Hadebe v Media, Information and Communication Brand South Afr (JS 222/19) [2023] ZALCJHB 153 (23 May 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JS 222/19

In the matter between:

HADEBE

LINDA Applicant and MEDIA,

INFORMATION AND COMMUNICATION BRAND SOUTH AFRICA Respondent

Heard: 05-06 May 2023

Delivered: 23 May 2023

Summary: Referral – automatically unfair dismissal alleged. Applicant alleges that she has been dismissed for reasons that she took action against the respondent employer by referring an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration. The employer contends that the applicant was dismissed for reasons related to her conduct. The Court’s role is to determine using the causation test, the real, true and proximate reason for the dismissal. If the real reason for the dismissal is that of having taken an action against the employer by referring a dispute, then by law, the dismissal is automatically unfair. However, if the dismissal is for reasons related to conduct, it being a fair reason for dismissal, the dismissal is potentially fair. This Court lacks jurisdiction over dismissal disputes predicated on conduct. The fairness or otherwise of such dismissals are to be determined by an arbitration process.

The applicant has failed to show that the reason for her dismissal is the action she took against the respondent by referring an unfair labour practice dispute. Accordingly, she failed to present evidence that shows that the dismissal was for a proscribed reason. Thus the claim for automatically unfair dismissal is bound to fail. Held: (1) The claim for automatically unfair dismissal is dismissed. Held: (2) There is no order as to costs.

judgment

MOSHOANA, J

Introduction

[1] It continues to baffle this Court as to why employees dismissed for reasons related to their conduct opt to allege a proscribed reason and ignore to challenge the reason advanced by the employer. More often than not they get the short end of the stick. By the time their legitimate disputes arrive at the proper forum, they fail to gain entry at those fora due to unreasonable delay. Perhaps the answer to all these baffles lies in the legal advice the poor employees obtain. It is indeed so that compensation in respect of an automatically unfair dismissal is larger than the one for an ordinary unfair dismissal. An employer, having effected a dismissal, is better placed to know the reason why it dismissed an employee.

[2] That said, this Court does accept that in very rare occasions, an employer may manufacture a lawful reason to justify a dismissal in order to hide the real and true reason for the dismissal. In an instance where as in this case, misconduct allegations exist, it will be foolhardy for an employer to manufacture another reason for a dismissal, in the circumstances where the law consider reasons related to conduct to be fair[1].

[3] Having said that, this is a referral of a dispute brought in terms of rule 6 of the Rules for the Conduct of Proceedings in the Labour Court alleging an automatically unfair dismissal within the contemplation of section 187 (1) (d) of the Labour Relations Act[2] (LRA). The applicant, Ms. Linda Hadebe (Hadebe), alleges that the reason for her dismissal by the respondent, Media, Information and Communication Brand South Africa (Brand SA) is that she took action by exercising a right conferred by the LRA – the right to refer a dispute about an unfair labour practice for conciliation[3]. It became common cause that Hadebe was found in possession of certain documents (minutes and resolutions of the Board of Brand SA). It also became common cause that those documents were shared with the Commission for Conciliation Mediation and Arbitration (CCMA) and the legal team of Hadebe. On Brand SA’s version, those are confidential documents. By being in possession of those documents, Hadebe made herself guilty of misconduct, so Brand SA contends. Additionally contended is that by disseminating such documents to outsiders (CCMA and the legal team), Hadebe made herself guilty of misconduct.

[4] It became common cause that upon discovery of the alleged misconduct, Brand SA took disciplinary steps which culminated in a sanction of final written warning being imposed. This imposed sanction gave birth to the alleged “offending” referral to the CCMA. The present referral for adjudication is duly opposed by Brand SA.

Background facts and evidence

[5] Hadebe was employed by Brand SA as an Assistant Accountant (AA) until her dismissal on 29 January 2019. Hadebe commenced employment with Brand SA as a receptionist and she grew through the ranks until being appointed as an AA.

[6] Around 14 October 2015, Brand SA advertised a position of an Accountant. Hadebe expressed an interest in the position. She was however found to be unappointable. Around 23 February 2017, Hadebe lodged an internal grievance grieving about her employment status and grade. On or about 6 April 2017, she received feedback to her grievance. All her demands were not met as outlined in the feedback report she received. Aggrieved thereby, on 10 October 2017, she referred a dispute to the CCMA and alleged an unfair labour practice related to promotion. As a relief she sought a promotion to the position of Accountant.

[7] At a conciliation meeting, a compromise was reached. The compromise was reached under the guidance of Commissioner T Boyce. The terms of the compromise were reduced to writing and were recorded as follows:

“6.1 The Respondent undertakes to appoint the Applicant as “Accountant” and to reflect her title as “Accountant”.

6.2 The Applicant’s appointment as “Accountant” will become effective from the date of signing of this agreement”.

[8] It became common cause at the trial that Hadebe never qualified to be appointed as an Accountant. There was no clear evidence why the word Accountant was put in inverted commas. Nevertheless, it was at the conciliation meeting that Brand SA observed that Hadebe was in possession of what it termed confidential documents. The compromise was concluded and signed on 14 June 2018. Around 4 July 2018, Hadebe was, in a meeting, confronted with allegations of being in possession and divulging confidential documents. After discussions around the allegations, on 13 July 2018, Hadebe was issued with a final written warning for having been in unauthorized possession and disclosure of confidential documents. The said final written warning was valid for a period of 12 months. In other words, it was to expire on or about 13 July 2019.

[9] On 18 September 2018, aggrieved by the issuance of the final written warning, Hadebe referred a dispute to the CCMA and alleged an unfair labour practice with regard to a sanction short of dismissal. The referral document did not outline the basis of the attack. On the evidence of Mr. Bafana Makhubo (Makhubo), the only witness of Brand SA, not knowing what wrong Brand SA committed, it was surmised that because there was no formal disciplinary hearing, Brand SA was wrong procedurally. Having so surmised, a decision was taken to have the final written warning withdrawn so as to hold a formal disciplinary hearing. As a result, on 18 January 2019, another compromise was reached under the tutelage of Commissioner Jooma. The terms of the compromised were reduced to writing and recorded thus:

“6.1 The parties agree that the dispute is resolved on the basis that the Respondent will retract the Final Written Warning with immediate effect.”

[10] Having retracted the sanction imposed for the alleged misconduct of possession and disclosure of confidential documents, on 21 January 2019, Brand SA commenced a formal disciplinary process by issuing Hadebe with a formal charge sheet placing four allegations of misconduct before her. The allegations emerged in June 2018 and September 2018 respectively. The disciplinary hearing took place on 24 January 2019. On that day, Hadebe was absent for reasons of being indisposed. In other words the hearing happened in absentia. The chairperson of the disciplinary hearing after listening to the evidence returned a verdict of guilty and recommended the dismissal

of Hadebe. The Chief Executive Officer of Brand SA accepted the recommendation and dismissed Hadebe with immediate effect. Hadebe was afforded the right to appeal. However, she chose to on 05 February 2019 refer a dispute and alleged automatically unfair dismissal on the basis that she was dismissed for having exercised a right endowed in section 191 (1) (a) of the LRA. On 28 February 2019, conciliation failed to resolve the referred dispute. As a result the referred dispute was escalated to this Court for adjudication.

[11] In this Court, Hadebe testified in her own case and did not call any other witness. Over and above testifying about her defence to the allegations of misconduct, she testified that she was dismissed because, she on 18 September 2018, exercised her rights by referring an unfair labour practice dispute. She further testified that even if her defence was upheld at the disciplinary enquiry she failed to attend she would still have been dismissed. She sought reinstatement as a relief.

[12] In rebuttal, Brand SA tendered the testimony of Makhubo, Manager Legal Services. In brief his testimony was that Hadebe was dismissed for reasons of misconduct and not for having taken action against Brand SA. He further testified that had Hadebe not challenged the final written warning, it would have remained as a sanction for the misconduct of disclosure and possession of confidential documents. However, the challenge prompted a change of process – from a truncated to a formal disciplinary process. The independent chairperson reached a conclusion after hearing the testimony and his persuasion for the ultimate sanction of dismissal. He vehemently disputed the testimony of Hadebe that she was dismissed for reasons of having exercised her right. What was retracted was the sanction, but the serious allegations of misconduct remained and were dealt with again in a formal process.

Evaluation

[13] An employee faced with a dismissal is, by law, entitled to challenge the fairness of such a dismissal. In casu, Hadebe was on 29 July 2019 served with a notice of dismissal. Importantly, the dismissal notice conveyed the following to Hadebe:

“As evident from the findings of the Chairperson, you have violated various provisions of Brand South Africa’s Disciplinary Code and Procedure, and a recommendation for your dismissal has been made. You are accordingly hereby dismissed from Brand South Africa with immediate effect.”

[14] Regard being had to the above stated, Hadebe would not have been under any illusion that she was not dismissed for misconduct. For reasons best known to her, she chose to allege a proscribed reason. Therefore in her choice, she left the reason advanced by Brand SA unchallenged. Otherwise, in terms of section 191 (5) (a) (i) of the LRA, if conduct is alleged as a reason for dismissal, arbitration is the route statutorily available for resolution. Having chosen to allege that the reason is automatically unfair adjudication is the route statutorily available to resolve the dismissal dispute. Since Brand SA, rightly so, regard been had to the dismissal notice, disputes the reason alleged by Hadebe, this Court must with the aid of the causation test determine what the true, real

or proximate reason for her dismissal is.

Was the referral of 18 September 2018 the reason for the dismissal?

[15] In terms of section 186 (1) of the LRA, a dismissal means that an employer has terminated employment with or without notice. In casu, it is common cause that on 29 January 2019, Brand SA effected a dismissal. In terms of section 188 (1) (a) (i) of the LRA, a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct. A dismissal is automatically unfair if the reason for the dismissal is one that is proscribed. In this particular instance, Hadebe alleges that the reason for the dismissal is one contemplated in section 187 (1) (d) of the Act.

[16] In my view, there is no factual basis for this allegation. Had Brand SA applied its Disciplinary Code and Procedure (DCP) on 13 July 2018, Hadebe would have been dismissed. In terms of the Board Charter of Brand SA, the details of the minutes and decisions of the Board remain confidential. It cannot be gainsaid that the minutes of the Board are a company property. It became common cause that in 2017, Hadebe was in possession of the minutes and resolutions at the CCMA proceedings. It also became common cause

that such minutes were divulged. Thus, in terms of the DCP unlawful possession of company property is an offence punishable by dismissal. Similarly, divulgence of confidential company information is an offence punishable by dismissal.

[17] Of cardinal importance is that the alleged dismissible offences arose before the exercise of the right of referral. Thus on application of the causation test[4], even if Hadebe did not refer a dispute she was already a candidate for dismissal and the reason for her candidature is that she had made herself guilty of dismissible offences. On application of factual causation, Hadebe would have been dismissed even if she exercised her right of referral. The fact that the Senior Accountant showed leniency and imposed a lesser sanction does not detract from the fact that she had committed a dismissible offence. The fact that Hadebe was displeased with a lesser sanction does not prevent Brand SA to review the sanction and impose one that the DCP provides[5]. Brand SA having imposed a sanction of dismissal for a misconduct that occurred before the referral, after the referral that does not alter the reason why such a sanction was imposed.

[18] On application of the legal causation test, the most proximate reason for the dismissal is the misconduct. It is indeed so that had Hadebe not complained about the fairness of the lesser sanction, she would have gone away with a lesser sanction. However that shall not mean that the misconduct that attracted that lesser sanction weans away. It remains the prerogative of Brand SA to maintain discipline. In an instance where a sanction already imposed is retracted on account of being challenged, it remained the prerogative of Brand SA to still impose a sanction for any proven misconduct. Therefore, the most likely cause for the dismissal is the misconduct as opposed to the referral.

[19] The answer to the question is that the referral of 18 September 2018 is not the reason for the dismissal. Since this Court finds that the most likely reason for the dismissal is not the referral, then cadit quaesto for an automatically unfair dismissal allegation. Such a conclusion axiomatically spells failure on the part of Hadebe. She has not been automatically unfairly dismissed.

Does the Labour Court retain jurisdiction to entertain the fairness of a dismissal for reasons of misconduct?

[20] Mr De Beer appearing for Hadebe submitted that this Court in terms of section 158 (2) of the LRA retains jurisdiction to hear and determine a dispute alleging the fairness of a dismissal based on misconduct. I disagree. As a point of departure, Hadebe herself did not allege that the reason for the dismissal is misconduct. Had she done that, the LRA would have directed her to arbitration. Additionally, the case to be met by Brand SA was one where the dismissal is predicated on a proscribed reason. Having been told the reason for her dismissal, by implication and conduct, it must follow that Hadebe accepted that reason. That reason is a fair

reason in terms of section 188 of the LRA. Should Hadebe change her mind and decide to challenge the fairness of the reason advanced by Brand SA, she should do so at the CCMA. However, she would have to contend with the provisions of section 136 (1) (b) of the LRA, which requires referral to arbitration within 90 days of the certification. On good cause shown a request after the 90 day period may be allowed. The certificate was issued four years ago.

[21] For what is worth, I do take a view that the dispute was referred to conciliation. The dispute in this regard is the dismissal itself and not the reason for the dismissal. This contrary to a submission by Mr. Mkwibiso appearing for Brand SA that the misconduct reason was not referred for conciliation. What section 191 (1) (a) requires is the referral of the dispute and not the reason for the dispute.

Conclusion

[22] For all the reasons set out above, this Court arrives at a conclusion that the dismissal of Hadebe is not automatically unfair. Accordingly, the applicant is bound to fail in her claim.

[23] In the result the following order is made:

Order

1. The claim of automatically unfair dismissal is hereby dismissed.

2. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. W De Beer Instructed by: G J Britz Attorneys, Alberton. For the Respondent: Mr V G Mkwibiso of Majang INC Attorneys, Johannesburg

[1] See: section 188 (1) (a) of the Labour Relations Act.

[2] No. 66 of 1995, as amended.

[3] See section 191 (1) (a) (ii) of the LRA.

[4] See: Mkokeli v Bloomberg L P (Pty) Ltd [2021] 6 BLLR 611 (LC).

[5] Hadebe did not challenge Brand SA on the basis that it was not empowered to review the sanction of final written warning. Compare

with the situation that arose in Moloantoa v CCMA and another (JR 1281/19) [2021] ZALC 10 (31 May 2021).