It is difficult to maintain a working environment in which are free of conflict. Usually, this conflict can be resolved. It is recommended that an employee should file a grievance if a situation arise in which the employee feels that they are being treated unfairly by another employee.
Unfortunately, in some instances, fabricated grievances and false accusations had been very effectively used as a tool to get rid of unwanted or disliked colleagues. The author, Terry Goodkind, explained in the book ‘The Wizard’s First Rule’, the reason as to why people are so gullible at times, is because people “will believe a lie because they (either) want to believe it’s true, or because they are afraid it might be true”. Unfortunately, this notion seems to rang true during this era known for its false news.
FALSE REFERRALS TO CCMA
The CCMA deals with over 150 000 cases every year. The latest information indicates that employees may win as much as 60% of cases referred for arbitration. This leaves about 40% of cases where employees could not effectively back up their version of events. This does not automatically mean that when an employee loses their case that they had fabricated their version of events. It merely means that on a balance of probability, the employer had acted unfairly.
Unfortunately, at times, bringing a false claim against an employer could be quite lucrative. The Labour Relations Act had placed the onus of proof regarding to the fairness of a dismissal squarely on shoulders of the employer. As such, there may be employees (hopefully in the small minority) who bring cases against employers due to vindictiveness based on some unrelated matter or because they would rather extort money out of employers at the CCMA than earn their money honestly. Fortunately, the Labour Relations Act also allows for the penalizing for referring frivolous or vexatious cases. Frivolous means trivial or insignificant. Vexatious means annoying and groundless. In such cases the employee can be ordered to pay part of the employer’s legal costs. This notion was supported in both Simane vs Coca-Cola Furtune vs (2006, 10 BALR 1044) and in Ndwalane vs The Magic Company (Pty) Ltd (2006, 5 BALR 497) where the CCMA awarded costs against an employee for willingly referring a case base on fabrication.
FALSE ALLEGATIONS:
In the recent case of National Union of Metalworkers of South Africa obo Baloyi and Others v O-Line (Pty) Ltd (2019) 28 CCMA the CCMA ruled against the employees when they claimed that their CEO made a racist comment against them. The company had held a disciplinary hearing during which the employees were charged with deliberately supplying incorrect and/or falsified information regarding the CEO’s statements to the employees. The employees were found guilty and subsequently dismissed. The case was referred to the CCMA, where the Commissioner ruled in favour of the employer. The commissioner held that on a balance of probabilities, the employees were guilty of making false allegations.
In another case, DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZA LAC 26 the Labour Appeal Court (“LAC“) had to consider an issue about an employee which had been dismissed for lodging a false grievance. The Labour Court held that the dismissal was automatically unfair as the referral of a grievance was considered a right as contemplated in section 187(1)(d) of the Labour Relations Act (LRA). Therefore, since the employee had been dismissed as a direct result of lodging a grievance, the dismissal had been considered automatically unfair. Fortunately, the Labour Appeal Court disagreed.
The LAC indicated that legal causation is established where the reason provided was the main, dominate, proximate or most likely cause of the dismissal. In this case, the reason refers to the lodging of a grieving. The LAC disagreed with the Labour Court in that it indicated that the right to file a grievance is not provided for by the LRA but is rather based in contract. It is derived from “grievance procedure incorporated as part of the implied terms of the individual contract of employment”. Therefore, merely filing a grievance is not necessarily protected by Section 187(1)(d) of the LRA.
Even if it is established that a right in terms of the LRA was exercised, it would still need to be established that the dismissal was due to the employee taking action or the intending to take action against the employer prior to the dismissal and that such ‘pre-dismissal action’ was the real reason for the dismissal.
The LAC held that section 187(1)(d) of the LRA is not concerned with the filing of a grievance. A request by an employee to discipline a fellow employee for an alleged misconduct does not fall within the ambit of the conduct contemplated in section 187(1)(d). Should there be evidence to prove that an employee was dismissed for filing a legitimate grievance, the dismissal would amount to an unfair dismissal as it would be for a substantively unfair or invalid reason. The LAC found that on the facts, no automatically unfair dismissal had occurred, and the LAC upheld the appeal.
The importance of the above-mentioned case is that it lays the groundwork, that employers may dismiss an employee for submitting false allegations or false grievances. However, it is still very important to determine all the facts of the matter, and to use dismissal only as a last resort.
