Many employers are faced with an uncomfortable situation where an employee lodged a false grievance against another employee as an intimidation or retaliation tactic. Some employers may be too cautious about taking disciplinary steps because they are under the impression that it may amount to an automatically unfair dismissal.
Section 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA) regards it as an unfair dismissal if an employer dismisses an employee on the basis that the employee is taking or intending to take action against the employer. The case of DBT Technologies (Pty) Ltd v Garnevska (JA612018)  ZALAC 26 also established that the lodging of a grievance is not the same as exercising a right conferred by law, and therefore would not fall under the scope of an automatically unfair dismissal.
The employee had been in the service of her employer for five (5) years when she alleged that her colleague had assaulted her. She also laid a complaint at the SAPD. When the matter was investigated by way of an inquiry, it became very clear that the allegations were unfounded. She was then charged with gross dishonesty and was subsequently dismissed. She referred a dispute to the CCMA and, after a certificate of non-resolution was issued, referred the matter to the Labour Court in terms of section 191(5)(b), as she believed her dismissal to be automatically unfair.
The Labour Court held that her dismissal was directly linked to her lodging a grievance and not to her dishonesty. It further held that the reason for her dismissal was because she took action against the employer by exercising a right conferred by the LRA. As a result, the former employee was awarded compensation. The employer, aggrieved by this finding, took the Labour Court judgement on appeal to the Labour Appeal Court.
The Labour Appeal Court determined that for a dismissal to be regarded as automatically unfair, an inquiry into a causation must be undertaken to determine that the dismissal is linked to one of the grounds listed in section 187(1) of the LRA. In terms of section 187(1)(d) of the LRA, it must be established that the employee took action or intended to take action against the employer by exercising a right provided for in the LRA. To establish factual causation, one has to establish whether the dismissal would still have occurred had the employee not taken action against the employer. If it would have, the dismissal is not automatically unfair. If not, the dismissal is not necessarily automatically unfair. One first needs to establish legal causation in determining that the reason was the main, proximate or dominant cause thereof.
The court determined that there was no evidence that the applicant had taken action against the company at the time of the dismissal. The right to file a grievance is not a right conferred by the LRA as the legislation is silent on grievance mechanisms in the workplace. The right to file a grievance is based on the contract between the parties.
This case is of significance as it confirms that an employer would not be precluded from initiating disciplinary action against an employee for dishonesty due to the mere fact that he or she has lodged a grievance. If the allegations contained therein are dishonest or misleading, an employer may discipline as it would any act of dishonesty.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town