August 2020

Section 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA) regards it an unfair dismissal if an employer dismisses an employee on the basis that the employer is taking or intending to take action against the employer. But if there is no evidence that the employee was dismissed for taking or intending to take action against the employer, as in this case, the unfair dismissal will not fall into the category of automatically unfair dismissal.

In this judgment, the appellant appealed against the judgement of the Labour Court, which was handed down on 26 January 2018, and held that the respondent’s dismissal was automatically unfair in terms of section 187 (1)(d) of the LRA and ordered it to pay compensation equivalent to nine months remuneration.

The respondent commenced employment with the appellant in January 2010. On 2 February 2015, the respondent had a disagreement with a colleague. The respondent alleged that her colleague assaulted her shortly before the meeting was adjourned and instituted a grievance against her colleague. The respondent further reported the incident to the SAPS. A grievance inquiry was convened, the external chairperson found that the alleged assault was not proved. The appellant then charged the respondent with various counts of misconduct, including dishonesty.

Following a disciplinary hearing enquiry, the chairperson recommended the dismissal of the respondent. Subsequent to an unsuccessful conciliation process, the respondent referred the dispute to the Labour Court in terms of section 191(5)(b) of the LRA alleging that her dismissal was automatically unfair in terms of section 187(1)(d) of the LRA.

The question which was litigated upon was whether the disciplinary process which was instituted against the respondent and which led to her dismissal was a result and a direct consequence of the grievance she filed with the appellant and the exercising of a right in terms of the Act. The reason for the dismissal was thus in sharp dispute. To reiterate, the respondent’s pleaded cause of action was that she was dismissed on the prohibited ground in section 187(1)(d) of the LRA.

The essential inquiry under section 187(1)(d) of the LRA is whether the reason for the dismissal was “that the employee took action or indicated an intention to take action, against the employer” by exercising any right conferred by the LRA or participating in any terms of the LRA.

During argument, the LAC was referred to the decision of the Labour Court in Mackay v Absa Group and another [1999] 12 BLLR 1317 (LC) (Mackay). The LAC noted that the Court a quo in Mackay accepted the LRA does not make explicit provision protecting an employee who lodges a grievance against his employer in terms of an internally agreed document such as a grievance procedure or code. The LAC however held that the Court in Mackay incorrectly held that, in keeping with the main object of the LRA (the efficient resolving of disputes and the right to fair labour practices) the Court must follow a purposive interpretation of section 187(1)(d) of the LRA which would mean that the right conferred by a private agreement binding an employer and employee as well as any proceeding provided by such agreement was to be contemplated in section 187(1)(d). The Mackay decision of the Labour Court was overturned by the Labour Appeal Court. The test for determining the true reason and whether a dismissal was automatically unfair in terms of section 187(1)(d) was laid down in SA Chemical Workers Union v Afrox Ltd 3 (1999) ILJ 1718 (LAC).The Court must determine the factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the employer. If the answer is yes than the dismissal is not automatically unfair. If the answer is no, the next issue is to determine whether the taking of action against the employer was the main, dominant, proximate or most likely cause of the dismissal.

The Court held that a grievance complaining about a fellow employee’s conduct does not constitute as taking action against an employer. The LRA does not expressly confer rights upon employees to file grievances.

In the premises, the respondent had failed to prove her cause of action that the proximate reason for her dismissal was the one envisaged in section 187(1)(d) of the LRA and that she was dismissed for an automatically unfair reason. In the result, the appeal was upheld in the appellant’s favour.

K. Cowley
(Chairperson – (CEA – TESD)