Shirley Simmadari v Absa Bank Limited

The applicant, Ms Shirley Simmadari, brought two consolidated claims against her former employer, Absa Bank Limited. The first was a claim of unfair discrimination in terms of sections 6, 10, and 50 of the Employment Equity Act (EEA), and the second was a claim of automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act (LRA). Both claims were based on allegations of race discrimination. The applicant claimed she was dismissed for pursuing transformation and alleged that she was treated differently compared to her white colleagues (particularly a Mr Spangenberg) who were allegedly allowed to retire without facing disciplinary charges. The applicant alleged she was victimized and harassed because she was black and was spearheading transformation. Absa dismissed the applicant for gross misconduct, including harassment and bullying of subordinates (referring to individuals as "monkeys", making inappropriate gifts, threatening jobs), and making racist, ageist and inappropriate comments (referring to management as "old white men who do not know what they're doing" and "oxygen thieves", making references to "old white men and old age homes", and comments about "boere"). The matter was set down for a five-day trial. A week before trial, the applicant indicated she wished to call 20 witnesses. Absa raised a point in limine regarding jurisdiction and an exception to the statement of claim.

• Whether an employee can pursue dual claims under the Employment Equity Act section 10(1) and the Labour Relations Act section 187(1)(f) arising from the same facts
• Whether section 10(1) of the EEA excludes automatically unfair dismissal disputes from adjudication under the EEA
• Whether the Labour Court has jurisdiction to hear both an unfair discrimination claim under the EEA and an automatically unfair dismissal claim under the LRA when consolidated
• Whether the applicant's statement of claim disclosed a valid cause of action for unfair discrimination under the EEA
• Whether the applicant's statement of claim disclosed a valid cause of action for automatically unfair dismissal under the LRA
• Whether the applicant established the necessary causal link between differential treatment and the prohibited ground of race
• Whether an applicant can rely on her own inaction (failure to discipline a subordinate) to establish discrimination by the employer

1. The first point in limine is dismissed. 2. The exception relating to both claims is upheld. 3. The applicant's claims in case numbers C 728/2016 and C 124/2017 are dismissed with costs.

1. Section 10(1) of the EEA excludes disputes about automatically unfair dismissal from adjudication under the EEA alone, requiring such disputes to be referred under Chapter VIII of the LRA. However, this does not preclude an employee from pursuing dual claims under both the EEA (for unfair discrimination) and the LRA (for automatically unfair dismissal) in a single consolidated action, provided both disputes have been properly conciliated. 2. To establish a valid cause of action for unfair discrimination under the EEA, an applicant must plead and prove: (a) that there was differentiation; (b) that the differentiation amounted to discrimination; (c) that the discrimination was unfair; and critically, (d) a causal link between the differential treatment and a listed or analogous ground of discrimination. Mere allegation of discrimination is insufficient. 3. An applicant in a discrimination claim must identify a comparator and establish that differential treatment was because of (caused by) the prohibited ground, not merely coincident with it. The coexistence of race and differentiation does not, on its own, establish discrimination. 4. An employee cannot rely on her own inaction or failure to exercise discretion (such as failing to discipline a subordinate over whom she had authority) to establish an employer's discrimination. 5. For an automatically unfair dismissal claim under section 187(1)(f) of the LRA, the applicant must establish both factual and legal causation - that the prohibited ground was a sine qua non for the dismissal and was the proximate cause of the dismissal.

1. The Court observed that where dual claims are successful under both the LRA and EEA, courts should not award separate compensation under each Act but should determine what is just and equitable for the indignity suffered, taking into account various factors. This avoids "double dipping" and ensures the employer is not penalized twice for the same wrong. 2. The Court noted that the applicant had three opportunities to amend her statement of claim, and allowing further amendments would only lead to more delays and unnecessary costs given the fatal flaws in the pleadings. 3. The Court commented on counsel's late filing of a practice note indicating 20 witnesses would be called (filed only a week before the five-day trial), which made it clear the trial would not be finalized in the allocated time. 4. The Court made an observation about the unusual situation where counsel claimed in his practice note to be briefed by attorneys who had never come on record, when all previous pleadings had been signed and delivered under the name of his own legal practice. 5. The Court emphasized the importance of exercising discretion to hear preliminary points that can dispose of matters and eliminate avoidable delays and costs, consistent with the LRA's objectives of expedient dispute resolution.

This case clarifies important principles regarding dual claims under the EEA and LRA in South African employment law: 1. It confirms that employees may pursue dual claims for both automatically unfair dismissal (under section 187(1)(f) of the LRA) and unfair discrimination (under the EEA) arising from the same facts, provided both disputes have been properly conciliated and the claims are consolidated. 2. It interprets section 10(1) of the EEA as excluding automatically unfair dismissals from being adjudicated solely under the EEA (they must be referred under Chapter VIII of the LRA), but does not prevent dual, consolidated claims. 3. It reinforces the principle from Hibbert that while dual claims are permissible, courts should avoid "double dipping" in compensation awards and should determine a single just and equitable amount considering all circumstances. 4. It emphasizes the pleading requirements for discrimination claims, particularly the necessity of: (a) identifying a proper comparator; (b) establishing a causal link between differential treatment and a prohibited ground; and (c) alleging facts that, if proven, would establish discrimination as legally defined. 5. It demonstrates the Court's willingness to use its discretion to decide preliminary points before trial where this can dispose of the matter and avoid unnecessary costs, consistent with the LRA's objectives of expedient dispute resolution.