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 41
|
|
Lewis v Media 24 Limited (C88/2007) [2010] ZALCCT 41 (4 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
NOT
REPORTABLE
HELD
AT CAPE TOWN
CASE
NO: C88/2007
In
the matter between:
DAVID
ROBERT
LEWIS
..................................................................................................
APPLICANT
AND
MEDIA
24
LIMITED
.....................................................................................................
RESPONDENT
JUDGMENT
CHEADLE
AJ
Introduction
[1]
The Applicant claims compensation for
alleged unfair discrimination under
section 50(2)(a)
of the
Employment Equity Act, 55 of 1998
on grounds of his religious,
cultural and political beliefs. In summary, there are two sets of
claims.
[2]
The
first
is that the Respondent conducted its business by publishing
newspapers for target audiences living in ‘previously
segregated
areas’ and thus engaged in the ‘racial
profiling’ of its newspapers upholding ‘racial
divisions’.
The Respondent discriminated against him, he
claimed, because it required him to comply with these policies and
practices, which
were ‘contrary to his religious and political
views’, and harassed him and terminated his employment for
taking issue
with those policies and practices.
[3]
The
second
is that the Respondent, knowing that he was Jewish, forced him to
work on the Jewish Shabbat and that his employment was terminated
because he refused to work on the Shabbat. This, he said, constituted
discrimination on cultural and religious grounds.
[4]
The remedy sought is compensation order in
the sum of R100 000 plus costs.
[5]
Because of the volume of documents (mostly
irrelevant and some never referred to) and the extensive reliance on
some of those documents,
it is necessary to point out that five
bundles of documents were filed. The Pleading Bundle is referred to
as PB. There is a bundle
of Additional Court Documents filed referred
to as AD. There are two bundles of documents filed by the Applicant
referred to as
1AB and 2AB respectively. There is a bundle filed by
the Respondent referred to as RB. The page numbers of the relevant
bundle
are set out directly after the reference. So the Applicant’s
statement of case is at PB3 being page 3 of the Pleading Bundle.
A
brief chronological context
[6]
The Respondent employed the Applicant as a
‘layout sub’ at R8 000 per month for a fixed period
from 1 April 2006
to 30 June 2006. He was employed to work on a new
edition of one of the Respondent’s community newspapers, the
People’s
Post. The first publication of the new edition took
place on 23 May.
[7]
He initially underwent training on the
Respondent’s computer system and worked at its Bellville
offices on various community
newspapers until moving to the People’s
Post offices in Tokai on 9 May.
[8]
The Applicant claimed that he was promised
a renewal of the contract if, in addition to his duties as a layout
sub, he authored
articles for publication in the newspaper. The
Applicant produced several articles – some of which were
rejected.
[9]
On Friday 19 May 2006, the deadline for the
submission of copy for subbing of the first publication was extended
to late in the
evening. This meant that the Applicant had to work
until 10 pm, preventing him from observing Shabbat that night. He
worked for
14 hours on the next day being Saturday, 20 May.
[10]
In the editorial process for the first
publication, Ms Dean declined to publish an article on the jazz
musician Jimmy Dludlu that
the applicant had written for that
publication.
[11]
Mr Taljaard, the publisher, directed the
Applicant to oversee the despatch of the first edition on 23 May very
early in the morning
– there is some dispute as to the exact
time but it was between 4 and 5.30 am. Then he, together with other
employees including
the editor, participated in the launch of the
newspaper by distributing copies and small gifts to motorists from 6
to 7:30am.
[12]
On 29 May, the Applicant had a meeting with
Ms Dean over another article he had submitted based on his interview
with another jazz
musician. She raised concerns over the content of
the article. The upshot was that a meeting was called for the next
day to deal
with each other’s concerns.
[13]
Ms Dean, Mr Taljaard, Mr Warren Charles,
the HR manager, and the Applicant attended the meeting. At that
meeting, issues concerning
his performance, the rejection of his
articles and his being required to work on Shabbat were raised. After
a heated exchange,
the meeting ended with the Applicant being
escorted off the premises. He was paid the balance of his contract
and his contract
was not renewed.
Procedural
history
[14]
A letter of demand was sent to the
Respondent by Legal Wise on the Applicant’s behalf on 6 June
2006 in which it was stated
that it was a ‘well known fact’
that the Applicant was an Orthodox Jew and therefore ‘observed
the Sabbath from
Friday evening (sunset) until Saturday evening
sunset’. Despite knowing this, the letter claimed, Mr Taljaard
had demanded
that he work during this ‘holy period’
(RB41). The letter went on to state that the Applicant’s
contract had
been terminated early and accordingly demanded the
balance of one month’s salary under threat of legal action.
[15]
After receiving the outstanding salary, the
Applicant signed a letter under Legal Wise’s letterhead stating
the he confirmed
having received the salary ‘as a full and
final settlement’.
[16]
On 7 November 2006, the Applicant referred
a dispute of unfair discrimination to the CCMA for conciliation
(RB52–56). There
the unfair discrimination claim is
characterised in five ways:
discrimination
against Jews (being forced to work on the Sabbath);
racial
discrimination (editorial policy prevented him from writing for
African titles and an article on a black musician was rejected
because the target audience was ‘coloured’);
harassment
(forced to attend a 4am appointment, to distribute community
newspapers every Tuesday morning; to work a 14-hour day;
and to work
7 days a week);
discrimination
against other religious and ethnic minorities (the rejection of his
article on an Islamic art exhibition and an
exhibition on the
history of slavery was evidence of the Respondent’s
discrimination against Islamic culture and the descendents
of
slaves); and
discrimination
against anti-apartheid activists and struggle journalists (despite
his experience and his willingness to embrace
transformation, he was
given an ‘entry level’ position and his willingness to
engage in transformation disregarded).
[17]
The dispute was not resolved and a
certificate to that effect was issued on 27 November 2006 (PB9).
[18]
On 23 February 2007, the Applicant filed
and served his statement of claim (PB3-8). The discrimination alleged
in the statement
centres on four forms of discrimination:
the
Respondent’s racial profiling of newspapers compelled the
Applicant to comply with a policy that was contrary to his
religious
and political views and led to the rejection of his articles and
eventually to the termination of his employment (dismissal
and
non-renewal of his contract);
harassment
by being forced to work on the Sabbath knowing that the Applicant
was Jewish and being subjected to offensive remarks
regarding the
Applicant’s observance of the Sabbath;
harassment
by being required to do work (distribute newspapers) and to work at
times (14-hour days and 7 days a week) not provided
for in his
contract of employment because of his political and religious
beliefs;
the
termination of his employment on religious, cultural and political
grounds.
[19]
On 26 March 2007, the Respondent filed a
Notice of Exception on the grounds that various allegations in the
Applicant’s Statement
of Case were vague and embarrassing
(PB14–19). This prompted an expansive response by the Applicant
(which he called the
‘Applicant’s Notice of Cause’)
and in which he spells out at great length his political, cultural
and religious
views (PB21–32) and the factual allegations in
support of his claim. The Respondent did not pursue its exception. It
withdrew
it on 16 October 2007 (PB35) and filed a Response denying
the allegations (PB 38–44).
[20]
At a pre-trial conference chaired by
Moshoana AJ, a pre-trial minute was apparently agreed on (PB45–54).
When the Respondent
sent a draft minute of that agreement to the
Applicant for signature, the Applicant required three corrections –
see his
letter dated 24 October 2008 (PB56). He then filed a
‘Dissensus’ (PB55) attaching the letter to the
Respondent’s
attorneys in which three differences are recorded.
Those three corrections were incorporated into the pre-trial minute
at the start
of the hearing on 19 December 2009.
[21]
On 29 October 2009, the Respondent filed a
Notice of Intention to Amend its Response (PB57–75) in order to
set out its defence
in full. The Applicant then filed a ‘Notice
of Opposition’ objecting to the amendments (PB77–79) and
a ‘Response
to Amendment’ (PB81–123) in which he
‘places on record his response to the fraudulent and inaccurate
statements
tendered by the Respondent in its latest Intention to
Amend’. By agreement, the Respondent’s Amendment of its
Response
together with the Applicant’s Response to the
Amendments were admitted as part of the pleadings.
[22]
The Applicant gave notice of his intention
to call an expert witness, a Dr Reichenberger (PB129). By
agreement, that testimony
was reduced to writing by the Applicant and
admitted by the Respondent (PB130–134) during the hearing.
[23]
The Applicant subpoenaed three witnesses to
testify
on behalf of the Respondent
.
Not surprisingly, Mr Kahanovitz, for the Respondent, stated that he
was contesting the validity of the subpoenas on that and other
grounds. However, it was agreed, after certain admissions were made,
to release the witnesses for the reasons recorded below.
[24]
The
first
witness subpoenaed was Ms Shelagh Goodwin. She had been subpoenaed,
the Applicant said, for two principal reasons. The first was
to
produce documents, including minutes of Board meetings, regarding the
Respondent’s policies on racial profiling and policies
accommodating employees with different religious practices. Mr
Kahanovitz stated that the Respondent did not have any written
policies on these matters or any policy on accommodating religious
difference. The fact that the Respondent did not have any written
policies on these matters was admitted and recorded.
[25]
The second reason was to produce an
attendance register and minutes of board and editorial meetings for
the relevant period. Ms
Goodwin filed an affidavit in which she
stated that there was no attendance register for journalists for the
relevant period and
no minutes of editorial meetings (PB 115). Their
non-existence was admitted and recorded. It was accordingly agreed
that Ms Goodwin
could be released.
[26]
The
second
witness was Hanneke Gouws who was subpoenaed to produce the
attendance register. Since the Respondent stated that it did not have
such a register, the Applicant agreed to release the witness. In any
event, there was no material dispute over the time he worked
on
Friday 19 May, Saturday 20 May and when he started work on
23 May.
[27]
The
third
witness was Mr Brian Gatley. He was subpoenaed to prove that he had
initialled approval of the Applicant’s subbing of the
sports
page for the 30 May 2009 edition of the People’s Post
(1AB25). Mr Kahanovitz stated that the Respondent admitted
that Mr
Gatley had initialled his approval of that page. It was accordingly
unnecessary to call him as a witness.
[28]
The Applicant was not represented. He
stated on a number of occasions that he considered himself to be at a
disadvantage particularly
because a firm of attorneys and a senior
counsel represented the Respondent. The Applicant, however, had used
attorneys in the
preparation of his pleadings and, throughout the
trial, had affected knowledge of the substantive law of
discrimination. He was
afforded a wide berth in his oral testimony –
a much wider berth than would have been the case had he been
represented. I
drew his attention to the factual allegations in his
Statement of Claim and the issues in dispute recorded in the
Pre-trial Minute
in order to ensure that the Applicant testified on
all the material issues raised in the pleadings.
[29]
The Applicant was the only witness in
support of his claim. After he had closed his case, he applied to
re-open it the next day
in order to address issues that he had failed
to address in his testimony. Mr Kahanovitz agreed and the Applicant
led further evidence.
[30]
At the close of the Applicant’s case,
the Respondent applied for absolution from the instance. I declined
to grant absolution
for the following reasons:
The
Applicant had testified that the Respondent knew that he was Jewish.
Although he conceded under cross-examination that he
should have
objected to being required to work on the Shabbat, he nevertheless
claimed that the Respondent knew that he was Jewish
and should have
taken steps to accommodate his beliefs and practices.
Section
11
of the EEA provides that the onus shifts to the employer once ‘an
allegation of discrimination is made’. On a literal
reading of
section 11
, the Applicant had made an allegation of discrimination
placing the onus on the Respondent to prove that the conduct did not
amount to discrimination.
[31]
The Respondent called only one witness –
Ms Anneline Dean, the editor.
Outline
of the law
[32]
Section 9(4) of the Constitution prohibits
any person from unfairly discriminating against anyone on a number of
grounds, in particular
for the purpose of this matter, religion,
culture, and belief. The section goes on to require the legislature
to enact legislation
to prevent and prohibit such discrimination.
[33]
There are two pieces of national
legislation that do so: The Employment Equity Act, 55 of 1998 (EEA)
and the Promotion of Equality
and Prevention of Unfair Discrimination
Act, 4 of 2000 (PEPUDA). The relationship between the statutes is
dealt with under section
5(3) of PEPUDA, which provides that PEPUDA
does not apply to any person to whom and to the extent to which the
EEA applies. Subject
to certain exceptions that are not relevant to
this matter, section 4(1) of the EEA applies to all employers and
employees. This
means that the EEA is the national legislation that
gives effect to the constitutional right as far as the Applicant and
the Respondent
are concerned.
[34]
Section 6(1) of the EEA prohibits unfair
discrimination against an employee in any employment policy or
practice on one or more
of the listed grounds. The list however is
not exhaustive. But, for the purposes of this matter, the list
includes each of the
grounds alleged by the Applicant namely
religion, belief, political opinion and culture.
[35]
The essential elements that need to prove a
contravention of the prohibition in section 6(1) are accordingly:
there
must be discrimination – differential treatment based on a
listed or analogous ground;
the
discrimination must be sourced in an employment policy or practice;
it
must be against an employee; and
it
must be unfair.
Each
element is discussed more fully below.
Discrimination
[36]
The concept of discrimination is made up of
three issues: differential treatment; the listed or analogous
grounds; and the basis
of, or reason for, the treatment. Once a
difference
in treatment is
based
on a
listed ground
,
the difference in treatment becomes discrimination for the purposes
of section 9 of the Constitution and section 6 of the EEA.
[37]
The
first
issue concerns the difference in treatment. There must be a
difference in treatment in which the employee is less favourably
treated
than others.
[1]
In some instances, this may require a comparison between the victim
and a comparator – the so-called ‘similarly situated
employee’. In other instances, it may be evident that the
employee is treated differently from others precisely because of
the
targeted nature of the treatment, for example sexual harassment or
trade union victimisation. In this case, the Applicant contends
that
he was subject to three forms of differential treatment: harassment;
the failure to accommodate his observance of Shabbat;
and the
termination of his employment.
[38]
Differential treatment also raises the
issue of whether the difference in treatment is direct or indirect.
It would be direct if
the employer
treats
the employee differently from others
because
of the prohibited ground – for example sexual harassment or a
policy that provided housing subsidies for male teachers but
not for
female ones – see
Association of
Professional Teachers & Another v Minister of Education &
Others
(1995) 16
ILJ
1048 (IC). Discrimination is indirect if the employer imposes a
policy that does not appear (or intend) to differentiate between
employees on the prohibited grounds but which, nevertheless, has the
effect
of
treating them differently from others.
[39]
In this case, it appears that the Applicant
alleges that the harassment and termination of his employment are
direct forms of differentiation
– ie he was harassed and his
employment was terminated because of his political and religious
convictions. The policy on
working hours has, the Applicant alleges,
the effect of requiring employees of different religions to work in
breach of their religious
practices and is accordingly indirect
discrimination.
[40]
The
second
issue is the ground relied on. The Applicant relies on three listed
grounds, namely religion, political opinion and culture.
[41]
The
third
issue is whether the difference in treatment is
based
on
the prohibited grounds. There is a
lack of clarity in the Labour Courts as to the appropriate approach
to the question of the causation
in discrimination cases – see
the different approaches in
Louw v
Golden Arrow Bus Services (Pty) Ltd
(2000) 21 ILJ 188 (LC);
Ntai &
others v SA Breweries Ltd
(2001) 22 ILJ
214 (LC); and the different judgments in
Woolworths
(Pty) Ltd v Whitehead
(2000) 21
ILJ
571 (LAC). In the Constitutional Court, the approach seems to require
that the differential treatment is ‘substantially based
on one
of the listed grounds – see
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC) at
para 43; and
President of the Republic
of South Africa and Another v Hugo
[1997] ZACC 4
;
1997
(6) BCLR 708
(CC) at para 33. But in both these cases the links were
explicit and there was no need to elaborate on the concept of
‘substantially
based’ or whether it applied in instances
when the grounds were denied, disguised or mixed.
[42]
It is unnecessary to decide what the proper
approach to causation should be in this case because I find that the
Applicant has failed
to establish any link between the three listed
grounds and the alleged difference in his treatment.
Employment
policy or practice
[43]
The concept of the employment policy or
practice is defined in section 1 of the EEA. The relevant provisions
of the definition include
‘…(b) appointments…;(d)
…terms and conditions of employment; (e) job assignments; …”.
The
list is not exhaustive and analogous grounds are clearly
contemplated by the wording of the definition.
[44]
There are two policies or practices alleged
in this matter: the policy or practice of racial profiling and the
policy or practice
in respect of work hours. In so far as the policy
or practice of racial profiling is concerned, the claim is made that
the policy
or practice through its targeting of audiences affects the
manner in which work is allocated and directed. The allocation of
‘white’
stories for ‘white’ audiences and
‘coloured’ stories for ‘coloured’ audiences
seems to fall
within the parameters of ‘job assignments’
contemplated in the definition. But even if it does not, such a
practice
of work allocation is sufficiently analogous to be included.
[45]
The policy or practice in respect of
working hours is clearly one relating to terms and conditions of
employment.
Against
the employee
[46]
The section 6(1) prohibition of
discrimination applies only to the discrimination against employees.
Other discriminatory targets
do not fall within the prohibition. Much
of the Applicant’s case was directed at the alleged
discriminatory conduct of the
Respondent in the manner in which it
ran its newspaper business. This evidence was admitted only because
it might have constituted
proof of an
employment
policy or practice
that discriminated against the Applicant.
[47]
To the extent that the Applicant sought to
go beyond that and sought a finding that the Respondent engaged in
discriminatory practices
in general, such a finding is not a
competent finding in this court. The case is limited to the alleged
discrimination against
him or others in his or their capacity as
employees. It is for this reason that much of the documentation he
submitted and the
evidence he led, in the end, was not relevant. The
case is not whether the Respondent engages in discriminatory
practices in general
but whether the Respondent’s employment
policies and practices discriminated against him as an employee. The
only issues
for determination are therefore whether the employment
practices relating to racial profiling and working time discriminated
against
the Applicant.
Unfairness
[48]
If discrimination on listed grounds is
proved, unfairness is presumed –
Harksen
v Lane NO and Others
1998(1) SA 300
(CC). In order to discharge the presumption, an employer has to prove
that the discrimination is fair for reasons
such as affirmative
action or inherent requirements of the job – see section 6(2)
of the EEA. The Respondent did not lead
any evidence on either or any
other ground of justification. It did not do so because its case was
that its conduct did not discriminate
against him.
Summary
of the evidence
Applicant’s
engagement and contract
[49]
Although the Applicant’s statement of
claim states that he was employed as a journalist (PB.4.4.1), it was
common cause that
the Respondent employed him in March 2006 as a
“layout sub” for a fixed term of 3 months. He signed a
contract and
confirmed that the signature at RB15 is his but he
denies that the preceding pages (RB5–14) constituted the
contract he entered
into. He said that he had repeatedly asked for
the original contract but it had never been supplied. He said that
the document
purporting to be his contract in the Respondent’s
bundle was a ‘fraud’ because they had removed an
offending
clause. The document purporting to be his contract (RB
5–15) filed by the Respondent was a ‘mere facsimile’.
[50]
The offending clause was one that required
him to do ‘anything he was instructed to do by Mr Taljaard’.
As far as he
was concerned that clause invalidated the contract
between him and the Respondent. Nevertheless, there was, he claimed,
an employment
relationship between them.
[51]
He also said that the Respondent had
misrepresented the hours of work in the contract. Although it stated
in clause 7 that he was
to work an 8-hour day and a 5-day week, he
was required to work 14-hour days and 7-day weeks.
[52]
Under cross-examination he was asked to
identify the ‘amendments’ to the purported contract at RB
5-15. He said that
the obligation comply with ‘any instruction’
was missing. He repeated that the contract was not valid and that any
questions on the contract were ‘hypothetical’.
[53]
He referred to the clause 5.1 of the
contract (RB6) in which he was appointed to the post of a layout sub
but expected to do work
of a ‘similar nature’. He said he
had no objection to the clause but just to its interpretation and
that ‘work
of a similar nature’ was interpreted to mean
‘anything’. He conceded that he was an all rounder having
worked
in a small newspaper and that he had agreed to provide
content. He agreed to do this, he said, because he was promised
employment
in a permanent capacity at the expiry of the fixed term if
he did.
[54]
He later contradicted himself when he
claimed that he was ‘forced’ to write articles and that
this was in breach of
clause 5.1 of the contract (RB6). In his cross
examination of Ms Dean, he put to her that writing articles was not
part of his
job description because it was not work that was similar
to layout. She denied this and stated that it was common for
sub-editors
to write content. She also denied that he was forced to
write content. She said he never raised an objection with her –
on
the contrary, he appeared to be very excited about doing this
work. He came to her on numerous occasions to discuss possible
topics.
He never indicated that he was not comfortable with providing
content.
[55]
Ms Dean’s evidence on the Applicant’s
employment was that after the decision was made in early 2006 to roll
out four
further editions of the People’s Post, the Respondent
recruited new employees. All the new recruits, including the
Applicant,
were trained at the Respondent’s head office in
Bellville. Those recruited to do layout were trained on the
Respondent’s
layout system. For those employees who had
existing skills, the training consisted of transferring those skills
into the new system.
Because of Mr Lewis’s experience as stated
in his CV, Ms Dean expected him to have conceptual mastery of the
process of layout
and that all that was required in his training was
familiarisation with the technical tools of the Respondent’s
layout programme.
[56]
His training lasted for 2 weeks after which
he worked at the Bellville office assisting with content and other
tasks in respect
of other titles of the WP newspapers. The People’s
Post moved into new premises in Tokai on 9 May, which was when the
Applicant
started work on the new edition of the People’s Post.
7-day
weeks and 14-hour days
[57]
The Applicant pleaded that he “was
forced to work 7-day weeks” (RB 4 at 4.4.1) and “14-hour
days” (RB 5
at 4.4.3.3). He said that he was ‘beholden to
them 24/7’. This he said constituted “harassment”
because
it denied him his right to express his religious and cultural
life and prevented him from observing Shabbat.
[58]
He confirmed that the production cycle for
the new edition of the People’s Post ran from Friday to Monday
with printing commencing
on Monday evening and distribution on
Tuesday. He said this was introduced without consultation and was in
breach of the hours
of work contained in his contract.
[59]
He said that he worked from ‘8a.m to
10p.m’ and gave the distinct impression that he did this
everyday. He stated that
copy came in after deadline, which slowed
the subbing process and that this required him to sub late into the
evening on Friday.
He also said that he spent time on one of the
stories on a Friday night.
[60]
Under cross-examination, he said that there
had been no discussion of the working days and the hours when he
entered into the contract
he just assumed that it was Monday to
Friday. When it was put to him that the working week in newspapers
had to be tailored to
the distribution deadlines his response was
that it was not in his contract. He said he was told on 18 May 2006
he would have to
work on Saturday. This was done unilaterally. When
asked whether he raised the fact of his Jewish faith with Ms Dean he
said that
he had not and that he ‘should have objected’.
[61]
When reminded that he had said that he did
not mind working on Saturdays, he confirmed this stating that he had
grown up in an environment
in which his father, an orthodox Jew, had
worked on Saturdays, but had observed the Shabbat on Friday evening.
Friday evening,
he said, was the issue not Saturday. He confirmed
that production of the People’s Post began on Thursday (news
gathering)
with a deadline on Friday 12 noon for the submission
of content. He was prepared to work on Saturday and Sunday
particularly
if there was a problem with an edition but only until
3pm. He conceded that it was a new publication and that there were
teething
problems and consequently that changes to the schedule were
to be expected. He nevertheless insisted that the required hours were
contrary to what was contained in his contract.
[62]
He confirmed that he worked on only two
publications of the People’s Post – the first two
publications. He accepted
that they were learning as they went along.
When it was put to him that in journalism things often do not go as
planned and that
there has to be flexibility, he said flexibility was
always at the ‘prerogative of the journalist’. His
complaint was
that he was ‘beholden’ to the Respondent
‘24/7’.
[63]
He was cross-examined on the claim that he
was required to work 7-day weeks (PB4 at 4.4.1). He said that it was
only in respect
of his last two weeks that he had worked 7 days,
namely on the new edition. On the claim that he was required to work
14-hour days
– PB5 at 4.4.3.3, he conceded that this had
occurred only in respect of the last two weeks, namely on the new
edition, and
that he had been required to work four 14-hour days in
total. When put to him that this was an exceptional period, he stated
that
he was nevertheless under a general obligation to work 7 days
and 14 hours whenever he was directed to do so and that the
Respondent
had taken no steps to rectify the problem areas related to
the editorial and production processes of the new edition. Mr
Taljaard
had told him that if he did not do work the hours as
directed he could ‘attempt the terminus or go to hell’,
which
one assumes was an invitation to resign.
[64]
In addition to the allegations of being
required to work 7-day weeks and 14-hour days, the Applicant alleged
that he was required
by Mr Taljaard to meet for an ‘appointment
at 4am’ and to ‘distribute newspapers
every
morning from 5am to 7:30am’ (PB5 at 4.4.3). In his evidence in
chief, he states that he was required by Mr Taljaard to be
at the
Respondent’s despatch department at 4am on 23 May to
supervise the first distribution of the new edition but
that he
arrived at 5:30am. He also said that he was required to distribute
papers every Tuesday. He said that if it had been a
one off promotion
it would not have been an issue for him but he insisted that he was
under a general obligation to distribute
papers if management invoked
the right to call on him to do so.
[65]
Under cross-examination, he conceded that
he had participated in the first distribution of the new edition on
23 May. He said that
he had been required to participate in the next
distribution on 30 May, which he refused to do. He said that this was
one reason
why they terminated his employment. He was referred to the
email correspondence from Mr Taljaard – RB19–21 and 25–6.
That correspondence states that the staff were ‘invited to join
us in the excitement when we launch the new People’s
Post
editions in the southern suburbs’ and it refers to those who
participate as ‘volunteers’. The Applicant’s
response was that Mr Taljaard was a ‘bully’ and that he
required employees to volunteer in the same way as the South
African
Defence Force used to call for volunteers.
[66]
In her evidence, Ms Dean said the launch on
23 May was a ‘splash out’ done by invitation. E-mails
were sent calling
for volunteers. The volunteers were put into teams
to work certain high volume intersections. The volunteers wore
People’s
Post t-shirts and handed copies to the occupants of
the motorcars. Ms Dean was assigned to the same team as the
Applicant. No one,
including the Applicant had objected to
participating in it.
Respondent’s
policies on racial profiling
[67]
The Applicant alleges in his Statement of
Claim (PB4.2) that a system or policy exists in terms of which the
Respondent racially
profiles its newspapers and thereby continues to
uphold racial divisions based on racially segregated areas. By so
doing, it discriminated
against him because it required him to comply
with policies that were ‘contrary to his religious and
political views’
and because it harassed him on account of
those views.
[68]
His evidence for the racial profiling
allegation is
firstly
that as a matter of history, the Respondent had closely associated
itself with the National Party and the policy of apartheid –
what the Applicant referred to as the ‘chain of shame’.
The Respondent had not taken the opportunity of making submissions
to
the Truth and Reconciliation Commission and apologising for its role
(he referred in this regard to sections of the Commission’s
Report dealing with the role of the Afrikaans press at 1AB1–5).
The Respondent had not changed its views and as evidence
of this, he
referred to cartoons published by the Respondent’s newspapers
after 1990 in 2AB13–15.
[69]
Secondly,
as
a business, the Respondent’s newspapers targeted audiences that
followed the racial profiles imposed by apartheid. Accordingly,
Die
Burger targeted the white Afrikaans community; City Vision, the
African community; and the People’s Post and the Metro
Burger,
the so-called coloured communities. Under cross-examination when it
was put to him that the Respondent was engaged in a
business venture
to make money, he conceded that the Respondent engaged in a business
venture developing titles for specific audiences
to make money –
whether based on age, gender, content, community etc.
[70]
Thirdly,
its
newsrooms were structured and populated to reflect the group areas of
the previous regime with African journalists sitting at
their desks
working on titles geared exclusively for African target audiences;
and white journalists sitting at their desks working
exclusively on
titles for a white target audience; and coloured journalists on
coloured titles. As a result of this policy, he
had been prevented
from writing for a black newspaper. He went on to say that the
Respondent appointed persons to senior positions
to give effect to
this policy. In a particular, he claimed that many members of the
Respondent were members of the NGK and that
his editor, Ms Dean was
such a member. This was significant, he said, because in South Africa
the NGK supported apartheid, which
other churches had declared to be
a heresy. He claimed that she appeared to share the Respondent’s
beliefs of the ‘demographics
of the People’s Post’.
[71]
Under cross-examination, he conceded that
there was a common pool into which journalists could submit articles
for use in other
newspapers of the Respondent and that one such
newspaper, the Mitchell Plains Metroburger, had published one of his
articles. He
stated, however, that apart from this no other newspaper
had used any of his material including a ‘wonderful photograph
of
audio players in Khayelitsha’. When asked how editors were
‘prevented’ from using articles submitted into the
pool,
his answer was that they were prevented from doing so by ‘racial
taboos … ingrained from nursery school’.
When asked how
he could explain his appointment to work on what he said was a
coloured title, he stated that the Respondent must
have thought that
he was coloured. When asked if his claim of racial profiling was
consistent with the appointing a white woman
for a coloured community
newspaper, he lamely stated that that was an ‘interesting
point’.
[72]
Under cross-examination, he was asked how
he knew that Ms Dean was an Afrikaner and a member of the NGK. The
Applicant said that
he had gained that impression from talking to
her. When it was put to him that she was a Catholic he was unable to
contest it.
When it was put to her that she spoke both English and
Afrikaans at home, he insisted that she was a “boere meisie”
(while at the same time claiming that he was a “boere jood”).
He said that she was appointed to advance the Respondent’s
aims
rather than for any editorial experience or experience of the
coloured community – experience that he said he had ‘because
… [he was] a coloured’. She was, he said, an upper class
Afrikaner white editor of a newspaper for the coloured community.
[73]
Ms Dean’s evidence was that the
People’s Post was based on the Community Newspaper Model. That
model is contrasted with
the mainstream model, which has a national
or provincial footprint and is published for large audiences either
on a daily basis
(e.g. Cape Times) or on a weekly basis (e.g. Sunday
Times and the Sunday Sun). The Community Newspaper model reflects a
segmented
landscape targeting smaller pockets of readership
geographically defined.
[74]
She said that the geographic definition is
normally centred on some form of community identity and some shared
points of interest.
The object is to target advertising to a smaller
catchment area, which means it is both cheaper and more directed form
of advertising
particularly for small businesses. The People’s
Post has ten communities in the Cape Peninsula, which include
Mitchells Plain,
Grassy Park, Retreat, Athlone, False Bay, Wynberg,
Claremont/Rondebosch, and the Atlantic Seaboard – each with its
own edition.
[75]
She conceded that there was a coincidence
of homogeneity based on South Africa’s past. At a racial and
cultural level, many
of these communities were shaped by South
Africa’s past though many newspapers now addressed a mixed
profile. Asked whether
the demographic profile of the Peoples Post
coincided with so called “coloureds” and therefore that
the content of
the Peoples Post was racially profiled she said that
that was incorrect. Several of the areas reflected a mixed profile
such as
Wynberg and the City Seaboard, Claremont/Rondebosch and False
Bay etc.
[76]
She said that there was no truth that the
Respondent targeted a particular racial group in its community
newspapers or that the
content of an edition was racially profiled.
She stated there were three levels of content for the different
editions. The first
level is to use content from neighbouring catch
material that is what she called ‘neighbouring crossovers’
–
articles dealing with something in Retreat would also be used
in the Constantia-Wynberg edition. This was done to avoid
pigeonholing
communities. The second level was that matters of
interest across the whole landscape would be covered in all editions.
She gave
the example of the recent shark attack at Fish Hoek that
story was covered in each of the editions. The third level she said
was
a special attribute of the People’s Post model was using
content for a specific aim for example the request for assistance
of
families where homes were destroyed in one community would be
published in other communities. So, a Rotary Club Campaign in
respect
of assistance in one area would be published across the editions.
Rejection
of Applicant’s articles
[77]
The Applicant contends that four articles
of his had been rejected as a result of the Respondent’s racial
profiling policy
(PB5 para 4.5.1). The four articles are:
the
Dludlu article which was about the jazz musician Jimmy Dludlu and
his winning of two South African Music Awards (RB23);
an
amended article on Dludlu and a local jazz musician, Robbie Jansen
(the Robbie Jansen article) in which Robbie Jansen comments
unfavourably on the awards, the ceremony and the choice (PB10–13);
a
brief on the Hand of Fatima exhibition (the Hand of Fatima article)
which is a brief on an art collection with a motif that
predates but
has been assimilated into Islamic art and culture (1AB30)
a
brief on the Remembering Slavery exhibition at Iziko (the Slavery
article) which describes the exhibition (RB31).
[78]
The Applicant stated that on 17 April 2006,
the Applicant attended a editorial meeting chaired by Ms Dean. At
that meeting she said
that she wanted to capture the ‘heart and
soul’ of the community. She asked him to write articles on Cape
Jazz. As
a result, he wrote the story on Jimmy Dludlu, a famous
Southern African jazz musician. The article was rejected. She accused
him
of plagiarism specifically referring to his use of an online
biography of the musician. He denied the plagiarism and considered
the use of online sources to be a ‘style issue’. He said
that she could have sent it back for a rewrite but instead
it was
rejected – it was ‘a sign that the boerevolk were right
and he was wrong’ and that he was ‘not to
bring the
struggle into the newsroom’. The reason for its rejection, he
stated in his evidence in chief, was that it was
a story about a
black artist and accordingly not suitable for inclusion in a
newspaper targeting the coloured community.
[79]
When it was also put to him under
cross-examination that he had himself described the Dludlu article as
a ‘vapid piece hastily
put together from music industry bumph
and promo material’ (1AB52), he conceded that it was not ready
for publication but
continued to insist that the real reason for the
refusal of the article was the fact that it was about an African jazz
musician
and the target audience was a coloured community. It was put
to him that editor had difficulties with the posting of the content
as original. His response was that the quotes were clearly attributed
but conceded that she had a problem with online journalism
and that
it was her prerogative as editor to make this call. Referring to the
article at RB 23 and the portions deleted, he conceded
that her
concerns were one of the reasons for her rejection but insisted that
the true reason was the subject matter and the fact
that she had a
‘psychological problem’ with the complexion of Jimmy
Dludlu.
[80]
Ms Dean testified that when she read the
Jimmy Dludlu article she became aware of the change in style midway
through the article.
She did an Internet search on a piece of the
text and that revealed an Internet document from which a large piece
of the Applicant’s
article had been drawn. She made the pencil
markings on the copy of the article (RB23). They marked off the
chunks of the text
that had been drawn from the Internet. She had
originally marked them off in order to see if she could excise them
and still run
with the article but excision took too much out of the
article. She said that it was unacceptable to publish ‘cut and
paste’
content in the absence of a clear attribution that it is
the work of another. She denied that her decision to run with the
article
had anything to do with the fact that the article was about a
black African and that this did not fit the profile of the readers
of
the People’s Post.
[81]
The Applicant testified that he then
rewrote the article (RB37) after speaking to Robbie Jansen, a local
jazz musician (PB10–13).
Robbie Jansen was, he said, within the
‘target market’, and that the article was ‘spiked’.
The Applicant
said that Ms Dean wanted Robbie Jansen’s
telephone number to check whether he stood by the statement in his
interview. He
refused to give her the number. In the interview with
the Applicant, Robbie Jansen makes disparaging remarks in respect of
the
music industry and its award to Jimmy Dludlu. Under
cross-examination, he conceded that although the article suggested
that he
had interviewed Robbie Jansen at his home, he had in fact
conducted the interview over the telephone – this was not
misleading,
he said, it was a ‘journalistic conceit’.
[82]
Ms Dean said in her evidence that after
reading the article she met with the Applicant to discuss it. She
told him that she was
concerned that Mr Jansen was making disparaging
remarks in respect of an industry in which he earned his living, that
the Applicant
had ‘encouraged’ him to make the statement
and that his producer had told him not to give an interview. She
requested
Mr Jansen’s telephone number to check the facts.
He took great exception to this and refused to give her the number.
[83]
She said that after telling him that she
wanted to check the facts he started shouting and swearing. He became
very agitated and
said that he would not write a ‘f…ing
word for the f…ing newspaper again’. He walked out and
went to
his desk shouting ‘profanities’. Later that day
he told her that he could put her in touch with Robbie Jansen’s
pastor but would not give her Robbie Jansen’s number to phone
him directly. Because of his behaviour, which she reported
to Mr
Taljaard, Mr Taljaard called a meeting for the next day.
The
meeting on 30 May
[84]
Mr Taljaard, Ms Dean, Mr Warren
Charles (HR Divisional Head) and the Applicant attended the meeting.
The Applicant’s
evidence was that he was called to what he considered to be an
‘evaluation meeting’, which he
understood to be a meeting
in which he could raise problems he had encountered in the second
production cycle. His preparatory
notes are at 1AB27–29. Those
notes record concerns about copy coming in after deadline, proofing,
subbing and editorial directives.
He recognised that the newspaper
was still getting to grips with its uniqueness but the ‘peoples
aspirations and expectation’
were that the newspaper deliver
‘something special’. He then deals briefly with the Jimmy
Dludlu and Robbie Jansen
stories and their rejection. The handwritten
notes refer to the need for direction, production meetings and
clarity on the production
process.
[85]
The Applicant said that Warren Charles and
Mr Taljaard immediately put him in the ‘hot seat’ and
played ‘games
of intimidation’ with him. They purported
to evaluate his performance and said that they were not happy with
him. His layout
expertise was questioned – he was referred to a
page that was not professionally laid out (RB29). He explained that
this
was an isolated incident and that the page was not ready and
would not have been submitted for publication.
[86]
He complained about working overtime on the
previous Friday, which meant that he had to work on Shabbat. Mr
Charles asked him how
he could attend a jazz evening on Shabbat
insinuating that he was not a Jew because a Jew would not go to a
nightclub on Shabbat.
The Applicant stated that Mr Charles had no
right to criticise how he observed his Shabbat. The Shabbat was his
private time and
what he did in his private time was no business of
the employer. He took great exception to the fact that Mr Charles
challenged
his Jewishness.
[87]
In response to a question whether he ever
advised the Respondent that he was Jewish he said that the Respondent
had not been told
but the Respondent could not assume everyone was of
the same religion. The Applicant assumed that they knew that he was
Jewish.
He conceded that he should have objected and that it might
have lead to a ‘better outcome’. The issue of his
Jewishness
only came up during the meeting on 30 May 2009. He went on
to say that it was no secret that he was a Jew. The Respondent, he
said,
failed to take steps to find out the religious affiliations of
their employees.
[88]
He raised the issue of the two articles at
the evaluation meeting. Warren Charles became offensive suggesting
that he did not know
the communities and Grassy Park in particular.
[89]
Under cross-examination, he conceded that
his notes for the evaluation meeting (1AB27–8) included all the
issues that he wished
to raise at the meeting on 30 May 2009. He
conceded that they were the important issues. When asked why there
was no reference
to racial profiling or anything in respect of
Judaism, he responded that the racial profiling was linked to the
rejection of his
articles, which was raised in the report and that
the excessive hours were linked to the issue of Judaism. He said it
was not necessary
to develop these points in his notes.
[90]
He said that during the meeting he was
abused by Mr Sedrick Taljaard and told that ‘ons het jou geld
gegee – we now
want our pound of flesh’. This he said was
a reference to Shakespeare’s play The Merchant of Venice and
that the anti-Semitic
inference was clear. The applicant claimed that
during the meeting Mr Charles told him that he had been a member of
the Umkhonto
Isizwe, which applicant believed was told to him in
order to intimidate him. The Applicant responded that he had contacts
with
the ‘Kiblah’, a reference it seems to a local
militant Muslim group.
[91]
He denied that he lost his temper in the
meeting but did concede that he was ‘not toeing the line’.
He said that very
cruel and hurtful things were said to him and that
he could not comprehend the amount of abuse thrown at him. They
‘ganged
up against him’. He conceded that he might have
responded to them by saying “jou ma se ...”.
[92]
Ms Dean’s testimony was that after
the Applicant had sworn at her when she had refused to publish the
Robbie Jansen article,
she telephoned Mr Taljaard and informed him of
what had occurred and asked his advice. He said that it was necessary
to meet with
human resources to deal with the matter and a meeting
was arranged with the Applicant the next day, namely 30 May.
[93]
According to Ms Dean, the meeting took
place in her office. The Applicant was questioned on his experience
given the concerns arising
from the layout and the two articles. His
conduct the day before was also raised particularly its
inappropriateness and the use
of foul language before other members
of staff. In the course of the discussion, the meeting became
chaotic. It was an emotionally
charged atmosphere with the Applicant
becoming very agitated. She said that the Applicant did not handle
the matter professionally.
At the end of the meeting, they agreed
that he would be paid for the balance of his contract and that he
should not come back to
work.
[94]
She was asked if Warren Charles had made
offensive remarks concerning the Applicant’s religion. Her
response was that the
meeting was chaotic, a lot was said but she
cannot recall everything that was said and could not recall that. It
was put to her
that the Applicant’s version was that he was
physically removed. She said he was not – he left voluntarily
accompanied
by Mr Taljaard and Mr Charles to his desk and then
escorted out of the building. There was no physical removal.
[95]
Later that night, the Applicant phoned her
and apologised. He said that it was not because of Ms Dean that he
got so angry but that
“white dominee”, which she assumed
was Mr Taljaard. He said that he did not want her to view him poorly.
Credibility
of the witnesses
[96]
The Applicant was not a credible witness.
He was hyperbolical. He claimed that he was required to work ‘every
Tuesday morning
from 5am to 7:30am’ when he only worked it once
and only asked to work it on another occasion. He claimed that the
copy of
the contract filed in the Respondent’s documents was a
‘fraud’ even though he relied on certain of its
provisions
and he admitted that it was his signature on the last
page.
[97]
He made unfounded and offensive statements
about his colleagues accusing them of being ‘cram college’
journalists’
and his editor of not being equal to the job. He
claimed that she had asked him to help her ‘fake it as an
editor in the
know’. He said that she was appointed because she
fitted the racial, linguistic and religious profile of the owners and
managers
of the Respondent namely that she was white, Afrikaans and a
member of the NGK. When it was put to him that her father was Italian
and her religion Catholic, he could not deny it nor proffer any
evidence to the contrary other than claiming that she had led him
to
believe that she was Afrikaans. He made absurd claims that he was a
‘coloured’. He was argumentative under cross-examination
and contradicted himself.
[98]
His evidence is unreliable because he is
engaged in a campaign against the Respondent for its support of
apartheid and its refusal
to apologise for doing so before the Truth
and Reconciliation Commission. That is clear from his pleadings, the
documents he compiled,
the evidence he gave and the emotion with
which he displayed in conducting his case. This is what drove him and
the evidence of
his personal engagement with the Respondent was
shaped to advance this campaign. His evidence was tendentious.
[99]
The evidence of Ms Dean on the other hand
was to the point and measured. She gave a good impression. She knew
what she was talking
about and clearly explained the manner in which
the Respondent conducted its newspaper business. Her evidence in
respect of the
Respondent was consistent with the common cause facts.
Her version is to be preferred in any conflict with the Applicant’s
version.
Was
the Applicant treated differently because of his political views
[100]
Fundamental to the first leg of the
Applicant’s case is that the employment policy and practice of
racial profiling led to
his being harassed, his articles being
rejected and the termination of his contract because of his religious
and political views.
Harassment
for his religious and political views
[101]
The harassment claims take several forms.
They are set out in paragraph 4.4.3 of his statement of claim. I deal
with each individually.
[102]
‘
Making an appointment with
Applicant at 4am in the morning’.
In
his own evidence, the Applicant states that he was required to be the
responsible person ‘as a member of production’
to monitor
the despatch of the first edition on 23 May 2006. When cross-examined
over the description of this task as an ‘appointment’,
he
argumentatively avoided answering the question by telling
Mr Kahanovitz to ‘call it what you want’. It is
clear that the early morning task was associated with the first
publication of the new edition. His description of it in his
statement
of claim as being an ‘appointment’ was to give
it the colour of harassment when the more probable reason for the
early
morning task was to oversee the smooth running of the launch of
the new edition.
[103]
‘
Requiring Applicant to distribute
newspapers every Tuesday morning...’.
In
his evidence, the Applicant conceded that he was only called upon to
do so on 23 and 30 May and that he only did so once,
namely the
distribution of the first publication on 23 May 2006. He had been in
the Respondent’s employ for 7 weeks
before 23 May and
accordingly the claim that he was required to ‘distribute
newspapers every Tuesday morning’ is a
gross exaggeration. When
it was put to him that he did not distribute newspapers every
Tuesday, he shifted his ground and claimed
that the Respondent had
the right to require him to do so. But not only did he not work every
Tuesday morning distributing papers,
it is clear from the email
correspondence and Ms Dean’s evidence that the participation in
distribution on 23 May and 30
May was voluntary and limited the
launch of the new edition. Distribution was done by a separate
company. Not only is her evidence
to be preferred, the inherent
probabilities are that he was not being singled out – all staff
were asked or, on his version,
‘required’ to assist in
the launch.
[104]
Requiring the applicant to work 14-hour
days.
In his evidence, he states that
he was only required to work 14-hour days on four occasions. Each of
these occasions was associated
with the first two publications of the
new edition. It was common cause that there were teething problems
with the introduction
of the new edition and that these 14-hour days
took place in the 2 weeks of the first two publications. Indeed, the
Applicant in
his notes for the evaluation meeting raises the problems
of the second production cycle in particular the late submission of
copy
leading to subbing to be done late Friday and over the weekend –
1AB27. Ms Dean’s evidence was to the effect that there
were
‘horrendous’ problems with the system in the first week’.
She had to change deadlines and that affected
the hours of work. The
probabilities are overwhelmingly that the applicant worked or was
required to work hours in excess of normal
working hours because of
the exigencies of the first two production cycles of the new edition
and not because he was the object
of harassment.
[105]
The invitation to resign.
In
his statement of claim and his evidence, the applicant alleges that
Mr Taljaard harassed him by stating that if he was dissatisfied
with
his working hours he should ‘attend the terminus and go home’
– PB5 at 4.4.3.3. Mr Taljaard did not give
evidence and
accordingly the Applicant’s evidence that he said this stands
though it is not clear quite when this was said
and in what context.
It is also not clear quite what the statement meant but I assume that
it was an invitation to resign. An invitation
to resign may or may
not constitute harassment – it depends on the circumstances.
[106]
The invitation to resign in this case is
inextricably linked to its cause namely the applicant’s
dissatisfaction with his
working hours. Given that I have found that
the requirement to work those hours is not based on discriminatory
grounds, an invitation
to resign does not necessarily constitute
harassment for political or religious beliefs. The more probable
inference is that Mr
Taljaard made the statement in response to the
applicant’s objection to his working hours – hours that
had made demands
on him as a result of the problems experienced in
the production cycle of the launch of the new edition.
[107]
It follows that the applicant has failed to
prove that the conduct complained of in paragraph 4.4.3 of his
Statement of Claim constitutes
harassment or that such conduct is
based on the alleged grounds of discrimination.
The
rejection of his articles because of his political and religious
views
[108]
In his statement of claim the applicant
alleges that he was discriminated against for his religious and
political views and in particular
that the respondent ‘failed
to accept a number of the applicant’s articles’ because
of its racial profiling policies
– PB4-5 at 4.3 and 4.5.
[109]
There are four articles that he claims to
have been rejected. The first is the
Jimmy
Dludlu
article, the second is the
Robbie Jansen
article, the third and fourth are the Slavery and the Hand of Fatima
articles. Not much was said about the last two other than
as proof of
the discriminatory attitudes of the Respondent in general. The
critical articles for the purposes of the Applicant’s
case are
the first two.
[110]
The Jimmy Dludlu article.
The applicant claims that this article was rejected because of the
respondent’s policy and practice of racial profiling,
namely
that the article was about an African jazz musician in a newspaper
that targeted a ‘coloured’ constituency’.
Assuming
that the Applicant demonstrated the existence of such a policy and
practice and that it manifested itself in content choices,
the
Applicant has nevertheless failed to demonstrate that this policy and
practice led to the rejection of his article. By his
own admission,
he regarded the article to be a ‘vapid piece hastily put
together from music industry bumph and promo material’
(1AB52).
Ms Dean confirms this and after trying to rescue the article decides
that it is not fit for print because it was unacceptable
to publish
‘cut and paste’ content without attribution that it is
the work of another.
[111]
The applicant did not contest that it was
her prerogative to decide this issue, which he described as
‘stylistic’. He
insisted though that the reason for the
rejection was that she had a ‘psychological problem with the
complexion of Jimmy
Dludlu’. Although conceding that the
article was not ready for publication, he insisted that she should
not have rejected
it but referred it back to him for reworking. But
that is precisely what the Applicant says what happened. He reworked
the article
but in the context of an interview with Robbie Jansen.
[112]
The more probable reason for the rejection
given his own testimony is that it was not ready for publication and
that it was full
of ‘bumph and promo material’, which was
not acceptable to Ms Dean, exercising an editorial prerogative
recognised
by the Applicant. It follows that this rejection was not
based on the Respondent’s alleged racial profiling policies and
practices but on the editorial assessment of the article on grounds
of attribution and style – an assessment that the applicant
himself shared.
[113]
The Robbie Jansen article.
The applicant stated that he reworked the
Dudlu
article in order to fit it into the ‘target market’. That
article was also rejected. The applicant claims that this
was because
of the racial profiling policies and practices of the Respondent. But
on its own terms the rejection cannot amount
to racial profiling for
the very reason that it was an article about a jazz musician who fell
within the alleged racial profile
of the target market.
[114]
Ms Dean testifies that she rejected the
article because the applicant had encouraged Mr Jansen to give an
interview, which Mr Jansen’s
producer had advised him not to
give and because that interview contained disparaging remarks made by
Mr Jansen about an industry
in which he earned his living. She
requested Mr Jansen’s telephone number to check the facts. The
Applicant refused to give
her the telephone number at the time. The
salient facts are common cause although the reasons for doing so are
not. The probabilities
are that Ms Dean did not reject the article
but wanted to check it before passing it for publication. Even if she
did reject the
article, the probabilities are that the rejection was
based on the reasons advanced by Ms Dean.
[115]
Accordingly, the rejection of the articles
did not amount to differential treatment based on political and
religious beliefs and
practices. The articles were rejected for
legitimate editorial reasons.
Termination
of his contract on grounds of his political and religious beliefs
[116]
In his statement of claim, the applicant
alleges that he was dismissed and his fixed term contract was not
renewed, despite a legitimate
expectation of renewal, because of his
political, cultural and religious views – PB5 &6.
[117]
It is unclear from the applicant’s
case and his evidence whether he was dismissed on 30 May 2006
because, on the one hand,
he claims that he was dismissed on that day
and on the other states that he had a legitimate expectation of
renewal at the expiry
of his contract on 30 June 2006. It is common
cause that he was paid his salary up to 30 June.
[118]
It is unnecessary to decide whether he was
dismissed or whether his contract was not renewed because the nub of
the applicant’s
case was that his contract was terminated
(either by way of dismissal or a refusal to renew) because of his
religious and political
beliefs. Ms Dean in her evidence states that
after the meeting, the applicant agreed not to return to work on the
basis that he
would be paid out the balance of his contract. This she
said was put in writing but the document had been mislaid and was not
available.
Mr Kahanovitz stated that the Respondent, accordingly,
would not be relying on the written agreement.
[119]
As a matter of general credibility, I find
Ms Dean’s evidence on what transpired at and after the meeting
on 30 May to be
preferred over that tendered by the Applicant. What
also should be taken into account is the claim for the balance of the
contract
in his letter of demand and his receipt of the amount ‘in
full and final settlement’. But even assuming that the
Applicant
was dismissed and assuming that he had a legitimate
expectation of renewal and that his contract was not renewed, the
more probable
reasons for the dismissal or the refusal to renew were
his poor work performance, his conduct in his meeting with Ms Dean on
29
May when his
Robbie Jansen
article was questioned, his conduct in the newsroom thereafter, and
his conduct in the meeting on 30 May with Mr Taljaard,
Mr
Charles and Ms Dean.
[120]
The applicant denies that he was angry and
acted emotionally in the meeting. Ms Dean states that he became very
agitated and acted
unprofessionally. Her evidence is to be preferred
on general credibility grounds and the fact the applicant, himself,
stated that
he was provoked and that he had responded using grossly
insulting language in the course of the meeting.
Was
the applicant treated differently for his religious views and
practices?
[121]
The applicant alleges in his statement of
claim that his religious harassment took the form of being forced to
work 7-day weeks,
which prevented him from observing the ‘Jewish
cultural expression such as Shabbat’, and that Mr Charles
made
offensive remark regarding the Applicant’s observance of
the Sabbath – PB5 at 4.4.1 and 4.4.4.
Being
required to work on the Sabbath
[122]
In his evidence, the Applicant states that
he had no religious or cultural objection to working on the Saturday
part of the Jewish
Shabbat. His complaint was being required to work
on Friday evening – the Jewish Shabbat commencing at 6pm.
Accordingly,
on its own terms his claim that the 7-day week trenched
on his right to observe the Shabbat on Friday evenings is groundless.
In
any event, there was no evidence that he had to work 7 days in the
6 weeks prior to the launch of the new edition. It was common
cause
that, because of the problems associated with the first publication
of the new edition, work was done on the Saturday and
the Sunday
before the publication on 23 May 2006.
[123]
In his testimony, he claims that on the
Friday before the first publication of the new edition, the deadlines
for content were extended
because of the problems associated with the
production cycle. This meant that he had to work after sunset that
day. The same thing
occurred on the next Friday. Because the
Respondent did not have a policy for accommodating religious
minorities, the Applicant
argued that he was required to work in
breach of his religious and cultural beliefs and practices.
[124]
It is common cause that the Respondent does
not have a policy on accommodating religious minorities. But even if
the Respondent
had such a policy, it could only be applied if the
employee declared his or her religious affiliation. In the absence of
a policy,
it could only constitute discrimination if as a matter of
practice the employer, knowing of the employee’s religious
affiliation,
nevertheless prevented the employee from observing the
employee’s religious beliefs and practices. The critical issue
in
this case is not the existence of such a policy or practice but
whether or not the Respondent knew of the Applicant’s religious
beliefs and practices when it required him to work on the two Friday
evenings because of the problems associated with production
of the
new edition.
[125]
In his testimony, he states that he did not
advise the Respondent that he was a Jew (it was their responsibility
to find out) but
he did not hide the fact that he was a Jew. He said
that it was common knowledge that he was a Jew but conceded that he
ought to
have objected on the Friday evenings when he was required to
work into the Shabbat. Ms Dean states that she did not know that he
was Jewish until the meeting of 30 May and was quite surprised to
find this out as she said he never objected to working on the
two
Fridays. Under cross-examination, she was asked if the hours of work
were Christian-oriented and her response was that her
approach would
have been to take account of other religions in requiring work. When
it was put to her by the Applicant that he
had to ‘fall in
line’, she stated that he had never told her that he was Jewish
nor expressed any objection to working
on Friday evenings.
[126]
Ms Dean’s version is to be preferred.
He gave no independent evidence of the fact that Respondent knew that
he was Jewish.
This is supported by the Applicant’s own
statement that he should have objected. The Applicant has failed to
establish on
the balance of probabilities that the Respondent knew of
the Applicant’s religious affiliation and that it required him
to
work on the Friday in breach of his religious beliefs and
practices.
The
offensive remarks
[127]
Offensive remarks do constitute a form of
harassment. The applicant gave evidence to the effect that Mr Charles
doubted that the
Applicant was a Jew and questioned his religious
commitment to observing the Shabbat. From his own evidence and the
cross examination
of Ms Dean, it is clear that the Applicant went to
night clubs on Friday nights and on one occasion used a company car
to do so.
[128]
The Applicant insists that it his
prerogative to decide how to observe the Shabbat. Without deciding
whether an employer is obliged
to accommodate an employee’s
observance of a religious practice even if the employee does not
himself observe it in the manner
contemplated by the religion, an
employer may surely raise a question over whether the commitment to
observe a religious practice
is genuine. Without deciding whether the
Applicant’s observance of the Shabbat on Friday nights is in
accordance with his
religious and cultural practice, it is not
offensive for the Respondent to enquire into the manner and
justification of his observance
of the practice, particularly in a
context where the Applicant does not regard working on the rest of
the Shabbat, namely on Saturday.
It is not a simple matter of
employee choice. Accommodation of religious minorities may require
operational changes, which may
affect the hours of work of other
workers. Such changes are only justifiable if the employee’s
observance of his religion
is genuine and in line with religious
practice. Accordingly, doubt expressed as to the employee’s
religious commitment may
be hurtful but does not on that ground alone
constitute harassment.
Costs
[129]
In determining whether to award costs, I
have to take into account both law and fairness. As a matter of law,
costs normally follow
the result. As a matter of fairness, the Labour
Court has generally been reluctant to order costs against an
individual employee.
In this case, however, fairness requires that
the Applicant pay the Respondent’s costs. He has engaged in
egregious attacks
on his colleagues, in particular his editor,
without any factual basis. He has filed volumes of irrelevant and
unnecessary material,
which he did not use. He has used court
processes to pursue his campaign against the Respondent.
Order
[130]
The Applicant’s claim is dismissed
with costs, costs to include the costs of counsel.
_______________
CHEADLE,
AJ
Date
of Hearing : 4-6 November 2009 & 20–21 January 2010
Date
of Judgment : 4 May 2010
Appearances
For
the Applicant : David Robert Lewis (in person)
For
the Respondent : Adv C S Kahanovitz SC
Instructed
by : Maserumule Inc Attorneys
[1]
This
can take different forms – preferential treatment of others,
failure to accommodate a difference etc.