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2024
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[2024] ZALCJHB 45
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Pedra v Wisium SA (Pty) Ltd (JS550/17) [2024] ZALCJHB 45 (26 January 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS550/17
In
the matter between:
FELIPE
CARLOS
PEDRA Applicant
And
WISIUM
SA (PTY)
LTD
Respondent
Heard:
19 & 20 October 2023, 27 November 2023 and 1 December 2023.
Delivered:
26 January 2024 (This judgment was handed down electronically by
circulation to the parties’
legal representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing-down
is deemed to be 10h00 on 26 January
2024.)
JUDGMENT
PHEHANE,
J
Introduction
[1]
The
applicant (Mr. Pedra) brings this referral in terms of the provisions
of section 187(1)(f) read with section 191(5)(b)(i) of
the Labour
Relations Act
[1]
(LRA). He
claims that he was dismissed from the employ of the respondent for
the sole reason that he had attained the age of 60
years and
therefore, his dismissal is automatically unfair. He alleges that
there was no retirement age agreed between him and
the respondent. He
denies that a retirement policy existed, alternatively, if it
existed, no one brought it to his attention as
he did not sign it and
therefore, it did not apply to him.
[2]
It is common cause that the respondent (Wisium) acquired an entity
named Pennville (Pty) Ltd t/a Pennville Consulting
(Pennville
Consulting) in 2016. Pennville Consulting was solely owned by
[3]
Mr. John Alan Pennel (Mr. Pennel), who is the brother-in-law of the
applicant.
[4]
Mr. Pedra was employed by Mr. Pennel representing Pennville
Consulting, on 1 April 2006 as a General Manager.
[5]
Although
Mr. Pedra states in his statement of claim
[2]
that there was no written contract of employment in place between him
and the respondent when he was employed, during his evidence
before
this Court, he distanced himself from this allegation and conceded
that the unsigned document entitled “
Statement
of Main Terms and Conditions of Employment
”
that appears from pages 1 to 8 of the evidence bundle is his contract
of employment. I refer to this document as the contract
of
employment.
[6]
The
evidence by Ms. Oosthuizen, Mr. Pedra’s financial adviser and
the former payroll manager of Pennville Consulting, is that
although
she was not employed by the respondent when Mr. Pedra commenced
employment, and was only employed by the respondent in
2013, there
existed an employment contract between Mr. Pedra and Pennville
Consulting and the aforesaid document forms part of
that employment
contract as stipulated in clause 1.2 thereof.
[3]
Her evidence is that she drafted the aforesaid document in 2014 when
the company logo had changed. Her further evidence is that
the
company policies were previously contained in its standard operating
procedures and were subsequently redone on the company’s
new
logo and were all contained in an employee handbook that was
available to all employees in the office of Mr. Pennell. One of
such
policies is the retirement policy of the respondent.
[4]
The employee handbook was kept in a green file and also contained the
rules of the provident fund that the respondent participated
in.
[7]
It is
common cause that the provident fund that the respondent participated
in is the Old Mutual Superfund Provident Fund (Old Mutual
Provident
Fund), extracts of which appear on pages 53 to 71 of the evidence
bundle. As stipulated in clause 6.7 of the contract
of employment,
[5]
permanent employees of the respondent automatically join the Old
Mutual Provident Fund. Both parties make a contribution towards
this
Fund. Its rules and regulations are binding on the parties. It is
also common cause that the respondent participated in the
Old Mutual
Provident Fund from 2013.
[8]
It is not disputed that according to the rules of the Old Mutual
Provident Fund, the normal retirement age for employees
in member
group 1 (management), in which group Mr. Pedra admits that he fell
under, is 60 years of age.
[9]
With effect
from 30 April 2017, Mr. Pedra’s employment with the respondent
was terminated in accordance with the respondent’s
retirement
policy that provided that the normal retirement age for all staff is
60 years of age and shall take effect in the month
in which they turn
60 years old; further, in line with such policy, the age of
retirement of the respondent’s Provident Fund
is also 60 years
of age.
[6]
[10]
As stated above, Mr. Pedra denies the existence of the retirement
policy.
[11]
Mr. Pedra does not dispute the content of clause 28.1 of the
employment contract which provides:
‘
All
the current statutory legislation, company policies, procedures,
rules, regulations and employee handbook as determined and
amended
from time to time will apply to you that you are expected to comply
with the aforementioned at all times. Failure to do
so can result in
disciplinary action being taken.’
[7]
Issues
for this Court to determine
[12]
The parties
identify the following issues to be determined by this Court in the
pre-trial minute:
[8]
11. Whether the
applicant’s termination of service constitutes a dismissal, and
if so, whether such dismissal was substantively
and procedurally
fair;
11. If the Court
finds that the applicant was dismissed, whether such dismissal was
automatically unfair;
11. In determining
the issue, the Court is to decide whether or not the respondent was
entitled to terminate the applicant’s
employment on the grounds
of retirement and whether or not the provisions of section 187(2)(b)
of the LRA find application.
Evidence
[13]
The
evidence of Mr. Pennell is that Mr. Pedra approached him as he wanted
to be employed by his company before the company was acquired
by
Wisium. At the time, Mr. Pedra was employed as a teacher but was
looking for a job that was more inspirational. Pennville Consulting
was a small company at the time and Mr. Pennell could not afford his
salary. He ultimately employed him in his company, in the
position of
general manager. A written contract of employment was concluded
between them. The contract was drawn up by an entity
named Protrax.
Neither party presented a copy of this contract. This is of no moment
as it is common cause that the unsigned statement
of terms and
conditions of employment
[9]
is
part of, and is understood by the parties to be their contract of
employment.
[14]
Mr. Pedra approached him several times informally and in social
settings, indicating that he was concerned that he had
not made
sufficient financial provision for his retirement, was not ready to,
and did not want to retire at the age of 60 years.
Mr. Pennell said
he would consider the issue closer to the time, but made no promises.
Mr. Pennel recalls that one such discussion
occurred during 2011 and
another in 2015.
[15]
His evidence is that Mr. Pedra approached him in 2011 and wanted to
buy shares in Pennville Consulting to bolster his
retirement nest.
Mr. Pennell was not keen on this as firstly, he had come out of a bad
business relationship and secondly, he was
aware of Mr. Pedra’s
dire financial situation which included an act of insolvency and
therefore he was of the view that Mr.
Pedra was not in a position to
afford to buy shares in Pennville Consulting.
[16]
Mr. Pedra’s
intention to bolster his retirement nest prompted Mr. Pennell to
consider creating two additional financial instruments
(over and
above the respondent’s provident fund) that would assist him to
retire comfortably. He approached Mrs. Oosthuizen
to assist in this
regard as an intermediary to take out the two financial instruments
for Mr. Pedra. One such instrument was a
Momentum Investment
Endowment Policy which commenced in March 2011 for a period of six
years, with a maturity date that occurred
in the same month in which
Mr. Pedra would attain the age of 60 years (i.e. April 2017).
Pennville Consulting paid the monthly
premiums for this endowment
policy, in the amount of R10 258.95 with an automatic contribution
increase rate of 10%.
[10]
[17]
The second financial instrument consisted of a retirement annuity
that would mature when Mr. Pedra attained the age of
65 years. The
respondent contributed to this retirement annuity. The intention was
that Mr. Pedra would continue paying the premiums
of the retirement
annuity after he retired from the respondent.
[18]
Mr. Pennel stated that the respondent contributed 100% towards Mr.
Pedra’s retirement annuity and endowment policies
to boost his
retirement nest to allow him to retire comfortably. This was not done
for any other employee.
[19]
The consistent and corroborative evidence of Mr. Pennell, Mrs.
Oosthuizen and Mr. Le Roux (the human resources manager
of Wisium) is
that the respondent has a retirement policy that is contained in a
handbook with all other policies of the respondent
and is easily
accessible. As recorded in the contract of employment, all policies
of the respondent as amended from time to time
are binding on
employees.
[20]
Mr. Pennel and Mrs. Oosthuizen stated that Mr. Pennell approved the
policies that were updated by Mrs. Oosthuizen, which
she said were
previously contained in the respondent’s standard operating
procedures. The revised policies were contained
in the handbook in
his office. Mr. Pedra as a senior manager responsible for staff, was
aware of the handbook and employment contracts
of staff. Mr. Pedra
confirmed the existence of all policies except the retirement policy,
as he stated that his job description
entailed drafting policies. Mr.
Pennell and Mrs. Oosthuizen denied this. Mr. Pedra could not explain
why his job description did
not include the drafting of policies and
maintained that this was an oversight.
[21]
Mr. Pedra concedes that all policies of the respondent were contained
in a file in Mr. Pennel’s office, to which
he had access. In my
view, it is too convenient that of all the various policies that the
respondent had, the only policy to which
Mr. Pedra feigns ignorance
is the retirement policy. His attempt to back paddle is no more
convincing – he states that if
the retirement policy existed,
it was not applicable to him as it was not brought to his attention
and it was not signed by him.
He concedes that there existed an
employment contract. Clause 28 thereof states that all policies of
the respondent as amended
from time to time are binding on employees.
He also concedes that Mr. Pennell extracted the retirement policy
from the file that
he is aware of in his office on 24 January 2017 to
read the content thereof to him. In light of the afore-going, his
version that
there existed no retirement policy or that it was not
applicable to him is unconvincing.
[22]
The evidence of Mr. Pennel and Mrs. Oosthuizen is that in order to
augment Mr. Pedra’s retirement nest, the respondent
went out on
a limb for Mr. Pedra and took out an endowment policy from Momentum
and a retirement annuity for Mr. Pedra’s
benefit. Further, that
in 2015, Mrs. Oosthuizen prepared a financial needs analysis for Mr.
Pedra independent of the respondent.
[23]
Mrs.
Oosthuizen explained that Mr. Pedra approached her to do a financial
needs analysis as he wanted to have an understanding of
his shortfall
in cover in respect of his financial needs for retirement so that it
could be addressed before the need arose. He
provided her with his
financial information, and his needs in respect of his lifestyle and
indicated that he wanted to retire at
the age of 65 years. Together,
they agreed on assumptions and he provided her with the age of 65
years to work on his needs analysis.
The outcome of the financial
needs analysis was a retirement shortfall of R1.2 million.
[11]
Mr. Pedra did not inform her about what he did on receipt of the
financial needs analysis. No additional policies were taken out
by
Mr. Pedra pursuant to the financial needs analysis.
[24]
It was put to Mrs. Oosthuizen on behalf of Mr. Pedra that the
financial needs analysis had nothing to do with his retirement
–
Mr. Pedra was in emotional distress in 2015, his daughter had
suffered a tragic event and he approached Mrs. Oosthuizen
to draft
his will and she did the financial needs analysis. She consistently
stated that the reason for the financial needs analysis
was because
Mr. Pedra wanted to know his financial status in order to retire
comfortably, as he indicated that he could not afford
to retire at
age 60 and wanted to retire at age 70. She told him to discuss this
with the respondent and informed him that the
Old Mutual Provident
Fund would not accept him working until age 70.
[25]
During cross-examination, Mr. Pennell and Mrs. Oosthuizen were taken
to task for not specifically informing Mr. Pedra
that the
respondent’s normal age of retirement is 60 years. They both
stated that he knew this because the respondent had
a retirement
policy which he was well aware of and he knew the age of retirement
is 60 years, hence his repeated statements that
he was not ready to
retire.
[26]
Mr. Pedra’s own version is that he and Mr. Pennel oft spoke
about working forever and this was his desire. He went
as far as to
say no employee retired from the respondent. He was fit and could
continue working
forever.
[27]
The consistent and corroborative evidence of Mr. Pennel and Mrs.
Oosthuizen is that the rules and regulations of the
respondent’s
provident fund are binding on permanent employees. The respondent
(more specifically, Mr. Pennel) determined
the normal retirement age
of its employees. This was communicated to the Old Mutual Provident
Fund that the respondent chose to
participate in. The provident fund
accordingly obtains the normal retirement age from the employer. Mr.
Pedra’s payslips
indicate the contributions to the provident
fund and information about the fund is available and easily
accessible. Further, Mr.
Pedra received annual statements from the
provident fund indicating that the age of the retirement is 60 years.
In addition, in
2016, a year prior to his retirement, Mr. Pedra
received a statement from Momentum setting out his endowment policy
investment
figures including the maturity date which coincided with
the month in which he was to retire from the respondent.
[28]
Mr. Pedra does not dispute receiving the annual statements from the
provident fund or the statement from Momentum a year
prior to his
retirement. He states however, that when he received the annual
statements from the pension fund, he concentrated
only on the
figures, which were according to him, were insignificant.
[29]
Mr. Pedra
states that he did not receive any correspondence from the provident
fund alerting him that his retirement age was approaching.
His
evidence is not that he was oblivious to the normal retirement age of
60 as stated in the Old Mutual Pension Fund Rules
[12]
- he stated that he read this to mean that “
it
was possible to retire at age 60 when funds are made available to
them”
and he did not think this was a compulsory retirement age.
[30]
The
consistent and corroborative evidence of Mr. Pennel and Mr. Le Roux
is that the respondent implemented its retirement policy
by
consulting with Mr. Pedra three months prior to his date of
retirement. Mr. Pedra states that on 23 January 2017, he had a
meeting with Mr. Pedra to discuss his retirement and informed him
that the retirement policy must be implemented. Mr. Pedra was
aggrieved and wanted to have a meeting with Mr. Le Roux. On the
following day (24 January 2017), a meeting was held between Messrs.
Pennel, Pedra and Le Roux, at which meeting, Mr. Pedra raised his
discontentment at having to retire as he was not ready to retire.
It
was discussed that he was at all times, aware of the retirement age
of 60 and the additional financial instruments that were
taken out
for him by the respondent to prepare and assist him for retirement at
age 60, including the annual statements from Old
Mutual that
reflected the age of 60 as the normal retirement age. He was informed
that his retirement would be implemented according
to the
respondent’s retirement policy and conditions. The minute of
this meeting
[13]
was drafted
by Mr. Le Roux and was provided to Mr. Pedra.
[31]
Mr. Pedra states that the respondent employed a certain Mr. Mpati in
2015 when he was 66 years old. In response, Mr.
Pennell explained
that the retirement policy provides that staff members beyond the
normal retirement age shall not occupy leadership
roles and unlike
Mr. Pedra, Mr. Mpati did not occupy a leadership role. This is not
disputed.
Evaluation
[32]
The crux of Mr. Pedra’s case is that there was no
agreement
between him and the respondent that the retirement age is 60. He
disputes the existence of a retirement policy of the respondent
indicating that the normal retirement age is 60 years. He concedes
that the Old Mutual Provident Fund Rules state that the normal
retirement age is 60 and he received annual statements from the fund
which indicated this, although he did not pay attention to
it. In my
view, this was to his own peril.
[33]
There are mutually destructive versions before the Court, mainly in
relation to the existence of the retirement policy
indicating that
the normal age of retirement is 60 years, whether the engagements
between Messrs. Pennel and Pedra prior to 23
January 2017 concerning
Mr. Pedra’s wish to acquire shares and the creation of the two
financial instruments fully paid for
by the respondent had anything
to do with Mr. Pedra’s approaching retirement.
[34]
The Supreme
Court of Appeal in the well-known case of
Stellenbosch
Farmers’ Winery Group Limited and another v Martell et Cie and
others,
[14]
has
set how a Court is to resolve mutually destructive versions before
it. The Court is to make a finding on the credibility of
the
witnesses, on their reliability and is to assess on a balance of
probabilities, which version is more probable.
[35]
As stated
above, the evidence of the respondent’s witnesses is consistent
and corroborative. Mr. Pedra is not a credible or
reliable witness.
On more than one occasion, he failed to put his version to Mr. Pennel
and Ms. Oosthuizen.
[15]
By way
of example: he did not put the version to Mr. Pennel that it was he
who drafted the respondent’s policies as it was
part of his job
description, notwithstanding that he could not explain why his job
description was silent about this; he did not
put to Mr. Pennel that
the only time he indicated he was not ready to retire was during
their formal meeting on 23 January 2017
when Mr. Pennel informed him
he is to retire in three months’ time; he did not put to Mrs.
Oosthuizen that there were no
employment contracts in place when she
commenced work at Pennville and she proceeded to draw up the
contracts for all staff including
his.
[36]
Mr. Pennel fabricated his version as his evidence progressed. He
wants this Court to believe that at no stage was he
aware that there
was a normal retirement age specified by the respondent, despite his
concessions that his employment contract
refers to the provident fund
and its rules which are binding, as well as all policies of the
respondent. He also conceded having
received annual statements from
the provident fund but claims he did not concern himself with the
retirement age of 60 years recorded
on the statement as he
concentrated on the figures which were “insignificant”.
His version that he only learned of
the age of retirement on 23
January 2017 during his formal meeting with Mr. Pennel is improbable.
[37]
Mr. Pedra’s version that the reason he wanted to acquire shares
in Pennville is because he wanted a salary raise
and therefore the
endowment policy and retirement annuity constituted an increase in
his salary is fanciful. His version is disputed
by Mr. Pennel who
stated that had the intention been to increase his salary, it would
have been done, but it was not – it
was to assist him as he had
a history of financial difficulties and indicated he was not ready to
retire. When confronted with
Mr. Pennel’s version, Mr. Pedra
developed his version and said he approached Mr. Pennel in 2016 to
enquire what would become
of the respondent’s R10 000.00
contribution to the endowment policy once it matures, to which Mr.
Pennel said he should not
worry, they would discuss it when the time
comes. The concern was if it went into the cash component of his
salary, it would affect
the bonus incentive, which they agreed they
would keep out of his “salary increment”. Mr. Pedra
continued to develop
his fabricated version by stating that he was
considering if he could reinvest the funds after they matured.
[38]
The belated and unfortunate version of Mr. Pedra that he sought a
financial needs analysis not for retirement purposes
but because his
daughter suffered a tragedy and he approached Mrs. Oosthuizen to
draft a will and she went on a frolic of her own
to draw up a
financial needs analysis that had nothing to do with retirement, is
highly improbable. To suggest that Mrs. Oosthuizen
acted in conflict
of interest is unacceptable and unnecessary in circumstances where he
would have given her the authority to conduct
a financial needs
analysis based on his needs which included his retirement beyond the
age of 60 years, given his utterances that
he was not ready to
retire.
[39]
The Old Mutual Provident Fund Rules read with the retirement policy
state that retirement beyond the normal retirement
age is possible,
however, applications are to be made three months before the normal
age of retirement and will not be granted
purely on compassionate
grounds. Mr. Pedra did not make such application.
[40]
In view of the afore-going, Mr. Pennel is not a reliable, credible or
honest witness. Therefore, I find the version of
the respondent is
more probable. Mr. Pedra approached Mr. Pennel on several occasions,
knowing that 60 was the respondent’s
normal age of retirement
and indicated that he was not ready to retire as he did not make
sufficient provision to retire comfortably.
The respondent bent over
backwards to assist Mr. Pennel to retire comfortably. He benefitted
from these financial instruments.
Applicable
law in respect of the age of retirement
[41]
The age of retirement for employees is not specified in our law.
Employers are however, entitled to rely on a normal
age of retirement
which is often specified in the employer’s internal policies.
The normal age of retirement may also be
established with reference
to the pension scheme that employers participate in.
[42]
In
Cash
Paymaster Services (Pty) Ltd v Browne,
[16]
the Labour Appeal Court (LAC) stated as follows:
‘
The
retirements are dispensations provided for in section 187(2)(b) of
the Act is one that works based on the basis that,
if there is an
agreed retirement age between an employer an employee, that is the
retirement age that governs the employee’s
employment.
This
is the case even when there is a different normal retirement age for
employees employed in the capacity in which the employee
concerned is
employed.
The provision relating to the normal retirement age only
applies the case where there is no agreed retirement age between the
employer
and the employee.’
(Own emphasis)
[43]
In
Bos
v Eon Consulting (Pty) Ltd
,
[17]
this Court stated as follows with reference to the concepts of an
agreed age of retirement and a normal age of retirement:
‘
[37]
As to these bases referred to, it has to be one or the other. It
cannot be both
.
A normal retirement age can only apply where
there is no agreed retirement age
…
[38]
Turning firstly to an agreed retirement age, there can be no question
of what an agreed retirement age means.
In order for an agreed
retirement age to exist, it has to be shown that the employer and the
employee achieved consensus on the
actual age of retirement of the
employee and that this retirement age gives rise to the compulsory
retirement of the employee from
the employ of the employer at that
age. This agreement need not be in writing, although this would be
preferable.
A retirement age
stipulated in the employment
contract of the employee would constitute such an agreed retirement
age.’
[39]
As to what constitutes a normal retirement age, the Court in
Rubin
Sportswear
said:
‘…
What is the normal
retirement age depends upon the meaning to be accorded the word
“normal” in section 187(2)(b). The
word is not defined in
the Act. It, accordingly, must be given its ordinary meaning.
Chambers-Mcmillan’s
SA Students Dictionary
describes the
word “norm” thus: “You say that something is the
norm if it is what people normally or traditionally
do”. It
further says: “Norms are usual or accepted ways of behaving”.
It describes the adjective “normal”
as meaning “usual,
typical or expected”. The word “normality” is
described as “the state or condition
in which things are as
they usually are”. The
New Shorter Oxford English Dictionary
describes the word “norm” as meaning, among others “a
standard, a type; what is expected or regarded as normal;
customary
behaviour, appearance”. As to the adjective “normal”,
one meaning that the latter dictionary gives
is “constituting
or conforming to a standard; regular, usual, typical, ordinary,
conventional”.
After analysing a number
of judgements the court concluded:
“
It
seems to me that the word “normal” as used in section
187(2)(b) really means what it says. It means that which accords
with
the norm.”
[40]
A retirement age that accords with the norm, as contemplated by
section 187(2)(b), can be established both internally
in an employer,
or externally in a particular industry if there is no norm in the
employer itself.
[42]
When it comes to the norm in an employer, this must equally be
established
by evidence. This evidence would include evidence
about a practice in the employer, when other employees may have
retired, policy
provisions of regulation, or pension/provident funds
rules or annuity provisions… The easiest way of establishing a
retirement
age norm in an employer would of course be by way of a
retirement policy.
[43]
It is not required that employees have to be consulted on, or that
they have to agree to, the retirement age stipulated by the employer
in the retirement policy. In principle, an employee is entitled to
unilaterally fix, and then implement, a normal retirement age
…’
[44]
With the afore-going in mind, in the present case, the contract
between Mr. Pedra and the respondent does not specify
his agreed
retirement age. What does exist, is a retirement policy and provident
fund rules that specify the normal retirement
age as 60 years for
employees in the category that Mr. Pedra was employed. Therefore, the
basis of the age of retirement that is
involved is the normal age of
retirement. It is not both. Our Courts have said it cannot be both.
[45]
The contract of employment refers to both the retirement policy as
well as the pension fund and its rules, all applicable
and binding on
Mr. Pedra.
[46]
I find that the dismissal of Mr. Pedra occurred as he had reached the
respondent’s normal age of retirement for
persons employed in
the capacity which he occupied. I find that the respondent followed
its retirement policy and procedure to
the letter in terms of
terminating the employment contract of Mr. Pedra.
[47]
I find that unfair discrimination does not arise for the reasons that
follow below.
[48]
Section 9 of the Constitution makes provision for the right to
equality and the prohibition of unfair discrimination
on the listed
grounds in subsection (3) and reads as follows:
‘
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race,
gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection
(3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.’
(Own emphasis)
[49]
The
Employment Equity Act
[18]
(EEA), is one of the pieces of national legislation that prevents and
prohibits unfair discrimination in the workplace.
[50]
Sections 5 and 6 (1) and (2) of the EEA provide as follows:
‘
5.
Elimination of unfair discrimination.
– Every employer
must take steps to promote equal opportunity in the work-place by
eliminating unfair discrimination in any
employment policy or
practice.
6.
Prohibition of unfair discrimination.
(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.
(2)
It is not unfair discrimination to –
(a)
take affirmative action measures consistent with the purposes of this
Act; or
(b)
distinguish, exclude or prefer any person on the basis of an inherent
requirement of the job.’
[51]
In
Lewis
v Media24 Ltd,
[19]
the Court held as follows at paragraph 36:
‘
The
concept of discrimination is made up of three issues: differential
treatment; the listed or analogous grounds; and the basis
of, or the
reason for, the treatment. Once a
difference
in treatment is
based on a listed ground
, the difference in treatment becomes
discrimination for the purposes of s 9 of the Constitution and s 6 of
the EEA.’
[52]
In my view, Mr. Pedra has not established any differential treatment.
Mr. Mpati is no comparator of Mr. Pedra. He is
not employed in the
same category or capacity as Mr. Pedra. Discrimination therefore does
not arise and section 187(2)(b) of the
LRA accordingly finds no
application.
Costs
[53]
This is a referral that ought not to have seen the light of day,
particularly considering that the main parties to this
dispute are
related. It is clear that Mr. Pennel did his utmost to assist Mr.
Pedra to retire comfortably and this was met with
indifference
considering the remarks by Mr. Pedra that the figures were
insignificant, this, in circumstances where the respondent
contributed 100% to at least two financial instruments for his
benefit over and above the compulsory provident fund of the
respondent.
[54]
In view of my remarks above concerning the conduct of Mr. Pedra in
the manner in which he conducted himself in proceeding
with this
matter and his conduct during the proceeding of fabricating evidence
and being dishonest, I exercise my discretion in
terms of section
162(2)(b) of the LRA in ordering the applicant to pay the costs of
this referral.
[55]
In light of the afore-going, the following order is made:
Order
1.
The referral is dismissed.
2.
The applicant is to pay the costs.
M.
T. M. Phehane
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. Y van der Laarse (Ms.)
Instructed
by:
Len Dekker
Attorneys
For
the Respondent: Rudolf Kuhn of
Rudolf Kuhn Attorneys
[1]
Act 66 of 1995, as amended. Section 187(1)(f) of the LRA reads thus:
‘
187.
Automatically unfair dismissals.
(1)
A
dismissal
is automatically unfair if the employer, in
dismissing the
employee
, acts contrary to section 5or, if the
reason for the
dismissa
l is –
(f)
that the employer unfairly discriminated against an
employee
,
directly or indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility.’
In
the context of this present case, section 191(5)(b)(i) of the LRA
states that an employee who has a dispute about an unfair
dismissal,
may refer the dispute to the Commission for Conciliation, Mediation
and Arbitration or a council with jurisdiction,
for conciliation and
should the dispute remain unresolved, following conciliation, then
the employee may refer the dispute to
this Court for adjudication if
the employee has alleged that the reason for dismissal is
automatically unfair.
[2]
Pleadings bundle, at para 4.3.8 on p 3.
[3]
Evidence bundle, p 1.
[4]
Evidence bundle, p 37.
[5]
Evidence bundle, pp 2 to 3.
[6]
Fn 4 s
upra
.
[7]
Evidence bundle, at p 7.
[8]
Pre-trial minute, pleadings bundle, at p 7.
[9]
Evidence bundle, pp 1 to 8.
[10]
The Momentum Endowment Policy appears at pages 72 to 74 of the
evidence bundle.
[11]
Evidence bundle, p 14.
[12]
Evidence bundle, p 54.
[13]
Evidence bundle, pp 19 to 21.
[14]
(2003) 1 (SA) 11 (SCA).
[15]
In
President of the Republic of South Africa and Others v South
African Rugby Football Union
and
Others
1999 (10) BCLR 1059
(CC),
the Constitutional Court held as follows regarding the failure to
challenge the version of a witness during cross-examination:
‘
[61]
The institution of cross-examination not only constitutes a right,
it also imposes
certain obligations. As a general rule it is
essential, when it is intended to suggest that a witness is not
speaking the truth
on a particular point, to direct the witness’s
attention to the fact by questions put in cross-examination showing
that
the imputation is intended to be made and to afford the witness
an opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination,
the party calling the witness is entitled to
assume that the unchallenged witness’s testimony is accepted
as correct. This
rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our
courts.’
[16]
[2006] 2 BLLR 131
(LAC);
[2006] 2 BLLR 131
(LAC) at paras 25 and 26.
See also:
Rubin
Sportsware v SA Clothing and Textile workers Union and Others
[2004] ZALAC 8.
[17]
[2016] ZALCJHB 305.
[18]
Act 55 of 1998.
[19]
(2010) 31 ILJ 2416 (LC) at para 36.