Kabe v Nedbank Ltd (JS633/13) [2018] ZALCJHB 173 (8 May 2018)

Principle:

  1. The Protected Disclosures Act is not intended to deal with personal feelings but with criminal and irregular conduct. An employee seeking the protection of the Act bears the onus of showing both that a workplace grievance amounts to a disclosure as defined by the PDA and that there is credible evidence that the employer is in violation of the law.

  2. If the evidence is overwhelming that a case is frivolous the scale must tip in favour of making an order as to costs against that litigant.

Facts:

The employee, employed as an Assistant Relationship Governance and Compliance Officer at Nedbank, responded to criticism of her performance by filing 5 grievances against her manager in the course of 11 months, as well as referring three disputes to the CCMA in the same period. She is a qualified attorney who previously had unsuccessfully litigated against the principal in her law firm and had failed to pay the legal costs.

She was eventually charged with poor performance and dismissed. She initially referred an unfair dismissal claim to the CCMA but after the matter had proceeded to arbitration she suddenly referred an automatically unfair dismissal dispute to the Labour Court. The basis of the claim was that the grievances filed against her manager were protected disclosures under the PDA.

During the court proceedings she engaged in behaviour that the court later assessed as vexatious and frivolous.

  • She subpoenaed another judge who 8 years previously had worked at Nedbank. She did this, the judge said, to intimidate her employer.
  • She canvassed issues of a case she consciously abandoned at the CCMA. She read back her statement of case. She was argumentative and did not present facts that supported her case.
  • Without reason or counter-demand she publically rejected an offer of settlement of R200 000 because it was not R204 000.
  • The transcript of the disciplinary hearing revealed that she and her legal representative at the hearing conceded that the employer had a legitimate cause for concern about her performance.

The Labour Court considered whether the grievances could be regarded as protected disclosures. It held that the Protected Disclosures Act is not intended to deal with personal feelings but with criminal and irregular conduct. An employee seeking the protection of the PDA bears the onus of showing both that a workplace grievance amounts to a disclosure as defined by the PDA and that there is credible evidence that the employer is in violation of the law.

As regards costs, the court acknowledged that the default position in the Labour Court was not to award costs against a party. But it held that if the evidence is overwhelming that a case is frivolous the scale must tip in favour of making an order as to costs against that litigant.

The LC found that the employee had not proved her case and awarded costs against her.

Extract from the judgment:

Moshoana J

[26]   The applicant's case is that she was subjected to an automatically unfair dismissal principally because the real reason for her dismissal was that she had made a protected disclosure in terms of the PDA. In the alternative her case is that the reason for her dismissal is that she had referred an unfair labour practice dispute to the CCMA. She attempted to bolster this alternative claim, from the bar of course, by suggesting that when she lodged the grievances she was exercising her rights conferred by the Act.

[27]   This alternative claim can be quickly disposed of in that she conceded that there was no evidence to remotely suggest that that was the reason why she was dismissed. On the common cause facts, she withdrew the referral to the CCMA months before her dismissal. Again on the common cause facts Mosime did something about her grievance although to her mind he did not investigate the grievance. She went to the lengths of reporting Mosime to the Bar Council, an act which is wholly unjustified. If the respondent was unhappy that the applicant had exercised her rights by lodging a grievance, it would not have taken the trouble to enlist, at a cost, the services of a senior member of the bar to listen to the grievance. The first hurdle in respect of this alternative ground has not been crossed and therefore the respondent is not behoved.

Are the grievances disclosures?

[28]   Section 187 (1)(h) is clear. It refers to disclosures as defined in the PDA. Therefore, the starting block is the definition section of the PDA. Section 1 of the PDA provides thus:

'Disclosure means any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following:

  1. That a criminal offence has been committed, is being committed or is likely to be committed;
  2. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
  3. That a miscarriage of justice has occurred, is occurring or is likely to occur;
  4. That the health or safety of an individual has been, is being or is likely to be endangered;
  5. That the environment has been, is being or is likely to be damaged;
  6. Unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000; or
  7. That any matter referred to in paragraphs (a)-(f) has been, is being or is likely to be deliberately concealed.

[29]   The grievances by the applicant do not meet the definition set out above. At a workplace, it is awaited that employees would be aggrieved now and then. It is for that reason that a good practice dictates that an employer should have in place a dedicated procedure to deal with employees' grievances. Some grievances have merit whilst others do not. Regard being had to the preamble of the PDA, it was not enacted to allow employees to disparage their employers. Ordinarily, grievances are more about personal feelings of employees. The PDA is not intended to deal with personal feelings but with criminal and irregular conduct. It is largely concerned with more serious breaches of legal obligations.

[30]   The common cause facts has shown a tendency of the applicant to fend off request to perform her duties by lodging a grievance. She was quick to lodge a grievance at a drop of a hat. That cannot be disclosures but personal gratification steps. The applicant bore the onus to show that her grievances amount to disclosures as defined. She failed to show that. The fact that the legislature used the phrase "any disclosure of information" does not suggest that even unmerited and merited for that matter grievances amount to a disclosure. The section must be interpreted purposefully and contextually.

[31]   In Natal Joint Municipal Pension Fund v Endumeni Municipality, the SCA had aptly said the following:

'Interpretation is the process of attributing meaning to words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provisions appear; the apparent purpose to which it is directed and the material known to those responsible for its production'. [My underlining and emphasis].

[32]   Since the applicant failed to show that the grievances amount to a disclosure, application for absolution is good on this reason alone.

Did the applicant cross the first hurdle?

[33]   Even if I were to assume, an assumption I am not making, that the grievances amount to a disclosure, that is not the end of the enquiry. In order to behove the respondent, the applicant was burdened to produce evidence that demonstrates a credible possibility that the respondent committed an automatically unfair dismissal. To my mind the applicant has failed to cross this first hurdle.

[34]   It is common cause that the applicant did not perform as expected. In terms of section 188 of the Act, misconduct and incapacity are fair reasons for dismissal. The applicant chose to abandon a case that would have compelled the respondent to prove those reasons as obligated by section 192 of the Act. The alleged disclosures on the evidence before me, applying the causation test, cannot be the reason for the dismissal. The tip-off was made in October 2011 and the applicant was dismissed in December 2012, a year and some months later. The reaction of the respondent instead was to hold a meeting on 18 November 2011. Even after the applicant and others disclosed their identity on 18 November 2011, nothing happened to the applicant and others.

[35]   On the applicant's own version, the other employees were transferred instead. She was not transferred and she was unhappy. Even when she lodged grievance after grievance, the conduct of the employer was to deal with the grievance as opposed to dismissing her. Therefore, the disclosures are not the real reason for her dismissal.

[36]   Determining the reason or the principal reason of a dismissal is a question of fact. As such it is a matter of either direct evidence or of inference from the primary facts established by evidence. The reason for dismissal consists of a set of facts, which operated on the mind of the employer when dismissing an employee. They are within the employer's knowledge. The employer knows better than anyone else in the world why it dismissed an employee.

[37]   When an employee positively asserts that there was a different and automatically unfair reason for his or her dismissal, he or she must produce some evidence supporting the positive case, such as having made a disclosure or taken action. An employer who dismisses an employee has a reason for doing so. He or she knows what it is and must prove what it is.

[38]   What applies is the test set out in Kroukamv SA Airlink (Pty) Ltd, which is that, the employee must produce credible evidence that shows that an automatically unfair dismissal has occurred. This, I call, the first hurdle. Should an applicant fail to cross this hurdle such an applicant must to my mind fail as well.

[39]   Recently the Labour Court per Lagrange J in Bakulu v Isilumko Staffing (Pty) Ltd and another, had the following to say, to which I associate myself with:-

[9]   Thus, in order to establish a basis for his case of automatically unfair dismissal, Bakulu needed to adduce some evidence that would tend to suggest that the real reason for his dismissal was not incapacity, which was the reason given by Isilumko, but was possibly race

[15]   ...But he has brought his case to this court on the basis that the real reason was because of his race and he needed to raise a credibly possibility that his dismissal in question fell within the scope of section 187(1) (f). [My emphasis]

[40]   The applicant has failed to cross the first hurdle. For this reason too, absolution from the instance is justifiable and ought to be granted.

The issue of costs

[41]   What remains is the issue of costs. Since the judgment of Zungu there seem to be a growing view that this court has been stripped of its discretion to award costs against employee parties. This view is incorrect. What the Constitutional Court did was to remind this court of what was said in Dorkin. The discretion to award costs remains intact.

[42]   As a reminder, the LAC in Dorkin had the following to say:

[19]   With regard to costs I have been tempted to award costs against the second respondent because the second appellant has had to come to court to seek to alter the sanction imposed upon the second respondent but, I think that, having obtained a sanction of final written warning which was not his decision but that of the first respondent- he was entitled to come to Court and seek to defend it. Indeed, he was successful in the Court below. The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that cost orders are not made unless those requirements are met. In making decisions on cost orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers' organisations from approaching the Labour Court and this Court to have their disputes dealt with, and on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court. That is a balance that is not always easy to strike but, if the Court is to err, it should err on the side of not discouraging parties to approach these Courts with their disputes. In that way these Courts will contribute to those parties not resorting to industrial action on disputes that should properly be referred to either arbitral bodies for arbitration or Courts for adjudication.

[43]   The LAC was acutely aware that what is required is not a blanket approach but a striking of a balance, a process that is not easy. To my mind if the evidence is overwhelming that the case is frivolous the scale must tip in favour of making an order as to costs. Allowing parties to bring frivolous cases does not only affect the opposing party but it also affects the administration of justice, the business of the court and judges. The resources of this court, judges that is, are thinly spread country wide. If this court were to allow those thinly spread resources to be abused, then the provisions of section 34 of the Constitution will be severely compromised.

[44]   The applicant before me is not a lay person. She is a qualified lawyer. She has a penchant of litigating without fear and or reprieve. She has even litigated against her principal as a candidate attorney and was mulcted with costs. She did not learn from that experience. At the CCMA, she was legally represented and she chose to fire her legal team only to undo what she was advised to do - to challenge the "ordinary dismissal".

[45]   Had she continued with the arbitration, even if she would have failed to disprove as it were the fairness of the dismissal, she would have left without a cost order. Her decision to approach this court with a frivolous case was unwise. I hasten to mention that the order of costs is not to punish her for the unwise decision but to confirm that indeed her case in this court was frivolous.

[46]   Judging by the manner she litigated this matter, I am of a firm view that this case lacked merits from the get go. The team that represented her and subsequently fired by her must have been aware of this fact hence the referral from the get go was that of an "ordinary dismissal". They were right if it all they advised so because workers should not be discouraged from bringing their matters to the correct forum - the CCMA. The applicant amended her case a number of times. This is indicative of the fact that she had no case from the get go. She struggled to fashion out her case that she finally placed before me. I agree with Mr Orr that the automatically unfair dismissal claim was nothing but an afterthought.

[47]   In litigation, the interest of the opposing party matters too, particularly, when it comes to costs. Litigation is not cheap. The opposing party cannot in fairness be dragged to a court of law to defend a case without merit. It cannot be said that the opposition of this matter was unwarranted, since to my mind this referral was frivolous. The applicant knew that her case in this court was manifestly insufficient or futile. I was tempted to award punitive costs. However, there is no sufficient evidence before me that the applicant was egregiously careless.

[48]   What made matters worse is the applicant's refusal of what was patently a generous and reasonable offer. Again, I hasten to say that the applicant is not punished as it were for having refused to settle. Settling a dispute saves parties' litigation costs. In a settlement there is no winner or loser. Both parties become winners with regard to litigation costs. The applicant openly refused the offer and contented with the risk attached to litigation-to be mulcted with costs.

[49]   .................

[50]   To my mind, the rejection of the offer of settlement was wholly unreasonable. Section 162 of the LRA involves exercise of discretion. In exercising my discretion, I choose to take the unreasonable rejection into account. For all the above reasons, I am minded to award costs against the applicant.

[51]   In the results, I make the following order:

Order
  1. The respondent is absolved from the instance;
  2. The applicant is to pay the costs including those reserved on 5 December 2014.