Nwaogu v Bridgestone SA and Another (JS929/14) [2016] ZALCJHB 360 (5 August 2016)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Not of interest to other judges

Case no: JS929/14

In the matter between

NWAOGU, P Applicant

and

BRIDGESTONE SA MAX T SOLUTIONS First Respondent Second Respondent

Heard: 5 August 2016

Delivered: 5 August 2016

Edited: 12 September 2016

Summary: Points in limine – non-compliance with section 10 and section 60 by the applicant – no cause of action – action dismissed

EX TEMPORE JUDGMENT

COETZEE AJ

[1] In case JS929/14, between Mr Philip Nwaogu, the applicant, Bridgestone SA, the first respondent, and Max T Solutions, the second respondent, this is my ex-tempore judgment.

[2] The matter that serves before court arises from allegations in the applicant’s statement of case with regard to alleged discrimination, harassment and humiliation: all matters that fall under the Employment Equity Act,[1] ("the Act"). His cause of action, in fact, is based upon the Act.

[3] The applicant did not rely upon a cause of action based upon unlawfulness and vicarious liability as was the case in Erasmus v Ikwezi Municipality & another.[2]

[4] In his statement of case the applicant relies upon incidents in support of his cause of action dating back to June 2009, when a particular incident occurred, in 2010 during which he alleges he was discriminated against and then again in respect of conduct during November/December 2013 and subsequent to November/December 2013. He also relies upon alleged marginalisation all through his employment until the date of his dismissal on 19 August 2014. The last incident that is relevant is an allegation of humiliation on the day of his dismissal on 19 August 2014. He relies on the way that he was escorted out of the premises by security staff after having been dismissed by his employer.

[5] After his dismissal on 19 August 2014 he referred a dispute on 20 August 2014.

[6] The referral was followed by a con-arb on 8 October 2014 and on 10 October 2014 the applicant filed his statement of case.

[7] In the pre-trial minute the respondents recorded that they would take two points in limine. There were two legal points that they would wish to have determined prior to having a trial on evidence on whether there is any merit in the allegations of discrimination and the like.

[8] The first point is that section 10 of the Act requires an applicant to refer to the CCMA a dispute with regard to an alleged act of discrimination within six months of the occurrence of that particular act of discrimination and the applicant had failed to do so.

[9] The Court has been referred to the matter of Tshehla v The Emfuleni Local Municipality,[3] a judgment rendered on 21 January 2015 by the Labour Court. In this case the Court confirmed the interpretation and application of section 10, holding that the conduct must be referred to specifically the CCMA (and not a bargaining council) and it must be done within six months of the occurrence of the offending conduct.

[10] There can be no doubt that this is what the Act provides in section 10. Section 10 is a bar to any alleged up to and including November/December 2013.

[11] The other two aspects, alleged marginalisation all through the period of employment until 19 August 2014 and the alleged humiliation on the day of his dismissal, would not fall foul of the time bar in section 10 as those incidents were referred to the CCMA on 20 August 2014 within six months of the alleged occurrence thereof.

[12] By reason of the operation of section 10, all the incidents up to and inclusive of those alleged to have occurred during November/December 2013 are excluded and the applicant cannot pursue those matters.

[13] The second point that is raised is the application of section 60 of the Employment Equity Act.

[14] Essentially what section 60 provides is that when there is conduct complained of by a complainant in respect of discrimination or any breach of any provision of the Employment Equity Act, the aggrieved person should first raise that with the employer.

[15] If it is not raised with the employer, then the applicant cannot otherwise pursue that matter against the employer. If it is raised with the employer and the employer does nothing about it, then the employer becomes liable with the perpetrator of the alleged discrimination and accountable to the aggrieved employee.

[16] Section 60 distinguishes between acts of discrimination perpetrated by the employer as employer, for instance in adopting policies that are discriminatory against certain classes of employees and in enforcing those policies. That would be the one category.

[17] The other category would be where a functionary or an employee in the employ of the employer conducted himself or herself in such a way that it constituted discrimination.

[18] Those are the two categories of instances covered by section 60. Section 60 requires of an aggrieved employee to raise those matters with the employer so that the employer may take steps to terminate the alleged discrimination and to correct whatever conduct has to be corrected, failing which the employer would become liable with the perpetrator of the alleged discrimination.

[19] The Tshehla –case also held, as was done in Dudley v The City of Cape Town,[4] that, an individual is not entitled to rely on the Employment Equity Act where a matter is to be raised with and enforced by the

Department of Labour. That would be through the application of section 34 of the Employment Equity Act.

[20] In the matter of Makau v Department of Education Limpopo, [5] a judgment granted during December 2013, the applicant claimed acts of discrimination and the court considered the application of section 60. The court held that section 60 means that the incident or incidents must have been brought to the attention of a proper functionary of the employer to enable the employer to intervene and to remove the cause of complaint. It goes further to say that:

“This section 60 introduces a statutory vicarious liability for employers because of the conduct of employees in cases where the employer does not heed any report or warning that an employee is misconducting himself in this regard.”

[21] In the case in casu there is no allegation by the applicant that the employer acted qua employer in any of the incidents relied upon by the applicant. In some instances the applicant clearly identified individuals who acted allegedly in breach of the provisions of the Employment Equity Act.

[22] With regard to the general ongoing complains there is no indication that whatever occurred, occurred as a result of the intentional or negligent conduct of the employer. It appears that what is alleged by the applicant is that functionaries of the employer conducted themselves in breach of the Employment Equity Act.

[23] The applicant concedes that he never raised any of these complaints with the employer because while he was still employed he felt that he would be victimised for doing so.

[24] The applicant specifically in his pleading raised the issue of humiliation on the day of his dismissal. He alleges that he was escorted out of the premises after having been dismissed and that this conduct constitutes humiliation and affected his human dignity, and on that basis he would be entitled to claim compensation.

[25] What occurred there occurred immediately after the dismissal of the employee and is closely associated with and related to the dismissal. The applicant, in fact, referred an automatically unfair dismissal dispute, which was already dealt with by the Labour Court and judgment has been reserved in that matter.

[26] It appears to me that this aspect of the applicant’s case forms part of the automatically unfair dismissal dispute, rather than being a cause of action that falls within the ambit of the Employment Equity Act that governs what occurs during the employment relationship between the employer and the employee.

[27] In so far as the applicant purports to rely upon a breach of the provisions of the Act in respect of the alleged conduct after his dismissal he similarly did not report the conduct of the security staff to his employer to deal with.

[28] Having considered the various arguments, I am of the view that the first point in limine, (that is that the dispute had to be referred within six months), is a valid point in respect of those alleged incidents occurring up to and inclusive of November and December 2013.

[29] I am also of the view that the non-reporting of the incidents, and by “incidents” I refer to all of the alleged incidents except what occurred after the dismissal, fall within the ambit of section 60 and without having made the employer aware of those incidents, the employee is not in a legal position to pursue those matters through the CCMA and/or the Labour Court.

[30] The dismissal of the employee and the way he allegedly was treated after his dismissal forms part of the automatically unfair dismissal dispute and does not fall within the ambit of the Employment Equity Act. If I am wrong and it does, then he has not reported the conduct as is required by section 60.

[31] I have also considered the question of costs. I am not inclined to make an order for costs, as the applicant was representing himself as a lay person.

[32] I make the following order:

[32.1] It is ordered that the applicant has not complied with section 10 or section 60 of the Employment Equity Act, and his claim is dismissed.

[32.2] There is no order as to costs.

_______________

Faan Coetzee

Acting judge of the Labour Court of South Africa

APPEARANCES:

For the applicant: In person

For the Respondents:Mr Bongani Masuku of Mervyn Taback Inc

[1] Act 55 of 1998 as amended.

[2] (2016) 37 ILJ 1799 (ECG).

[3] JS619/2013,

[4](2008) 29 ILJ 2684 (LAC)

[5] JS879/2012,