Employment law update – Onus of proof in automatically unfair dismissals

February 1st, 2013

By Talita Laubscher

The Labour Appeal Court (LAC) had the opportunity to consider the onus of proof in automatically unfair dismissal cases in State Information Technology Agency (Pty) Ltd v Sekgobela [2012] 10 BLLR 1001 (LAC).

Sekgobela was employed by the appellant, SITA, on 1 September 2002 as a programme manager. On 18 December 2003 Sekgobela presented the chief executive officer with a document in which he raised a grievance regarding his performance review, which was done in October 2003. He also raised what he perceived to be irregularities and non-compliance with procurement procedures. Sekgobela understood that the grievance concerning his performance rating would be attended to by his superior and that the alleged irregularities would be handled by the CEO.

On 9 February 2004 Sekgobela submitted a letter and substantiating documents detailing the alleged irregularities to the Public Protector. This was based on his view that the CEO had done nothing in response to the allegations he had raised. Sekgobela also referred some of the matters to the South African Police Service (SAPS).

In August 2004 the Public Protector requested SITA to investigate the allegations and, during the same month, SITA called Sekgobela to a disciplinary inquiry, as a result of which he was issued with a warning, but this was overturned on appeal.

Thereafter, a series of events took place that soured the relationship between SITA and Sekgobela. For example, Sekgobela’s responsibilities were taken away, as a result of which he lodged a grievance and made an unfair labour practice referral to the Commission for Conciliation, Mediation and Arbitration (CCMA). His responsibilities were subsequently reinstated, but on 26 January 2005 he was suspended and called to attend an incompatibility hearing. In this regard, it was alleged, inter alia, that he had failed to cooperate with line management; that he failed to attend an investigatory disciplinary hearing; that he failed to attend internal management meetings; and that he referred a dispute to the Public Protector that was being investigated internally; and that by lodging a claim with SAPS he had copied classified documents without permission.

The hearing took place on 8 February and was due to continue on 6 April 2005, but Sekgobela failed to attend the hearing on that day and claimed that he was unaware that it was set down on this date. On 4 May 2005 Sekgobela received a letter from SITA informing him that he had been found guilty and was dismissed.

Sekgobela contested the fairness of his dismissal and contended that it amounted to an occupational detriment for purposes of the Protected Disclosures Act 26 of 2000 (PDA) and hence it was automatically unfair. The matter was heard by the Labour Court on 3 February 2008. During the trial Sekgobela gave evidence in support of his allegations and SITA cross-examined him, after which SITA applied for absolution from the instance. This was refused and SITA closed its case without leading any evidence.

The Labour Court, per Basson J, held that Sekgobela had been the victim of an occupational detriment and his dismissal was automatically unfair. He was awarded 24 months’ remuneration as compensation.

SITA appealed and argued that Sekgobela bore the burden to show that his dismissal was automatically unfair, and that he had failed to do so. The LAC, per Mlambo JP (Jappie JA and Molemela AJA concurring), explained that s 192 of the Labour Relations Act 66 of 1995 (LRA) provides for a two-stage process in dismissal cases. First, the employee who alleges that he was dismissed must prove that there was in fact a dismissal and, second, the employer must prove that the dismissal was fair. In cases where it is alleged that the dismissal was automatically unfair, the employee bears the onus to produce sufficient evidence to raise a credible possibility that an automatically unfair dismissal took place. If he does this, the burden shifts to the employer to show that the reason for the dismissal was something different, which did not fall within the circumstances envisaged by s 187(1) of the LRA. It is therefore not sufficient for an employee to simply allege that his dismissal was automatically unfair; he must produce sufficient evidence to raise a credible possibility that the dismissal was automatically unfair.

Considering the facts of the matter, the LAC held that it was common cause that Sekgobela had been dismissed. He further produced evidence in support of his assertion that the reason for his dismissal was that he had blown the whistle on what he viewed as irregular conduct on the part of SITA and its employees. Based on this evidence, it was incumbent on SITA to discharge the burden that Sekgobela was dismissed for other justifiable reasons. SITA did not tender any such evidence, and the Labour Court was therefore left with the material before it to determine if Sekgobela had been dismissed for a fair reason. In doing so, the Labour Court considered the nature of the disclosures to the Public Protector and SAPS and, in this regard, held that the disclosures were protected in terms of the PDA. The court further noted that the disclosures were made in good faith.

In respect of the compensation award, SITA had argued that it was excessive; however, the LAC disagreed and the appeal was dismissed with costs.

Employment Services Bill (B38 of 2012)

Practitioners should note that the Employment Services Bill has been published for public comment. The Bill seeks, inter alia, to provide for public employment services and the establishment of schemes to promote the employment of young job-seekers and other vulnerable people. It will also regulate the employment of foreign nationals. In this regard, the Bill provides that an employer may not employ a foreign national in South Africa prior to such foreign national producing an applicable and valid work permit issued in terms of the Immigration Act 13 of 2002. An employee employed without a valid work permit will, however, be entitled to the protection of the LRA and to enforce his employment contract against his employer. The Bill further seeks to regulate private employment agencies, including labour brokers.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2013 (Jan/Feb) DR 61.