[1]
The respondent, who was employed by the appellant (the company) for about 15 years, was dismissed
for assaulting his immediate supervisor. After protracted proceedings brought by the respondent to contest the fairness of his dismissal
his claim was upheld by the Labour Court, which ordered that he be reinstated. An appeal by the company to the Labour Appeal Court
(Zondo JP, Nkabinde and Davis AJJA) was not successful (except in a limited respect that is not material for present purposes). The
company now applies for leave to appeal to this court. The judges who considered the petition referred it for oral argument with directions that the parties prepare to argue the merits of the appeal if called upon to do so. The respondent, apparently for
lack of funds, was not represented before us.
[2]
There is some dispute concerning the details of the incident that gave rise to this matter but for
present purposes I will accept the evidence that was tendered on behalf of the company. One afternoon the service manager, Mr van
Rooyen, who was the respondent’s immediate supervisor, while driving onto the premises of the company, accidentally drove over
the respondent’s foot. Van Rooyen proceeded to drive a further twenty or so metres where he parked his vehicle. He alighted,
called out an apology to the respondent, and proceeded to his office. He sent another staff member to enquire whether the respondent
had been injured and it was reported to him that he had not.
[3]
The respondent was aggrieved at what he thought to be Van Rooyen’s indifference to what had
occurred. The following morning Van Rooyen was walking to the service department when he encountered the respondent and another employee.
He greeted the respondent who responded with a vulgarity. Van Rooyen replied ‘the same to you’ and turned away to walk
to his office. The respondent approached Van Rooyen from behind and kicked him in the small of his back, whereupon Van Rooyen turned
around, and the respondent threw a punch in his direction that grazed him on the shoulder. Van Rooyen reported the matter to one
of his seniors, a disciplinary enquiry was held, and the respondent was dismissed.
[4]
Had that been all that occurred the dismissal of the respondent ought not to have been exceptionable.
Assaults at the workplace are unacceptable and will generally justify immediate dismissal. (The company’s disciplinary code expressly provided for that sanction.) However, some two years earlier the respondent had
himself been the victim of an assault, which had not resulted in his assailant being dismissed, and he was aggrieved at what he considered
to be unequal treatment.
[5]
According to the respondent the earlier assault occurred after Mr Ferreira, who was at the time
a salesman employed by the company, accidentally struck the respondent on the elbow with a metal pipe. The respondent reacted with
a vulgarity whereupon Ferreira punched him. The two then came to grips and wrestled until the respondent slipped and fell to the
floor. Ferreira struck the respondent’s head on the floor, breaking his teeth, and the two were then separated by another employee.
[6]
It is not disputed that the respondent did not lodge a formal complaint to management in consequence
of the assault upon him by Ferreira and accordingly no disciplinary enquiry was held. (Why the respondent failed to do so is in dispute
but that is not material.) Instead it was Ferreira who complained. He wrote to Van Rooyen lodging what he called a ‘formal
complaint against [the respondent] for verbal and racial abuse’. The matter was not investigated further but Ferreira was given
a warning and there the matter ended.
[7]
The Labour Appeal Court found that the disparate treatment of Ferreira and the respondent respectively
was unjustified, which, by itself, would ordinarily have justified a finding that the dismissal of the respondent was unfair. However the court (in separate judgments of Nkabinde AJA with whom the remaining members concurred, and of Zondo JP with whom Nkabinde
AJA concurred) went on to find that the dismissal of the respondent was automatically unfair (as contemplated by s 187(1)(f) of the
Labour Relations Act 1995) because the disparate treatment was racially based.
[8]
Discrimination against an employee on the grounds of race or other arbitrary grounds clearly has
no place in employment practices, quite apart from being unlawful. But while a court must be vigilant to ensure that that does not occur, equally it must be wary of
concluding too hastily that an employee has been discriminated against on grounds of race merely because disparity of treatment coincides
with racial disparity.
[9]
There seems to be some uncertainty in the labour courts as to where the burden lies of establishing
that the reason for a dismissal either was or was not discriminatory but it is not necessary to resolve that question in the present case. In the present case the Labour Appeal Court reached its conclusion
as a matter of inference from the established facts. Quite simply, it reasoned that because there was disparity of treatment that
was not justified it followed axiomatically that the company discriminated against the respondent on the grounds of race.
[10]
That reasoning is unsound. Whether an employer has discriminated against an employee on the grounds of
race (or on any other arbitrary ground) is a question of fact (whether the discrimination was unfair is a separate question). Where
the evidence establishes, as it does in this case, that the employer treated employees differently on grounds other than race, there
is simply no scope to infer that the employee was discriminated against on the grounds of race, because the reason for the disparate
treatment has been established to be something else. That the differential treatment was not justified is immaterial to the factual
enquiry as to the reason that it occurred. In this case the company said that its disparate treatment of the two employees (Ferreira was white and the respondent is black)
was because a formal complaint was lodged by the victim of the assault in one case but not in the other. Unless that explanation
is rejected as no more than a smokescreen to conceal a more sinister motive (and in my view there are no proper grounds for doing
so) there is simply no scope for an inference to be drawn that conflicts with that explanation.
[11]
Had the order that was made by the Labour Appeal Court been dependent only upon that finding of racial
discrimination it might well have constituted sufficient reason for this court to interfere. But I think it is apparent from the
reasoning of that court that even had it not found that the dismissal was automatically unfair (on the grounds of racial discrimination)
the Labour Appeal Court would in any event have found that the disparity of treatment alone rendered the dismissal unfair. Bearing
in mind the test for leave to appeal to this court as it was articulated in Fry’s Metals, I do not think that good grounds have been shown for this court to entertain an appeal from that value judgment, which is peculiar
to the particular circumstances, and raises no matter that is ‘objectively of such importance to the parties or the public
that special leave should be granted’.
[12]
Accordingly the application for leave to appeal to this court is refused.
__________________
R.W. NUGENT
JUDGE OF APPEAL
CONCUR:
SCOTT JA)
FARLAM JA)
JAFTA JA)
MAYA JA)
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