Zuma / Chubb SA
(2010) 19 CCMA 8.14.3
|Reported in IR Network
||(2010) 19 CCMA 8.14.3
||20 December 2010
||Commission for Conciliation, Mediation and Arbitration
||Substantive Fairness in Dismissal Negligence
substantive fairness in dismissal - negligence - breach of rules – applicant picking up passengers and driving through red robots in attempt to escape from manager – dismissal fair
The applicant, a reaction officer, was dismissed after his vehicle was observed by his operations manager outside the area to which the applicant was assigned, then picking up unauthorised passengers and driving recklessly. The applicant claimed that while he was patrolling his designated area, a vehicle had flicked its lights behind him and he had taken evasive action to avoid being hijacked. He denied he had picked up passengers.
The commissioner noted that, while it was unclear whether the applicant was inside or outside his designated area at the time, his car had been captured on videotape, which clearly showed two female passengers getting into it. The vehicle had proceeded without its lights on, and had skipped three red robots while pursued by the operations manager. The applicant should have known that the car flicking its lights behind was his manager, and had masked his vehicle’s internal camera to ensure that the presence of passengers was not detected.
The applicant’s dismissal was upheld.
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre
(2010) 19 LC 8.29.2
|Reported in IR Network
||(2010) 19 LC 8.29.2
||JS178 / 09
||15 February 2011
||Labour Court, Johannesburg
||Substantive Fairness in Dismissal
Automatically unfair dismissals
Substantive Fairness in Dismissal - Automatically unfair dismissals - Discrimination on grounds of HIV status – dismissal automatically unfair
The respondent was the developer of a residential estate, on which was located an equestrian centre. The applicant was appointed to a position at the centre in 2008. Just over a week after his appointment, he was required to complete a form listing his personal details. Information was required regarding his allergies and chronic medication. The applicant listed asthma, deep vein thrombosis and HIV as his illnesses, and also listed six allergies and four types of chronic medication, two of which were anti-retrovirals. That led to an altercation with his manager who dismissed him. His notice of dismissal listed the reason as fraudulent misrepresentation in that the applicant had indicated at his interview that his health was excellent.
Seeking relief against the respondent, the applicant contended that this dismissal was automatically unfair, in that it was based on his HIV status. In a second claim, he sought relief arising from unfair discrimination on the grounds of his HIV status as proscribed by section 6(1) read with section 50(2)(b) of the Employment Equity Act 55 of 1998.Held
that the legal prohibition against unfair discrimination in the workplace derives from the equality right enshrined in section 9 of the Constitution of the Republic of South Africa Act 108 of 1996. The Labour Relations Act 66 of 1995 renders a dismissal for a discriminatory reason automatically unfair unless it can be justified on the grounds of inherent job requirements. Section 187 requires the applicant to make out a prima facie case that the dismissal was on a prohibited ground. Once the applicant discharges this evidential burden the onus is on the employer to prove that the dismissal was not for a prohibited reason. If the employer fails it would then have to raise an alternative defence that although the dismissal was on a prohibited ground and therefore discriminatory, it was nevertheless justified by an inherent requirement without which the employee could not perform the essential job requirements. In the present case, the dismissal was common cause, and only the reason therefore was in dispute.
The court accepted on the evidence before it that the applicant had no medical or physical impediment preventing him from performing his duties. The applicant had been living with HIV for 18 years. The reason for his dismissal by the respondent was found to be the non-disclosure of his HIV status.
The applicant was under no legal obligation to disclose his HIV status to his prospective employer and the expectation that he should have disclosed same violated his right to dignity and privacy.
The applicant’s dismissal was declared to be automatically unfair under section 187(1)(f). The respondent was ordered to pay the applicant compensation in the sum of twelve months’ remuneration, reflecting both restitution as well as a punitive element for unfair discrimination on the grounds of HIV status.
To be announced.
Customised In-house Courses
Did you know that our courses can be customised to suit your requirements?
If you have 15 or more delegates we can conduct an onsite workshop specifically designed to meet your needs at a reduced cost. Speak to your Labour Training Division consultant or call us on 031 268 3505.