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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO. JS 511/04

In the matter between:

KHOLIWE MOSES JANDA APPLICANT

and

FIRST NATIONAL BANK RESPONDENT

JUDGMENT

D VAN ZYL AJ:

1. The applicant was employed by the respondent as a security officer at the FNB Computer Centre in Randburg. On 29 April 2004 the applicant was suspended from duty and charged with misconduct. It was alleged that he assaulted a co-employee whilst on duty. He was found guilty at a disciplinary hearing and was dismissed on 26 May 2004. His appeal against his dismissal was unsuccessful whereafter the applicant instituted proceedings in this Court claiming reinstatement, alternatively compensation equivalent to 24 months’ salary.

2. The applicant’s case as set out in his statement of claim is that his dismissal was automatically unfair because the respondent discriminated against him. It is alleged that he was “…targeted by the management of the respondent for dismissal because … as staff representative the applicant, inter alia, was instrumental in lodging a complaint with the Department of Labour arising out of the respondent’s failure to pay security officers overtime pay in respect of work performed by them on Public Holidays (except Christmas) and weekends.” It is further alleged that the respondent treated its black employees more harshly than white employees and, was it not for his race, he would not have been dismissed. The applicant alleges that the respondent’s conduct in this regard constitutes an automatically unfair dismissal as contemplated by section 187(1) of the Labour Relations Act 66 of 1995 (the Act), alternatively, section 187(1)(f) of the Act. Section 5(1) of the Act prohibits discrimination against an employee for exercising any right conferred by the Act. Section 187(1) provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5(1). Section 187(1)(f) characterises as automatically unfair a dismissal if; inter alia -

“ …the reason for the dismissal is…that an employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary grounds, including, but not limited to race.”

3. In a pre-trial minute the parties agreed that the issue this Court is required to decide is “whether the respondent’s conduct amounted to unfair discrimination on racial grounds (as contemplated in s 187(1)(f) of the Labour Relations Act), on grounds of exercising the rights under the LRA (as contemplated in s 187(1) of the LRA) and / or on arbitrary grounds (as contemplated in s 187(1)(f) of the LRA).” The applicant further in the pre-trial minute confined his claim to one based on direct discrimination. In the same minute he accepted that “the applicant must prove the act/s of discrimination” and that the “…respondent bears the onus of justifying any discrimination so proved by the applicant or proving that no unfair discrimination has taken place.”

4. At the trial the applicant accepted the duty to adduce evidence first. After the close of the applicant’s case the respondent replied for absolution from the instance. The parties were ad idem that it was competent for this Court to grant an order of absolution from the instance either at the end of the applicant’s case and before the respondent presents his or her evidence or, at the end of the trial after the court has heard all the evidence. As correctly stated by the court in Schmahmann v The Concept Communications Natal (Pty) Ltd (1997) 18 ILJ 1333 (LC) at 1337F, the power to grant such an order is founded in section 151(2) of the Act which provides that this Court is a court of law and a superior court that has authority, inherent power and standing, in relation to matters under its jurisdiction, equal to that which a High Court has in relation to matters under its jurisdiction. See further Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC).)

5. The test to be applied by the court at this stage of the proceedings is whether there is sufficient evidence upon which a reasonable person could find for the applicant or, as it has also been expressed, the question is whether there is such evidence, assuming it to be true, upon which a reasonable court might, not should, give judgment against the respondent. (See Zeffertt et al The South African Law of Evidence at page 164 – 165 and the authorities referred to.) To answer this question it is necessary to determine the nature of the onus and where it lies. As correctly submitted by Mr Hulley for the applicant, the incidence of the onus is determined by the law and that the views of the parties as expressed in the pre-trial minute is not conclusive thereof (Eskom v First National Bank of Southern Africa Ltd [1994] ZASCA 186; 1995 (2) SA 386 (A) at 393F).

6. This Court, as a court of law and functioning as such applies the burden or onus of proof to facilitate the proof of facts in issue and in deciding whether an applicant is entitled to succeed on his claim (Louw v Golden Arrows Bus Services (Pty) Ltd (supra) at par [39] ). The term is used in this judgment in its primary sense, ie the duty upon a litigant of finally satisfying the court that he or she is entitled to succeed on the claim or defence, as the case may be, as opposed to a burden of rebuttal or evidentiary burden (weerleggingslas) ie, “the duty to adduce evidence to combat a prima facie case made by his opponent.” (Davis AJA in Pillay v Krishna 1946 AD 946 at 952 and South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 at 548A-C). The standard of proof is the civil standard of proof on a balance of probability.

7. The accepted viewpoint is that the incidence of the onus of proof is a matter of substantive law (During NO v Boesak [1990] ZASCA 51; 1990 (3) SA 661 (A) at 672H. The contrary view, namely that it is rather an aspect of adjective law is postulated by Schmidt Law of Evidence at 1 11 (par 1.2.6)). As stated by Zeffertt et al The South African Law of Evidence at page 45 to 46 “Any rule of law that annexes legal consequences to a fact… must, as a necessary corollary, provide for which party is supposed to prove that fact.” There is authority for the proposition that the onus is on the employee in a case of wrongful dismissal to prove the agreement and his subsequent dismissal and that the onus is thereafter on the employer to justify it (Masinga v Minister of Justice, Kwazulu Government [1995] ZASCA 21; 1995 (3) SA 214 (A)). Because the present matter deals with an “unfair” dismissal in terms of a statute as opposed to a wrongful dismissal at common law, the obvious point of departure would be to first attempt to determine the incidence of the onus from the provisions of the instrument itself before looking elsewhere.

8. The law relating to unfair dismissals is contained primarily in Chapter VIII of the Act, as read with the applicable Codes of Good Conduct issued in terms thereof. The right protected by the Act is the right of every employee not to be unfairly dismissed (section 185). To protect this right the Act sets up a scheme which extends the common law concept of dismissal (section 186), renders dismissal for certain reasons impermissible in any circumstances (section 187), and limits to three the reasons for which employers are permitted to dismiss employees (section 188). It further dictates the procedures for the resolution of dismissal disputes, the forum in which the dispute must ultimately be resolved (section 191) and the principles that are applied to determine whether the respective forms of dismissal are fair.

9. In the scheme of the Act a dispute about the dismissal of an employee comes to this Court via section 191. This section provides for the resolution of a particular type of dispute, namely “a dispute about the fairness of a dismissal.” (Sub-section (1)(a)). The dispute consists in essence of two opposing viewpoints - the employee contending that the dismissal is unfair whereas the employer contends it to be fair (Numsa v Driveline Technologies (Pty) Ltd & Another [2007] ZALC 66; [2000] 1 BLLR 20 (LAC) at para [36]). What is fair or unfair depends on the reason for the dismissal. This is clear from a reading of section 187 and 188 of the Act. Section 187 provides that “A dismissal is automatically unfair…if the reason for the dismissal is - …” for example, the employee’s pregnancy. In terms of section 188 a dismissal that is not automatically unfair “…is unfair if the employer fails to prove…that the reason for the dismissal is a fair reason…”, and then lists three reasons for which employers are permitted to dismiss employees.

10. Fairness therefore relates to the reason for the dismissal. The enquiry whether there was a fair reason for the dismissal applies to all forms of dismissals. Accordingly, when an automatically unfair dismissal is alleged, the sole enquiry is to establish the true reason for the dismissal, and the only legal issue is whether the reason so identified is covered by one or other of the provisions of section 187. (See SACWU & Others v Afrox Ltd [1999] 10 BLLR 1005 (LAC) at para [31] and Grogan Dismissal Discrimination and Unfair Labour Practices at page 176 and 183.) The term “automatically unfair” is derived from the English law where section 187 appears to have its origin. (See Grogan (supra) at page 183 and Mashava v Cuzen & Woods Attorneys (supra) at para [21].) That the enquiry is essentially one into the reason for the dismissal is clear from the reading of the equivalent provision (section 58) in the Employment Protection (Consolidation) Act 1978 as amended by the Employment Act 1980. It provides that “… the dismissal of an employee shall be regarded as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee - …” was inter alia, a member of a trade union.

11. In section 192 the Act pertinently deals with the onus in dismissal disputes. It reads as follows:

“192 Onus in dismissal disputes

(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”

This section places the onus of proving that he or she was dismissed in one of the senses provided for in section 187 on the employee. Once this onus is discharged, the onus passes to the employer to prove that the dismissal was fair, which in the structure of Chapter VIII of the Act means that the employee was dismissed for a permissible reason and in accordance with a fair procedure. There is no doubt that with the word “prove” the legislature intended an onus in its true or original sense.

12. In the present matter the applicant alleges in his statement of claim that his dismissal was unfair. The reason advanced therefor is that his dismissal for misconduct was not the real reason, but a pretext that cloaked his dismissal because of race and the role he played in lodging a complaint with the Department of Labour. The respondent’s answer thereto is that the applicant was fairly dismissed after having been found guilty of misconduct at a disciplinary hearing. The issue as it has crystallised on the pleadings is therefore the determination of what the reason was for the dismissal.

13. As stated above, section 192(2) of the Act places the onus on the employer to show that the dismissal of an employee was for a permissible reason. Being an onus in its true sense, it remains on the employer throughout the course of the trial and cannot shift to the employee (South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd (supra) at 548B-C). However, where the employer produces evidence during the trial or, where it is admitted by the employee on the pleadings that his dismissal followed upon the holding of a disciplinary hearing and a conviction for misconduct, then the burden, in the sense of an evidentiary burden, may pass to the employee to rebut the employer’s reason. (See Zeffertt (supra) at page 131.) In the latter instance the incidence of the evidentiary burden places the duty to begin leading evidence on the employee.

14. Counsel for the respondent, Mr Tiedemann, submitted that the mere allegation of discrimination is insufficient. He argued that the employee is required to provide evidence to establish a prima facie case in support of the complaint that the dismissal is automatically unfair. Counsel placed reliance for this submission on the decision in Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC) where Landman J stated that where the employee alleges that he or she was dismissed for a prohibited reason, for example pregnancy, then it would seem that the employee must, in addition to making the allegation, at least prove that the employer was aware that the employee was pregnant and that the dismissal was possibly based on this condition. (at para [24] ) The learned Judge then continued as follows:

“B Perrins et al Harvey on Industrial Relations and Employment Law vol 2 J408 suggest that the English statutory provisions do not require the employee to prove that the reason for the dismissal was pregnancy or a connected reason and draws an analogy with the requirements relating to redundancy in Maund v Penwith District Council [1884] ICR 143. Lord Justice Griffiths of the Court of Appeal held at 149 that:

‘[1]t is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.’

I think, for purposes of this case and without the benefit of argument, that the dictum neatly expresses the approach which I should take.”

15. The Labour Appeal Court per Davis AJA in Kroukam[p] v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC), also referred to the aforementioned passage quoted from the case of Maund v Penwith District Council and then proceeded to say the following at para [28]:

“In my view, section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in section 187 for constituting an automatically unfair dismissal.”

16. The usual meaning of prima facie evidence as contended by Mr Tiedemann is prima facie proof of an issue, the onus of proving which is upon the party giving that evidence and which proof becomes conclusive proof of an issue in the absence of evidence in rebuttal. (Ex Parte Minister of Justice : In re R v Jacobson and Levy 1931 AD 466 at 478). What counsel seems to suggest is that an onus rests on the employee to prove, on a balance of probabilities, that the issue exists. Hence his reference to “jurisdiction” and the duty to establish “a prima facie” case.

17. I do not agree with this submission. The aforementioned decisions clearly do not burden the employee with the onus in the true sense, but merely with an “evidential burden” in the sense of a duty to adduce evidence to combat prima facie evidence. In Mashava v Cuzen & Woods Attorneys (supra) the court pertinently held that the “onus proper” to prove that the dismissal is for a fair reason lies with the employer (at para [20] ). Similarly in Maund v Penwith District Council (supra) Lord Justice Griffiths stated that “The legal burden of proving the reason for the dismissal is, by the wording of the Act, placed on the shoulders of the employer.” (at 148), and “If an employer produces evidence to the tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubt upon the employer’s reason. The graver the allegation, the heavier will be the burden.” (at 149) (my emphasis) (See further MEC for Education, Gauteng v Magano, an unreported decision of Landman J under case no J 3642/00 dated 23 January 2003.)

18. As stated earlier, there is a single issue with the burden on the employer. This essential point is obscured if one speaks of “the employee must prove” or a “shifting” of the onus or a duty “to establish a prima facie case that the reason for the dismissal was an automatically unfair one” (For example Dupper et al Essential Employment Discrimination Law at page 130). The evidentiary burden placed upon an employee creates the need for there to be sufficient evidence to cast doubt on the reason for the dismissal put forward by the employer or, to put it differently, to show that there is a more likely reason than that of the employer. A failure to present such evidence creates the risk of the employee losing his or her case. The essential question however remains, after the court has heard all the evidence, whether the employer upon whom the onus rests of proving the issue, has discharged it. (Zeffertt (supra) at page 132 to 134.)

19. To the extent that it may be capable of such an interpretation, I also do not believe that it was ever intended in the Mashava v Cuzen & Woods Attorneys and Kroukam[p] v SA Airlink cases to hold that there is a duty upon the employee, in the sense of an evidentiary burden, to raise an issue with sufficient evidence before the court would entertain the matter. Contrary to the position in the English law, and particularly in jury trials where such a duty may exist, our law has recognised only one additional burden to the onus, and that is the evidentiary burden to adduce evidence to rebut an opponent’s evidence. (See Schmidt (supra) at 2-4(1) to 2-5.)

20. Mr Tiedemann further submitted that in dealing with automatically unfair dismissals this Court must adopt an approach similar to the systematic structure of the enquiry followed by the courts in dealing with the right to equality in the Constitution, the residual unfair labour practice previously contained in item 2(1)(a) of Schedule 7 to the Act and the right not to be unfairly discriminated against in Chapter 11 of the Employment Equity Act 55 of 1998. A two-phase approach is followed. In the first phase the applicant must prove that there has been a violation of the right not to be discriminated against. In the second phase, and only once the applicant has established the discrimination relied upon, the onus shifts to the employer to prove that it is fair. Counsel referred to the following case law: Ferreira v Levin NO 1996 (1) SA 984 (CC) at para [44]; Transport and General Workers Union and Another v Bayette Security Holdings (1999) 20 ILJ 1117 (LC) at para [4]; Louw v Golden Arrow Bus Services (Pty) Ltd (supra) at para [39] to [41]; Ntai and Others v South African Breweries Ltd (2001) ILJ 7784 (LC) at paras [8] to [13] and Independent Municipal and Allied Workers Union and Another v City of Cape Town (2005) 26 ILJ 1404 (LC) at para [79].

21. The wording of sections 9(4) and 9(5) of the interim and final Constitutions respectively, as well as section 11 of the Employment Equity Act dealing with the “burden of proof”, supports such an approach. The constitutional prohibition against unfair discrimination has been given effect to in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Section 13 of this Act deals with the burden of proof and provides that if a complainant makes out a prima facie case of discrimination, the respondent must prove that the discrimination did not take place, or that the conduct is not based on one or more of the prohibited grounds. Under the common law the onus is on the person who infringes another’s freedom (or other fundamental right) to show that his or her conduct is lawful (Ross v South Peninsula Municipality 2000 (1) SA 589 (C) at 594D-E and the authorities referred to therein). As stated earlier, dismissals are dealt with in terms of the Act. Where the onus lies must therefore first be determined from the provisions of the Act itself. In my view, on a reading of chapter VIII of the Act and the scheme thereof, the overall onus to prove the reason for an employee’s dismissal and the fairness thereof rests upon the employer.

22. Support for the respondent’s submission of a shifting onus is to be found in Mafomane v Rustenburg Platinum Mines Ltd [2003] 10 BLLR 999 (LC) at paras [52] to [58] where Trengrove AJ held that the employee must bring the dismissal within the ambit of section 187 and bears the “onus of proving” that the dismissal is of a kind contemplated therein. The employer then bears “the burden of proving” that it was not unfair. No specific authority was referred to and in the light of that I have said hereinbefore and the view expressed in the Kroukam[p] case (supra) at para [28] by Davis AJA, I find myself unable to agree with the suggested approach. Section 192(2) expressly places the onus on the employer where it remains throughout the trial.

23. I do not believe that in the context of an automatically unfair dismissal this places too onerous a duty on the employer. The employer obviously knows why he dismissed the employee. It should not be too difficult to establish a prima facie case whereafter the evidentiary burden would shift to the employee. It is further an accepted principle that less evidence will suffice to establish a prima facie case if the facts in issue are peculiarly within the knowledge of the opposing party (Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173-174 and Gericke v Sack 1978 (1) SA 821 (A)). I am convinced that in practice and in most instances, such as in the present matter, the pleadings will place the evidentiary burden right from the outset on the employee. I do not therefore see any reason to depart from, what is in my view, the plain and clear meaning of section 192(2) of the Act.

24. Mr Tiedemann finally submitted that there is another reason why the onus rests on the applicant to establish a prima facie case in support of his claim that his dismissal constituted an automatically unfair dismissal. He argued that this Court does not have jurisdiction to deal with all dismissal disputes. Its jurisdiction is confined to disputes as defined in section 191(5)(b) of the Act. That being the position, counsel submitted that it is for the applicant to satisfy this Court that it has jurisdiction to entertain the dispute and unless the applicant adduces satisfactorily sufficient evidence to place himself within “the automatically unfair dismissal category”, as defined in section 187 of the Act, this Court has no jurisdiction to deal with the matter.

25. I do not find any merit in this submission. The Act provides two forums for the resolution of dismissal disputes, namely the Labour Court or arbitration under the auspices of accredited bargaining councils or the Commission for Conciliation Mediation and Arbitration (the CCMA). Section 191(5) distinguishes between matters that may be arbitrated by the said councils or the CCMA and those which may be referred for adjudication by the Labour Court. Subject to referrals to the Labour Court, which the director of the CCMA has power to make under section 191(6) of the Act, it depends on the reason for dismissal as alleged by the employee whether a dispute shall be referred to arbitration or adjudication. If the employee alleges reasons specified in section 191(5)(a) as reasons for his dismissal, or if he does not know the reason, the dispute goes to arbitration. If he alleges that the dismissal was for a reason specified in section 191(5)(b), as in the present matter, the dispute goes to adjudication by the Labour Court. (Numsa v Driveline Technologies (Pty) Ltd & Another (supra) at par [30] – [39].)

26. It is clear from a reading of section 191(5) of the Act that the jurisdiction of the forum selected by the employee is determined by the formulation of the nature of the dispute (his or her “cause of action”). Should the issue of jurisdiction arise, the relevant forum would determine the true nature of the dispute (as it has crystallised during conciliation proceedings) and would either assume or refuse to assume jurisdiction. If the real dispute between the parties falls outside the jurisdiction of the particular forum or the Labour Court decides that the matter should rather have been referred for arbitration, the parties, or for that matter the said court, may act in terms of sections 191(6) or 158(2) of the Act. (See Toit’s Merlyn Auto Traders (Pty) Ltd v Van Jaarsveld and Others, an unreported decision of this Court (case no JR 363/04).) There is nothing in section 191(5) to suggest that an employee bears an onus to provide prima facie proof of the reason alleged for his or her dismissal before the court would assume jurisdiction. To hold otherwise would in my view result in reading something into the said section that simply does not exist. After all, as stated earlier, what the court is called upon to adjudicate in terms of section 191(1)(a) of the Act is a “dispute” about the fairness of a dismissal. Such a dispute exists “when one party maintains one point of view and the other the contrary or different one”. (See Numsa Driveline Technologies (Pty) Ltd & Another (supra) at paras [36] and [64] )

27. Accordingly, and by reason of the fact that the overall onus lies with the respondent, it would be incorrect to accede to the application for absolution of the instance, either at this stage of the proceedings, or later. As a rule, absolution from the instance will not be granted where the onus rests on the defendant (the respondent in the instant matter) on one or more of the issues (Schoeman v Moller 1949 (3) SA 949 (O) at 957 - 958; Rosherville Vehicle Services (Edms) Bpk v Bloemfonteinse Plaaslike Oorgangsraad 1998 (2) SA 289 (O); Zeffertt (supra) at page 165 and Harms Civil Procedure in the Supreme Court at para O2).

28. I consequently make the following order:

1. The application for absolution is dismissed;

2. The costs occasioned by the said application shall stand over for later determination.

D VAN ZYL

Counsel for the applicant : Mr G J Hulley

Attorneys for the applicant : Nozuko Nxusani Incorporated

2^nd Floor, Surrey House

35 Rissik Street.

Johannesburg

Counsel for the respondent : Mr T C Tiedemann

Attorneys for respondent : Sonnenberg Hoffmann Galombik

5^th Floor, ABN Amro House

85 Maude Street, Sandown

Sandton

Date of judgment 1 September 2006

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