24 months compensation for automatically unfair dismissal
28-JUN-07
Pedzinski v Andisa Securities (Pty) Ltd [Pro Dis, Unfair
redundancy] Case No. JS 396 / 04
Judgment Date 30 November 2005
Jurisdiction Labour Court, Johannesburg
Judge Leeuw AJ
Subject Substantive Fairness in Dismissal
Automatically Unfair Dismissals
Issue:
The applicant reported irregular insider trader to her superior and other departments within her employer’s organisation. Her superior viewed the fact that she had not reported the matter to him alone as insubordination. Thereafter the applicant was told that she must work a full-day or be retrenched. The applicant refused to do the former and was dismissed.
The applicant’s claim relied on a number of different causes of action, namely:
1. it was an automatic unfair dismissal [s.187(1)(c)] because either:
1.1 she made a protected disclosure [s.187(1)(h)];
1.2 she was compelled to accept a demand in respect of a matter of mutual interest [s.187(1)(c)]; or
1.3 she was unfairly discriminated against as an employee with a disability [s.187(1)(f)].
2. the dismissal was substantively and procedurally unfair [s.189].
Summary of Facts:
The applicant was employed by the respondent (part of the Standard Bank Group) as a Compliance Manager, responsible for investigating misdeals and irregularities in share trading.
She prepared a report on trading irregularities that was sent to her superior and to the Group’s compliance department. One of the employees implicated was her superior’s senior manager.
The applicant was taken to task about the distribution of the report (her superior viewed the fact that he had not been consulted as an act of insubordination). Some weeks later, the respondent decided that it needed to increase the staff component of the Compliance Department. It gave the applicant a letter (expressly noting it was a ‘section 189 letter’ proposing that she either work full-time (she had developed a back condition and as a result worked ½ days), be allocated a suitable alternative position or be retrenched. The applicant put a counter-proposal to avoid the redundancy that was rejected by the employer and she was dismissed.
Summary of Judgement:
The Court found:
1. that the disclosure (the report about trading irregularities) was a protected disclosure pursuant to the Protected Disclosures Act;
2. that her dismissal occurred on account of having made the protected disclosure (the Court stated, “…the only probable and reasonable inference to be drawn from (her superior’s) conduct is that after the applicant had made the protected disclosure, which exposed the unlawful conduct…of employees, he (the superior) was not happy about the manner in which the disclosure was reported”.
3. that the applicant had proved that part of her claim related to automatic unfair dismissal as a result of a protected disclosure;
4. that the applicant had proved the requirements of s.187(1)(c), namely that the dismissal resulted from ‘a compulsion on the employee to accept a demand in respect of a matter of mutual interest between employer and employee’. In doing so, the Court relied on the fact that the employer was aware of her health condition and that she would not be in a position to accept an offer of full-day employment, but offered her the position nonetheless as a method to dismiss her if she did not accept the new terms;
5. that the applicant had failed to establish the s.187(1)(f) part of her claim, namely that dismissal was a result of being a disabled employee. The Court appeared to reject this part of the claim only because the applicant had not led sufficient evidence to establish proof of the claim;
6. that the dismissal was substantively unfair, principally because the employer failed to properly consider the suggestions put in the applicant’s counter-offer to the section 189 letter;
7. that the dismissal was procedurally unfair, principally because “the respondent took the position that the only alternative appropriate measure to avoid dismissal was for the applicant to work full time. This was an unfair and unreasonable demand in view of the applicant’s health condition.”
Accordingly, the Court found that the dismissal was both automatically unfair as well as substantively and procedurally unfair. On a number of occasions the Court stated that it viewed the retrenchment as a sham.
The applicant was awarded the maximum compensation of 24 months and a costs order was made against the respondent.
