CASE NO. JS 511/04 IN THE LABOUR COURT OF SOUTH AFRICA (HELD AT JOHANNESBURG) In the matter between: KHOLIWE MOSES JANDA APPLICANT and FIRST NATIONAL BANK RESPONDENT JUDGMENT D VAN ZYLAJ: [1] The applicant was employed by the respondent as a security officer at the FNB Computer Centre in Randburg. On 29 April 2004 the applicant was suspended from duty and charged with misconduct. It was alleged that he assaulted a co-employee whilst on duty. He was found guilty at a disciplinary hearing and was dismissed on 26 May 2004. His appeal against his dismissal was unsuccessful whereafter the applicant instituted proceedings in this Court claiming
2 reinstatement, alternatively compensation equivalent to 24 months' salary. [2] The applicant's case as set out in his statement of claim is that his dismissal was automatically unfair because the respondent discriminated against him. It is alleged that he was " ... targeted by the management of the respondent for dismissal because ... as staff representative the applicant, inter alia, was instrumental in lodging a complaint with the Department of Labour arising out of the respondent's failure to pay security officers overtime pay in respect of work performed by them on Public Holidays (except Christmas) and weekends." It is further alleged that the respondent treated its black employees more harshly than white employees and, was it not for his race, he would not have been dismissed. The applicant alleges that the respondent's conduct in this regard constitutes an automatically unfair dismissal as contemplated by section 187(1) of the Labour Relations Act 66 of 1995 (the Act), alternatively, section 187(1)(f) of the Act. Section 5(1) of the Act prohibits discrimination against an employee for exercising any right conferred by the Act. Section 187(1) provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5(1). Section 187(1)(f) characterises as automatically unfair a dismissal if; inter alia - “ .the reason for the dismissal is ... that an employer unfairly
3 discriminated against an employee, directly or indirectly, on any arbitrary grounds, including, but not limited to race." [3] In a pre-trial minute the parties agreed that the issue this Court is required to decide is "whether the respondent's conduct amounted to unfair discrimination on racial grounds (as contemplated in s 187(1)(f) of the Labour Relations Act), on grounds of exercising the rights under the LRA (as contemplated in s 187(1) of the LRA) and / or on arbitrary grounds (as contemplated in s 187(1)(f) of the LRA)." The applicant further in the pre-trial minute confined his claim to one based on direct discrimination. In the same minute he accepted that "the applicant must prove the act/s of discrimination" and that the " ... respondent bears the onus of justifying any discrimination so proved by the applicant or proving that no unfair discrimination has taken place." [4] At the trial the applicant accepted the duty to adduce evidence first. After the close of the applicant's case the respondent replied