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[2020] ZALAC 11
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Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; (2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA15/18
In the matter between:
BULELWA
SAMKA Appellant
and
SHOPRITE CHECKERS
(PTY) LTD First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
COMMISSIONER ELRIDGE
EDWARDS NO Third
Respondent
Heard:
25 February 2020
Delivered:
18 May 2020
Summary: Unfair
discrimination based on race – scope of the applicability of
s60 of the EEA limited to conduct of an employee
towards fellow
employee/s - s60 does not extend to conduct of third party towards
employee/s- consequently employer not committing
unfair
discrimination as a result of third party’s action towards its
employee/s.
Unfair discrimination
on arbitrary ground – applicant bearing the onus to prove that
he/she victim of unfair discrimination
- failing to adduce
evidence does not bring allegation within the confine of the EEA.
Coram: Davis and
Sutherland JJA and Murphy AJA
JUDGMENT
DAVIS JA
Introduction
[1]
This case primarily concerns the question
of whether an employee can hold an employer liable in terms of s 60
of the Employment
Equity Act 55 of 1998 (‘EEA’) for
discrimination perpetrated by a customer against the employee on the
grounds of the
latter’s race. A further question concerns
whether the first respondent (‘the employer’) had
unfairly discriminated
against the appellant (the employee) by
subjecting her to bullying and discrimination.
[2]
The appellant was employed by first
respondent at its Fish Hoek branch and commenced the employment on 3
March 2016. She was employed
as a PT cashier. There is some
uncertainty as to precisely the scope of the responsibilities of a PT
cashier, but, from the evidence,
it appears that she enjoyed the
benefits of a full time cashier such as probation period, retirement
benefits and various rights
to leave including sick leave, maternity
leave and annual leave.
[3]
According to appellant, a white woman
customer, Mrs Price approached her to pay for goods and to draw cash
at her till. Mrs Price
arrived at the till because the controller
(referred to in the record as Nomfundo) did not have the R600 in her
till which the
customer required. According to the evidence given by
appellant, the following then occurred:
‘
Ma’am,
you would like to draw R600.00? And the customer said, Nomfundo was
gone, the customer was at my till now, I didn’t
say, the
customer said I didn’t say R600.00, I said R1 000.00. I
said I want R1 000.00, are you stupid, because I said
I want R1 000,
00. And she started becoming aggressive and I said, no Ma’am,
the only thing that I was told by my Controller
was that you need a
R600.00, not R1 000, 00. In any case, I do have R1 000.00 for
you, I will give it to you. Then
I took her card and drew the
R600.00 and I gave it to her.
…
And she said I want the
R1 000.000, I’ll give you this card for the R1 000.00. I
didn’t say I want R1 000.00 on
this Shoprite card. I said
I wanted to pay R600.00 on the Shoprite card. It was a bit of a
confusion, but I just calmed
myself down, because I could see and the
customer was angry, was upset, I calmed myself down.
…
And that was after
Nomfundo left that the customer said I don’t even know why you
sitting there. I don’t know
what you doing there, you
should go back, because you are so stupid. You are stupid.
And I said, Ma’am,
we assisted you and we did what you required
us to do. And I don’t understand now why, what is the
reason for you to
keep calling me stupid. She said you are
stupid. You are a stupid kaffir. That is what you are, I
don’t
know why you are sitting there, you don’t know what
you are doing there, you should go back to missionary.’
[4]
According to evidence adduced by the first
respondent, Mrs Price had provided the store with her contact details
and indicated that
she was willing to participate in any
investigation which followed upon the alleged incident. She was
however not called to testify
by the first respondent. Furthermore,
according to appellant when she spoke to both Mr Herman Beyleveld,
the branch manager at
Shoprite Fish Hoek, and Diane Roberts, the
stock administrator, she was offered no assistance or understanding,
notwithstanding
her obvious distress at the verbal assault that she
had reported to them.
[5]
According to appellant, Roberts adopted the
view that Mrs Price was a regular shopper who had patronised the
store for at least
30 years, she knew that this customer would not be
rude to the appellant and further ‘she pays your salary’.
Under
cross-examination, this phrase was also put to Mr Beyleveld who
said ‘I mean that sounds like something I would say that the
customer pays our salary and we should not engage in an argument with
the customer’. The lack of reaction by Mr Beyleveld
and Ms
Roberts induced the appellant to take her case to the CCMA. The third
respondent who heard the dispute, on behalf of the
CCMA, held in
favour of the appellant, concluding that ‘the approach adopted
by Roberts and Beyleveld in respect of the Price
incident was
insufficient to address the racist abuse that the applicant suffered
and that amounts to indirect racial discrimination.’
Accordingly, he found that the respondent had contravened s 6 (1) of
the EEA.
[6]
The first respondent approached the Labour
Court on appeal in terms of s 10(6) of the EEA against this order.
The court
a quo
posed the question for determination thus: could the first respondent
be held liable for the racist utterances of a customer as
opposed to
an employee? On the basis of the clear language of s 60 of the EEA,
Steenkamp J, sitting in the court
a quo
,
held that it could not, in that the section envisaged that, if an
employee while at work discriminates against another employee,
the
employer is liable if it does not take the necessary steps to
eliminate the racist conduct. By contrast, the provision could
not be
extended to hold that an employer was liable for the conduct of a
customer which was directed towards an employer.
Appellant’s case
on appeal
[7]
The essence of the appellant’s case
on appeal was that, the EEA applies where an employer fails to
provide a protective work
environment for an employee who has
persistently claimed unfair discrimination in the workplace or fails
to take active steps to
address a complaint of racist verbal abuse of
the employee even by a customer. In such a case, the employer would
have failed to
promote the achievement of equality in the workplace.
The first respondent, by virtue of its failure to provide the
necessary protective
environment; facilitated the impairment of the
human dignity of the appellant. In the view of appellant’s
counsel,
the third respondent had correctly found that indirect
unfair discrimination on the grounds of race had been committed by
first
respondent present and that an order for compensation was
appropriate in the circumstances.
[8]
The key to the appeal turns on the scope of
s 60 of the EEA, to which I now turn.
The EEA
[9]
Section 60 provides thus:
‘
(1)
If it is alleged that an employee, while at work, contravened a
provision of this Act, or
engaged in any conduct that, if engaged in
by that employee’s employer, would constitute a contravention
of a provision of
this Act, the alleged conduct must immediately be
brought to the attention of the employer.
(2)
The employer must consult all relevant parties and must take the
necessary steps to
eliminate the alleged conduct and comply with the
provisions of this Act.
(3) If the employer fails
to take the necessary steps referred to in subsection 2, and it is
proved that the employee has contravened
the relevant provision, the
employer must be deemed also to have contravened that provision.
(4)
Despite subsection (3), an employer is not liable for the conduct of
an employee if
that employer is able to provide that it did all that
was reasonably practicable to ensure that the employee would not act
in contravention
of this Act.’
[10]
Section 6 (1) of the EEA is also relevant:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or on any other
arbitrary ground.
[11]
The wording of s 60 makes it clear that the
EEA applies when there is a contravention by an employee who is
defined in s 1 of the
EEA as:
‘
any
person other than an independent contractor who –
(a)
works for another person or for the State
and who receives or is entitled to receive, any remuneration; and
(b)
In any manner assists in carrying on or
conducting the business of an employer.
’
[12]
In
Mokoena and
another v Garden Art (Pty) Ltd and another
[2007] ZALC 90
;
[2008] 5 BLLR 428
(LC) at para 40, the Labour Court set out the
requirements for the application of s 60 thus:
‘
1.
The conduct must be by an employee of the employer.
2.
The conduct must constitute unfair discrimination.
3.
The conduct must take place while at work.
4.
The alleged conduct must immediately be brought to the attention of
the employer.
5.
The employer must be aware of the conduct.
6.
There must be a failure by the employer to consult all relevant
parties, or to
take the necessary steps to eliminate the conduct or
otherwise to comply with the EEA, and
7.
The employer must show that it did all that was reasonably
practicable to ensure
that the employee would not act in
contravention of the EEA.’
[13]
This approach follows the express wording
of the section. The applicability of s 60 is expressly confined to an
employee as defined
in s1 of the EEA. It is to upon this section that
appellant must base a viable cause of action. There is, however, no
plausible
basis to engage in interpretive moves to extend the scope
of this provision which is clearly and unambiguously confined to
specific
relationships between employers and employees.
[14]
That s 60 of the EEA applies
exclusively to employees makes manifest good sense in that an
employer exercises authority over an
employee but none over a
customer. An employer has no control over how a member of the public
might behave in entering a store
such as that own by the first
respondent. It is difficult to see how such a cause of action could
be implemented,
that
is to hold an employer liable to its employee for the action of a
customer which is directed at the employee.
[15]
The appellant is not without a remedy. She
is entitled to launch a delictual claim against the customer and she
could pursue an
unfair discrimination claim against the same customer
in the Equality Court in terms of the Promotion of Equality and
Prevention
of Unfair Discrimination Act 4 of 2000. =But what she
cannot do is to bring a case against her employer in terms of s 60 of
the
EEA, based exclusively on the conduct of the first respondent,
her employer.
The cross appeal
[16]
Appellant also brought a claim against the
employer on the basis that she was subject to harassment at her
workplace. She alleged
that she had been defamed, victimised, bullied
and subject to emotional abuse by employees of first respondent. The
appellant contended
further that the first respondent’s
practices in the store were racist towards black cashiers in general
and that she, in
particular, had been targeted for particular
bullying and victimisation by supervisors and managers because she
had raised a specific
grievance with regard to these racist
practices. After evaluating the evidence presented by the parties,
the third respondent concluded
that there was no evidence that any of
the issues raised by the appellant related to racial discrimination.
In his view, ‘they
related simply to operational issues within
the store such as the shortage of till packers’. For these
reasons, he did not
find any evidence of racial discrimination in
relation to the alleged practices to which black cashiers were
alleged to have been
subjected.
[17]
With regard to the specific issue of
appellant being bullied and victimised, the third respondent found
that there was no indication
that these practices, which he accepted
had taken place, were due to her race. Rather they were based on the
frequency with which
she lodged complaints and grievances, some of
which her supervisors regarded as petty or frivolous. The bullying
and victimisation
could not be linked to race. Appellant bore the
onus of establishing that some other ground in respect of which these
actions could
be regarded as discriminatory. Her failure to do so
meant that this part of the case had to be dismissed.
[18]
Appellant lodged a cross-appeal against
this decision. Before the court
a quo,
appellant’s counsel argued that the third respondent ought to
have found that the first respondent was liable for unfair
discrimination on the ground of bullying, harassment and
victimisation on the basis that it had been sufficiently proved by
the
evidence presented by appellant.
[19]
It appears that the finding that these
actions were not based on race was not challenged. Thus the court
a
quo
found that the appellant had not
shown that the harassment was based on a listed or other arbitrary
ground. Hence she had not shown
the presence of unfair discrimination
as defined in the EEA.
[20]
On appeal, the appellant’s counsel
submitted that first respondent failed to show that it had a coherent
policy against harassment,
bullying or victimisation of its
employees. Once the third respondent concluded that there was
sufficient evidence of bullying,
harassment and victimisation, in the
view of appellant’s counsel, he should have found that first
respondent was liable on
a charge of unfair discrimination.
[21]
This submission has to be evaluated in
terms of the relevant wording of s 6 (3) of the EEA:
‘
Harassment
of an employee is a form of unfair discrimination and is prohibited
on any one, or combination of grounds
of unfair discrimination listed in subsection (1).’ (my
emphasis)
[22]
Section 11 of the EEA makes it clear an
allegation of that harassment must be coupled to conduct based on a
discriminatory ground.
This section reads thus:
‘
(
1)
If unfair discrimination is alleged on a ground listed in s 6(1), the
employer against whom
the allegation is made must prove, on a balance
of probabilities, that such discrimination –
(a)
did not take place as alleged; or
(b)
is rational and not unfair; or is otherwise
justifiable.
(2)
If unfair discrimination is alleged on an arbitrary ground, the
complainant must prove,
on a balance of probabilities, that –
(a)
the conduct complained of is not rational;
(b)
the conduct complained of amounts to discrimination; and
(c)
the discrimination is unfair.’
[23]
There is a burden placed upon the appellant
to show, on a balance of probabilities, that the conduct alleged by
her was not rational,
that it amounts to discrimination and that the
discriminatory practice was unfair. An allegation of harassment, even
if indeed
it can be shown to exist on its own and of itself, cannot
and does not meet the requirements as set out in s 6(3) read together
with s 11 of the EEA. More is required before an employer such as the
first respondent can be held liable in terms of the EEA,
where, as in
the case brought by appellant, that is based on ‘an arbitrary
ground’. So much is clear from the wording
of s 11(2) of the
EEA.
[24]
In evaluating the third respondent’s
award, it is important to note that there was no evidence from any
other worker nor was
there any other evidence to gainsay the
following conclusion of the third respondent ‘I formed the
impression that although
some of the witnesses signed the grievance
letter they were not interested in testifying for the applicant.’
While the appellant
maintained that the other cashiers were
intimidated, she conceded that she did not have proof thereof. The
conclusion reached by
third respondent is most certainly not an
unreasonable conclusion based on the available evidence.
[25]
The evidence presented by first respondent
holds further significance with regard to the bullying and
victimisation. Ms Natasha
Kiewitz, the administrative manager of
Shoprite Fish Hoek, who had been employed by first respondent for
some 25 years, testified
that, on occasions when the appellant had
reported various incidents that had occurred to her, she had dealt
with these and addressed
appellant’s complaints directly with
the alleged perpetrators. She also testified that, on a further
occasion, when the appellant
had raised a grievance with regard to Mr
Beyleveld, both she and Ms Skriker, the regional manager had insisted
that Beyleveld apologies
to appellant. This evidence was confirmed by
Mr Skriker. Ms Kiewitz also testified that she had severely rebuked
Mr Elton Arende
for his conduct towards the appellant, after she had
received a complaint from appellant.
[26]
In summary, no evidence which the appellant
was able to produce discharged the onus that she had been harassed on
an arbitrary ground
which would bring the first respondent’s
conduct within the scope of the EEA. Furthermore, there was evidence,
which was
not challenged, that efforts had been made on a number of
occasions by management of first respondent to ensure that behaviour
of which the appellant complained was dealt with and that the
perpetrators were suitably rebuked. This was not a case where
management
adopted a passive stance to the complaints lodged by
appellant.
[27]
In the circumstances, there is no basis by
which to disturb the finding of the third respondent and the court
a
quo
in respect of the cross-appeal that
was brought against the dismissal by the third respondent of the
complaints of racist practices
and bullying. By contrast, for the
reasons set out in this judgment the appeal stands to be dismissed.
[28]
In my view, in the case such as the present
it would not be appropriate to make a costs order.
[29]
Accordingly, the appeal is dismissed. There
is no order as to costs.
_________________
Davis JA
Sutherland
JA and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANT:
Adv Sidaki
Instructed
by Legal Aid SA
FOR
THE FIRS RESPONDENT:
Adv Craig Bosch
Instructed
by Cliffe Dekker