Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowmans  in Johannesburg.

In Glencore Holdings (Pty) Ltd and Another v Sibeko and Others [2018] 1 BLLR 1 (LAC), the employee, a bulldozer driver, was dismissed for not wearing prescribed ear muffs during the performance of his duties. He referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), requesting reinstatement. The commissioner held that the employer had not proved that the employee was guilty of misconduct, but refused to reinstate the employee on the basis that his behaviour during the arbitration proceedings demonstrated a breakdown in the employment relationship to such a degree that reinstatement was an inappropriate remedy. On review, the Labour Court (LC) set aside the commissioner’s ruling and substituted it with an order of reinstatement. The employer appealed against the substitution of the remedy.

The Labour Appeal Court (LAC) noted that s 193(2) of the Labour Relations Act 66 of 1995 (the LRA) provides for reinstatement as the primary remedy in the case of a substantively unfair dismissal, unless inter alia, the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practicable for the employer to reinstate the employee.

The commissioner had felt inclined to deviate from the primary remedy of reinstatement solely because of the manner in which the employee conducted himself throughout the arbitration proceedings. The employee had been habitually disruptive, he had accused the employer’s representative of bribing witnesses and for giving one another and the commissioner cues during the proceedings. The employee had said that this was just the beginning of a bigger battle between him and the employer. Having regard to this conduct, the commissioner concluded that the trust relationship between the employer and employee had broken down irretrievably and ordered six months’ compensation as opposed to reinstatement.

The LAC found that the commissioner’s award had failed to indicate the jurisprudential basis as contained in s 193(2) of the LRA on which the commissioner relied to deviate from the primary remedy of reinstatement. The exception that reinstatement need not be ordered where the employment relationship is ‘intolerable’ was inapplicable because this exception referred to the circumstances leading up to the dismissal and not after the dismissal, such as the arbitration proceedings. Moreover, a continuation of the employment relationship could not be regarded as ‘impracticable’ because the employee’s conduct, even if deserving of reproach, could not be construed to inhibit his work as a bulldozer driver, which work did not necessarily require good manners. The court found that the commissioner had become emotional in this instance and had unreasonably deprived the employee of the remedy to which he was entitled.

In the circumstances, the LAC held that it was correct for the LC to conclude that the award was one to which a reasonable arbitrator could not have come to and the appeal was dismissed with costs.

Automatically unfair dismissal on the ground of race

In Bakulu v Isilumko Staffing (Pty) Ltd and Others [2018] 2 BLLR 169 (LC), a temporary employment service employee was dismissed for incapacity. The employee referred an automatically unfair dismissal dispute to the LC, claiming that he had been unfairly dismissed on the basis of his race. After the employee had led evidence and after cross-examination, the three respondents, two labour brokers and their client, claimed that the employee had failed to make out a case that he was dismissed on account of his race and applied for absolution from the instance in respect of the discrimination claim. The client also unsuccessfully applied for absolution in respect of the employee’s claim that the client was also its employer.

Having considered the requirements for a plea of absolution, the LC found that the employee had failed to make out a prima facie case that he had been dismissed on the basis of his race and not for incapacity. In terms of s 187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee on the grounds of race. In this regard, s 187 of the LRA imposes an evidential burden on employees to produce evidence, which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then requires the employer to show that the reason for the dismissal did not fall within the circumstances envisaged in s 187.

The LC noted that the employee’s problems had started when he successfully applied for a job as shift supervisor and the contract he signed stipulated a smaller wage than he had expected. It was during his interactions with management personnel that he asked if he did not qualify for a better wage because he was black. Shortly after that, the employee received a warning for sleeping on duty and later other disciplinary action for different conduct ensued. The employee had also been threatened with forfeiture of pay because he had failed to attend an incapacity inquiry. The employer had offered the applicant an alternative post, which had been turned down. He was then dismissed.

Insofar as race was mentioned as a cause of his dismissal, the employee perceived it to be the reason because he had asked for a rate of pay commensurate with his qualification and he interpreted the respondents’ failure to offer him a better rate to be because he was a black person. However, no evidence was advanced to show that any white person occupying a supervisory post on the same level to that of the employee had been employed at a better rate of pay.

While the LC appreciated that much of the employee’s frustration and anger was directed at the fact that he had effectively worked for the same client for 17 years without ever being afforded permanent employee status because he was always engaged through labour brokers, his evidence did not suggest a link between his employment status and his dismissal, let alone a link between his race and his dismissal.

The LC held that the employee may have had an arguable case that his dismissal for incapacity was unfair, but he brought his case on the basis that the reason was because of his race and he needed to at least provide sufficient evidence to raise a credible possibility that his dismissal fell within the scope of s 187(1)(f). The employee did not do so. Accordingly, the respondents were granted absolution from the instance and the employee’s discrimination claim was dismissed.

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