Woolworths (Pty)ltd v Whitehead (CA06/99) [2000] ZALAC 4 (3 April 2000)

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[2000] ZALAC 4
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Woolworths (Pty) Ltd v Whitehead (CA06/99) [2000] ZALAC 4; 2000 (3) SA 529 (LAC); 2000 (12) BCLR 1340 (LAC); [2000] 6 BLLR 640 (LAC); (2000) 21 ILJ 571 (LAC) (3 April 2000)

84
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
Case No: CA 06/99
In the matter between
WOOLWORTHS (PTY)LTD Appellant
and
BEVERLEY WHITEHEAD
Respondent
______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO AJP
Introduction
[1] I have had the benefit of reading
the judgement prepared by my Colleague, Willis JA, which appears
below. I agree with him that
the appeal should succeed. As the
approach I adopt in this matter differs from his, I consider it
necessary to give my own reasons
for my conclusion. As the facts of
the case have been set
out in Willis JA’s judgement, I do
not propose setting them out in great detail in this judgement but
will nevertheless refer
to those that seem to me to be important in
the light of my approach to the matter.
[2] During the second half of 1997
the appellant advertised a vacancy for a position it termed : Human
Resources: Information and
Technology Generalist. In October of that
year the respondent was interviewed for such position. She was
thereafter offered the
job but turned it down and gave as the reason
that she was not happy with the aspect of remuneration.
[3] The appellant continued its
search for a candidate to take up this position. Later on the
appellant decided to advertise the
position again. It was advertised
both in a local newspaper as well as in a national newspaper. One of
the responses to the advertisement
this time was from one Dr Young.
Dr Young had not been a candidate in October 1997 when the
respondent was offered the position.
[4] In seeking to fill the position
the appellant decided to contact the respondent again to see whether
her circumstances had changed.
It transpired that her circumstances
had in fact changed and she was then interested in the position. In
her evidence she conceded
that when contact was made with her this
time she was informed by the appellant that there were other
candidates that the appellant
would still have to interview before
it could make a decision as to who should get the job.
[5] The appellant’s Mr Inskip, who
was the Senior Executive of the appellant under whom the position
fell, had an interview with
the respondent on the 17
th
December 1997. Both in her evidence in chief and under
cross-examination, the respondent admitted that, although, at the
end of
the interview of the 17
th
December, she had felt
very confident of her prospects of getting the job, Mr Inskip had
made it clear that he needed to see other
candidates before he could
make a final decision on whom the appellant would give the job to.
She accepted under cross-examination
that, as at the end of the
interview of the 17
th
December 1997, the job could go to
any one of the candidates including herself although she thought her
prospects were very good.
[6] The respondent testified that at
the end of the interview she had with Mr Inskip on the 17
th
December, Mr Inskip said he would come back to her with his final
decision on who among the candidates was getting the job. Mr
Inskip
denied having said he would revert to the respondent the following
day. He said he had told the respondent that the two
of them needed
to communicate later. On the 17
th
December Mr Inskip left
for a business trip that would take him to, among other places,
Lesotho. The 17
th
was a Wednesday. He returned on Friday
the 19
th
December.
[7] Mr Inskip testified that on his
return on the 19
th
December, he telephoned the respondent
and left a message on her voice mail to the effect that she should
call him back so that
they could take their discussions further. The
respondent testified that Mr Inskip had left a message on her
cellular phone asking
her to phone him back as he wanted to
“finalise the paper work.”
She said that she inferred
from this that he had made his final decision on which candidate was
getting the job and that she was
that candidate. She did not return
his call on the same day but only did so the following day, namely,
the 20
th
December.
[8] Under cross-examination Mr Inskip
denied the respondent’s evidence that his message was to the
effect that he wanted to
“complete the paper work”
but
conceded that, if he had left such a message, that could have given
the respondent the impression that he had decided on her
as the
successful candidate. However, he insisted that he could not have
left such a message as:
(a) there was no paper work to
complete, and,
(b) as he had not yet interviewed Dr
Young about whom he had formed a very good impression after reading
his curriculum vitae and
whom he thought was a key candidate.
[9] On the 20
th
December
the respondent telephoned Mr Inskip at home in response to his
message of the previous day. The respondent testified that,
in that
telephone conversation, Mr Inskip
told her that, in the light of her
pregnancy, his boss, a Mr Sturrock, was concerned about her being
offered a permanent position.
Mr Inskip denied this evidence. It is
common cause that Mr Inskip asked the respondent whether she
preferred a permanent position
as an employee or a contract. The
respondent testified that it was clear to her that Mr Inskip was
trying to back out of the permanent
position as an employee that she
says he had given her the previous day by leaving a message to the
effect that he wanted to complete
the paper work. She testified
that, while at the end of the interview of the 17
th
December, she had been very excited believing that she had good
prospects of getting the job, at the end of the conversation on
the
20
th
December, she was very concerned about whether she
would still be given the job. The two agreed that if there was to be
any offer,
it should be made in writing. She gave Mr Inskip
particulars of how she could be contacted in George in writing where
she was going
to be for some days.
[10] On the 23
rd
December
Mr Inskip telephoned the respondent again. During that telephone
conversation, it is common cause, Mr
Inskip offered the respondent a fixed
term contract that would have expired just in time for her
confinement. It is common cause
that at that stage Mr Inskip had not
as yet interviewed Dr Young. Asked why he offered the respondent a
fixed term contract even
before he could interview Dr Young and
decide whether he would offer the job to Dr Young, Mr Inskip
testified that he wanted to
keep the appellant’s options open.
[11] Mr Inskip was also asked whether
he would not have offered the job to the respondent if it had turned
out that Dr Young was
not suitable. Mr Inskip’s answer to this was
that, if the appellant had not found a suitable candidate who would
also meet the
appellant’s continuity requirement, he would have
offered the job to the respondent because, as he put it under
cross-examination,
it would be “better than nothing.” This
evidence was not challenged. Although he did not say so in so many
words it is clear
that Mr Inskip wanted to ensure that, should Dr
Young be found after an interview not to be suitable for the
position, he could
negotiate with the respondent for the conversion
of the fixed term contract to an employment contract on a permanent
basis. The respondent did not accept
the offer of a fixed term contract. Subsequently Mr Inskip
interviewed Dr Young and Dr Young
was appointed to the job.
[12] The respondent’s primary claim
in the court a quo was that she had been dismissed by the appellant
after she had been appointed
to the position of Human Resources:
Information and Technology Generalist. She claimed that the
dismissal had been unfair and sought
compensation. However, the
court a quo dismissed that claim but granted her relief on the basis
of an unfair labour practice claim.
The unfair labour practice claim
was that the appellant had committed an unfair labour practice in
not appointing her as its Human
Resources: Information and
Technology Generalist (but appointing someone else). There was no
cross-appeal against the court a quo’s
order dismissing the
dismissal claim. Accordingly we do not have to concern ourselves
with it.
[13] It is important to emphasise
that the basis of the dismissal claim was that the respondent was
appointed to the position of
Human
Resources: Generalist but that the
appellant later reneged on the appointment. The only basis for the
respondent’s claim that
she was appointed was that she inferred
such appointment from the message allegedly left by Mr Inskip on her
cellular telephone
on the 19
th
December that she should
call him back as he wanted to, in her version, “
complete the
paper work
.” It is not because she was at any stage made an
offer of the position. Indeed, under cross-examination, she conceded
that the
appellant never at any stage said it was making her an
offer for that position. And, prior to the 19
th
December
- especially from the interview of the 17
th
December with
Mr Inskip the position had not been anything more than that she had
gained the impression during the interview that
she had good
prospects of getting the job.
[14] I thought I must mention the
above basis of the claim because, in my judgement, it is relevant to
the determination of the
question whether, as at the 19
th
or 20
th
December, Mr Inskip had taken a final decision on
which candidate would get the job of Human Resources: Generalist.
That question
is highly significant because the case argued before
us was that , had it not been for her
pregnancy, the respondent, and not Dr
Young, would have been given that job. The respondent complains that
the appellant’s conduct
in not appointing her to that position was
based on her pregnancy and that such conduct on the appellant’s
part constituted discrimination
on grounds of sex and, therefore,
was an unfair labour practice in terms of the definition of an
unfair labour practice as defined
in item 2 (1)(a) of Schedule 7 to
the Labour Relations Act 1995 (Act NO 66 of 1995 (
“the Act”
).
She claimed that by virtue of being denied appointment on grounds of
unfair discrimination, she was entitled to compensation.
Item 2
(1)(a) says that, for purposes of that item, an unfair labour
practice means “ any unfair act or omission that arises
between an
employer and an employee involving-
(a)
“the unfair discrimination,
either directly or indirectly, against an employee on any arbitrary
ground, including, but not limited
to race, gender, sex, .... sexual
orientation, .... marital status or family responsibility;”
[15] The appellant’s case was
argued before us on the basis that the appellant conceded that it
had discriminated against the
respondent but challenged the
contention that such discrimination had been unfair. Mr Brassey,
who, together with Mr Franklin,
appeared for the appellant submitted
that the discrimination did not take the form of the appellant
disqualifying the respondent
altogether from possible appointment to
the position of Human Resources: Generalist. He submitted that what
happened was that the
fact that the respondent was pregnant and
would, therefore, by virtue of such pregnancy, not be able to meet
the appellant’s
continuity requirement, was taken into account
together with the fact that there was another candidate, namely, Dr
Young, whom
the appellant found was a far better candidate than the
respondent and would be able to meet the continuity requirement of
the
appellant’s operations.
[16] Although Mr Brassey submitted
that the pregnancy of the respondent did not take her out of the
category of persons who could
be offered the job, there are areas in
the evidence of Mr Inskip which could be said not to corroborate Mr
Brassey’s submission.
That is evidence where Mr Inskip testified
that the respondent’s pregnancy rendered her unsuitable for the
job or disqualified
her for the job because of the fact that she
would not be able to be in the job continuously for a minimum period
of 12 months
in accordance with the appellant’s assessment of what
would be required of the candidate who got the job. However, there
was
important evidence by Mr Inskip which, in my judgement, makes it
clear that the effect of his evidence was not that the pregnancy
put
the respondent outside the category of persons who could be offered
the job. That is the evidence Mr Inskip gave that, if the
appellant
had not found a suitable candidate who could meet the appellant’s
continuity requirement, the appellant would have
appointed the
respondent as that would be
“better than nothing.”
This
means that in that event the appellant would have had to accommodate
the fact that, after four months or so of commencing
in the new job,
the respondent would have had to take a maternity leave. If the
attitude of the appellant was that the respondent’s
pregnancy
disqualified her from the job in the sense that it put her outside
the category of persons who could be offered the job,
Mr Inskip’s
evidence would have been to the effect that, even if the appellant
was not able to find a suitable candidate who
would meet the
continuity requirement, it could not offer the job to the respondent
because of her inability to meet that requirement.
[17] Mr Niewoudt, who appeared for
the respondent, did not argue that there was no evidential basis for
Mr Brassey’s submission
that pregnancy was considered by the
appellant only in the context that it reduced her rating in terms of
prospects for the job.
Accordingly the case must be decided on the
basis that pregnancy was considered on the basis that it prevented
the respondent from
meeting the appellant’s continuity requirement
in circumstances where, to say the least, it wanted a candidate who
would be able,
once he or she had commenced in the job, to be in the
job continuously for at least 12 months because of the issues that
would
need to be attended to by the successful candidate over that
period.
[18] Bearing the above in mind, in my
judgement what becomes very important in terms of the facts of this
case is that:-
(a) the respondent did not dispute
that Dr Young, the candidate whom the appellant ultimately
appointed, was a better candidate
than herself - in this regard the
uncontested evidence of Mr Inskip was that, academically, Dr Young
had an under graduate degree
in Human Resource management, a further
honours degree, with a commerce degree in Information and
Technology, an MBA degree and
a doctorate in Human Resources
Management; he had co-authored a book which focussed on Human
Resources with Information Technology;
he had had 17 years
experience in Human Resources/IT field; he had substantial
experience in three of the largest financial institutions
in South
Africa; he had won the best speaker award at a conference; he had
spoken at numerous local and international conferences;
his duties
had included the HR general functions with a focus on recruitment; a
focus on change management; Mr Inskip’s uncontradicted
evidence
was that Dr Young had
“the unique combination of skills that I
was looking for --- he exceeded our requirements as well as having
the practical experience
that we were looking for.”
;
academically the respondent appears to have had a B.A degree; she
also had much less experience than Dr Young’s 17 years;
(b) the respondent conceded under
cross-examination that, although at the end of the interview she had
with Mr Inskip on the 17
th
December she was excited at
her prospects of getting the job, Mr Inskip had emphasised that he
still needed to see other candidates
before he could take a final
decision on which candidate would be given the job; indeed she
conceded under cross-examination that
she accepted that the job
could go to anyone of the candidates after the interview;
(c) the respondent also conceded
under cross-examination that Mr Inskip did not at any stage say to
her he was offering her the
job; the closest he came to even on the
respondent’s own evidence was that she inferred from the message
that Mr Inskip left
on her voice mail that he wanted to “complete
the paper work” that Mr Inskip was offering the job to her;
(d) the respondent does not even go
as far as saying that the quality of her candidacy for the job was
on the same level as that
of Dr Young’s;
(e) although the respondent’s
attorney argued that this was not
a case where the appellant was
justified in taking the respondent’s pregnancy into account
against her, it was not the respondent’s
case that the appellant’s
decision to appoint Dr Young should be set aside and the appellant
be ordered to consider her application
for the job as well as that
of Dr Young afresh without taking pregnancy into account; obviously
she would have had her baby by
now - but there is nothing that
precluded her from approaching the court below on an urgent basis
soon after the appellant’s
decision to give the job to Dr Young to
seek to have the appellant ordered to reconsider the two
applications without the respondent’s
pregnancy being a factor at
a time when, if she was successful, she could still take up the job.
[19] In the light of the above it
seems to me that, if the respondent’s attack on the appellant’s
decision not to appoint her
but to appoint Dr Young is the
contention that, but for her pregnancy, she would have been
appointed to the job despite the fact
that there was a candidate
who, without any doubt, was a far better candidate, such attack is
based on very little more than a
suspicion which is not supported by
any evidence. There can be no doubting the fact that at the time
when Mr Inskip had to make
a decision as to whom he would give the
job, Dr Young also wanted the job, he had been interviewed and the
appellant had been immensely
impressed by Dr Young; and that the
appellant believed at that time that Dr Young was a far better
candidate.
[20] It was conceded also by the
respondent that Mr Inskip had made it clear to her that he would
need to see other candidates
before he could make up his mind
finally: Mr Inskip testified, and this was never disputed by the
respondent, that there was no
way he was prepared to take a final
decision on whom he would offer the job until he had interviewed Dr
Young as well. He emphasised
that, even after looking at Dr Young’s
curriculum vitae, he considered Dr Young “
a key candidate
”
even before he could interview him. That this was Mr Inskip’s view
of Dr Young already on the day of his interview with the
respondent, namely, the 17
th
December, was not disputed.
In those circumstances I can see no basis why by the 19
th
December Mr Inskip could have decided to offer the job to the
respondent in circumstances where he had not yet had an interview
with Dr Young. Accordingly I am unable to agree that Mr Inskip
could in anyway have decided between the 17
th
and the
19
th
December that he would give the job to the
respondent.
[21] The respondent believed that Mr
Sturrock was responsible for what she regarded as a change of
attitude on the part of Mr Inskip
towards her “
candidacy
”
. She said this was because Mr Inskip had told her that Mr Sturrock
was unhappy that she be given the job in the light of her
pregnancy. Even assuming that this is what occurred, where does that
take the respondent’s case? Mr Inskip would have spoken
to Mr
Sturrock between his interview of the respondent and his making his
final decision on which candidate he should give the
job. In this
regard it must be remembered that Mr Inskip’s evidence that the
final decision on which candidate would get the
job lay with him was
not challenged.
[22] Let us assume that as on the
17
th
December Mr Inskip felt almost sure that, after
seeing Dr Young, he would choose the respondent for the job. In that
event the
question that arises is whether, between the date of the
interview and the date of the taking of the final decision by the
employer
on which of the candidates he gives the job to, an
employer is not entitled to change
his mind about which candidate he thinks is the best for the job.
Clearly, an employer is entitled
to change his mind between those
two events provided he has not yet made an offer to anyone of the
candidates. In my judgement
it is irrelevant whether the change of
mind is due to his own reconsideration of issues or whether he has
spoken to a colleague
or an adviser. The fact of the matter is that
the period between the interview and the taking of the final
decision is for the
employer to consider all the candidates - their
strengths and weaknesses as well as what his/her business
requirements are before
he makes the final decision to give the job
to one of the candidates or, indeed, not to give the job to anyone
of the candidates.
[23] In some cases the employer will
have been, or, will be perceived by a candidate for employment to
have been, very impressed
with the candidate but that does not give
that candidate the right to the job over the other candidates. In
another case a candidate
will come out of an interview depressed
thinking that he/she did badly in the interview and will, therefore,
not get the job but
only to be nicely surprised later that he/she is
the one who is
ultimately offered the job. In this
regard I think of a court scenario. In regard to what the judgement
of a judge will be in a
court case, legal practioners know very well
that a party should not rely too much on how the Judge appeared to
be receptive to
a particular party’s argument because it happens
so very often that a judge who appeared during argument to be
persuaded by the
arguments of a particular party ultimately gives
judgement against that party. The change usually occurs between the
hearing in
court and the date when the Judge makes his/her final
decision on the matter. Job applicants must see interviews exactly
in the
same way if they do not wish to be disappointed. The
respondent failed to see her interview with Mr Inskip on the 17
th
December in this way despite the fact that Mr Inskip emphasised that
he was still to see other candidates. That she saw the interview
in
this way was no fault of the appellant.
[24] The respondent is unable to show
that, but for her pregnancy, she would have been appointed to the
position despite the appellant
having another candidate who was
better suited for the job than herself. The result of this is that,
in my view, there is no causal
connection between her not being
appointed and her pregnancy.
The reason why in the end she was not
appointed was simply that there was a stronger candidate than
herself. It is true that her
pregnancy was taken into account
against her but there is no evidence that, if it had not been taken
into account, she, and not
Dr Young, would necessarily have been
appointed. Accordingly I can find nothing unfair about the
appellant’s decision not to
appoint the respondent to the position
but to appoint a better candidate than her.
[25] The basis on which I have found
that the appellant’s decision not to appoint the respondent did
not constitute an unfair
labour practice, namely, that there was a
better candidate than her , was presented as an alternative defence
in argument before
us. The first defence was the so-called
continuity defence. However, on a reading of the appellant’s
response to the respondent’s
statement of claim in the court a
quo, it is clear that the defence that there was a better candidate
was not necessarily an alternative
defence. In fact it appears to be
the main defence although the continuity defence is also reflected
therein.
[26] I am satisfied that the
continuity requirement was not a sufficient
ground on its own to justify the
decision not to appoint the respondent. To my mind, the true
position is that the appointment of
a candidate who would have had
to be away for three months into the job would cause the appellant
no more than some inconvenience
and some amount of disruption but
such disruption would not be of such a serious nature on its own as
to justify not appointing
such a candidate on that ground alone.
However, in this case the respondent’s inability to meet the
continuity requirement was
not the only factor responsible for her
not being appointed. She simply had a much stronger candidate to
compete against. In my
view that she would have been appointed if
she was not pregnant even if Dr Young was one of the candidates
cannot be anything more
than a suspicion.
[27] Lastly I wish to make an
observation or two about the fact that the case that was argued
before us concerned the appellant’s
decision not to appoint the
respondent to the position of Human Resources: Information and
Technology Generalist. Although this
is the case that was argued
before us, I have in the course of going through the record noted
that such complaint is nowhere mentioned
in the respondent’s
statement of claim nor is such a
complaint mentioned in the
respondent’s long letter of the 8
th
January 1998 where
she sought to record what she was unhappy about. Indeed it is also
not even mentioned in her attorney’s letters
to the appellant. In
fact the only case that is reflected in the respondent’s statement
of claim and correspondence is the one
which was dismissed by the
court a quo and against which she did not cross-appeal. That is the
case that she had been appointed
to the position and that the
appellant repudiated the
agreement in terms of which she had
already been appointed. It may well be that, once the Court a quo
had rejected the version that
the respondent had been appointed
already, that should have been the end of the matter.
[28] Lastly I agree with what
Conrandie JA says in his judgment about whether or not the amicus
curiae should have been admitted.
Even though the basis on which I
have decided the matter did not require much of the arguments
presented by the amicus, I am unable
to say that the amicus was
unnecessary or that he addressed collateral issues. I think he was
sufficiently helpful to the court.
[29] In the result I agree with the
order made by Willis JA.
RMM Zondo
Acting Judge President
CONRADIE JA
[30] Discrimination based on sex
falls within the purview of item 2(1)(a) of schedule 7 of the Labour
Relations Act 66 of 1995 (‘the
Act’) and therefore Mr Brassey
for the appellant accepted that discrimination by reason of a
woman’s pregnancy also does. Since
item 2(1)(b) proclaims that the
term ‘employee’ includes an applicant for employment, it was
common cause that the respondent
fell within the protection of the
section. It was further common cause that the appellant took the
respondent’s pregnancy into
account in denying her a post for
which she was suitably qualified. It was said that the reason for
taking her pregnancy into account
was operational. Any incumbent
would have to provide the appellant with uninterrupted continuity of
employment for a period of
at least twelve months. I shall for the
sake of brevity refer to this as ‘the continuity requirement’.
The respondent could
not fulfil this requirement. She would have had
to take three months’ maternity leave after only five months in
the post.
[31] The continuity requirement
was the defence pleaded by the appellant in the court
a quo
.
In the context of resisting the respondent’s (failed) claim that
she had actually been appointed to the post, the appellant
pleaded
that it would not have appointed her when it was alleged to have
done so since other candidates were yet to be interviewed.
It
neglected, however, to mention in its statement of defence another
defence which assumed prominence during the trial. One of
the
candidates was a Dr Young who was said by the appellant to have been
by far the better candidate. He was later appointed to
the post.
Faced with such superior competition, it was said, in the
alternative, the respondent would not have been appointed to
the
post even if she had not been pregnant. There was, accordingly, no
causal connection between whatever discrimination there
might have
been and the respondent’s failure to obtain the post. The only
witness for the appellant was Mr R J D Inskip. Conclusions
about the
(allegedly pressing) operational necessity for the continuity
requirement can be drawn from no other source. It is necessary
to
embark upon a detailed discussion of the cogency of Inskip’s
evidence, assessed against that of the respondent and the background
facts.
[32] It is common cause that the
respondent was offered the post of human resources generalist with
the appellant during October
1997. She could, because of her
husband’s job situation, not then accept the offer. The post was
re-advertised. The respondent
was requested to apply again. By now
her husband’s firm had agreed that he might relocate to its Cape
Town office, so that the
move to Cape Town was no longer an
impediment. She was interviewed by Inskip on 17 December 1997. By
this time Young, whose
curriculum vitae
had been received,
had been contacted, but not by Inskip. A man called Dickson spoke to
him on 15 December. Nevertheless, Inskip
said, on the basis of his
curriculum vitae
he was – on the seventeenth already –
regarded as a key candidate. By that I understand him to have meant
that no decision
about the appointment of the respondent could have
been made until Young had been assessed.
[33] It is common cause that the
respondent at that interview revealed the fact of her pregnancy.
According to Inskip he expressed
no negative view about it. He said
in evidence that he was not sure how to react to it. The respondent
went somewhat further in
her evidence; she testified that Inskip had
assured her that her pregnancy would
not
be a problem.
Inskip’s silence was a curious response, particularly since he
maintained that the continuity requirement had been
stressed in
every interview. He conceded that he had failed to advise the
respondent that continuity might be a problem. My impression
is that
the continuity requirement was not then nearly as important as it
was later made out to be. Inskip gave another indication
that he, at
the time, thought little of the continuity requirement. He sent the
respondent to consult the appellant’s human resources
personnel on
various matters including its maternity leave policy. Why he should
have done this if he considered the respondent’s
pregnancy to be a
serious obstacle to her appointment, is unclear.
[34] It is common cause that
Inskip stated at the interview that he still had other candidates to
interview. The respondent testified
that she was nevertheless told
that she would be advised by Inskip of his final decision the next
morning. Inskip’s version is
that he undertook to telephone her
the next day but one. Of course, if Inskip had been serious about
Young (or the continuity requirement)
he could not possibly have
told the respondent this. He had no intention of interviewing Young
before again speaking to the respondent.
In fact, he was leaving on
a business trip in the afternoon of 17 December which would take him
out of town until the afternoon
of Friday 19 December.
[35] True to his undertaking
Inskip did telephone the respondent the next day but one. He
testified that his purpose in leaving
a message on her cell phone
was to ‘have further discussions with her about taking the
position forward as to where we were.’
He professed to have no
recollection, however, of having said (as the respondent testified
he did) that he wanted to finalise the
paper work. There is
obviously not a great deal of difference between ‘taking the
position forward’ and ‘finalising the paper
work’. ‘Taking
the position forward’ could only mean advancing beyond the stage
reached at the interview two days earlier.
How far forward Inskip
wished to take the position, having regard to the fact that he had
not yet interviewed his key candidate,
is, on his version, unclear.
Why he should have wanted to take the position forward with a person
whom he described in evidence
as a candidate of last resort, one
who, if there were no alternative, would be better than nothing, is
equally unclear. On the
respondent’s version, however, it is
crystal clear: he had decided to appoint her. Inskip’s testimony
that he could not recall
having said that he wished to finalise the
paperwork rings hollow if one considers that the only appropriate
response for him would
have been ‘of course I could have said no
such thing: I still had Young to interview.’
[36] The ambiguity of Inskip’s
position is demonstrated by his further testimony: ‘
¼
the reason for me wanting to leave the message was to say, ‘lets
continue the discussions and let’s – let me update you as
to
where we are.’’ On the appellant’s case there were at that
time no discussions to pursue. There was no updating to be
done:
absolutely nothing further had happened since the interview. I
accordingly prefer the respondent’s version that Inskip
had indeed
called to ‘finalise the paperwork.’ Young was, at that stage, so
unimportant that he had evidently decided not even
to interview him
and the continuity requirement played, (true to his assurance to
the respondent at the interview) no role.
[37] Not having established
contact with the respondent, Inskip later on Friday 19 December left
a second message on her cell phone
giving her his home telephone
number. The matter which he wished to discuss was manifestly too
pressing to wait until Monday. It
was indeed. We know from the
evidence of the respondent that Mr Sturrock, the appellant’s
financial director, had in the meantime
expressed his concern to
Inskip about the respondent’s pregnancy.
[38] In response to his messages,
the respondent telephoned Inskip on the morning of Saturday 20
December. She says that she became
alarmed at the tenor of the
discussion. Inskip began by enquiring whether she was interested in
a permanent position or in a consultancy
position, matters which had
all been decided upon the previous Wednesday: she had then said that
she would prefer a permanent post
as a Woolworths’ employee.
Inskip testified that ‘the intention was to ask her which of the
options would be more suitable
to her.’ This evidence reeks of
improbability. There was no reason to contact the respondent over
the week-end to discuss this
with her. It is not as though an offer
acceptable to her had urgently to be weighed against one made to
another candidate. Young
had still not been seen. Whereas the
previous day Inskip had intended to move things forward, he was now,
on his own version, intent
on moving things backward. The lack of
any other explanation for the turn which events took on the Saturday
makes me come to only
one conclusion: although Inskip denied it,
Sturrock had indeed expressed reservations about the respondent’s
pregnancy.
[39] The next question is why, if
those reservations were based on substantial reasons of operational
continuity, Inskip did not
openly and honestly debate them with the
respondent that Saturday morning; that he did not do so seems to
suggest that he had no
faith in their validity. Instead, he resorted
to subterfuge and evasion raising, as we have seen, questions which
had already been
answered. The following Tuesday, 23 December,
Inskip’s sinister suppression of whatever Sturrock had conveyed to
him, assumed
alarming proportions. 23 December was the day on which
Inskip finally managed to telephonically contact Young. He testified
that
this telephone conversation persuaded him that Young really was
the perfect candidate. The impression he conveyed was that, subject
to a face to face interview, the job was Young’s. Of course, there
were still concerns such as why Young was prepared to move
from a
bigger to a smaller job (which was also less well remunerated) and
whether he was not perhaps overqualified for the post.
Remuneration
was not discussed with Young, nor was the date on which he might be
able to commence his services, but Inskip had,
according to him,
found a first class incumbent for the job of human resources
generalist.
[40] That is the scenario. It
remains to test it against the probabilities. When Inskip telephoned
the respondent after having spoken
to Young he knew that he had
found the candidate of his dreams for the very post for which the
respondent was competing. He did
not yet know when Young, if
appointed, would be able to start. He could therefore not, even
temporarily, offer the respondent the
post for which she had
applied. By doing so, he would risk having two people in the same
job. However, according to Inskip he was
no longer thinking of
appointing the respondent to the generalist post. She was to be
appointed to accomplish specific tasks while
the appellant was
pursuing discussions with Young to try to conclude a contract of
employment with him. The respondent was told
none of this. She was
not told that she was now being offered a job for which she had not
applied. I cannot conceive of any reason
for Inskip to have acted in
such an underhand way. It was either an outrageous non-disclosure to
the respondent that the whole
nature of her job had changed, or the
version is a later invention. I think that it was the latter. If
Young had really been such
a strong candidate at that time, one
would have expected the end of the respondent’s temporary
employment to be made to coincide
with the commencement date of his
permanent employment. Instead, it coincided with the approximate
commencement date of the respondent’s
maternity leave. If he had
really been on the scene, I would have expected Inskip to delay any
offer of temporary employment to
the respondent until Young’s
starting date had been ascertained. Then it could have been arranged
for the respondent to stand
in for Young until he could start.
Furthermore, if I am correct in thinking that Young was not at that
stage a factor, the appellant
could not have hoped to solve its
continuity problem by offering the respondent a fixed term contract
involving, as it would, a
transfer of functions to a new incumbent
when it came to an end. This would in turn tend to suggest that
although the continuity
requirement may have been desirable, it was
not of pressing operational significance.
[41] The fact that Young’s
existence was even at this late stage not revealed to the respondent
creates considerable doubt in
my mind that Young made anything like
the impact on Inskip that he later thought it politic to portray.
Indeed, the respondent
testified that when she spoke to Ms M
Klingenberg (to whom she had been referred during Inskip’s absence
on leave), she was on
6 January 1998 for the first time told of the
supposedly pressing need for continuity.
That
was given as
the reason for her having lost a post which she believed she to all
intents and purposes already had. The reason
given was not that
Young was, even before the respondent’s interview, thought to be a
superior candidate. This shows that even
then Young had not emerged
as a strong contender. He was only interviewed once the respondent
had declined the offer of fixed term
employment.
[42] I am not suggesting that it
might not have been more convenient for the appellant to have had
continuity in the post of human
resources generalist, but I am not,
on the evidence, persuaded that it was such a vital requirement that
it should have led to
the rejection of the respondent’s
candidature on this ground. It could not, and did not, explain
Inskip’s enthusiasm for the
respondent at a time when the
requirements of the post were well known to him. It is a fair
inference that his rapid change of
opinion after the intervention of
his superior, the financial director, was due to an instruction to
act in the way he did. This
was the respondent’s evidence. It is
probably correct. The sinister aspect of it is that Inskip at no
time tried to justify his
change of stance by explaining that he
himself had mistakenly underrated the importance of the continuity
requirement. Instead,
he denied that he had had a change of heart.
This, in my view, shakes the continuity defence to its foundations.
[43] An analysis of the evidence
concerning the continuity requirement shows why Inskip did not
regard it as vital. There had been
(we are not told when) a merger
between the information technology division of the appellant and an
external company acquired by
the appellant. The acquisition meant
that some one hundred people had to be integrated into the existing
division. This meant in
turn that staff policies of the external
company had to be brought into line with those of the appellant. The
year 2000 project,
it was said, required attention but that I would
have thought, was Inskip’s field. There were issues related to
retention of
staff, and the development of new strategies and
operational procedures, including a staff retention policy and
making up a significant
backlog on recruitment. Now, these tasks,
important as they no doubt were, cannot in my view be said to have
vitally depended upon
the respondent’s presence at the workplace
during the months of June to August 1998. The respondent was not
going to be ill.
She offered to attend to the appellant’s business
during her maternity leave. Doubtlessly much of the development work
could,
if required, have been done from home. Advice and support
could, if required, have been furnished from home. The respondent as

captain of the ship did not have to man the bridge all day. In my
view the reason for rejecting the respondent on the grounds of
her
pregnancy comes nowhere near to meeting the stringent test proposed
by the authorities.
[44] This is not really a case
about women’s rights. It is a case about a manager who, having
made the correct decision in the
first place, was persuaded by a
superior to reverse it, and was then left to cover up as best he
could. It nevertheless aroused
sufficient interest with a body known
as the Women’s Legal Centre Trust, the objectives of which are to
promote and protect the
rights and interests of women and to
intervene on behalf of women in litigation which involves women’s
rights. This body applied
under rule 7 of the rules of this court
for permission to intervene as
amicus curiae
in the appeal.
The application was granted despite Mr Brassey’s objection that
the trust deed did not empower the trust to intervene
in this
manner. He argued that the power to give legal assistance free of
charge to the public, particularly to women, in cases
which involve
public interest or constitutional litigation was not wide enough to
encompass intervention as
amicus curiae
on behalf a litigant.
I do not think that the power should be read so restrictively.
‘Legal assistance’ is an expression of
wide and general import;
it does not cover only financial assistance. It cannot be said that
the respondent was not being legally
assisted. Submissions which
were considered to be relevant to the protection of her rights were
advanced by the trust. The point
can accordingly not succeed.
[45] Mr Cheadle who appeared for
the Trust submitted that discrimination on an arbitrary ground
(which includes, but is not limited
to, the grounds set forth in
item 2(1)(a)) would be fair if, in terms of item 2(2)(c), it is
based on ‘an inherent requirement
of the particular job.’ He
argued further that a criterion for evaluating the fairness of
discrimination which was less strict
(e.g. a criterion which made
discrimination fair if the legitimate objects of the employer were
hereby promoted) would not give
effect to the purpose of item 2.
‘Inherent requirements of the job’ Mr Cheadle suggested, are
limited to fixed attributes of
a job, those that are permanent in
nature. He suggested further that there was, in addition to the two
specified categories of
fair discrimination (those relating to
affirmative action in sub- item (2)(a) and inherent requirements of
a particular job in
sub-item (2)(b)) what he called a general
defence of fairness, which, although open-textured, should not
detract from the general
proposition that defences which have the
effect of limiting equality in the workplace, should be strictly
construed.
[46] The continuity requirement,
he submitted, was not an inherent requirement of the job. It could
not be one since it would in
terms of the
Basic Conditions of
Employment Act 75 of 1997
be unlawful to make it a condition of
employment that an employee might not take maternity leave
(s 25)
,
sick leave
(s 22)
, annual leave
(s 20)
or family responsibility
leave
(s 27).
Accordingly, the requirement of uninterrupted job
continuity in itself would not have justified a refusal to employ
the applicant
on the grounds of her pregnancy.
[47] Mr Brassey submitted that
pregnancy of a job applicant may legitimately be taken into account
where the operational requirements
of the job are such that it would
be unreasonable to expect the employer to employ the applicant. In
examining the reasonableness
of the decision one would have to be
satisfied that it was rationally related to the appellant’s
business interests and gave
proper weight to the respondent’s
interest, as a woman, to equal treatment. This test is less strict
than the one suggested by
Mr Cheadle as the correct one. I do not
have to choose between the two. In my view the appellant fails even
on the lesser test.
[48] The evidence shows that at
the time of the interview Inskip’s mind was untroubled by such
requirements as continuity. He
was the one best placed to know
whether continuity was important or not. He evidently thought it was
not. Since Inskip denied that
Sturrock had spoken to him about the
respondent’s pregnancy one does not know why the latter considered
the continuity requirement
to be sufficiently important to justify
rejection of a pregnant applicant. This leaves the appellant with
the dilemma that, between
Sturrock who thought at the time that
continuity was important and Inskip who thought at the time that it
was not, it has failed
to demonstrate that the continuity
requirement was operationally so important that it would have been
unreasonable to expect of
the appellant to employ the respondent.
[49] Having said this, I should
say something about
onus
. Mr Brassey in opening his argument
was not disposed to concede that the appellant bore a (proper) onus.
He conceded, however,
that there was an evidentiary burden on the
appellant to justify its conduct once such conduct was made to look
discriminatory.
Such evidentiary onus arose from the circumstance
that, since the facts relating to the justification for the
discrimination were
peculiarly within the knowledge of the
appellant, the respondent needed to adduce less evidence to
establish a
prima facie
case.(Gericke v Sack l978 (1) SA
821(A) at 827 D-G.) Mr Cheadle on the other hand argued that s 9(5)
of the Constitution of South
Africa 200 of l996 imposed an onus upon
a discriminator to prove that the discrimination was justified. It
is not necessary for
me to decide the issue. Once it was common
cause that the respondent’s pregnancy had operated against her,
the appellant became
obliged to explain why that was so. It became
burdened with an evidentiary
onus
which obliged it to present
evidence lest it fail to persuade the court of the merit of its
case. At the trial the appellant commenced
leading evidence without
demur; evidently it saw things differently then.
[50] The motivation for the
discrimination was at best inadequately revealed. Inskip said that
it was operationally necessary, but
he did not think this from the
beginning and, since he did not admit that Sturrock had expressed
any reservations about the respondent’s
condition, he could
obviously not explain the import of what Sturrock had said to him.
A
fortiori
, he was not able to reveal whether he was or was not
persuaded by what Sturrock had said. Perhaps there was a difference
of opinion
on the topic which it was, for the sake of forensic
solidarity, thought prudent to conceal. Added to this there was the
failure
(to which I adverted earlier) to show in any depth or with
any conviction why the respondent’s absence during the months of
her
maternity leave would be crucial.
[51] The court
a quo
awarded the respondent a
solatium
. A court hearing an unfair
discrimination matter in terms of item 4 of schedule 7 ‘has the
power to determine [it] on terms it
deems reasonable, including, but
not limited to, the ordering of reinstatement or compensation.’
The industrial court was by
s 46(9)(c) of the Labour Relations Act
28 of 1956 empowered to determine disputes referred to it ‘on such
terms as it may deem
reasonable, including but not limited to the
ordering of reinstatement or compensation
¼
’
A considerable body of law was built up by the old labour appeal
court in considering the proper approach to awards of compensation
made under the identical wording of s 46(9)(c). It is necessary only
to refer to
Ferodo (Pty) Ltd v De Ruiter
(1993) 14 ILJ 974
(LAC) at 981 C – H, a passage on the computation of compensation
which has consistently been followed. Sentimental
damages are not
awarded unless there has been an
iniuria
, that is to say, a
slight to the plaintiff’s rights of personality such a dignity and
a good reputation.
In casu
, the respondent did not rely on an
injuria
. She set out to prove actual financial loss. I did
not understand Mr Nieuwoudt for the respondent to strenuously argue
for an award
of non-patrimonial loss. Had the respondent been given
the post she applied for, she would have earned R 300 000 over a
period
of one year – she only claimed loss of salary for twelve
months. From this amount of R 300 000 should be deducted the R 130
000
which she might have earned if she had not rejected the
appellant’s offer of temporary employment. I consider that she was
obliged
to accept the offer in order to mitigate her loss. In
addition she earned R 26 000 in September and October. Deducting,
say, R
160 000 from R 300 000 leaves an award of R 140 000. I would
alter the award of the court
a quo
to R 140 000.
[52] It remains to consider the
question of costs occasioned by the intervention of the
amicus
curiae
. Mr Brassey’s point that the intervention was
ultra
vires
has been dealt with above. His further submission was that
the
amicus
raised issues collateral to those defined by the
pleadings and the parameters of the
lis
between the parties,
and that this went beyond the proper functions of an
amicus
.
I do not agree. The
amicus
has contributed valuable
submissions on the appropriatness of the test for determining
unfairness and has assisted the court on
the question of
onus
.
In my view the
amicus
does not deserve to be mulcted in
costs. The
amicus
has not asked for costs so that, acceding
to Mr Brassey’s argument of last resort, I dismiss the appeal with
costs and would
make no order for costs consequent upon the
intervention.
_________________
CONRADIE JA
WILLIS JA.:
[53] I have had the benefit of
reading the judgements prepared by my learned brothers Zondo AJP and
Conradie JA. I agree with the
order proposed by Zondo AJP.
[54] My reasons follow.
[55] It is a paradox of the human
condition that the noblest of our aspirations are often in conflict.
In this regard, the ideals
of freedom and equality have been the
giants that have bestrode the stage in modern times.
In this
case, certain derivatives of the ideals of freedom and equality have
clashed with complex intensity. On the one hand there
is the ideal
of maximising economic rationality in order to increase the
prosperity and hence the freedom of our society. On the
other, there
is the ideal of minimising those disadvantages that women experience
as a result of pregnancy
in order that we may come closer to
a state of equality between women and men.
[56] Against the background of the
awe inspiring progress that has been achieved in the natural
sciences, the temptation is great
to believe that , ultimately,
enduring solutions to tensions between our social ideals are
discoverable: that, by the application
of sufficient intellectual
rigour, the condition of humanity may be made perfect. The truth, I
fear, is probably rather more mundane:
we have to muddle through as
best we can, taking into account our times and circumstances.
[57] In this matter, obviously, a
decision has to be made. I am conscious, however, that whatever
decision this court arrives at
will have an imperfect result. I
hope, however, that this decision reflects an endeavour to
accommodate our ideals as a society
within the constraints of our
times and circumstances.
[58] This is an appeal against the
finding of the Labour Court that the appellant ( “the employer”)
had committed an unfair
labour practice as contemplated by Item
2(1)(a) of Schedule 7 of the Labour Relations Act No. 66 of 1995
(“the LRA”) by declining
to appoint the respondent (“the
applicant”) by reason of the fact that she was pregnant. The
employer also appeals against
the decision of the Court
a quo
to award her R200 000 as compensation consequent upon its finding.
The Court
a quo
granted leave to appeal to this court.
[59] The decision of the Court
a
quo
has been reported (
Whitehead v Woolworths (Pty) Ltd
(1999) 20 ILJ 2133 (LC) ).
[60] The Women’s Legal Centre Trust
( “the Trust”) made an application in terms of Rule 7 of the
rules of this court to be
joined as an
amicus curiae.
The
Judge President granted the application. The
feminae
of
classical Rome may have preferred that the Trust be admitted as
amica curiae,
in order to avoid the use of sexist language in
the application of the rules of court. The Trust made full and very
helpful submissions.
The following gem does, however, appear in its
heads of argument: “Pregnancy is the means by which human life is
reproduced and
is accordingly of fundamental importance to our
society at large.” I hope that this judgement will make it clear
that this Court
does not imagine that it occupies a plane of
etiolated sanctity!
[61] As a result of a merger between
the information technology department of the employer with an
external information technology
department the employer required the
services of a “Human Resources Generalist .”
[62] By reason of the merger,
approximately one hundred people had to be integrated into the
employer’s existing information technology
(“IT”) division.
New policies and procedures, relating,
inter alia,
to staff
matters had to be developed. The IT division was experiencing a high
level of staff turnover. Furthermore, a number of
key human
resources (“HR”) staff had resigned for a variety of reasons.
[63] The HR Generalist would
responsible for some 450 employees.
[64] In July 1997, the employer
advertised the vacancy for this position and the applicant, who had
a bachelor’s degree in industrial
psychology, applied therefor.
After complex negotiations which included the possibility of her
being employed as an independent
contractor on a consultancy basis,
she was offered the position in October 1997. She declined the
position. At the time she and
her husband were based in Gauteng.
[65] The employer became increasingly
desperate to fill the position. It advertised in November 1997 in a
newspaper circulating
in Cape Town and also one circulating
nationally. Consequent upon this advertisement five potential
candidates, including the present
incumbent were shortlisted. It was
also decided to approach the applicant to see whether her
circumstances had changed and whether
she might be interested in
being considered for the position. As a result of a change in her
circumstances, in particular the
fact that her husband had obtained
a position in Cape Town she said that she would. Arrangements were
made for her to be interviewed
while she and her husband were on
holiday in Cape Town. This suited the convenience of both parties.
[66] In the meanwhile the applicant
discovered that she had, quite unexpectedly, become pregnant and at
the interview held in Cape
Town disclosed this fact to her
prospective employer. A certain Mr Inskip conducted the interview on
behalf of the employer. If
the applicant were to have been engaged,
her employment in the vacant position would have commenced on 1st
January, 1998. If the
applicant were to take up this position, she
would have to take maternity leave for three months after some four
months in the
post.
[67] According to the applicant, she
understood both on 17
th
December and on 19
th
December, 1997 when a telephonic conversation took place between her
and Mr Inskip that she would, subject to certain formalities
being
completed , be appointed to the position. The employer offered her a
fixed term contract of five months on 23
rd
December,
1997. According to the applicant the employer advised her at the
time that it could not offer her a permanent position
by reason of
her pregnancy. This offer the applicant declined. At that stage the
employer had not yet secured the appointment of
the present
incumbent.
[68] The position was subsequently
awarded to a male person who had two honours degrees , an MBA and a
doctorate in which he specialised
in IT. He had seventeen years of
experience in the field of HR and IT, considerably more than the
applicant. The employer contends
that this person was undoubtedly
the better candidate for the position and would have been appointed
anyway, regardless of whether
the applicant had been pregnant or
not. His
curriculum vitae
and his accomplishments indicate
that he undoubtedly was. At the time of the interview with the
applicant , the employer had concerns
as to whether he was perhaps “
too high powered”, “ too expensive” and whether he would have
“ staying power”. If one
reads between the lines of the record,
I think it would be neither unfair nor unkind to either the employer
or the present incumbent
to note that it seems the employer had
concerns that he may be some kind of eccentric academic. The
employer needed to interview
him to decide whether its fears were
well founded or not.
[69] The employer furthermore
contended that, given the problems it was experiencing and the
nature of the job, it required uninterrupted
continuity of
employment in the post for a period of between twelve and eighteen
months and, by reason of the fact that the applicant
would have been
unable to fulfil this requirement, the decision not to offer her
permanent employment was a rational and commercially
justifiable
one.
Mr Brassey
, who appeared for the employer, correctly
accepts that the employer “took the respondent’s pregnancy into
account in assessing
her application for employment.” The record
clearly shows that this is indeed what occurred.
[70]
Mr Brassey
also very
fairly accepted that in so doing it discriminated on the grounds of
pregnancy. I am not entirely convinced that he was
correct in doing
so. I should normally avoid an intellectualised approach to giving a
judgement such as this. Nevertheless, for
reasons which I shall
develop latter, the issue of causation arises with some force in
this case. Unfair discrimination is , in
a certain sense analogous
to a
gevolgsmisdaad.
This means that there must be a
convergence of and a linkage between separate and distinct elements
before legal consequences
can arise. If a certain fact ( taking into
account the applicant’s pregnancy-(a) is not the reason or cause
or
conditio sine qua non
for occurrence of a certain event (
the decision not to employ her on a permanent basis -(b)), then
there has been no
nexus
established between (a) and (b) and
the question arises as to whether there has in fact been
discrimination? ( See, for example,
S v Mokgethi en Andere
1990
(1) SA 32
(A) and in particular the authorities, both criminal and
civil, cited therein at 40A). Obviously, one must first ascertain
that
there has been discrimination before one can determine whether
that discrimination has been unfair.
[71] Perhaps the explanation for
Mr
Brassey’s
concession lies in the difficulties that arise in
the use of language- in saying what one means and meaning what one
says. In the
days when
Mr Brassey
and
I were
schoolboys the use of the word “discrimination” in its modern
sense was, if not unheard of, considered to be a serious
solecism.
One has only to compare the current
Oxford Dictionary
with
fairly recent past editions to understand that “discrimination”
in the sense of being some kind of concrete act that impacts
unjustly, prejudicially and negatively upon another is a modern
concept. Undoubtedly,
Mr Brassey
is correct if the word “
discrimination” is used in its older, more traditional sense.
[72]
Mr Cheadle,
who appeared
for the Trust, submitted that we should adopt an approach
to discrimination similar to that
adopted in Europe and North America. There is undoubtedly much merit
in this submission although
for reasons which I deal with later, I
do not think that it is appropriate to adopt a “carbon copy”
approach. Nevertheless,
I have little doubt from having read the
welter of articles and case law from around the world to which
Mr
Cheadle
referred the Court that in European and North American
case and statute law and within the ILO “discrimination” is used
in the
modern sense of the word.
[73]
Mr Brassey,
again very
fairly and correctly, accepted that discrimination on the grounds of
pregnancy is a form of discrimination on the grounds
of sex.
[74]
Mr Cheadle,
pointed out
that this latter concession reflects the law in the European
Community, Canada and the United States of America.
[75] Both
Mr Nieuwoudt
who
appeared for the applicant
and
Mr Cheadle
accepted
that the fact of pregnancy may be a relevant factor which may fairly
be taken into account in deciding whether or not to
offer employment
to a woman.
[76] It is impossible, in my view,
ex
post facto,
to unscramble the events and determine, within a
comfortable margin of certainty, whether but for the fact of her
pregnancy, the
applicant would have secured the permanent position.
[77] The temptation is great to
decide this matter according to the question of
onus
.
Although the parties touched upon this issue,
they did not
argue on this point with the full rigour that would have been
inevitable if they thought this was appropriate manner
to decide a
case such as this. Mindful of the fact that the question of
onus
in cases involving alleged unfair dismissals is even more
controversial than the substantive merits of this particular case, I
shall
not do so. This much is clear, however: if the
onus
were
to
rest on the applicant, at least to the extent of having to
prove the alleged act of discrimination, then, in my view she would
experience
real difficulties, by reason of the issue of causation
outlined above.
[78] There are a number of aspects
in regard to which I respectfully disagree with the judgement of
Conradie JA
[79] Even if one accepts - and I am
not sure the record justifies such a conclusion- that Mr Inskip, the
person who had interviewed
the applicant on 17
th
December
1997 had there and then made up his mind to employ the applicant, it
is common cause that the applicant was aware at both
during the
interview which took place on 17
th
December 1997 and the
follow-up conversation which took place on 19
th
December
that whether or not she would be offered the position would depend
on (a) the outcome of interviews with other shortlisted
candidates
and (b) confirmation by his superiors.
[80] My own view is that Mr Inskip’s
version that he was trying , between 17
th
and 23
rd
December, to keep his options open is more plausible. Against the
background of the problems which the employer was experiencing,
any
reasonable person would have done the same.
[81] I also disagree with Conradie JA
as to his finding that the fact that Mr Inskip did not during the
interview on 17
th
September indicate to the applicant
that her pregnancy might have a negative impact on her eligibility
for the position indicates
that this requirement was not really
important to the employer.
[82] Mr Inskip explains this by
saying not only that he knew that “pregnancy was a sensitive
issue” but also by saying, as I
have indicated earlier, that he
was trying to keep his options open.
[83] I disagree with Conradie JA as
to the significance which he attaches to the fact that the employer
failed to state in its reply
to applicant’s statement of claim
that it had a better candidate, namely the present incumbent, in
mind at the time either of
the interview or the offer on 23
rd
December. It is stated very clearly in the reply that the applicant
was made aware of the fact that there were other potential
candidates. Furthermore, at the time when the offer of fixed term
employment was made the employer had not yet held an interview
with
the present incumbent much less secured his services.
[84] If one rejects as a factor
genuinely relevant to the employer its need for uninterrupted
continuity of employment, then the
only plausible reason why the
applicant was not offered the position was that she was, quite
simply, not the best candidate. If
this is the case, then the fact
that the employer had regard to the fact of her pregnancy is
irrelevant. It is rather like the
difference between temptation and
sin: a thought which enters one’s mind can only become an unfair
labour practice if it is acted
upon.
[85] Indeed, if one rejects
(i) the uninterrupted continuity of
employment factor as having genuinely influenced the employer’s
decision; and
(ii) the claim that she was not the
best candidate for the position; and
(iii) the possibility that it may
have been a combination of these reasons that led to the decision
not to offer her permanent employment,
then one is left with the
question: why was she not offered permanent employment?
[86] No other plausible explanation
was put to the employer during cross-examination.
Leaving aside the question of
whether it is then fair to the employer to speculate as to possible
reasons why the applicant was
not offered the position I think only
two other possibilities can come to mind. The one is that the
employer had some kind of irrational
antipathy towards pregnant
women employees. Given the fact that this employer has a policy of
giving female employees paid maternity
leave thus making it one of
the most progressive employers in the country in this regard and the
fact that it has a great many
female employees of child-bearing age
in its employ, this scenario is hardly likely. The other is that the
employer did not want
to bear the cost of paying the applicant for
maternity leave so soon after it would have engaged her. Given the
importance of filling
this position, this cost could not have been
significant. Furthermore, the record shows that the terms and
conditions of her possible
employment were highly negotiable.
Besides, it would be ironic indeed if when an employer adopts a
progressive policy of paying
its female employees in full during
their maternity leave, this policy were to count against it in
speculating as to possible reasons
why the employer was not offered
permanent employment.
[87] Sight must not be lost of the
fact that the applicant’s pregnancy may have been a factor that
operated in her favour, at
least to the extent of her being offered
the fixed term contract. Had she not disclosed her pregnancy, the
employer may well have
decided not to make her any offer at all
until it had interviewed the present incumbent and ascertained (a)
whether he was indeed
suitable and (b) whether he would be prepared
to work for it.
[88] The Court
a quo
found
that “Not only is the requirement of uninterrupted job continuity
for a period of at least twelve months not objectively
justifiable,
I cannot find such a condition to be reasonable.”
[89] The Court
a quo
also
found that “ No employer can receive any guarantee that an
incumbent will remain in its employ for an uninterrupted period
of
time. In the absence of such guarantee, I am satisfied that to place
such a requirement can be no more than a decision arrived
at on an
arbitrary ground.”
[90] The Court
a quo
held that
“ if profitability is to dictate whether or not discrimination is
unfair, it would negate the very essence for the
need of a Bill of
Rights.”
[91] The Court
a quo
decided
to award the applicant an amount equal to two-thirds of what she
would have earned over a twelve month period had she not
been
discriminated against and offered the position for which she was
invited to apply, and arrived at the sum of R200 000 accordingly.
[92] Item 2(1)(a) of Schedule 7 of
the LRA provides as follows:
“
For the purposes of this item, an
unfair labour practice means any unfair act or omission that arises
between an employer and an
employee, involving-
the unfair discrimination, either
directly or indirectly, against an employee 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.”
[93] Item2(2)(a) of the same Schedule
provides that:
“
For the purposes of sub-item
(1)(a) -
“
employee” includes an applicant
for employment;
[94] Item 2(1)(a) of Schedule 7 does
not pertinently mention pregnancy as a prohibited ground of
discrimination for a prospective
employee.
[95] Significantly, section 187
(1)(e) of the LRA enumerates as one of the grounds for a
dismissal
being “ automatically unfair ”,
“
the employee’s pregnancy,
intended pregnancy, or any reason related to her pregnancy”
[96] Section 9(4) read together with
section 9(3) of our Constitution enumerates pregnancy as one of the
grounds upon which a person
may not discriminate unfairly.
[97] Pregnancy is similarly listed in
section 6(1) of the Employment Equity Act, No. 55 0f 1998 and
section 1 (xxii)(a) of the Promotion
of Equality Act No. 4 of 2000.
[98] The applicant originally relied
on section 187(1)(e) of the LRA to found her claim. The Court
a
quo
correctly found that she could not do so as she had not been
dismissed.
[99] In the case of
Botha v Import
Export International CC
(1999) 20 ILJ 2580 (LC), Marcus AJ
approved the decision of the Court
a quo
(at 2587E-F).
[100] In the same case the learned
judge said at 2586H-J:
“
It follows that forms of
detrimental treatment other than dismissal arising from a woman’s
pregnancy could constitute direct unfair
discrimination. For
example, a failure to appoint an applicant for employment because of
her pregnancy or intended pregnancy could
constitute unfair
discrimination.
”
[101] I agree with that which the
learned judge has said in the immediately aforementioned quote. He
advisedly used the word “could”
rather than something more
peremptory. Each case must, of course, be decided on its own merits.
[102] Marcus AJ seems to have been
much influenced by the decision in
Dekker v Stichting
Vormingsentrum Voor Jong Volwassenen (VJV-Centrum) Plus
[1992]
ICR 325.
[103] In that case the applicant
applied to the respondent for the post of instructor at the training
centre for young adults run
by the respondent. She informed the
committee dealing with the applications that she was three months’
pregnant. The committee
nonetheless put her name forward to the
board of management of the respondent as the most suitable
candidate. The respondent later
informed the applicant by letter
that she would not be appointed. In that letter the respondent
explained that the reason for the
decision was that she was already
pregnant at the time of her application and that, according to the
information it had obtained,
the Risicofonds Sociale Voorzieningen
Bijzonder Onderwijs (Assurance Fund) would not reimburse it for the
maternity benefits that
it would be obliged to pay her during her
maternity leave. As a result the respondent would , financially, be
unable to employ
a replacement during the applicant’s absence and
would be short staffed.
[104] The Arrondissementsrechtbank (
District Court) Haarlem and the Gerechtshof (Regional Court of
Appeal) both, in turn, dismissed
the applicant’s claim for
compensation.The applicant then further appealed to the Hoge Raad
der Nederlanden (Supreme Court of
the Netherlands). That court then
referred the matter to the Court of Justice of the European
Communities (ECJ) for a preliminary
ruling.
[105] The ECJ held in para 12:
“
(I)t should be observed that
only women can be refused employment on the ground of pregnancy and
such a refusal therefore constitutes
direct discrimination on the
ground of sex. A refusal of employment on account of the financial
consequences of absence due to
pregnancy must be regarded as based,
essentially, on the fact of pregnancy. Such discrimination cannot be
justified on grounds
relating to the financial loss which an
employer who appointed a pregnant woman would suffer for the
duration of her maternity
leave.
”
[106] The ECJ had, however, to
interpret Articles 2 and 3 of the Council Directive of 9 February
1976 (76/207/EEC) on the implementation
of the principle of equal
treatment for men and women as regards access to employment,
vocational training and promotion and working
conditions.
[107] Article 2(1) of Directive
provides:
“
the principle of equal
treatment shall mean that there shall be no discrimination
whatsoever on grounds of sex either directly or
indirectly by
reference in particular to marital or family status.”
[108] Article 3(1) provides:
“
Application of the principle of
equal treatment means that there shall be no discrimination
whatsoever on grounds of sex in the
conditions, including selection
criteria, for access to all jobs or posts...”
[109] It is immediately apparent that
the wording of these articles states the position in absolute terms
whereas Item 2(1)(a) of
Schedule 7 of the LRA does not.
[110] Marcus AJ also referred to the
following in
Webb v EMO Air Cargo (UK) Ltd
[1993] 1 WLR 49
at
53H;
[1992] 4 All ER 929
(HL):
“
Child-bearing and the capacity
for child-bearing are characteristics of the female sex. So to apply
these characteristics as the
criterion for dismissal or refusal to
employ is to apply a gender -based criterion.
”
[111] A careful reading of the speech
of Lord Keith of Kinkel, with which his four other noble and learned
friends agreed, reveals
a rather more complex evaluation of the
issue than the first glance at this single sentence quoted by Marcus
AJ would suggest.
[112] Indeed the opening words of his
Lordship’s speech read as follows:
“
My Lords, this appeal involves
a difficult and interesting question in the field of sex
discrimination”.
[113] Their Lordships considered the
preliminary ruling of the ECJ in the
Dekker
case(
supra
)
and nevertheless decided , in turn , to refer the issue before them
to the ECJ for another preliminary ruling. They were concerned
that:
“
The European Court did not, in
Dekker’s c
ase and
the
Hertz
case, have to consider the situation where a
woman, on account of her pregnancy, will not be able to carry out,
at the time when
her services are required, the particular job for
which she is applying or for which she has been engaged. The two
decisions do
not give any clear indication whether in such a
situation the court would regard the fundamental reason for the
refusal to engage
the woman or for dismissing her as being her
unavailability for the job and not her pregnancy.
”
[114] We in South Africa have a well
developed jurisprudence in the field of tax law and to assist us to
distinguish between contracts
that may be classified as
locatio
conductio operis
and
locatio conductio operarum -
summoning
examples that readily spring to mind- that enables us immediately to
understand the significance of the final sentence
in the last
mentioned quote.
This is especially the case if one
substitutes the word “dominant” for “fundamental” therein.
There may well be merit
in borrowing from such jurisprudence to
develop suitable tests to determine, in complex situations, whether
there has been unfair
discrimination.
[115] In the matter of
Webb v EMO
Air Cargo (UK) Ltd,
c-32/93
[1994] IRLR 482
, the ECJ gave its
preliminary ruling in which it held that “dismissal of a pregnant
woman recruited for an indefinite period
cannot be justified on
grounds related to her inability to fulfil a fundamental condition
of her employment contract.” It went
on to say that “ the
protection afforded by Community law to a woman during pregnancy and
after childbirth cannot be dependent
on whether her presence at work
during maternity is essential to the proper functioning of the
undertaking in which she is employed.”
[116]
Section 6
(1) of the
Employment
Equity Act No.55 of 1998
provides as follows:
“
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 and birth
.”
[117] A decision made in regard to a
single individual can hardly be described as a “policy”or
“practice”. The decision
of the employer in this case is,
furthermore, not indicative of any policy or practice which it has
adopted towards pregnant women.
As I have already indicated above,
there is nothing remotely to suggest that this particular employer
has adopted an attitude akin
to “We do not want women who are or
may fall pregnant to work for us.” The
Employment Equity Act
came
into operation after the act complained of in this case.
This notwithstanding, I am of the view that, for these reasons,
Section 6
(1) of that Act is inapplicable to the present case.
[118] In my view, the omission by the
legislature of any reference to pregnancy in Item 2(1)(a) of
Schedule 7 of the LRA must have
been deliberate.
Mr Cheadle
agreed.
[119] Moreover, it is important to
have regard to the fact that not only Item2(1)(a) of Schedule 7 but
also our Constitution prohibits
unfair
discrimination and not
discrimination
per se.
In this regard, the European Articles
referred to above differ materially from the provision upon which
the applicant bases her
claim. It is not difficult to imagine
situations where it would not be unfair to discriminate on any of
the grounds enumerated
in either Item 2(1)(a) or the Constitution.
For example , I do not think that I should require too much
persuasion to accept that
a film director, seeking to audition
candidates to perform the role of a person famous in history , could
fairly restrict the range
of eligible applicants to persons who
matched or at least closely approximated that person in sex , age,
and general appearance.
[120] Such a view would be
supportable without recourse to Item2(2)(c) of Schedule 7 of the LRA
which provides that:
“
For the purposes of
sub-item(1)(a) -
(c) any discrimination
based on an inherent requirement of the particular job does not
constitute unfair discrimination.”
[121] According to the ILO
Report
of the Committee of Experts
1988 to which
Mr Cheadle
referred
the Court, discrimination of such a nature (i.e of the kind given
in my example of the film director) is often expressly
justified in
various national statutes (at 130).
[122] I agree with the original
submission of the applicant that this matter should be decided
without reliance on the provisions
of this sub-item. The employer
did not even seek to do so. The issue could hardly arise when, on
the employer’s own version of
events, it would have employed the
applicant had it not been able to secure the services of any other
suitable person for the position.
Indeed,
Mr Brassey
fairly
conceded that the requirement of uninterrupted continuity of
employment was not an absolute requirement for this particular
position.
[123]
Mr Cheadle,
on the other
hand, submitted that the provisions of Item 2 (2)(c) were of
absolutely critical importance to the outcome of this
case. The
applicant, having heard the submissions of the Trust in this regard,
later joined hands with her on this issue.
Mr Cheadle
submitted that the only instances of discrimination not being unfair
would be those covered by this provision, i.e. he submitted
that
unless discrimination were based on an inherent requirement of a
particular job it would be unfair. I disagree that this is
the
correct interpretation of the law. Had this been the intention of
the legislature it could very easily have said so.
Mr Cheadle
must therefore rely on the maxim
unius inclusio est alterius
exclusio
or
expressio unius est exclusio alterius.
This
has been described by Hoexter JA as a “last refuge”. ( See,
Administrator, Transvaal v Zenzile and Others
1991 (1) SA 21
(A) at 37G-H ). The maxim is not a rigid rule of statutory
construction and must always be applied with great caution (See, for
example,
Chotabhai v Union Government (Minister of
Justice) and Registrar of Asiatics
1911 AD 13
at 28;
South
African Estates and Finance Corporation Ltd v Commissioner for
Inland Revenue
1927 AD 230
at 236;
Consolidated Diamond Mines
of South West Africa Ltd v Administrator SWA, and Another
1958
(4) SA 572
(A) at 648G-H;
Administrator, Transvaal and Others v
Zenzile and Others
(
supra
);
South African Roads Board
v Johannesburg City Council
1991 (4 ) SA 1 (A) at 16G;
NUMSA
v Borg-Warner SA
1994 (3) SA15 (A)at 26G). It is not difficult
to imagine situations outside of the inherent requirements of a
particular job where
discrimination would not be unfair. ( See, for
example the ILO
Report of the Committee of Experts
Chapter
3). Accordingly,
rather than there being considerations of
policy as to why the maxim should apply, the converse is the case
.
[124] The Trust submitted that an
analysis of whether discrimination is fair should take into account
factors such as:
(i) the impact of the discrimination
on the complainant;
(ii) the position of the complainant
in society;
(iii) the nature and the extent of
the discrimination;
(iv) whether the discrimination has a
legitimate purpose and to what extent it achieves that purpose;
(v) whether there are less
disadvantageous means to achieve the purpose;
(vi) whether and to what extent the
respondent has taken reasonable steps to address the disadvantage
caused by the discrimination,
or to accommodate diversity.
[125] Without accepting this as an
exhaustive list, I think there is much merit in this submission and
shall have regard to these
factors in coming to a decision.
[126] An evaluation of fairness ,
within the context of the LRA, requires that, at the very least, the
situation is looked at from
both the employer and the employee’s
perspective. ( See, for example,
National Union of Metalworkers
of SA v Vetsak Co-operative Ltd & Others
[1996] ZASCA 69
;
1996 (4) SA 577
(A)
at 593G-H; (1996) 17 ILJ 455 (A) at 461A-B;
Dube & Others v
Nasionale Sweisware (Pty) Ltd
1998(3) SA 956 (SCA) at 960E-F;
(1998) 19 ILJ 1033 (SCA) at 1037D ;
SA Commercial Catering &
Allied Workers Union & Others v Irvin & Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at 2314I-2315A;
Benicon Group v National Union
of Metalworkers of SA & Others
(1999) 20 ILJ 2777 (SCA) at
2779I and 2787D )
[127] Fairness is an elastic and
organic concept. It is impossible to define with exact precision. It
has to take account of the
norms and values of our society as well
as its realities. Fairness, particularly in the context of the LRA,
requires an evaluation
that is multi-dimensional. One must look at
it not only from the perspective of prospective employees but also
employers and the
interests of society as a whole. Policy
considerations play a role. There may be features in the nature of
the issue which call
for restraint by a court in coming to a
conclusion that a particular act of discrimination is unfair.
[128] The word “arbitrary”
denotes the absence of reason or, at the very least, the absence of
a justifiable reason (See,
Beckingham v Boksburg Licensing Court
1931 TPD 280
at 282-283;
Bernberg v De Aar Licensing Board
1947
920 SA 80
(C) at 92;
Kadiaka v Amalgamated Beverage Industries
(1999) 20 ILJ 373 (LC); L Baxter
Administrative Law
at
521-2; The
Oxford Dictionary.
).
[129] Given the facts of this
particular case, it seems to me that there is nothing arbitrary in
the employer taking into account
the applicant’s pregnancy in
deciding whether or not to offer her a contract of permanent
employment. The employer testified
that, given the nature of the
position and in the particular circumstances then prevailing, it
needed continuity in the position
for an uninterrupted period of
time of at least twelve months. For the reasons outlined above, it
is difficult to disbelieve this
evidence. I disagree with the Court
a quo
that the employer arrived at its decision on an
arbitrary ground.
[130] I also disagree with the Court
a quo
that because no employer can receive any guarantee that
any employee will be able to serve for an uninterrupted period of
time,
the pregnancy of a prospective employee cannot be taken into
account. Employers must base their commercial decisions on
reasonable
probabilities. Risk-taking is intrinsic to enterprise.
Risk is discounted,
inter alia
, by an evaluation of
probabilities.
[131] I disagree that the employer
acted unreasonably. On the contrary, it took into account perfectly
rational and commercially
understandable considerations. These
considerations were, in the circumstances, neither trivial nor
insubstantial. It did not
act out of bigotry or prejudice which,
it seems to me, is the mischief that Item 2(1)(a) of Schedule 7 of
the LRA is principally
designed to prevent.
[132] The issue of the applicant’s
pregnancy can hardly be described as irrelevant, especially in the
light of the fact that the
applicant herself raised the matter and
in the light of her reasons for doing so as well as the concessions
she made under cross-examination..
[133] Indeed, it is clear that if the
applicant were indeed the most suitable candidate, the fundamental
reason for the issue of
the applicant’s pregnancy influencing its
decision as to whether or not to offer her the position which she
thought she would
obtain was her unavailability for the job. It was
a position for which it would not be a simple matter to find an
effective replacement
during her absence on maternity leave.
Depending of the facts of a particular case, there may be other
indicia
which may assist a Court in making its determination.
The dominant impression is that the decision of the employer was
influenced
not so much by the pregnancy of the employee
per se
but rather by a range of factors which it could legitimately take
into account, including her unavailability. The dominant impression
is thus not one of an employer averse to pregnant women being
employed by it. It is also not one of an employer that unreasonably
seeks to avoid the employment of pregnant women. It is clear that
the employee’s pregnancy was not the sole reason for her not
being
offered the permanent position.
[134] I agree that profitability is
not to dictate whether or not discrimination is unfair.
Nevertheless, profitability is a relevant
consideration. If the
Labour Courts were to make their decisions entirely indifferent to
profitability, the consequences for our
society would be disastrous.
[135] An enquiry as to fairness
involves a moral or value judgement taking into account all the
circumstances. (See, for example,
Media Workers Association of SA
& Others v Press Corporation of SA Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 798H-I, ; (1992) 13 ILJ 1391 (A);
Vetsak
(
supra
) at
591G & 592B-D and 459F-G & 478I;
Nasionale Sweisware
(
supra
)
at 960E-F and 1036J-1037A.and
Benicon v
NUMSA
(
supra
) at 2779I.)
[136] A careful balancing of
interests is required in a case such as this. We live in a country
with pervasive poverty, poor social
security, high unemployment and
a low growth rate. Without a rapidly expanding economy, it will be
impossible to deliver to our
society so many of the changes and
improvements it so desperately needs. At this stage of our history,
to hold that an employer
cannot take into account a prospective
employee’s pregnancy would be widely regarded as being so
economically irrational as to
be fundamentally harmful to our
society.
[137] The ILO
Report of the
Committee of Experts
makes it clear over and over again, that
although the general thrust of the direction of the democratic
nations of the world community
on issues of discrimination is
unmistakable, there are a number of nuanced differences of approach
within the community of nations.
I hope that it is quite clear that,
as a general rule, this Court views with disfavour discrimination on
the grounds of pregnancy,
even where it concerns applicants for
employment.
[138] The changing roles of women-
and, related to that, of men as well, the changing nature of
parenting, the changing nature of
work, and the changing character
of the workplace present all in our society with challenges that are
bewildering in their complexity.
Among these challenges is the issue
of how our society is fairly to deal with the pregnancy of women.
Closely related to that is
the whole issue of parenting and its
interface with the workplace. There are no readily available
solutions. I have no doubt, however,
that in respect of this issue,
as with so many others, the solution does not lie in this court
presenting society with unrealistic
rules of law- however attractive
they may otherwise seem to be. Fairness refracts when beamed through
the prism of reality.
[139]
Mr Cheadle
referred the
Court to what is, in my respectful view, an excellent article by
Professor Catherine O’Regan, now a judge of our
Constitutional
Court entitled
Equality at work and the limits of the law:
Symmetry and individualism in anti-discrimination legislation
appearing in
Gender and the New SA Legal Order
edited
by Christina Murray and published by Juta’s in 1994.
[140] She points out that simply
prohibiting discrimination on grounds of pregnancy fails to resolve
the complex policy question
of how the costs incurred in
childbearing should be borne in our society. She also cautions
against adopting an Aristotelian concept
of equality.
[141] She says: “
In conclusion,
anti-discrimination legislation is unlikely to be an effective tool
to promote equality for women in employment because
it is founded on
principles f symmetry and individualism. The principle of symmetry
requires women to be treated in the same way
as men; but it breaks
down where women are biologically different to men, for example, in
the case of pregnancy and where their
social experience is
different.
”
[142] If women are to experience the
full richness life as citizens of our country, we shall have to
think more deeply about the
issues of motherhood and parenting than
rely on narrowly focussed rules of law.
[143] For example, I have
difficulties with the notion expressed by Conradie JA that it would
somehow be practical or acceptable
for the applicant to direct her
department during her maternity leave by telephone, telefacsimile or
e-mail. This idea was put
forward by
Mr Nieuwoudt
with
apparent seriousness. Clearly, he was very persuasive. I think that
Western culture could derive much wisdom from the view
prevalent in
African, Hindu, Muslim and Chinese cultures that the first few weeks
of a child’s life should be a special time
with its mother, with
both of them freed as much as possible from outside distractions and
surrounded by love and support. Moreover,
motherhood is not some
minor inconvenience in a woman’s life. I also think we should be
astute not to cultivate the idea that
motherhood is entirely
secondary to the greater glories of job satisfaction.
[144] The difference in wording
between the Articles which the ECJ had to interpret and the
provision which this court must interpret
justifies differing
conclusions. Policy considerations would also, in my view, justify
different conclusions. One cannot avoid
an evaluation that is
contextual. South Africa, at present, does not have the levels of
affluence, the low birthrates, and same
highly developed insurance
systems that,
inter alia,
make decisions such as that in the
Dekker
case easily absorbable in the social fabric that
exists in Europe. I this regard , I refer to two illustrations. In
the matter of
Webb v EMO Air Cargo (UK) Ltd,
c-32/93
[1994]
IRLR 482
(
supra
) the ECJ gave as one of its most important
reasons for its decision, the need to encourage women to have
children. This is hardly
the situation in South Africa. According
to the ILO
Report of the Committee of Experts
(
supra
),
in Germany women are allowed to leave their employment for a period
of up to five years for the purpose of raising a child, without
losing their seniority and right to promotion. ( at 150). This would
be unthinkable in South Africa at the moment. We are not that
desperate to encourage the arrival of new citizens.
[145] There can be little doubt, in
my mind, that a decision in favour of the applicant will favour
elites. It will, however, act
to the detriment of the poor.
[146] It is a simple matter for an
employer to accommodate the pregnancy of the shelf-packer in a
supermarket, the waitress in a
restaurant, the receptionist at an
hotel, the seamstress
working on the production line of a
clothing factory. It is not difficult to accommodate the pregnancy
of women in the numerous
lowly paid, dreary and routine jobs with
which women, especially, are burdened.
[147] When it comes to executive
positions of critical importance, the consequences go beyond
imposing a burden on employers. They
impact negatively on the
capacity of the economy, as a whole, to grow and, in so doing, its
capacity to create new jobs.
[148] In my view it would be
inappropriate for this court to deliver a judgement as though it
were cocooned in the intellectual
and moral parameters of a rich,
first world country. It would be inappropriate to ignore the fact
that, as a general rule, the
existence of elites can only be
justified if they produce a dividend for society that exceeds the
costs which they incur.
[149] To find that the pregnancy of a
prospective employee cannot be taken into account in deciding
whether or not to offer her
employment may seem to be fair to
prospective employees but it would certainly be unfair to employers
and society as a whole and,
by reason of the damaging consequences
of such a finding upon society as a whole, ultimately unfair to
prospective employees as
well. After all, prospective employees need
jobs to apply for in the first place.
[150] In the light of the conclusion
I have reached, it is unnecessary for me to consider the
employer’s criticisms of the Court
a quo’s
computation of damages.
[151] The Court
a quo
made a
costs order against the employer. There are insufficiently strong
reasons to depart from the usual practice in this Court
of making
costs follow the result. The parties agreed that the matter merited
the services of two counsel. Against the background
of this case, it
would be unfair to mulct the Trust in costs. In the result the order
I make is the following;
(1) The appeal is upheld with costs
which costs are to include the costs of two counsel;
(2) The order of the Court
a quo
is set aside and the following is substituted therefor:
“
The application is dismissed with
costs ”;
(3) There is no order affecting the
costs to be paid to or by the
amicus
curiae
.
DATED AT JOHANNESBURG THIS
DAY OF APRIL, 2000.
N.P.WILLIS
JUDGE OF APPEAL
____________________________________________________________________________
Counsel for the Appellant: M.S.M.
Brassey SC and, with him A.E.Franklin
Attorneys for Appellant: Perrott, Van
Niekerk and Woodhouse Inc.
Counsel for Respondent: Mr H.C
Nieuwoudt, attorney , of Jan S. De Villiers and Son
Attorneys for Respondent: Jan. S. De
Villiers
Counsel for
Amicus Curiae
: Mr
H Cheadle , attorney, of Cheadle , Thompson and Haysom
Attorney for
Amicus Curiae
:
Women’s Legal Centre
Date of hearing: 14
TH
March 2000.
Date of judgement: 3 April 2000.