Dismissal of an employee over an article published in another Country

Jul 11, 2023 | , , , , , | News

In the past week a Judgment of the Cape Town Labour Court caught my attention. From the outset I must give credit to a service that we use for the purposes of providing alerts on cases – Spartan Case Law and specifically their members who provide extensive assistance to a practice such as ours to keep on top of interesting cases that may be relevant for the public.

Employee Dismissed

In this matter a journalist published an interview in a Swedish magazine and the heading of the article read “Farm Workers paying the prize for Cheap South African wine”.  This was accompanied by a photograph of a farm employee Claudine van Wyk holding a pay slip depicting that she earned only R684.00.  Ms van Wyk was dismissed as a result of the article.

The CCMA, on 19 October 2020, had found that her dismissal was procedural and substantively fair.  She approached the Labour Court for a review and setting aside of the CCMA award.

The matter was heard in the Labour Court during June 2021 and two years later, on 21 June 2023, judgement was handed down.

By way of background:

  1. Ms van Wyk was employed by W & E Dreyer Boerdery (DMS) BBK as a contract general farm worker on a fixed term contract for the 2019 harvesting period at R18.00 per hour. She also resided on farm premises where she worked.
  1. W & E Dreyer Boerdery is a wine farm that exports its wine to Europe.
  1. During February 2019 Ms van Wyk was visited by a Swedish journalist who asked for an interview. The interview was conducted in English and Afrikaans.  The interview related to working and living conditions on the farm and photographs of the farm workers were taken by the journalist as part of the interview process.  The interview was conducted openly, in the presence of numerous farm workers who were also interviewed by the journalist.
  1. On 29 August 2019 the journalist published this interview in a Swedish magazine called “Arbetet”.
  1. The content of the article seemed to create the impression that Ms van Wyk was not being paid in accordance with the required statutory minimum wages at the time.
  1. The journalist did not provide Ms van Wyk an opportunity to prove read the content of the article before it was published in the magazine.
  1. W & E Dreyer Boerdery was alerted to the content of the article by Swedish clients who demanded answers, it tarnished its reputation amongst its Swedish clientele and caused it to suffer a financial loss of 380 000 litres of wine.
  1. Subsequently, Ms van Wyk was charged for misconduct, found guilty and dismissed on 15 November 2019.
  1. She then referred an unfair dismissal dispute to the CCMA and sought retrospective re-instatement.
  1. The onus of proving the fairness (procedural and substantive) of the dismissal was the employer.
  1. The CCMA found that Ms van Wyk’s dismissal was procedurally and substantively fair.

In the Labour Court Judgement, Judge R Parker AJ dealt with various aspects, the majority of which relates to the duties of a Commissioner, when a matter can be brought for review in respect of an arbitration award, gross irregularities and grounds for review.  I will not deal with these in great detail, since the content thereof is in accordance with what our Law states.

The one question that arose that I will discuss, is the question of the “causation” test – in other words “the but-for test” and this test is applied in many Labour Appeal Court Judgments.

This question is asked to determine whether there is sufficiently close clausal connection between the Act, or omission and the harm caused.  This question entails an examination of certain further questions, namely:

 

Question 1:     Would Ms van Wyk have been dismissed if the journalist had not published the article?  If the answer is no, then the second question is then one of legal causation.

Question 2:     Was the journalist’s publication of the article the main or dominant reason of the dismissal?

 

In answering the first question:

  1. Cognisance must be taken of certain facts including the arbitration reward, in terms of which Ms Wyk was charged and dismissed for misconduct, and the charge (loosely translated in English) was as follows:

“… damage to the employers’ image by:  The deposition of a false statement and/or version of false information in respect of your compensation during the time 2019, as was published in “ARBETET – Farm Workers paying the prize for cheap South African wine – 11/09/2019 … 

  1. Under oath Ms van Wyk testified that she never gave any false information and this statement was corroborated and confirmed by a witness for Ms van Wyk.
  1. Further, the Commissioner stated in paragraph 27 of the award that:

in deciding the substantive fairness of the applicant’s dismissal I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the code states that an arbitrator must consider:

 

Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not 

  • the rule was a valid or reasonable rule or standard;
  • the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
  • the rule or standard has been consistently applied by the employer and
  • dismissal was an appropriate sanction for the contravention of the rule or standard”.

  1. The Judge noted that if one looks at schedule 8 items 7 of the Code of Good Practice on dismissal it cannot be said that Ms van Wyk contravened a rule or standard, as she did not provide any false information to the journalist who interviewed her – she merely answered all the questions which the journalist posed to her. The journalist interviewed Ms van Wyk was not present at the arbitration to corroborate or confirm any evidence.  The Judge further held in paragraph 39 and 40 of his judgment that:

“[39]  On 19 October 2019, the managing director of the Third Respondent, Mr Jacobus Andreas De Kock received an email communication from the journalist stating the following –

the paragraph you are referring to has since been changed as it was possible to misinterpret. It was never intended to describe the legal specifics regarding Mrs Van Wyk’s employment contract, but rather the distressing situation wherein farm workers find themselves and the lack of other viable employment options they face when they are being replaced by day labourers. 

Furthermore, the paragraph is not a direct quotation from Mrs can Wyk but my words to describe the situation. Any misconception therefore falls on me “. 

[40]    The fact that the journalist misconstrued the information provided by the Applicant, and thereafter published these incorrect facts in an article contained in a Swedish magazine is conduct for which the Applicant cannot be held accountable.”

 

  1. The Court held that the Commissioner also failed to enquire from the employer what rule the employers disciplinary code Ms van Wyk was charged with, whether the rule was a valid or reasonable Rule and/or standard and if Ms van Wyk was aware of the rule or could reasonably have been expected to be aware of the rule.
  1. The Court further held that it must be noted that Commissioners are not expected to merely sit back and allow parties to present their cases and not guide them to the real issues that need to be determent – there will be instances where intervention on the part of the Commissioner would be necessary, whether an adversarial or inquisitorial.
  1. The Court held that with regard to the first question, namely would Ms van Wyk been dismissed if the journalist had not published the article, the answer is no.

 

Therefore, in respect of question two as to whether the journalist’s publication of the article was the main dominant reason for Ms van Wyk’s dismissal, and applying the aforesaid “the but-for test”, then the answer is yes, if it had not been for the publication of the article, Ms van Wyk would have not been dismissed and would still be in the employ of the employer.

The Court held that the commissioner’s decision was not rational and that no reasonable Commissioner could in the proper exercise of his duties and functions have made that award.

The Court therefore concluded that the Commissioner erred and that, that error amounted to a gross irregularity in the conduct of the proceedings.

As such, the Court ordered that the review application was granted, that the arbitration award was set aside, that the matter was referred back to the CCMA for adjudication by another arbitrator and that no order as to costs were awarded.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:

Michele Engela

Michéle Engela

Michéle Engela is a director at CK Attorneys.

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