About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2010
>>
[2010] ZALCCT 9
|
|
De Beer v Allies Meat Market (C206/2007) [2010] ZALCCT 9 (29 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
NOT
REPORTABLE
CASE
NO: C206/2007
In
the matter between:
NASIEFA
DE
BEER Applicant
And
ALLIES
MEAT
MARKET Respondent
JUDGMENT
CHEADLE
A J:
1.
This is a claim for an automatically unfair dismissal on the ground
of pregnancy in terms of section 187(1) (e) of the Labour
Relations
Act.
2.
The Applicant is Nasiefa De Beer, who was employed by Allies Meat
Market, the Respondent, as a second cashier, from 8
th
February 2007. She was also required to assist with
administrative work, relating to invoicing. At the time of her
employment,
there were 2 cashier tills operating in the butchery, and
there was one other cashier called Aisha.
3.
At the beginning of March 2007, the employee learnt that she was
pregnant and informed her employer of that fact. On Saturday,
3 March
2007, the Applicant attended work but requested leave to see a doctor
because she was feeling ill. Mr. Kader, the
owner of the
Respondent, granted the request. The Applicant consulted a doctor,
was diagnosed with a bladder infection, and was
booked off work from
3 March 2007 to 5 March 2007. The employee returned to work that day,
with the medical certificate, which
she gave to Mr. Kader.
4.
It was common cause that the Applicant and Mrs. R Kader, a manager
and wife of the owner, had a conversation that day, much of
which was
said was common cause, but the Applicant concluded from that
conversation that she had been dismissed because of her
pregnancy
(though requested to substitute for the other cashier when she took
leave) while the Respondent took the view that she
was taking sick
leave.
5.
On 5 March 2007, a new employee, a Ms Hilda Osmond, commenced work as
a cashier.
6.
On 7 March 2007, Mrs. Kader telephoned the Applicant. Although the
precise terms of the discussion are in dispute, the upshot
of the
telephone conversation was that the Applicant agreed to come to work
the next day – 8 March 2007. The cashier, Aisha,
took leave
from 8 March 2007 to at least 16 March 2007. On 15 March 2007, the
Applicant refused to continue working for the Respondent.
The cause
and the context of the refusal is in dispute.
7.
On 2 April 2007, the Applicant referred a dispute concerning her
alleged dismissal to the CCMA for conciliation. The dispute
was not
resolved and the Applicant instituted proceedings in this Court on 29
June 2008. After rescission and condonation applications,
the dispute
was finally aired on 8 February 2010.
8.
Mr Farber of Edward Nathan Sonnenbergs appeared pro bono on behalf of
the Applicant. Ms Le Sar of Maserumule Inc appeared on
behalf of the
Respondent.
9.
Because there was a dispute over whether the Applicant had been
dismissed as opposed to having resigned, the Applicant led evidence
first. She gave evidence in support of her claim.
10.
Mr Kader, the owner of the Respondent, Mrs Kader, the manager, and an
employee, a Ms Peters, gave evidence for the Respondent.
The
Respondent’s witnesses were in court when the Applicant and the
Respondents’ witnesses gave evidence.
11.
There were two bundles of documents. The first included the pleadings
and was referred to as Bundle A in the hearing. The other
bundle
included certain of the pleadings in the interlocutory applications
and many of the documents. This was referred to a Bundle
B. In this
judgment, the documents and their contents are identified as follows:
A or B identifies the Bundle; the next number
refers to the page
number of the bundle; any further number refers to the paragraph
number on that page. Accordingly, the following
reference A.7.7.9
refers to Bundle A, page 7 and paragraph 7.9 – the critical
paragraph describing the Applicant’s
version of events on 3
March 2007 in her statement of case.
The
two versions
12.
There are two conflicting versions that are based for the most part
on the same set of facts.
13.
The Applicant’s version is that once the Respondent had learnt
of the Applicant’s pregnancy, they employed another
cashier to
take her place. On 3 March 2007, when she presented her medical
certificate, booking her off until 5 March 2007,
Mrs. Kader had told
her that the Respondent needed someone to ‘work every day’
and that they had replaced her. Her
replacement was to start on 5
March and accordingly she need not come to work on the 5
th
.
It was on the basis of this that the Applicant concluded that she had
been dismissed. She did not return to work on the 5
th
because she had been dismissed.
14.
She did return to work on 8 March 2007 and continued working there
until 15 March. She explained this. She said that after dismissing
her, Mrs Kader nevertheless asked her to ‘stand in’ for
Aisha when Aisha took her leave. The Applicant said that
she
agreed to work as a ‘temp’ because she ‘needed the
money’. On 7 March 2007, she was telephoned
and in a
telephone conversation with Mrs Kader was asked to ‘stand in
for Aisha’ from 8 March to 16 March 2007 because
Aisha was
taking leave for that period. She worked from 8 to 15 March
2007.
On the 15
th
, because of abuse from Mrs
Kader, she decided to no longer work as a substitute for Aisha and
left.
15.
The Respondent’s version was that they hired a third cashier
because of the growth in the business, the need to have someone
to do
more administrative work and the need for a system of replacement
when an individual cashier was absent for reasons of leave
or
illness. When the Applicant reported in sick on 3 March 2007,
Mr Kader told her to go home and to report back when she
was better.
Although there was a conversation between Mrs Kader and the Applicant
concerning the new cashier, it was not in the
context of replacing
the Applicant but of advising her of additional support. Mrs
Kader phoned on the 7
th
to find out how the Applicant was
and whether she could return to work the next day – the 8
th
of March. On the 15
th
, it was her negative and aggressive
attitude that provoked Mrs. Kader to ask her if she wanted to
continue working with the Respondent.
The Applicant replied that she
no longer wished to work for the Respondent and left the Respondent’s
employment that day.
16.
Although I was pressed by Mr Farber to make a finding of credibility
against the Mrs Kader, the Respondent’s main witness,
I have
decided not to do so for the reasons below. Because the matter has to
be determined on the probabilities, it is necessary
to set out the
main elements of the versions in more detail.
The
notification of pregnancy
17.
It is common cause that the Applicant advised the Respondent at the
beginning of March that she was pregnant. It is also common
cause
that Mr Kader told her not to worry – that she would be ‘put
on UIF’ which presumably meant that she would
be paid during
her maternity leave by the Fund.
18.
It was also common cause that the Applicant had said to Mrs Kader:
‘My husband said I must be lucky that Allies is still
keeping
me as staff because in most companies when you tell them that you are
pregnant they don’t keep you on’ (A25/6.3).
The
events of 3 March
19.
It is common cause that the Applicant reported for work on 3 March
and requested permission to see a doctor. Mr Kader gave her
permission and she went off to see a doctor. She returned with a
medical certificate (B23) booking her off from 3 March to 5 March
2007 for a urinary tract infection, referred to by the witnesses as a
‘bladder infection’. It is common cause that
she gave the
certificate to Mr Kader. The Applicant’s version is that he
told her to wait for her money, which was prepared
by Mrs Kader –
Saturday being payday. That is also Mr Kader’s version.
20.
It is common cause that there was then a conversation between Mrs
Kader and the Applicant. The Applicant’s version is
as follows:
20.1.
Mrs Kader was dismissive of her need to be booked off. She inferred
this from Mrs Kader’s statement
to the effect that she, too,
had had a bladder infection when she was pregnant and yet continued
working.
20.2.
Mrs Kader told her that she did not need to come in on Monday because
she already had some one in her place.
20.3.
Mrs Kader said that ‘she had got someone in my place because
she needed someone every day’ and
because the respondent was
concerned that it might be liable for any injury at work while she
was pregnant.
20.4.
Mrs Kader told her that she might need the Applicant to stand in for
the cashier Aisha when Aisha took her
leave and that Mrs Kader would
phone the Applicant when she needed her to substitute for Aisha.
20.5.
After collecting her wages, she left believing that she had been
dismissed on grounds of her pregnancy.
21.
Respondent’s version of the conversation commences with an
admission that Mrs Kader had told the Applicant that she had
a
bladder infection while pregnant and that despite this she had
continued to work. When asked under cross-examination why she
mentioned this, Mrs Kader said that she was sharing her ‘experiences’
with the Applicant and that this was in the context
of a previous
conversation to the effect that being pregnant did not mean that an
employee cannot work.
22.
Mrs Kader denied stating that the Respondent had employed another
person to ‘replace’ the Applicant. Her version
was
that the third cashier was employed in addition to the Applicant
because the business was growing, there was a greater need
for
administrative work and having three cashiers would allow for the
more orderly rotation of shifts between the cashiers to take
account
of contingencies such as sickness, leave, etc. Under cross
examination she was asked why she mentioned the hiring of an
additional cashier and her answer was that she did so to convey to
the Applicant that her duties, given the Applicant’s pregnancy,
would be ‘alleviated’ – ‘to put her mind at
ease’.
23.
Mrs Kader denied telling the Applicant not to come in on Monday. She
stated that Mr Kader had told her to ‘go home and
telephone us
when you are better’. This was also Mr Kader’s evidence.
Under cross examination, Mrs Kader was asked
why an employer would
not just simply require an employee to return to work on the date
stated in the medical certificate. Her
answer to this was that a sick
person was not always better by that day.
24.
The Applicant did not return on the 5
th
March 2007, which
is, of course, consistent with both versions.
The
telephone conversation on 7 March 2007
25.
The Applicant was telephoned on the 7
th
March 2007. The
Applicant’s version is that Mrs. Kader asked her to come in
because Aisha would be going on leave the next
day. The Respondent’s
version is that she asked the Applicant how she was feeling and
whether she was well enough to return
to work the next day. Mrs Kader
denied having asked her to return to her work because of Aisha’s
pending absence.
The
events of 15 March 2007
26.
The Applicant worked for the Respondent from 8 to 15 March 2007. On
the 15
th
March 2007, the Applicant stated that Mrs. Kader
called her “stupid” for putting the wrong amount of sugar
into her
coffee. She was highly upset as a consequence.
At the end of the working day, she said that Mrs. Kader asked her to
work the next day because Aisha was not returning from leave the next
day. Because she was so upset she told Mrs Kader that she
would not.
27.
Mrs Kader’s version is that she did not call the Applicant
stupid, and would not do so for something as trivial as a spoonful
of
sugar. She did say, however, that the Applicant displayed a negative
and aggressive attitude, that she raised it with the Applicant
and in
that context asked whether she wanted to continue working for the
Respondent. The Applicant answered that she did not and
that she was
finishing off that day.
Credibility
of the witnesses
28.
The Applicant was a credible witness. She gave her evidence in a
confident and spirited manner. If anything she gave an impression
of
being impulsive and headstrong. Although she was not cross-examined
on the issue, there was a glaring inconsistency between
what was
stated in her statement of claim and what she said in court in
respect of the telephone call on the 7
th
of March. In her
statement of case she stated that Mrs Kader telephoned her and ‘left
a message for the Applicant requesting
her to come in to work’
(A7.7.12) while in her oral testimony she said that her husband had
answered the phone, had passed
the phone to her because Mr Kader was
on the line, that Mr Kader had then passed the phone onto his wife
and that they then had
a conversation, the content of which is in
dispute. These are very different versions of what took place and it
is difficult to
contemplate any explanation that would bridge the
difference. But despite this I find that she was a credible witness.
29.
Both Mr and Mrs Kader were on the whole credible witnesses. There
were contradictions but not any that seriously attacked their
credibility as a whole. Mr Farber attacked Mrs Kader’s
credibility on two grounds.
Firstly,
Mrs Kader stated in the
Respondent’s Reply that she had been pregnant and suffered
heartburn but had carried on working (A28.17a)
whereas in her oral
testimony, she confirms making the statement but referred to a
bladder infection rather than heartburn. It
is an inconsistency,
which she was unable to explain, but I do not believe it affects her
credibility as a whole. She had nothing
to gain from the difference
because she still had to explain the reason for the statement given
the context and the Applicant’s
allegations that the statement
supported the Applicant’s version of what took place that day.
30.
Secondly
, Mrs Kader stated in her founding affidavit in the
rescission application that her husband had told the Applicant to go
home and
‘give us a call when she…was ready to return to
work’ and in the following paragraph stated that the Applicant
‘phoned on 7 or 8
th
of March 2007 to say that she
was ready to return to work’ (B3.5 and 6). In her oral
testimony, Mrs Kader stated that she
had phoned the Applicant on the
7
th
to find out how she was and whether she could come to
work the next day. Mr Farber stated that the exigencies of seeking an
application
for rescission had led Mrs Kader to deliberately lie
about who called who on the 7
th
in order to ensure a
version consistent with the her husband’s statement on the 3
rd
that the Applicant should go home and call when she was better. I am
not persuaded that that this contradiction taints her evidence
as a
whole. It should be borne in mind that there are contradictions too
in the Applicant’s version of the telephone call.
31.
The only disturbing issue was Mrs Kader’s insistence that her
call on the 7
th
was not in any way associated with the
fact that Aisha commenced her leave the next day. The overwhelming
probabilities are that
this was what must have motivated the call.
This suggests a willingness to bend the truth in order to give the
best possible gloss
on the Respondent’s version. But against
this must be weighed the fact that so much of her evidence confirmed
the Applicant’s
version even in so far as statements that were
not in the Respondent’s favour and to which there was no
witness other than
the Applicant. Accordingly, although there were
contradictions, Mrs Kader was on the whole a credible witness.
The
probabilities
32.
The probabilities favour the Respondent. It was common cause that the
Applicant informed the Respondent of her pregnancy in
early March –
that is a few days before the alleged dismissal on Saturday the 3
rd
of March. Accordingly, the appointment of the third cashier must have
taken place before the 3
rd
of March because both the
Applicant and Mrs Kader confirm that the appointment formed part of
their conversation on the 3
rd
.
33.
It is unlikely that Respondent would have in that short period sought
and found a replacement for the Applicant, particularly
given the
positive response from Mr Kader on being informed of her pregnancy.
It is also unlikely that there would be such a desperate
rush to
replace her immediately given that she was still in the first stages
of her pregnancy. It is more likely that the reason
for the
appointment was the one advanced by the Respondent, namely the
operational need for a third cashier given the growth in
the
business. This is supported to some extent by the fact that, after
the Applicant left, a third cashier was appointed albeit
sometime
later. Given that the appointment of the third cashier must have
taken place before the conversation on the 3
rd
, the issue
of the Applicant’s reliability could not have been a reason for
the appointment of the third cashier.
34.
If the probabilities are that Mr Kader had sought, interviewed and
appointed a person for operational reasons before the 3
rd
and the Applicant’s reliability could not have been a reason
for the appointment of the third cashier, Mrs Kader’s
version
of her conversation becomes more probable namely that she mentioned
the new cashier in the context that the Applicant’s
work would
become less onerous during her pregnancy as a result.
35.
It is also common cause that the Applicant did not raise her
dismissal with either Mr or Mrs Kader at the time or thereafter.
When
asked why she had not raised it with either Mrs Kader or Mr Kader,
she simply said that she thought that they had made up
their minds.
The Applicant is a strong personality – this could be seen from
the spirited manner in which she gave her evidence.
She had an
opportunity to raise it with Mr Kader – it was common cause
that he was on the premises at the time. It is out
of character and
therefore improbable that she would not have raised her dismissal
with Mr Kader - particularly given his positive
response to her
advising him of her pregnancy a few days earlier and particularly
because she testified that being dismissed on
grounds of her
pregnancy upset her greatly.
36.
It is common cause that the Applicant worked from the 8
th
of March to the 15
th
March. The Applicant stated that this
was as a result of a separate arrangement to work as a substitute
while Aisha was away on
leave. The Respondent’s version is that
it thought that the Applicant was continuing to work under her
contract of service
after returning from her sick leave. These
versions feed into the probability assessment as to whether she was
dismissed on the
3
rd
. I have accordingly sought to assess
the probabilities of the two versions of her working on 8 to 15 March
independently of that
assessment. Critical to the probabilities of
the two versions is the parting statement made by Mr Kader on the
3
rd,
the telephone call on the 7th, and whether the
Applicant was needed to come into work because of Aisha’s
taking of leave.
37.
According to Mr Kader, he told the Applicant to go home and get
better and when she felt better to phone. Mr Farber argued that
it
was inherently improbable that an employer would allow an employee
who was booked off until the 5
th
to remain on sick leave
beyond that. But given that a new cashier was to begin on the 5
th
and Aisha was not yet on leave, it is not so far fetched to allow an
employee to remain on sick leave until she is better particularly
given the personal nature of a small business and the fact that she
was pregnant. I do not consider the statement itself to be
inherently
improbable in the circumstances.
38.
According to the Applicant, she was told to stay at home until
called. The fact that Mrs Kader called on the 7
th
is
consistent with that statement. But the fact that Mrs Kader called
does not necessarily contradict Mr Kader’s statement
that it
was for the Applicant to call when she felt better. Mrs Kader’s
testimony was that she phoned in order to find out
how the Applicant
was and when she would be returning to work. That is what a
reasonable and prudent employer would do after a
few days of absence
beyond that certified by the doctor – again given the personal
nature of a small employer and the impending
absence of one of the
cashiers. Although Mrs Kader denied that Aisha’s impending
leave was a reason for the telephone call,
the overwhelming
probabilities are that she phoned to secure the Applicant’s
return to work if she was better given Aisha’s
pending
departure the next day. Of course that is also consistent with the
Applicant’s version, namely that she was phoned
in order for
her to work as a substitute during Aisha’s period of leave.
39.
Accordingly on balance, and for the reasons outlined above when
dealing with Mrs Kader’s credibility, I consider that
the
probabilities favour the Respondent’s version that it regarded
the Applicant’s work from 8 March to 15 March as
a continuation
of the Applicant’s employment rather than as temporary
employment as a substitute.
40.
The Respondent’s version of what took place on the 3
rd
and the 7
th
of March are mutually reinforcing.
Accordingly, when all put together, the Respondent failed to prove,
on the probabilities, that
she was dismissed on the 3
rd
of
March. It follows that the probabilities are that she resigned on the
15
th
of March.
41.
Although the Respondent succeeds, it is not equitable that the
Applicant pay the Respondent’s costs. Costs orders against
individual applicants will stifle poor and out of work employees from
pursuing their rights, particularly in a matter such as this.
42.
The claim is dismissed with no order as to costs.
_______________
CHEADLE
AJ
Date
of Hearing :
9-10/02/2010
Date
of Judgment :
29/03/2010
Appearances
For
the Applicant
: Mr
Faber
Instructed by
: Edwin Nathan Sonnenburgs
For the
Respondent
: Ms Le Sar
Instructed
by
: Guy & Associates