The LC had no hesitation in awarding maximum compensation and severance pay for 28 dismissed female security guards.  They were ‘deployed’ at Metrorail who ‘demanded’ that female guards be replaced by males.  This demand was not properly investigated.  28 female employees were dismissed, purportedly based on operational requirements, being the third-party demand.  The unfair procedure also meant the dismissals were substantively unfair and so automatically unfair.  Apart from severance pay, which had not been paid, compensation was awarded which amounted to over R2.5 million excluding costs.

Numsa v High Goal Investments CC t/a Chuma Security Services (C844/15) [2016] ZALCCT 34 (18 October 2016) per Steenkamp J.

Excerpts without footnotes

[35]     The dismissals of the applicants were effected at the behest of a third party, Metrorail. The issue of dismissals at the behest of a third party is not new in our law.

. . . . .

[42]     In Lebowa Platinum Mines the employees demanded the dismissal of a white employee who occupied a senior position and had used abusive language towards a black co-worker. The chairperson of a disciplinary inquiry imposed the sanction of a verbal warning on the employee.  The employees were dissatisfied with the sanction imposed which they regarded as lenient and demanded a second disciplinary inquiry.  In the face of pressure from the employees and because the employee refused a transfer, the employer dismissed the employee.  In deciding what an employer must do when faced with a demand for the dismissal of an employee, the court set out the applicable principles as follows:[1]

“The question whether, in the result, the employer’s ultimate decision to dismiss an employee in response to a demand therefor from a third party may be said to be a fair or unfair one, would have to depend on the facts of each case.  In general, however, the principles set out below will be applicable.  The principles have largely been extracted from cases cited later.

(1)   The mere fact that a third party demands the dismissal of an employee would not render such dismissal fair.  Such an approach would indeed open a veritable Pandora’s box of injustices.

(2)   The demand for the employee’s dismissal must usually enjoy a good and sufficient foundation.   Where it impinges upon the fundamental rights of the employee in terms of the Constitution special considerations need to be taken into account in determining whether it enjoys such a foundation.   

(3)   It need hardly be stated that the threat by the third party to impose a sanction must be a real one.  The employer should, therefore, initially, assess the reality of the threat.  If the prospects of the threat being implemented are not real, the employer should ignore the demand, subject thereto that circumstances may change as matters develop.

(4)   The employer, should, secondly, assess the probable effect of the sanction threatened by the third party.  Thus, that effect may be of such relatively minor proportions that there is no call for the employer to consider taking any steps in respect of the employee’s position, whether in the form of a dismissal or, indeed, in the form of an alternative thereto.  In what follows in subparas (6) et seq it will be assumed that the sanction threatened by the third party is sufficiently cognizable to lead the employer to take such steps. 

(5)   It must be borne in mind, however, that the mere fact that dismissal of the employee would ensure continued smooth commercial operation is not sufficient to justify termination of employment.  Something more is required.  In short, that something is the objectively sound conclusion that dismissal is the only option that is fair to both the employer and the employee.

(6)   The employer should make reasonable endeavours to dissuade the party making the demand for the dismissal of the employee from persisting therein.

(7)   The employer should properly investigate and consider all alternatives to the dismissal with a view to determining whether one or more of them constitutes a reasonable alternative to dismissal.

(8)   In the process of reaching a determination whether or not there is a reasonable alternative to the dismissal the employer must consult fully and properly with the employee, afford him a proper opportunity to make an input thereanent and properly take his representations into account before arriving at a decision.

(9)   It is incumbent on the employer to ensure that the employee is aware that non-acceptance by him of an identified reasonable alternative or alternatives would, or could, result in his dismissal.

(10)   In all its deliberations the employer must properly consider the extent of the injustice to the employee that would be occasioned by a dismissal.

(11)   Relevant to the consideration of injustice to the employee would be the question whether any objectively blameworthy conduct on his part gave rise to the demand for his dismissal.”

[42]     The court in Lebowa Platinum Mines further stated that because the employee was at fault, the issue had changed from one of misconduct to whether the employee’s further employment was compatible with the employer’s commercial operations, an issue of incapacity.  The court stated that the test was that of fairness and that fairness demands that recourse to the dismissal be had where there is no other alternative thereto.  The court then conducted on evaluation of whether the employees’ threat to embark on industrial action if the employee was not dismissed was real, whether the employer did what could reasonably have been expected of it to persuade the employees to drop its demand for the employee’s dismissal, whether the employer investigated all the alternatives to the dismissal of the employee, and the potential injustice to the employee consequent upon his dismissal.

. . . . .

[58]     Whether a dismissal at the instance of a third party is effected for operational reasons or incapacity reasons is not an issue that arises in this matter.  The principles remain the same.

[59]     As Mr Van Wyk submitted, the principles dealing with s 189 dismissals were set out by the LAC in Super Group Supply Chain Partners v Dlamini (2013) 34 ILJ 108 (LAC) para [24].:

“It is trite that an employer is permitted to dismiss an employee for operational requirements.  However, for the employer to do so successfully, it is obliged to have a bona fide economic rationale for the dismissal and to comply with the provisions of s 189…   Section 189 imposes an obligation on the employer to consult the employee or its representative on the matters listed in subsection (2).  There is a duty on the employer not only to consult the affected employee(s) but to take appropriate measures on its own initiative to avoid and minimise the effect of the dismissal.  The consultation envisaged by the Act is a ‘meaningful joint consensus-seeking process’ in which parties to the process should attempt to reach some agreement on a range of issues that may best avoid the dismissal and, where not possible, to ameliorate the effects of the dismissal for operational requirements.”

. . . . . .

Procedural fairness

[72]     The main issue concerning procedural fairness – whether there was any consultation as prescribed by s 189 with the employees’ trade union, NUMSA – brings to the fore the fraternal fights for membership between COSATU trade unions that has come to characterise our labour relations landscape of late.

. . . . .

Relief

[82]     The applicants are no longer seeking re-instatement but only compensation.

[83]     The principles which apply regarding compensation were set out in Kemp t/a Centralmed v Rawlins[1] :

“There are many factors that are relevant to the question whether the court should or should not order the employer to pay compensation.  It would be both impractical as well as undesirable to attempt an exhaustive list of such factors.  However, some of the relevant factors may be given.  They are:

(a) The nature of the reason for dismissal; where the reason for the dismissal is one that renders the dismissal automatically unfair such as race, colour, union membership, that reason would count more in favour of compensation being awarded than would be the case with a reason for dismissal that does not render the dismissal automatically unfair; accordingly, it would be more difficult to interfere with the decision to award compensation in such case than otherwise would be the case.

(b) Whether the unfairness of the dismissal is on substantive or procedural grounds or both substantive and procedural grounds; obviously it counts more in favour of awarding compensation as against not awarding compensation at all that the dismissal is both substantively and procedurally unfair than is the case it is only substantively unfair, or, even lesser, if it is only procedurally unfair.

(c) Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer’s deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer’s deviation from what was procedurally required, the stronger the case is for the awarding of compensation.

(d) ….

(e) The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded.

(f) The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent.

(g) ….

(h) Any conduct by either party that promotes or undermines any of the objects of the Act, for example, effective resolution disputes.”