The factual background from which this judgment arises concerns an Automatically Unfair Dismissal dispute. Sky Services (Pty) Limited (“the Employer”) dismissed S N (“the Employee”) following a comprehensive enquiry into the health of the Employee in which he was declared unfit to work as a packer. At the heart of the Employee’s contention was that he had been Automatically Unfairly dismissed, as contemplated in Section 187(1)(f) of the Labour Relations Act No. 66 of 1995 (“LRA”).
Section 187(1)(f) of the LRA reads:
“A dismissal is automatically unfair … if the reason for the dismissal is: –
“(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility”.
The Employee was employed in the position as a picker/packer and had been in the employ of the Employer during the period of 2009 to 2015. The job was physical in nature and involved operating a forklift to load and offload cargo from trucks, manually packing and unpacking pallets of perishable cargo and loading and offloading cargo into cold rooms.
During or about 2014 and 2015 the Employee’s health rapidly deteriorated, resulting in him being sent (by the Employer) for various medical assessments. Pursuant to a final medical assessment, the Employee was declared medically unfit and was subsequently dismissed on the ground of incapacity.
The Employee disputed his dismissal, contending that he had been unfairly dismissed on the grounds of his HIV status. The Employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute was conciliated unsuccessfully and a certificate of outcome, classifying the dispute as unfair discrimination.
In the Labour Court the Employee’s counsel sought to rely 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 Employee’s allegation was grounded in the assumption that his colleague informed the Employer’s management of his HIV status. The Court was unconvinced and persuaded by this argument, having further regard to the testimonies of five witnesses, who testified on behalf of the Employer.
In light of the content of Section 187(1)(f) of the LRA, the Court found that an automatically unfair dismissal had not taken place.
On analysis of the evidence before it, the Court was unconvinced by the Employee’s tenuous assumptions which were legally untenable.
In Para 52 of the Judgment the Court stated:
“There is no indication on the pleadings or evidence that Mr John Ramotsaletsi informed any of the managers and colleagues that the applicant was HIV positive and most importantly that he was dismissed for being HIV positive.”
The court accordingly stated that the dispute should be referred to arbitration.
The Court was mindful of the evidence presented before it in the face of the considerable safeguards and protections afforded to employees in South Africa. The Judgment demonstrates the Court’s willingness to engage with the substance of the matter instead of being confined by the legal facade. Furthermore, the Judgment demonstrates that the Court should exercise caution and restraint in imposing the severe punishment which an Automatically Unfair dismissal carries.
Written by John Mackechnie and supervised by Heidi Barter , 8 October 2018