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[2014] ZALAC 102
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Ekhamanzi Springs v Mnomiya (DA2/13) [2014] ZALAC 102 (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.