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[2020] ZALAC 14
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Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines) (JA117/2018) [2020] ZALAC 14; [2020] 8 BLLR 749 (LAC); (2020) 41 (ILJ) 1910 (LAC) (18 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA117/2018
In
the matter between:
KHOMOTJO
MAHLANGU
Appellant
and
SAMANCOR
CHROME LTD
(EASTERN
CHROME MINES)
First
Respondent
Heard:
4 March 2020
Delivered:
18 May 2020
Summary:
Employment Equity Act 55 of 1998----Unfair discrimination
---Pregnancy---Mine having maternity policy providing for unpaid
maternity leave if employee falls pregnant twice within a three-year
circle and placing pregnant employee is alternative position
prior to
maternity leave----employer not placing employee into alternative
position prior to unpaid maternity leave----evidence
proving that
another employee placed in alternative position----constituted
differentiation----such differentiation amounting to
unfair
discrimination.
Coram:
Waglay JP, Jappie JA and Savage AJA
Judgment
SAVAGE
AJA
Introduction
[1]
This appeal,
with the leave of the Court
a
quo
, is
against the judgment and order of the Labour Court (Steenkamp J) made
on 29 August 2018. The appellant, Ms Khomotjo Mahlangu,
referred an
unfair labour practice dispute to the Commission for Conciliation
Mediation and Arbitration (‘the CCMA’).
The certificate
of outcome recorded that the dispute concerned unfair discrimination
and the appellant referred the matter to arbitration
in terms of s 6
of the Employment Equity Act 55 of 1998 (‘the EEA’). The
arbitrator found
inter
alia
that
the respondent, Samancor Chrome Limited (Eastern Chrome Mines), had
unfairly discriminated against the appellant on the grounds
of
pregnancy. The Labour Court upheld the respondent’s appeal,
brought in terms of s 10(8) of the EEA, and dismissed the
claim of
unfair discrimination.
[2]
The appellant
is employed by the respondent as an underground heavy-duty truck
driver. She fell pregnant for the second time in
a period of three
years and reported her pregnancy to the respondent on 28 May 2014. In
accordance with the respondent’s
health and safety policy, it
relieved her of her hazardous responsibilities underground with
immediate effect. The appellant’s
maternity leave was to
commence on 29 November 2014. She was placed on unpaid leave from 4
June 2014 to 28 November 2014. The respondent
stated that this was
because it was unable to find her a suitable alternative position.
The appellant took issue with the fact
that she was the only pregnant
employee who was not offered alternative employment by the respondent
before her maternity leave
commenced.
[3]
Clause 4.3 of
the respondent’s Pregnancy in the Workplace Procedure (‘the
policy’) states that:
‘
1)
In terms of section 26(2) of the BCEA, where reasonably
practicable,
the Company may offer suitable alternative employment to an employee
during pregnancy and breast-feeding if she is
engaged in risk work…
2)
If possible alternative employment will be on terms that are no less
favourable
than the employee’s ordinary terms and conditions of
employment.
3)
if there is no suitable alternative work, the employee will be sent
on unpaid
leave….’
[4]
In addition,
the clause provides that:
‘…
maternity
leave will only be applicable once during a three-year cycle. Should
a female take maternity leave twice during the three-year
cycle, the
second occurrence would be as per the BCEA stipulations, i.e. four
(4) months unpaid…’
[5]
The appellant
claims that the respondent unfairly discriminated against her by
reason of her pregnancy in not placing her in an
alternative position
in the period prior to 29 November 2014 when she went on unpaid
leave.
Arbitration
award
[6]
The evidence for the
respondent at arbitration was that, in terms of its policy, if no
suitable alternative work can be found for
a pregnant employee
working in a hazardous area, that employee is placed on unpaid leave
until she goes on maternity leave. The
evidence of Ms Gladys Dube,
the respondent’s human resources superintendent, was that, save
for the appellant, other employees
who were pregnant at the time of
the appellant’s pregnancy were either placed in alternative
positions or went on maternity
leave. Ms Dube stated that ‘…
when
we check her situation according to the company policy, we checked
that her pregnancy was the second occurrence in a three
year time
.’
Thereafter Ms Dube testified that the reason the appellant was placed
on unpaid leave was that an alternative position
could not be found
for her. She accepted however that another employee who had reported
her pregnancy on 2 June 2014 (after the
appellant had reported her
pregnancy) was placed into an alternative position.
[7]
The respondent’s leave schedule recorded that the appellant
was
‘
to be sent on unpaid leave - Second Occurrence in a
three-year cycle – employee refuses to sign the unpaid leave
form still
sitting at the union offices’
.
Although
it was not put to Ms Dube in cross-examination, the appellant
testified that she was told by a person in the respondent’s
human resources department, that the reason for her unpaid leave was
that she had fallen pregnant twice in a three-year cycle.
[8]
The arbitrator
took into account that the respondent provided another employee, who
had reported her pregnancy a few days after
the appellant, an
alternative position. It was found that the appellant had been
subjected to unfair treatment by being put on
unpaid leave ‘
simply
because she fell pregnant twice in three years
’.
This was so in that she was the only person from a number of pregnant
employees who was not given alternative work. It
was found that the
appellant had been unfairly discriminated against on pregnancy as a
listed ground in s 6(1) of the EEA in that
the respondent had ‘
failed
to show that the different treatment on a listed ground was rational
and not unfair, or otherwise justifiable
’.
[9]
Although it
did not form part of the dispute before him, the arbitrator stated
that the respondent’s policy on pregnant employees
was
‘problematic’ and ordered the respondent to redraft the
policy to ensure that it removes any provisions that may
lead to any
unfair discrimination. It was ordered that the respondent pays the
appellant compensation in the amount of R20 000,00
for the
impairment of her dignity and self-esteem, as well as damages
equivalent to five months’ remuneration.
Judgment
of the Labour Court
[10]
Dissatisfied
with the arbitration award, the respondent referred the matter on
appeal to the Labour Court. The grounds of appeal
were that the
arbitrator had failed to have regard to the terms of the policy
agreed with the union, the fact that no alternative
position was
available and that it was not competent for the arbitrator to order
that the policy be redrafted.
[11]
The Labour
Court considered whether, as the respondent claimed, the reason for
the appellant’s unpaid leave was because the
respondent could
not find an alternative position into which to accommodate her, or
whether it was because she fell pregnant for
a second time in a
three-year cycle, as the appellant claimed.
[12]
The Labour
Court found that the balance of probabilities weighed in favour of
the respondent’s case that the appellant was
placed on unpaid
leave before the commencement of her maternity leave because an
alternative position could not be found for her
and not because of
her second pregnancy in the three-year cycle. It was found that the
arbitrator had erred in finding that the
respondent had treated the
appellant differently to other employees because of her pregnancy and
that it had placed her on unpaid
leave because she had fallen
pregnant twice in a three-year cycle. The respondent’s witness
explained that another employee
had been accommodated in an
alternative position after the appellant because a vacancy had
arisen. Furthermore, the unpaid leave
spreadsheet referenced the
appellant’s unpaid maternity leave
from
29 November 2014
; and
the version that the appellant was told that the reason for her
unpaid leave prior to her maternity leave was due to her second
pregnancy was not put to the respondent’s witness.
[13]
The Court
found that the respondent had discharged the onus to prove that no
discrimination took place and that the appellant was
placed on unpaid
leave as suitable alternative employment was not available.
[14]
The Court
found further that the arbitrator’s award in relation to the
respondent’s procedure was impermissible since
this was not
part of the dispute before him. Furthermore, and without evidence
from the appellant the arbitrator erred in finding
that the appellant
‘
might
have suffered’
humiliation ‘
having
to explain to her family and probably the community that the reason
for her unpaid leave was that she fell pregnant twice
within a three
year period’
.
The appeal was consequently upheld with no order of costs.
Evaluation
[15]
Section
48(1) of the EEA permits a commissioner of
the
CCMA at arbitration to make ‘
any
appropriate arbitration award that gives effect to a provision of
this Act
’.
This includes an award of damages in terms of s 50(2)(b), which may
not exceed the amount stated in the determination made
by the
Minister in terms of
section
6 (3)
of
the Basic Conditions of Employment Act.
[1]
A damages award is intended to compensate loss suffered as a result
of a breach of rights under the EEA. Evidence must be placed
before
the commissioner to justify such award. That evidence was not placed
before the arbitrator in this matter. I
n
awarding damages to the appellant for an alleged impairment of her
dignity and self-esteem the arbitrator had erred. In addition
,
the validity of the
respondent’s
pregnancy policy
was
not an issue before the arbitrator for determination. His finding
that the policy was ‘problematic’ and the order
made that
the respondent redraft such policy was therefore impermissible.
[16]
Section
6(1) of the EEA provides that:
‘
(1)
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.’
[17]
In terms of s 11(1) of the
EEA:
‘
(1)
If unfair discrimination is alleged on a ground listed in section
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.’
[18]
In
Harksen
v Lane NO & others,
[2]
it was stated that to determine whether differentiation amounts to
unfair discrimination requires a two-stage analysis:
‘
(i)
Firstly, does the
differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination will have been established. If
it is not on a specified ground, then whether or not there
is
discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which have the potential
to
impair the fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to ‘discrimination’, does
it amount to
‘unfair discrimination’? If it has been
found to have been on a specified ground, then unfairness will be
presumed.
If on an unspecified ground, unfairness will have to be
established by the complainant. The test of unfairness focuses
primarily
on the impact of the discrimination on the complainant and
others in his or her situation.’
[19]
In
Solidarity
& others v Department of Correctional Services & others
(Police & Prisons Civil Rights Union & another
as Amici
Curiae)
,
[3]
in considering s 11(1) of the EEA it was stated:
‘
One
cannot “prove, on a balance of probabilities”, that
anything is “rational and not unfair or is otherwise
justifiable”, because it is only a fact that can be proved.
Whether conduct is rational or fair or justifiable is not
a
question of fact but a value judgment.
[4]
[20]
Ms Dube
initially explained in her evidence that the appellant did not
receive alternative employment given that the policy relating
to her
second pregnancy in a three-year cycle applied. However, the policy
prescribed only that unpaid maternity leave was to be
taken if an
employee was pregnant twice in a three-year cycle. It did not bar
alternative employment being found for such an employee.
The
respondent’s leave schedule, which recorded that
the appellant was ‘
to be sent on unpaid leave - Second
Occurrence in a three-year cycle – employee refuses to sign the
unpaid leave form still
sitting at the union offices’,
supports
Ms Dube’s evidence in this regard. It set out the position as
it applied when the appellant left work in June 2014,
after not
having been provided with an alternative position. As much is
apparent from the fact that, aggrieved with the situation
in which
she found herself, the appellant refused to sign the unpaid leave
form.
[21]
Further
support for this as the reason she was placed on unpaid leave is
found in the appellant’s testimony that she was told
by Ms
Lucetta Motala of the
human
resources department that she was placed on unpaid leave as she had
fallen pregnant twice in a three-year cycle. While it
is so that this
version was not put to Ms Dube in cross-examination, the duty to do
so is not an inflexible rule cast in stone
[5]
and is not to be applied mechanically, but with due regard to the
facts and circumstances of the case.
[6]
The rationale of the rule is that, if it is intended to argue that
the evidence of a witness should be rejected, the opportunity
to
answer points supposedly unfavourable should be afforded to such
witness in cross-examination. In this case, Ms Dube had already
in
evidence stated that the reason no alternative employment was
provided to the appellant was one related to the policy. It mattered
not, therefore, that the version was not put to her.
[22]
Later in her
evidence, Ms Dube amended her version when she stated that the
appellant was not provided with alternative employment
in that no
position could be found for her. Yet, it went unexplained why, if
this was so, a position was found days later for another
employee.
[23]
It is apparent
from the facts that in its treatment of the appellant, the respondent
differentiated between the appellant and other
employees. This
differentiation arose on the basis of her pregnancy for a second
occasion in a three-year cycle. T
he
respondent failed to show that the discrimination was rational and
not unfair or was otherwise justifiable. In the circumstances,
the conclusion is inescapable that the respondent’s decision in
refusing to place the appellant into alternative employment
with
effect from 4 June 2014, prior to her unpaid maternity leave
scheduled to commence on 29 November 2014, constituted an act
of
unfair discrimination.
[24]
Since no
damages were proved by the appellant, she is only entitled to receive
the salary she would have earned had she be placed
into alternative
employment from 4 June 2014 to 29 November 2014. The arbitrator erred
both in awarding damages to the appellant
and in ordering the relief
that he did in respect of the respondent’s policy when no such
dispute was before him. The arbitration
award in these respects
cannot stand.
[25]
It follows for
these reasons that the appeal must succeed and the order of the
Labour Court set aside. Having regard to considerations
of fairness
and equity, the view I take is that both parties should pay their own
costs.
Order
[26]
For these
reasons, the following order is made:
1.
The appeal
succeeds.
2.
The order of
the Labour Court is set aside and replaced as follows:
“
1.
The review application succeeds
with no order as to costs.
2.
The arbitration award is set
aside and replaced as follows:
‘
1.
The respondent unfairly discriminated against the applicant on the
prohibited ground of pregnancy.
2. The
respondent is to pay the applicant the salary due to her for the
period from 4 June 2014 to 28 November
2014 within ten (10) days.’
____________________
SAVAGE
AJA
Waglay
JP and Jappie JA agree.
APPEARANCES:
FOR THE APPELLANT:
E S Makinta
Instructed by Mothobi
Attorneys
FOR THE THIRD RESPONDENT:
F Venter
Instructed
by Solomon Holmes Attorneys
[1]
Section
48(2) of the EEA.
[2]
[1997]
ZACC 12
;
1997
(11) BCLR 1489
(CC);
1998
(1) SA 300
(CC)
para 53.
[3]
2016]
ZACC 18
; (2016) 37 ILJ 1995 (CC);
2016 (5) SA 594
(CC);
[2016] 10
BLLR 959
(CC);
2016 (10) BCLR 1349
(CC) at para 82.
[4]
Media
Workers Association of SA & others v The Press Corporation of SA
Ltd
[1992]
ZASCA 149
;
1992
(4) SA 791
(A);
(1992) 13 ILJ 1391 (A) at 1397H-1398B.
[5]
S
v Abader
2008 (1) SACR 347
at 356.
[6]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000(1) SA 1 (CC) at para 61.