The factual matrix from which this judgment arises concerns an Automatically Unfair Dismissal dispute. Telkom SA (“the Employer”) dismissed Mr Mashaba (“the Employee”) following an enquiry into an email containing a memorandum which was circulated by the Employee. At the heart of the Employee’s contention was that he had been Automatically Unfairly dismissed, as contemplated in Section 187(1)(d) of the Labour Relations Act No. 66 of 1995 (“LRA”) for circulating the aforesaid memorandum.
Section 187(1)(d) of the LRA reads:
“A dismissal is automatically unfair … if the reason for the dismissal is: –
“(d) that the employee took action, or indicated an intention to take action, against the employer by —
(i) exercising any right conferred by this Act”.
On 15 November 2010, the Employee circulated a memorandum to the Employer’s employee relations department, the content of this memorandum raised several pertinent issues pertaining to alleged corruption, as well as other grievances. The Employee was subsequently suspended and pursuant to internal investigations was dismissed for misconduct.
The Employee referred the dispute to the Labour Court, his main claim being that his dismissal was automatically unfair in terms of Section 187(1)(d) of the LRA. The Employee sought an order of court reinstating him, along with compensation.
The court relied on judicial authority, namely Kroukam v SA Airlink (Pty) Ltd, which states that:
“Section 187 imposes an evidential burden upon the employees to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place.”
The evidenced furnished by the Employee demonstrated that the memorandum was distributed in the course of carrying out his functions and duties as shop stewards. Accordingly, the court recognised that the Employee enjoyed a degree of protection in performing his duties and functions under the ambit of his job description.
In light of the content of Section 187(1)(d) of the LRA, the Court found that an automatically unfair dismissal had taken place. The court recognised that the memorandum was the factual/legal cause of the dismissal.
In granting relief to the Employee the court was mindful that the Employee had not instituted his claim timeously (the Employee instituted his claim in this court many years after the dismissal). In light of the severity of an automatically unfair dismissal the court determined that the appropriate relief was the remedy of reinstatement, backdated for a period of 24 months. The court demonstrated its preference for the primary remedy of reinstatement.
This judgement highlights the protections afforded to employees when they act within the scope of their job description, as well as the high degree of caution employers have to apply when contemplating dismissal having regard to employees entitlement to exercise the rights conferred onto them by the LRA. The judgment further demonstrates the severity with which employers will be dealt with if they disregard the substantive parameters governing dismissal in the LRA.
Written by John Mackechnie and supervised by Nicola du Toit, 7 June 2018