Issue: Whether the dismissal of the applicants amounted to an automatically unfair dismissal on the basis of gender.
In the case of NUMSA and Others v High Goal Investments CC t/a Chuma Security Services (C844-15)  ZALCCT 34 (18 October 2016) the applicants, who were female security guards, were dismissed by the respondent (‘Chuma’), allegedly for operational requirements. In particular, Chuma’s client requested it employ fewer female security guards and more male security guards. It was alleged that there had been an increase of crime on sites and Chuma’s client did not want female guards deployed in dangerous areas. The applicant’s challenged their dismissal as automatically unfair as contemplated in section 187(1)(f) of the Labour Relations Act 66 of 1995 (‘LRA’). That is, they alleged they had been dismissed for being women.Section 187(1)(f) of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to gender.
Furthermore, section 188(1) states that a dismissal that is not automatically unfair, is unfair if the employer fails to prove:
• that the reason for the dismissal is a fair reason;
1. related to the employee’s conduct or capacity; or
2. based on the employer’s operational requirements; and
• that the dismissal was effective in accordance with a fair procedure.
In effect, the dismissal of the applicants took place due to the request of the third party that fewer female employees be deployed.
Having regard to the judgment of East Rand Proprietary Mines Ltd United People’s Union of SA (1996) 17 ILJ 1134 (LAC), the Court held that “an employer may dismiss at the behest of a third party, but it truly must have no alternative to the dismissal.” In other words the test is one of strict necessity.
The Court reiterated the ruling of Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC) which set out the principles which an employer must follow when faced with a demand for the dismissal of an employee by a third party. The requirements as quoted from the judgment are:
• “The mere fact that a third party demands the dismissal of an employee would not render such dismissal fair;
• The demand for the employee’s dismissal must usually enjoy a good and sufficient foundation. Where it impinges upon the fundamental rights of the employee in terms of the Constitution special considerations need to be taken into account in determining whether it enjoys such a foundation;
• The threat by a third party to impose a sanction must be a real one. The employer should, therefore, initially, assess the reality of the threat. If the prospects of the threat being implemented are not real, the employer should ignore the demand, subject thereto that circumstances may change as matters develop;
• The employer should assess the probable effect of the sanction threatened by the third party;
• The mere fact that a dismissal would ensure continued smooth commercial operation is not sufficient to justify termination of employment. It must be the case that the dismissal is the only option that is fair to both the employer and the employee;
• The employer should make reasonable endeavours to dissuade the party making the demand for the dismissal of the employee from persisting therein;
• The employer should properly investigate all alternatives to dismissal;
• The employer must consult properly with the employee and afford him or her the opportunity to make representations;
• It is incumbent on the employer to ensure that the employee is aware that non-acceptance by him of an identified reasonable alternative or alternatives would, or could, result in his dismissal;
• In all its deliberations the employer must properly consider the extent of the injustice to the employee that would be occasioned by a dismissal; and
• Relevant to the consideration of injustice to the employee would be the question whether any objectively blameworthy conduct on his part gave rise to the demand for his dismissal.”
In this case, the Court also had to decide whether the dismissal of the femal security guards was automatically unfair. In do so the Court had regard to the fact that the applicants, being female, were dismissed to make way for male security officers. The Court held that Chuma was alive to the fact that the demand by the third party contravened equality laws, yet Chuma made no efforts to dissuade the third party to drop its demands. Chuma also did not conduct an investigation into the allegations that there had been an increase in crime due to the deployment of female security guards. Furthermore, Chuma failed to find alternative positions for the female security guards. In the circumstances, there was no reasonable justification for the dismissals, and they were found to be substantively unfair.
The Court also found the dismissals procedurally unfair as there was no consultation process with the applicant’s representatives, NUMSA. Chuma argued that it followed a consultation process with SATAWU because all the affected employees were members of SATAWU. Their reason for thinking this was because SATAWU was deducting subscriptions from the employees’ salaries. However, Chuma ought to have known that NUMSA was the correct trade union because in November 2014, they entered into a settlement agreement with NUMSA wherein Chuma undertook to effect subscriptions in favour of NUMSA.
The dismissals were also procedurally unfair because the decision to retrench was presented as a fait accompli. In essence, by the time that Chuma engaged with SATAWU, the decision to retrench had already been made, and thus the consultation process was merely a formality.
Importance of this caseWhile it is possible to dismiss employees at the request of a third party, there are a number of steps which must be taken before doing so. As a rule, the dismissal of employees at the behest of third parties will only be regarded as fair in rare circumstances.
In addition, other factors also come into play such as whether the dismissal would still be regarded as an automatically unfair dismissal and whether there had been compliance with section 189(3).
Andre Van Heerden is the Senior Associate and Jacques van Wyk is the Director at Werksmans Attorneys.