dismissal in this section meant an automatically unfair dismissal. It was, therefore, held that disputes about automatically unfair dismissals must be determined under the LRA and not the EEA. This, however, does not preclude an employee from referring two separate claims – one under the EEA and the other under the LRA. Reference was made to cases in which it was held that there is no bar to claiming compensation for both an automatically unfair dismissal and unfair discrimination. In this case the applicant did not claim damages, but it was held that this did not bar her from claiming compensation under both the EEA and the LRA. The court accordingly dismissed the point in limine.

The respondent also raised an exception that the applicant’s statement of claim in both referrals did not disclose a valid cause of action. It was held by Steenkamp J that the pleaded unfair discrimination claim should fail for the following reasons:

  • The applicant did not identify a comparator, but merely alleged that there was differentiation on grounds of race.
  • The applicant failed to satisfy the element of causation, namely, she failed to establish that there was a link between her race and the alleged disparate treatment.

Thus, the exception was upheld on the basis that the applicant’s claim under the EEA did not disclose a valid cause of action.

As regards the automatically unfair dismissal claim, the applicant was required to show that the automatically unfair reason was the factual and legal cause of the dismissal, which she failed to do. It was held that she had not established that she was dismissed on the grounds of race rather than misconduct and as such the exception in relation to this claim was also upheld. The applicant’s claims were accordingly dismissed with costs.

Dismissal for hate speech

In Dagane v Safety and Security Sectoral Bargaining Council and Others [2018] 7 BLLR 669 (LC), the applicant was employed as a police officer and posted a comment on Facebook in which he threatened genocide against white people. A newspaper reporter saw the applicant’s comments on Facebook and published an article stating that a member of the South African Police Service (SAPS) had made such comments. The SAPS then received a complaint from the Parliamentary Portfolio Committee and conducted an investigation. The applicant was subsequently charged with four counts of misconduct, including –

  • prejudicing the discipline and efficiency of SAPS and contravening the SAPS regulations, Code of Conduct and Code of Ethics by unfairly and openly discriminating against others on the basis of race;
  • making blatantly discriminatory racial remarks;
  • threatening the future safety and security of white persons; and
  • making remarks on Facebook, which amounted to hate speech.

The applicant was dismissed and referred an unfair dismissal claim to the bargaining council. The arbitrator found that the dismissal was fair and the employee then instituted review proceedings in the Labour Court (LC), but filed the record nearly two years later.

The LC, per Steenkamp J, nevertheless condoned the late filing of the record on the basis that the applicant had been badly served by two firms of attorneys and it would not be in the interests of justice to deny him a hearing at this stage. The LC was required to consider whether the arbitrator’s finding that the dismissal was procedurally and substantively fair was a conclusion that a reasonable decision maker could make.

As regards procedural fairness, at the end of the arbitration the applicant had challenged the procedural fairness of his dismissal alleging that the charge sheet was inadequate as it did not set out the date, time and place where the misconduct occurred. The arbitrator found that the applicant had been given an opportunity to state his case and there had been substantial compliance with following a fair procedure. Furthermore, the arbitrator was satisfied that the applicant understood the nature of the alleged misconduct and was able to respond to these allegations. Steenkamp J found that the review on the ground of procedural unfairness must fail as the failure to include precise details in a charge sheet does not in itself constitute procedural unfairness as an employer is not required to draft charges in the same detail required in criminal indictments. The employee is simply required to understand the nature and import of the charges.

As regards substantive fairness, Steenkamp J found that the arbitrator reached a conclusion that a reasonable arbitrator could make. In this regard, she applied her mind to the evidence before her and found that there was a rule in the workplace that governed the conduct of members of SAPS and outlawed discrimination on the basis of race. As regards the applicant’s version that there was no social media policy in place at the workplace, the arbitrator found that it is common sense that people must exercise caution when making utterances on social media as this is in the public domain.

The arbitrator then went on to consider whether the rule had been breached by the applicant. In doing so, she considered print-outs of the Facebook postings and comments. The applicant alleged that this was inadmissible hearsay evidence. The arbitrator found that while it was hearsay evidence, she nevertheless had the discretion to admit the hearsay evidence if it was in the interests of justice to do so, which she was satisfied that it was. Steenkamp J found that the arbitrator did not commit an irregularity by admitting this evidence.

The applicant further alleged that he did not make the comments and alleged that someone had either created an account using his details or had hacked into his account and made the postings. The arbitrator tested the applicant’s version against SAPS’ version in relation to inherent probabilities, reliability and credibility and found that the applicant’s version that someone had created another account was improbable. As regards the version that the Facebook account had been hacked, the arbitrator found that this was also not probable as the applicant had not distanced himself from making the remarks. Furthermore, he had not taken steps to investigate and provide proof that his account had in fact been hacked. The arbitrator accordingly found that on a balance of probabilities the applicant was the author of the remarks and had posted them.

The arbitrator also considered whether dismissal was an appropriate sanction. She found that it was an appropriate sanction as the applicant’s conduct had brought SAPS into disrepute. Furthermore, the applicant was employed as a police officer with a mandate to protect all citizens irrespective of race. Steenkamp J concluded that dismissal was a fair sanction as the applicant not only used disgraceful and racist language constituting hate speech but did so in the capacity of a police officer and on a public forum, which is accessible to thousands of Facebook users. The review application was accordingly dismissed with costs.

This article was first published in De Rebus in 2018 (Aug) DR 48.

De Rebus