Mackay v Absa Group & another [1999] 12 BLLR 1317 (LC)

Principle:

Victimisation in the form of dismissal resulting from an employee filing a grievance will constitute an automatically unfair dismissal.

Facts:

An employee lodged a grievance in respect of his salary increase and complained that he was given insufficient resources to do his work properly. The grievance was ultimately decided in the employee’s favour on the basis that his salary increase had been incorrectly determined, that he had received insufficient logistical support, and that management had unjustifiably adopted a threatening attitude towards him.  The chairman of the grievance meeting recommended that the salary should be retrospectively increased and that he should be placed in an alternative position in the Cape metropole. The employee was then instructed to contact the employer’s human resources department about an alternative position, and was warned that if an alternative position were not found for him within three months his dismissal “in terms of the retrenchment policy” would be considered. After that period lapsed, his services were terminated. The employee alleged that his dismissal was “automatically unfair” because it was in response to the filing of his grievance.

The Court noted that in prosecuting his grievance the employee had complied with the employer’s grievance procedure. However, it could not be said that he had asserted a right in terms of the Act. However, this did not mean that the Court was deprived of jurisdiction to deal with disputes of this nature. One of the main objects of the Act is to regulate the fundamental right to fair labour practices and to promote the effective resolution of labour disputes. It could accordingly not be accepted that some disputes arising out of the employment relationship were incapable of resolution under the Act. Moreover, the filing of a grievance by an employee against his or her employer was specifically protected under international conventions. It followed that, on a purposive interpretation of the Act, the exercise of a right conferred by a private agreement binding on an employer and its employees were considered to rights protected by the Act.

As to the facts, the Court noted that the employee was among the best performers in the employer’s employ. He had, however, clashed swords with a senior manager, which had resulted in the applicant being deprived of logistical support. At no stage during the three months in which the respondent had been given to find an alternative position had the employee been appraised of what was happening. He had not been furnished with an opportunity to make suggestions prior to his dismissal. Moreover, at least one suitable vacancy had arisen during the period. The employer’s lack of effort to accommodate the employee indicated that his fate was sealed after the grievance procedure had been concluded. The employee had had a genuine grievance.

The Court rejected the employer’s contention that the employee’s dismissal was justified for operational requirements. The employee was awarded compensation equivalent to 24 months’ remuneration.

Extract from the judgment:

[9]   In prosecuting his grievance Mackay followed Absa’s grievance procedure. The introduction to the grievance procedure states that whenever an employee encounters a work related problem or feels that he has been unfairly treated he must not complain against any other person nor must he keep quiet. The grievance procedure further provides that any employee of Absa is entitled (“geregtig”) to bring his grievance to the attention of management. It also provides that an employee has the right, under no circumstances, not to be prejudiced or victimised as a result of the fact that he lodged a grievance.

[10]   Section 187(1)(d) can be said to relate in essence to a right of a collective nature. For instance, section 5 is designed to protect employees and persons seeking employment against victimisation for trade union activities. There are other rights conferred by the Act such as the right to strike and participate in protest action. An employee who exercises any of these rights is protected by section 187(1)(d) from victimisation by the employer. Proceedings in terms of this Act can relate to an employee taking part in conciliation and arbitration proceedings, taking part in the formation and establishment of a workplace forum, representation of a fellow employee in an internal disciplinary process etc. On the face of it all the above rights and processes have nothing to do with Mackay’s claim that he exercised a right conferred by this Act when he lodged his grievance. It can probably be said that when he lodged his grievance he had a right not to be unfairly dismissed as a result thereof.

[11]   On the other hand can one find that the lodging of a grievance by Mackay amounted to taking action against the respondents by participating in proceedings in terms of the Act. Nowhere does the Act make explicit provision protecting an employee who lodges a grievance against his employer in terms of an internally agreed document such as a grievance procedure or code. A provision of the Act that mentions grievances specifically is section 115(3)(d) which provides:

“(3)   If asked, the Commission may provide employees, employers, registered trade unions, registered employers’ organisations, federation of trade unions, federations of employers’ organisations or councils with advice or training relating to the primary objects of this Act, including but not limited to –

. . .

(d) preventing and resolving disputes and employees’ grievances.”
On this basis therefore it appears that, on the face of it, there is no explicit provision regarding the lodging of a grievance being regarded as a proceeding in terms of the Act.

[12]   Does it mean therefore that the absence of specific provisions regarding the lodging of a grievance by an employee cannot be regarded as a right conferred by the Act or being regarded as a proceeding in terms of the Act? Was this specific conduct intended to be excluded from the ambit of the Act? If this was the intention how are claims based on this situation to be dealt with? A quick glance at section 191 of the Act reveals that the scenario in casu is not contemplated. This scenario is also not contemplated in item 2 of Schedule 7 of the Act. Could this mean that the Commission and this Court cannot arbitrate or adjudicate a dispute of this nature because the Act does not refer to it in specific terms?

[13]   Section 3 enjoins any person applying the Act to interpret its provisions:

1. to give effect to its primary objects;
2. in compliance with the Constitution; and
3. in compliance with the public international law and obligations of the Republic.

This means in short, that one should interpret the Act in a manner that does not lead to absurd consequences.

[14]   One of the main objects of the Act is to give effect to and regulate the fundamental rights conferred by section 27 of the interim Constitution of the Republic of South Africa which is now section 23 of the Constitution of the Republic of South Africa 108 of 1996, as well as to promote the effective resolution of disputes (section 1(a) and (d) of the Act). The Constitution is the supreme law of the land and it entrenches the following right: “Every person shall have the right to fair labour practices” (section 23(1)).

[15]   The Act is intended to regulate and govern the relationship between employee and employer. Hence, the Act has no application between an employer and an independent contractor. In keeping with the Act’s main objects all disputes arising from the employer-employee relationship must be effectively resolved. Such disputes are resolved through conciliation, arbitration and adjudication, and those of a collective nature through collective bargaining. In the light of the aforegoing it is clear that it could never have been intended that some disputes arising out of the employer-employee relationship are incapable of resolution in terms of the Act. One of such disputes is Mackay’s claim which he has chosen to base on section 187(1)(d) of the Act.

[16]   This Court is the chief custodian of the responsibilities of resolving labour disputes. It must comply with the Constitution in its quest to guarantee the right to fair labour practices. Section 39 of the Constitution enjoins any court, forum or tribunal when interpreting the Bill of Rights, to promote the values that underline an open and democratic society based on human dignity, equality and freedom, and to consider international and foreign law. In the same section the Constitution enjoins courts, when interpreting any legislation, to promote the spirit, and objects of the Bill of Rights.

[17]   This Court must further comply with the public international law obligations of the Republic. The Republic is a signatory to the International Labour Organisation and must therefore comply with its conventions. Convention 158 article 5 provides:

“The following inter alia, shall not constitute valid reasons for termination:

(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a worker’s representative;
(c) the filing of a complaint of participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(e) absence from work during maternity leave.”

The filing of a complaint against an employer is specifically mentioned. It is also noteworthy that the provisions of article 5 are mirrored in section 187(1).

[18]   Therefore in keeping with the main object of the Act, ie of resolving all labour disputes effectively, and with the constitutional guaranteed right to fair labour practices it must follow that a purposive interpretation of section 187(1) would mean that the exercise of a right conferred by a private agreement binding on the employer and employee as well as participation in any proceeding provided for by such agreement was also contemplated in that section. As in casu, the participation by an employee in a privately agreed grievance procedure, must have been contemplated as a proceeding in terms of this Act, ie when section 187(1)(d) was enacted. This is on the basis that the disputes specifically mentioned in section 187(1) are of the same kind as the dispute in casu.