Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28; [2024] 1 BLLR 40 (LAC); (2024) 45 ILJ 284 (LAC) (18 October 2023)

Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28; [2024] 1 BLLR 40 (LAC); (2024) 45 ILJ 284 (LAC) (18 October 2023)

The Labour Court had jurisdiction to adjudicate the automatic unfair dismissal claim because the fairness of the dismissal was referred to the CCMA, in line with Constitutional Court authority. Mr Kekana established that his dismissal was causally linked to protected disclosures made in good faith regarding alleged improprieties and breaches of legal obligations by senior management. The employer failed to show a fair reason for dismissal, and the timing and manner of disciplinary proceedings supported the inference of retaliation. However, as reinstatement was not pleaded and not canvassed in the pre-trial minute, the Labour Court erred in granting it. The appropriate remedy was...

Citation
[2023] ZALAC 28
Parties
Appellant: Railway Safety Regulator; Respondent: Solomon Kekana
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
18 October 2023
Case Number
JA126/2021
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment
Outcome
Appeal dismissed except as to reinstatement; reinstatement order set aside and replaced with compensation.
Judges
Coppin JA, Savage AJA, Gqamana AJA
Legal Topics
Automatic Unfair Dismissal, Protected Disclosure, Jurisdiction of Labour Court, Compensation for Unfair Dismissal, Pleadings and Relief
Labour Law Civil Procedure Automatic Unfair Dismissal Protected Disclosure Jurisdiction of Labour Court Compensation for Unfair Dismissal Pleadings and Relief

Case Brief

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Parties

Railway Safety Regulator

Appellant

Solomon Kekana

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment

Legal Issues

  1. 1 Did the Labour Court have jurisdiction to entertain an automatic unfair dismissal claim not specifically referred to the CCMA or conciliated?
  2. 2 Was Mr Kekana's dismissal automatically unfair under section 187(1)(h) of the LRA due to a protected disclosure under the PDA?
  3. 3 Was reinstatement an appropriate remedy where it was not pleaded, or should compensation be awarded instead?

Ratio Decidendi

The Labour Court had jurisdiction to adjudicate the automatic unfair dismissal claim because the fairness of the dismissal was referred to the CCMA, in line with Constitutional Court authority. Mr Kekana established that his dismissal was causally linked to protected disclosures made in good faith regarding alleged improprieties and breaches of legal obligations by senior management. The employer failed to show a fair reason for dismissal, and the timing and manner of disciplinary proceedings supported the inference of retaliation. However, as reinstatement was not pleaded and not canvassed in the pre-trial minute, the Labour Court erred in granting it. The appropriate remedy was...

Court Disposition

Appeal dismissed except as to reinstatement; reinstatement order set aside and replaced with compensation.

Orders

  • The appeal is dismissed, except for the reinstatement order, which is set aside.
  • The Railway Safety Regulator is ordered to pay Mr Kekana compensation equivalent to 24 months’ remuneration, calculated at his rate of pay on the date of dismissal (12 February 2019).