Supercare Services Group (Pty) Ltd v Whitenear-Nel NO and Others (D478/14) [2016] ZALCD 24 (16 November 2016)

Key Facts

Issues

• The court evaluated whether the Applicant's suspension and disciplinary procedures against the Third Respondent constituted an unfair labour practice. The Commissioner found numerous breaches of the disciplinary code, including lack of proper authority for suspension, failure to inform the employee of reasons, and delays in proceedings without justification. The Third Respondent's claim of unfair suspension was upheld, with the court concluding the Commissioner's determination was reasonable and not flawed. The suspension's psychological and reputational impact on the employee was also considered.
• The court examined whether the Commissioner had jurisdiction to address the Third Respondent's claim as an unfair labour practice, given the Applicant's argument that the dispute fell under the Employment Equity Act's discrimination and harassment provisions. The court referenced the case National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another, emphasizing that the true nature of the dispute, not its labeled form, determines jurisdiction. The Applicant contended the Third Respondent's referral to the CCMA on 5 March 2014 was about discrimination, not suspension, but the court found the Commissioner correctly addressed the unfair labour practice as presented.
• The Applicant argued the Commissioner's award of four months' salary in compensation was excessive. The court found the Commissioner's reasoning valid, as the relief addressed non-financial prejudice (reputation, dignity, job security) caused by the unfair suspension. The Commissioner emphasized solatium to deter future violations and ensure fairness, which the court deemed an appropriate and executable remedy. The Applicant's submission that the suspension was precautionary and short-lived was not persuasive to the court.

Holdings

• The court upheld the Commissioner's jurisdiction to address the unfair labour practice, noting the Third Respondent's consistent framing of the dispute as such in referral documents, the certificate of outcome, and the award. The Commissioner correctly focused on the suspension's fairness despite initial harassment claims.
• The Commissioner determined the precautionary suspension was unfair as the employer lacked an objectively justifiable reason to exclude the employee from the workplace. Pressure from Treverton did not justify the suspension, and the employer's belief in serious misconduct was unreasonable.
• The Commissioner found that the Applicant's disciplinary code was peremptory, and there were numerous serious breaches, including failure to issue suspension by an authorized person, lack of proper notice, and procedural delays. These breaches rendered the suspension procedure unfair.
• The Commissioner concluded that the unfair suspension caused significant non-financial harm to the employee, including damage to reputation, dignity, and job security. The employee experienced psychological scarring, embarrassment, and humiliation.
• The Commissioner awarded four months' salary in compensation, recognizing that non-patrimonial losses (e.g., psychological impact) warrant solatium to address the wrong suffered and deter future violations. Financial loss was not the primary basis for compensation.

Remedies

• The Commissioner awarded four months' salary in compensation to the Third Respondent, recognizing non-financial losses such as psychological scarring, embarrassment, and humiliation caused by the unfair suspension.
• The Applicant was ordered to pay the costs of the proceedings, as the court dismissed the review application and found the Commissioner's award to be appropriate.

Legal Principles

• The court concluded that the Applicant must pay the costs of the review application, as the application was unsuccessful and the Commissioner's decision was upheld. This reflects the application of costs principles in legal proceedings where the unsuccessful party bears the financial burden.
• The court applied the principle of substance over form in determining the true nature of the dispute between the parties. It held that a Commissioner is not bound by the labels given to a dispute by the parties but must look at the substance of the dispute as reflected in communications and evidence. The court emphasized that the real issue in dispute is determined by its substance, not the form in which it is presented.

Precedent Name

• SA Post Office Ltd v Jansenvan Vuuren No and Others
• Fedlife Assurance Ltd v Wolfaardt
• National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another
• CUSA v Tao Ying Metal Industries and Others

Cited Statute

• Employment Equity Act
• Labour Relations Act

Judge Name

Passage Text

• The Commissioner found that the prejudice which an employee suffered as a result of an unfair suspension went beyond financial loss as it negatively impacted on an employee's reputation, dignity and job security. Suspension was a measure with serious negative consequences for an employee. The Commissioner accepted the evidence of the Third Respondent that the employee went through a psychologically scarring, embarrassing and humiliating experience as a result of the suspension.
• It is the duty of court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a court must look at the substance of the dispute and not at the form in which it is presented. The label given to dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA) before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. It is also important to bear in mind that parties may modify their demands in the course of discussing the dispute or during the conciliation process. All of this must be taken into consideration in ascertaining the true nature of the dispute.
• The Applicant has contended, inter alia, that on 1 December 2013, the Third Respondent stated that his suspension was uplifted on 15 November 2013. From that, the Applicant said that it should have been the end of the matter. I do not agree. Nowhere in this statement does the Third Respondent concede that the suspension was fair or that he accepted it on any other ground. It remained open to him to challenge it as he subsequently did.