Seaward v Securicor SA (Pty) Ltd (LAC Case no: JA 68/06)
- If an employer penalises an employee for exercising the right to represent his co-employee in a disciplinary inquiry, that is victimisation rendering the dismissal automatically unfair. The representative is not required to place the interests of the company above those of the employee he is representing.
- An employee representative, besides representing the employee at a disciplinary enquiry, is required to assist the chairperson of the enquiry in arriving at a correct decision. The representative should present the case vigorously, efficiently and independently. Independence however does not mean rudeness or impertinence. He must act in good faith, honestly and with appropriate courtesy.
The employee, initially employed as an area manager, was Divisional Marketing Manager: Inland Division until his dismissal. The main cause of his dismissal was that he represented another employee in a disciplinary hearing. He contended that the termination of his employment constituted an automatically unfair dismissal in terms of s 187 (1) (d) of the LRA. Upon dismissal the employee referred the dispute concerning his dismissal to the CCMA. However, the CCMA failed to resolve the dispute within the time period contemplated in the Act, and the dispute was referred to the Labour Court for adjudication.
In the Labour Court the employee was the only witness who gave evidence. The employer closed its case without calling any witnesses. The Labour Court found that the employee had not “prima facie” established that his dismissal was automatically unfair alternatively unfair. The Court thus dismissed the claim.
On appeal to the Labour Appeal Court it was held that the dismissal was automatically unfair because the employer’s actions constituted victimization However, in any event, in terms of s 187(1) if an employer dismisses an employee contrary to s 5 of the LRA, that dismissal is automatically unfair. S 5(2)(iv) of the LRA prohibits anyone from prejudicing an employee for refusing or failing “to do something that an employer may not lawfully require an employee to do.”
Extract from the judgment:
 During the cross-examination of the appellant by Counsel for the respondent, the latter focused not so much on the appellant’s decision to represent Mr van Rensburg but on how he chose to handle Mr van Rensburg’s case. He criticised the appellant for inter alia focusing on procedure rather than on the merits of the case and for not putting Mr van Rensburg’s version to the respondent’s witnesses. Counsel must have focused as he did because he realised that he could not criticise the appellant for merely representing Mr van Rensburg in the inquiry. However, it seems to me that an employer has no business telling a representative of an employee in a disciplinary inquiry how best to conduct the employee’s case. Provided the representative has not misconducted himself, he has a right to present his “client’s” case as he sees fit. Although it might be difficult or even undesireable to define when such “misconduct” happens, but I have no doubt that he does not misconduct himself by not putting the employee’s version to the employer’s witnesses nor does he misconduct himself by focusing on procedure. Indeed, he does not misconduct himself by requesting the chairman of the inquiry to recuse himself from the inquiry. If the employer penalises an employee who represents another employee in a disciplinary inquiry because, in representing his co-employee, the representative focused on procedure or did not put the co- employee’s version to the employer’s witnesses or because he raised an objection against a certain person chairing the inquiry, that would, in my view, be so intrinsically linked to the employee’s right to represent his co-employee that it amounts to penalising such employee for exercising the right to represent his co-employee in a disciplinary inquiry. That is victimisation and would render the dismissal an automatically unfair one.
 As Mr van Rensburg’s representative, the appellant was entitled, as a general rule, to protect Mr van Rensburg’s interests and, to that extent, it was no business of the respondent whether in doing so, he was subjective. There may be exceptions to this general rule but I am satisfied that this is not a case where any exception to the general rule applied. For an employer to require a representative of an employee facing a disciplinary inquiry to place the interests of the company above those of the employee he is representing is the worst example of an employer’s interference with an employee’s right to be represented by a co-employee in a disciplinary inquiry that I have ever come across. That the respondent saw nothing wrong in coming to court to defend the appellant’s claim on the bases inter alia that during Mr van Rensburg’s disciplinary inquiry the appellant should have placed the respondent’s interests above those of Mr van Rensburg whom he had agreed to represent and focused on the merits and not the procedure baffles me.
 I understood it to be common cause between the parties’ Counsel that, if we found that the appellant was dismissed because he represented Mr van Rensburg and because he lodged grievances against Mr van der Merwe and Mr Worthington, the dismissal would constitute victimization and would be an automatically unfair dismissal. I think that that is correct. However, in any event terms of sec 187(1) if an employer dismisses an employee contrary to sec 5 of the LRA, that dismissal is automatically unfair. Sec 5(2)(iv) of the LRA prohibits anyone from prejudicing an employee for refusing or failing “to do something that an employer may not lawfully require an employee to do.”
 Item 4 of the Code of Good Practice: Dismissal
Dismissal inter alia provides that in a disciplinary inquiry “(t)he employee should be entitled to the assistance of a trade union representative or a fellow employee”.
There is no suggestion in item 4 that employees in certain categories should only be entitled to the assistance of employees in certain categories. The preparation, issuing and publication of this Code of Good Practice is authorised by sec 203(1) of the LRA. Sec 203(3) provides that anyone interpreting or applying the LRA must take into account any relevant code of good practice. Sec 203(4) authorises a Code of Good Practice to provide that anyone interpreting or applying any employment law may take it into account. In the light of sec 203(1), (3) and (4) of the LRA the exclusion of the Code of Good Practice: Dismissal from the definition of the words “this Act” in sec 213 of the LRA is difficult to understand.
 In this case the respondent required the appellant not to represent Mr van Rensburg in the disciplinary inquiry. It had no right to make such a requirement to the appellant. When the appellant did not give in to the appellant’s pressure, the respondent dismissed him. The dismissal constituted the prejudice which the respondent visited upon the appellant for not complying with the requirement that he should not represent Mr van Rensburg in the disciplinary inquiry. That rendered the dismissal automatically unfair in terms of sec 187(1) of the LRA in that, in dismissing the appellant, the respondent acted contrary to section 5 of the LRA. Accordingly, the appeal must be upheld.
 It is perhaps opportune to consider the role of an employee representative at a disciplinary enquiry. The same exacting professional standard expected of a lawyer is not expected of an employee representative. Be that as it may an employee representative besides representing the employee at a disciplinary enquiry is required to assist the chairperson of the enquiry in arriving at a correct decision. It is the representative’s function to present the case of the employee vigorously, efficiently and independently. Independence however does not mean rudeness or impertinence. He must act in good faith, honestly and with appropriate courtesy. Courtesy, does not mean sycophancy, and where the necessity of the case requires, a representative should press upon a point and not give it up merely because of an unfavourable expression of opinion by the chairperson. An employee representative is not required to have an indepth knowledge of the law and to that end may raise preliminary points which a seasoned lawyer will not take.