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[2014] ZALAC 38
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Ekhamanzi Springs (Pty) Ltd v Mnomiya (DA2/13) [2014] ZALAC 38; [2014] 8 BLLR 737 (LAC); (2014) 35 ILJ 2388 (LAC) (13 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
REPORTABLE
CASE NO: DA2/13
In
the matter between:
EKHAMANZI
SPRINGS (PTY) LTD
Appellant
and
MANDI
MNOMIYA
Respondent
Heard:
27 February 2014
Delivered:
13 May 2014
Summary:
Dismissal dispute. Employee denied access to the workplace by the
security guards employed by the employer’s landlord.
Whether
the court
a quo
correctly concluded that the employee had established her dismissal
and that the dismissal was automatically unfair as contemplated
in
section 187(1)(e) of the LRA; whether the court
a
quo
correctly found that the
employer failed to accept the employee’s tender of services. On
appeal, held, that the employee
had established her dismissal. Held,
that the unique circumstances of the case were such that the
employer’s failure to intervene
in its landlord’s
discriminatory practice of denying the employee access to the
workplace on account of pregnancy was tantamount
to a refusal to
accept the employee’s tender of services and thus constituted a
repudiation of the employment contract. Appeal
dismissed with costs.
JUDGMENT
MOLEMELA
AJA
[1]
This is an appeal against the judgment of the Labour Court (Lallie,
J) in which it found that the respondent, Ms Mnomiya, was
dismissed
by the appellant and that the reason for her dismissal was her
pregnancy. The court
a quo
ordered the appellant to pay the
respondent twelve months’ compensation, which amounted to R7
945.00 (seven thousand nine
hundred and forty five rand), plus costs.
[2]
The respondent was employed by the appellant as a general assistant
at its factory (“the workplace”), where spring-water
known with the brand-name of
Aquelle
was bottled. She was one
of 150 (one hundred and fifty) employees employed by the appellant.
The springs from which the water in
question was sourced by the
appellant are located on the premises of its landlord, viz
KwaSizabantu Mission (“the Mission”).
In order to gain
access to the workplace, an employee would first have to enter the
Mission’s premises through a gate that
is manned by security
guards that are in the landlord’s employ. In terms of the
Mission’s code of conduct, access to
the Mission’s
premises is conditional, as certain acts and forms of behaviour by
any person would result in the Mission’s
security guards
preventing such a person from entering the landlord’s premises,
which in turn prevented access into the workplace.
The code of
conduct in question inter alia prohibits ‘amorous relationships
between any two persons outside of marriage’.
I will return
later to this aspect.
[3]
The main factual issue in dispute is whether the respondent is one of
the employees that were denied access into the landlord’s
premises by the Mission’s security guards on 14 April 2008 and
whether the appellant’s manager, viz Mr Bosman dismissed
her on
that day. According to the respondent, she was with her co-employee,
Ms Memela, when the Mission’s security guards
denied them
access into the Mission’s premises on 14 April 2008. Ms Memela
was also an applicant at the proceedings
in the court a
quo
,
but her application was dismissed on account of her absence at the
proceedings. The respondent testified that upon being denied
access
into the Mission’s premises, she asked the security guards to
call Mr Bosman to the gate. Mr Bosman obliged. She asked
Mr Bosman
why she was being denied access into the leased premises and he told
her that she was prohibited from entering as she
had breached one of
the rules of the Mission by falling pregnant. She remarked to him
that he was effectively dismissing her and
asked him to furnish her
with a letter of dismissal. He told her that he could not provide her
with such and mentioned that she
could obtain it from Mr Stegen, the
Mission’s pastor, who also happened to be serving on the board
of directors of the appellant
as well as the Mission.
[4]
The respondent denied having signed the Mission’s code of
conduct upon assumption of employment and maintained that she
was
only furnished with a copy during the course of her employment. She
and other employees were then verbally informed that they
would have
to leave the Mission’s premises if they contravened the code of
conduct by falling pregnant outside of wedlock.
When she fell
pregnant, she vacated her accommodation at the Mission and found
herself accommodation elsewhere. She denied having
resigned from
employment. Although she had maintained that Mr Bosman had dismissed
Miss Memela and her on 14 April 2008, when pressed
by the court
a
quo
on whether Mr Bosman had specifically told them that he was
dismissing them, she responded as follows: ‘He did not say
exactly
or articulate that he was dismissing us, but he conveyed a
message from the mission that we are no longer welcome at the
mission.
So we concluded by saying or taking the step that as he is
also an employer of the mission…[indistinct] he is also
dismissing
us
(sic)’
. She went on to state that ‘the
reason why I say that Nico [Bosman] was dismissing us, is that he
could not have a solution…[indistinct]
or enter in any way in
making sure that I did enter the workplace’.
[5]
The appellant’s version as presented by Mr Bosman at the
hearing was that the respondent was not present at all at the
gate to
the Mission’s premises on 14 April 2008. According to Mr
Bosman, Ms Memela was alone at the gate of the Mission’s
premises when she was denied access by the Mission’s security
guards. He denied seeing or speaking with the respondent on
14 April
2008 and maintained that the only employee that was denied access
into the leased premises on that day was Ms Memela.
He testified that
when she told him that the security guards were denying her access
into the leased premises, he told her to resolve
the issue with the
landlord. Ms Memela never reported for duty again ever-since. From
the appellant’s point of view, they
considered her as having
resigned from employment and accepted her resignation.
[6]
Mr Bosman testified that he had set up a meeting between the
respondent, Ms Memela and the landlord on 9 April 2008. He was,
however, adamant that he did not know what was to be discussed at
that meeting. In order for the respondent to be allowed access
to the
leased premises, she had to “resolve her issues with the
landlord”. When asked what that issue was, he testified
that
the respondent had breached the Mission’s code of conduct but
he was unsure of the details.
[7]
Under cross examination, Mr Bosman stated that all he knew was that
the respondent had a problem with the landlord and he advised
her to
resolve the problem with the landlord so that she could be allowed
into the leased premises. He further stated that it was
not his
business to know exactly what the respondent’s problem was. Mr
Bosman testified that he was a member of the church
run by the
Mission and also stayed at the Mission’s premises. He had
accordingly signed the Mission’s code of conduct
and adhered to
its provisions.
[8]
Although he had maintained that he was not aware whether the
Mission’s code of conduct prohibited unmarried women from
falling pregnant, Mr Bosman later testified that the code of conduct
prohibited “amorous relationships” and if an employee’s
pregnancy emanated from an “amorous relationship” then
the Mission’s code of conduct would have been breached.
After a
lot of evasiveness about his awareness regarding what the Mission’s
code of conduct stipulated with regards to pregnant
employees and
what it did in such circumstances, he eventually stated the following
in response to the court’s questions:
“
If a lady is
not married and she is pregnant, there is obviously some amorous
relationship like the code of conduct says. This is
just my
deduction.”
He testified further that in 2009 a lady named
Hlengiwe fell pregnant and he thought that would be a problem. He
approached the
Mission and thereafter the issue was resolved and
Hlengiwe was allowed to carry on working. In his view, the issue was
not the
pregnancy itself but rather the attitude of the employee in
question, which could result in a conflict between the employee and
the Mission.
[9]
When asked whether the respondent had signed the Mission’s code
of conduct, Mr Bosman stated that he was not sure whether
she had
done so. When asked whether it was possible for an employee to work
for the appellant if he/she did not subscribe to the
code of conduct,
he said that would be up to the landlord. When pressed further on the
same question he responded as follows (at
p76 line 9-11 of the
record): ‘
That is really between her and the landlord. With
the company I sign a terms of employment contract (sic) and with
residents, the
employer has another contract, a code of
conduct.
That is between them
’. (My emphasis).
[10]
Mr Bosman testified that there were two other female employees who
had fallen pregnant in the past. They discussed the matter
with the
landlord and came to some agreement, after which they were allowed
access into the Mission’s premises.
[11]
In response to the court’s questions, Mr Bosman testified that
the reason why the appellant subjected its employees to
the Mission’s
code of conduct was that their business was to bottle water sourced
from the spring situated on the Mission’s
premises. In terms of
regulations, mineral water had to be bottled at the source. The
Mission required the appellant to adhere
to its code of conduct and
if the appellant was not content to adhere to the code, then it had
to move its business elsewhere.
The appellant could not do so, given
that the regulations required that the bottling of the mineral water
should be done at the
source.
[12]
The appellant adduced the evidence of one of its employees, viz Mr
Hlongwane, who testified that Ms Memela was alone on the
day when she
was denied access into the leased premises. I will return later to Mr
Hlongwane’s evidence.
[13]
The appellant presented clocking documents which recorded the
respondent’s last working day as 9 April 2008. The appellant
contended that as the respondent was not at the gate on 14 April
2008, she could therefore not have been dismissed in the manner
that
she alleged. Given that the respondent’s version was that she
was denied access into the premises on 14
April 2008, it
is not surprising that the clocking documents showed that she did not
report for work on 14 April 2008. Clearly,
the clocking documents did
not take the appellant’s case any further.
[14]
It is clear from the above summary of evidence that the parties
presented two mutually destructive versions. Having considered
all
the evidence, the court a quo found that the respondent was, indeed,
with Ms Memela at the gate of the leased premises on 14
April 2008;
that she was refused entry to the workplace by the Mission’s
security guards; that Mr Bosman refused to intervene
when the
security guards denied the respondent entry to the workplace; that
the appellant had, by virtue of the employment contract,
an
obligation to receive the respondent into the workplace; that Mr
Bosman’s refusal to intervene when so requested amounted
to a
termination of the employment by the appellant and was therefore a
dismissal; that Mr Hlongwane could not identify the day
in April 2008
on which he witnessed the denial of access and was not in a position
to observe all the discussions that Mr Bosman
had with his
subordinates on the day he allegedly saw Ms Memela for the last time
at work; that Mr Hlongwane’s evidence was
inconsistent with the
appellant’s pleaded case; that the clocking documents were
inconsistent with the Appellant’s
response; that the
appellant’s version was a fabrication; that the respondent was
unfairly dismissed for her pregnancy; the
employer was ordered to pay
compensation.
The
issues in the appeal
[15]
The main questions to be answered in the appeal are firstly, whether
the factual findings made by the court a
quo,
i.e. that the
respondent discharged the onus to prove that she had been dismissed
by the appellant on 14 April 2008, were correct
and, secondly,
whether an employer has an obligation to intervene where an employee
has contravened the employer’s landlord’s
code of conduct
resulting in the employee being denied access to the landlord’s
premises on which the employer’s business
is situated.
[16]
The appellant contended that the respondent had not shown on a
balance of probabilities that the appellant had dismissed her
and it
should have been found that she was not present at the Mission’s
gate on 14 April 2014. It was further contended that
even if her
version that she was at the gate on the date in question was
accepted, on her own version she was not dismissed as
Mr Bosman did
not tell her that she was dismissed but merely indicated that he was
not going to intervene in the dispute she had
with the Mission, that
she had to resolve her own issues with the Mission and that the
appellant was under no obligation to intervene
on behalf of its
employees with its landlord in the event that the employees
contravene the landlord’s code of conduct. The
appellant argued
that if the respondent had an issue with the Mission’s code of
conduct, she could have approached the Equality
Court or the
Constitutional Court for relief against the landlord.
[17]
One of the reasons why the court a
quo
rejected the
appellant’s version was on account of the fact that it was not
consistent with the pleadings. Clause 11.3 of
the appellant’s
Statement of Response provides as follows:-
“
11.3
The Respondent denies that the services of
the 1
st
and 2
nd
Applicants were terminated by the Respondent and places the 1
st
and 2
nd
Applicants to the proof thereof.”
Clause 12 of the
Statement of Response provides as follows:-
“
STATEMENT
OF MATERIAL FACTS:
12.1
The respondent operates its business on the premises of the
KwaSizabantu mission;
12.2
Both the 1
st
and 2
nd
Applicants performed their
duties at the Respondent’s operation and stayed on the premises
of the KwaSizabantu mission;
12.3
In terms of the KwaSizabantu mission’s code unmarried women
staying and working on the premises
are not allowed to fall pregnant;
12.4
Any breach of this code of conduct will result in a person being
refused entry to the premises;
12.5
At all material times both the 1
st
and 2
nd
Applicants were aware of the code of conduct and specifically the
clause relating to the prohibition of unwed women falling pregnant;
12.6
At all material times both the 1
st
and the 2
nd
Applicants were unwed women;
12.7
During on or about the latter part of 2007 / the early part of 2008
the 1
st
and 2
nd
Applicants fell pregnant;
12.8
Because they had breached the code of conduct of KwaSizabantu Mission
by being pregnant while unmarried
the 1
st
and 2
nd
Applicants were denied entry to the premises by the security of
KwaSizabantu Mission during April 2008;
12.9
The 1
st
and 2
nd
Applicants have since not
returned to their workplace and have terminated their employment with
the Respondent out of their own
accord, which termination had been
accepted by the Respondent.”
Paragraph 14 of the
Statement of Response provides as follows:-
“
STATEMENT
OF LEGAL ISSUES:
14
The termination of the 1
st
and 2
nd
Applicants’
employment with the Respondent was not due to the Respondent’s
conduct but due to the 1
st
and 2
nd
Applicants
resigning which resignation had been accepted by the Respondent.”
Significantly,
paragraph 6.6 of the parties’ pre-trial minutes provides as
follows:
“
The respondent [employer]
contends that in terms of the code of conduct of KwaSizabantu Mission
unmarried women staying and/or working
on the premises are not
allowed to fall pregnant.”
[18]
It is evident from the Statement of Response that the appellant was
quite elaborate regarding why the two employees were denied
access to
its premises. While the Statement of Response did not expressly state
that the two employees were denied access on 14
April 2008, it is
clear from paragraph 12 of the pleadings that the appellant was
raising the same defence in respect of both Ms
Memela and the
respondent and that the material facts as related by the appellant
were applicable to both employees. It is also
clear from the
statement of response that the basis for the appellant’s
assertion that it did not dismiss the two employees
was that it was
the Mission that had denied them access due to their contravention of
its code of conduct’s provision prohibiting
unwed pregnant
employees from entering its premises. The appellant merely took the
stance that after the two employees were denied
access into the
workplace premises by the Mission’s security guards, they (the
two employees) never showed up at the workplace
again and were thus
regarded as having resigned.
[19]
At the hearing, Mr Bosman opportunistically claimed that the
respondent was not denied access on 14 April 2008 simply because
she
was not at the workplace on that day and was therefore not dismissed.
He clearly deviated from the pleaded case. This defence
seems to have
been an afterthought, as it was not canvassed in the pleadings. The
court
a quo
correctly rejected the evidence that was
inconsistent with the pleadings. It is thus evident that the quibble
about whether the
appellant actually expressly dismissed the
respondent on 14 April 2008 is a red herring. The incontrovertible
fact is that the
respondent’s employment ceased due to her
pregnancy despite the fact that she wanted to work.
[20]
A perusal of the record shows that Mr Hlongwane was not a
satisfactory witness and his evidence was not reliable. At the very
initial stages of his testimony, after he had already indicated that
he knew both Ms Memela and the respondent, the appellant’s
counsel, while leading Mr Hlongwane, posed the following question:
‘
When
was the last time that you saw Miss Memela at Ekhamanzi Springs?’
His response was:
‘
I
don’t remember seeing her, I don’t remember the last time
I saw her’.
He
then later on changed his response to say that he last saw her in
April 2008. He could not remember the exact date.
[21]
Furthermore, under cross-examination, Mr Hlongwane was asked how many
times he had seen Ms Memela talking to Mr Bosman during
the month of
April 2008. At p100, line 22- p101 line 1, he responded as follows:
‘
The
only time was the day when I saw her speaking to Mr Bosman when she
was stopped at the gate.
And I am not
sure of the other times where she could have spoken to him
,
because I am not always there at the gate. I was performing other
functions’. (My emphasis).
[22]
The above extracts of Mr Hlongwane’s evidence reveal that his
evidence pertaining to what he allegedly observed at the
gate cannot
conclusively be attributed to the events of 14 April 2008 as the
appellant would have us believe. The court a
quo
correctly
rejected his evidence as unreliable.
Legal
framework applied to the facts
[23]
The right to equality contained in section 9 of the Constitution Act
108 of 1996 is in compliance with various international
law
obligations. The content of this right to equality in the employment
sphere has been elaborated on by virtue of legislation
such as the
Labour Relations Act 66 of 1995 (LRA) and the
Employment Equity Act
55 of 1998
. Both statutes are modelled on the International Labour
Organisations’ Discrimination (Employment and Occupation)
Convention
of 1958
[1]
as well as
the Termination of Employment Convention 158.
[2]
The serious light in which the constitutional imperative of equality
is viewed in the employment sphere is illustrated by the fact
that
sections 187(1)(e)
and
187
(1)(f) of the LRA specifically proscribe
dismissals predicated on discrimination and puts them in the category
of “automatically
unfair dismissals”, while
section
194(3)
entitles the victims of such dismissals to up to double
the maximum amount of compensation if the remedy of re-instatement
is
not granted.
[24]
Employers are under an obligation to observe the afore-mentioned
anti-discriminatory provisions. This obligation, properly
construed,
includes not circumventing the obligation by indirect means.
Employees are entitled to a workplace that is free from
discrimination. The protection granted by the LRA to female employees
against dismissal on grounds of their pregnancy applies to
all
females irrespective of their marital status. The court
a quo
correctly observed that protection from dismissal for reasons related
to pregnancy is not a preserve of married women. A provision
in any
agreement which has the effect of denying female employees access to
their workplace on account of their pregnancy is discriminatory
and
is thus
prima facie
unenforceable unless it can be justified
on grounds consistent with constitutional norms.
[25]
It is clear that the Mission’s code of conduct clearly
contemplated interfering in employment relationships. In clause
1,
reference is made to the ‘unique nature of the work
environment’. Elsewhere, the code provides that no visitors
are
allowed during working hours. Bullet no 4 prohibits ‘amorous
relationships between any two persons outside of marriage’.
Bullet no 7 prohibits “assaulting a fellow employee or
deliberate incitement of employees against each other. Bullet 11
prohibits “gross insolence to fellow workers or supervisors”.
The code concludes with a clause stating that “a
breach of this
agreement may lead to dismissal”. These clauses in effect blur
the dividing lines between the appellant’s
own terms and
conditions of employment and the Mission’s code of conduct.
[26]
A key consideration in this case is that the respondent was not even
a signatory to the Mission’s code of conduct. This
is what was
pleaded in her statement of case. According to her, it was imposed on
her during the course of her employment. It was
not binding on her.
Mr Bosman was asked many times whether the respondent had signed the
code of conduct in question. He stated
that he was unsure. The code
of conduct handed in by the appellant as part of the bundle of
documents is an unsigned copy. Under
the circumstances, I agree with
the respondent that the code of conduct in question, the lawfulness
of which we need not decide
upon, was not binding on her.
[27]
Due regard has been paid to the fact that the landlord was a church
mission and as such a religious organisation, but this
does not
detract from the fact that its lessee, (the appellant) was a private
company conducting business on the Mission’s
premises. It can
be accepted that the appellant was, like any other lessee, entitled
in law to the undisturbed use and enjoyment
of the leased property
for the purpose for which it was let. The appellant employed about
150 employees. Naturally, these employees
had to have access to the
workplace. This access is, no doubt, part of the appellant’s
beneficial use and enjoyment
of the leased property, given the nature
of its business.
[28]
It is settled law that a lessee that is deprived of an opportunity to
make beneficial use of the leased property for the purpose
it was
leased for is not without a remedy. See
Sishen
Hotel (Edms) Bpk v Suid Afrikaanse Yster en Staal Industriele
Korporasie Bpk
[3]
.
It simply cannot be right that an employer owes its employees no duty
to facilitate their access to the workplace to enable them
to carry
out their duties in terms of the employment contract when the
employer, in its capacity as a lessee, has remedies in law
against
the person that is hindering the employee from fulfilling his/her
contractual obligations.
[29]
The appellant asserted that the code of conduct was a private matter
between the Mission and the signatories of the code of
conduct in
question.
Through the evidence of Mr
Bosman, the appellant somewhat hinted at an operational justification
for its acquiescence in the landlord’s
discriminatory code of
conduct by asserting that it could not use any other premises for its
enterprise but the landlord’s
premises due to statutory
provisions that require that bottling of spring mineral water be done
at the source. However, in circumstances
such as the present, where
the appellant has clearly failed to exercise any of its lessee rights
against the Mission (as the landlord)
to come to the aid of its
pregnant employees, it cannot be found that the existence of any such
operational justification has been
shown.
[30]
Acceptance of an employee into an employer’s service has long
been recognized by many authors as one of the common law
duties of an
employer, non-fulfilment of which would amount to a breach of the
employment contract. In
Kinemas
Ltd v Berman
[4]
the court confirmed the court a
quo’
s
finding that the employer’s refusal to accept an employee’s
tender for services constituted a repudiation of the employment
contract entitling the employee to damages for breach of contract.
The same approach seems to have been endorsed by this Court
in the
unreported case of
National
Electronic Media Institute of South Africa v Buthelezi
[5]
,
where the Court dismissed an appeal against an order of the Labour
Court declaring an employer’s refusal to allow an employee
to
tender his service (and to perform his duties in terms of the
employment contract) as a repudiation of the employment contract.
As
was the case in the afore-stated cases, in this matter the respondent
tendered to work. The tender was made impossible to carry
out by the
conduct of the Mission, which the appellant associated itself with by
virtue of its acquiescence in the Mission’s
denial of access.
[31]
In my view, the appellant’s acquiescence in the landlord’s
discriminatory practice of barring unwed pregnant women
from the
leased premises is in violation of an employer’s constitutional
obligation of acting fairly in making decisions
affecting its
employees. See
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[6]
.
It is clear from the evidence and the pleadings that the appellant
was fully aware of the reasons why the two female employees
were
denied access into the premises. It was also aware that the
respondent had not signed a code of conduct with the appellant
but
took the view that she was aware of its provisions and was bound by
them. In my view, conduct that has the effect of circumventing
important provisions like the constitution must be seen for what it
really is and its true character, i.e. the substance, must
be
evaluated.
[32]
Despite the appellant’s awareness of its pregnant employees’
plight, the appellant simply acquiesced and did not
take any steps
whatsoever to seek some redress against its landlord in order to
facilitate its employees’ unhindered access
to the workplace
despite its rights that have already been alluded to above. In the
circumstances, the inertia on the appellant’s
part did not only
amount to unfair treatment of the employees in question but also
amounted to a breach of its common law duty
to accept its employees’
service.
[33]
Having noted that the head of the Mission is also a director of the
appellant and that the general manager of the appellant
(Mr Bosman)
is the son-in-law of the head of the Mission (Mr Stegen, it would
seem that the closeness of relationship or an association
of interest
between the appellant and its landlord is what led to the appellant’s
acquiescence in the landlord’s code
of conduct. It is not
surprising that the appellant failed to intervene when the landlord
denied access to its employees. The conduct
of the appellant in the
circumstances amounts to a repudiation of the employment contract.
The repudiation was clearly related
to the respondent’s
pregnancy on account of her marital status.
[34]
I agree with the court a quo’s reasoning that the
respondent was dismissed and that her dismissal fell within the
category of automatically unfair dismissals as contemplated in
section 187(1)(e)
of the LRA. The appeal thus falls to be dismissed.
There is no reason why the costs should not follow the result.
[35]
WHEREFORE the following order is made:
The appeal is dismissed
with costs.
________________
Molemela
AJA
I
concur
________________
Ndlovu
JA
I
concur
________________
Sutherland
AJA
APPEARANCES
FOR THE APPELLANT:
Clarinda Kugel
Attorneys c/o Norton Rose South Africa
FOR
THE RESPONDENT:
Ponoane Attorneys.
[1]
Discrimination
(Employment and Occupation) Convention of 1958
was
ratified by South Africa in 1995.
[2]
The
Termination of Employment Convention 158 has not yet been ratified
by South Africa.
[3]
1987(2)
SA 932 (A).
[4]
1932
AD 246.
[5]
Case
no JA 19/2003 at par 9.
[6]
(2007)
28 ILJ 1499 (SCA) at par 5.