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[2012] ZALCD 9
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Memela and Another v Ekhamanzi Springs (Pty) Ltd (D 582/08) [2012] ZALCD 9; (2012) 33 ILJ 2911 (LC) (8 June 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
Reportable
Case No: D 582-08
In the matter between:-
NOXOLO MEMELA
…...................................................................................
First
Applicant
MANDI MNOMIYA
…................................................................................
Second
Applicant
and
EKHAMANZI SPRINGS (PTY) LTD
…..............................................................
Respondent
Heard: 9 FEBRUARY 2012
Delivered: 8 JUNE 2012
Summary:
The Applicant worked for the Respondent at its spring water
bottling business which is in the premises of KwaSizabantu Mission
(Mission)
.They breached the mission’s code of conduct by
falling pregnant outside wedlock.
The
security guards of the Mission denied them entry to the mission on 14
April 2008.
They
were unable to reach their work place. They asked the Manager to
intervene but he refused. The refusal constituted an employer’s
refusal to accept employees‘s tender of services and a
repudiation of the contract of employment which is a dismissal in
terms of section 186 (a) of the LRA.
In the
circumstances the first Applicant was dismissed for reasons related
to her pregnancy and such a dismissal was automatically
unfair. The
Respondent may not abdicate its responsibility of protecting the jobs
of its single women employees when they fall
pregnant and hide behind
the code of conduct of the mission. As the Respondent had an
obligation to protect its pregnant employees
irrespective of their
marital status, it had the duty of making the necessary arrangements
with its landlord to protect its pregnant
employees, that obligation
should not be shifted to employees. The law protects pregnant women
against dismissal for reason related
to their pregnancy irrespective
of their marital status.
______________________________________________________________________
JUDGMENT
Lallie, J
Introducion
The respondent operates a business of
bottling spring water from the premises of KwaSizabantu Mission (the
mission). Both applicants
were employees of the respondent. One of
the terms of the code of conduct of the mission is that unmarried
women staying or working
on its premises are not allowed to fall
pregnant. Both applicants are single women. They fell pregnant and
in April 2008 they
were prevented by security guards from entering
the premises of the mission. One of the consequences of the conduct
of the security
guards was that the applicants were unable to reach
their work stations and perform their duties. That led to the
termination
of their employment relationship with the respondent.
They referred a dispute to the CCMA on the grounds that the
respondent
had dismissed them for reasons relating to their
pregnancy. They claimed that their dismissal was automatically
unfair as envisaged
in section 187(1) (e) of the Labour Relations
Act, 66 of 1995 (the LRA).
Evidence
The only witness for the applicants
was the second applicant. The first applicant’s case was
dismissed, owing to her failure
to attend court. The reason for her
absence could not be explained even by her legal representative. The
summary of the second
applicant’s evidence is that as she was
going to work on 14 April 2008 she was prevented by security guards
from entering
the premises of the mission. She asked the security
guards to call Mr. Bosman (Bosman) who she referred to as the boss.
Upon
asking Bosman for reasons for the conduct of the security
guards, Bosman informed her that she was prohibited from entering as
she had breached one of the rules of the mission by falling
pregnant. She asked for a letter of dismissal which Bosman refused
to provide. According to the second applicant, the first applicant
was also present during her discussion with Bosman.
The second applicant denied having
been given a copy of the mission’s code of conduct on
employment. It was, however, her
evidence that she received a copy
of the code of conduct of the mission during the course of her
employment. It was further explained
to them, as employees of the
respondent, that they would have to leave the premises is they
contravened the code of conduct.
When she fell pregnant, she left
the premises of the mission and found herself accommodation
elsewhere. She denied resigning
from her job.
The respondent’s main witness
was Bosman, its manager. He testified that he set up a meeting
between the applicants and
the landlord on 9 April 2008. He denied
speaking with the second applicant on 14 April 2008. He spoke to the
first applicant
only on the day she was informing him that she was
being denied entry to the respondent’s premises by security
guards.
He told her to resolve the issue with the landlord and she
never reported for duty again. Thabani Hlongwane (Hlongwane) also
observed the conversation between Bosman and the first applicant on
her last day on duty which according to Hlongwane was in April
2008.
Bosman last saw the second applicant at work on 9 April 2008 and the
next time he saw her was at the CCMA at the conciliation
of the
present dispute.
Dismissal of employees for reasons
relating to pregnancy is governed by section 187 of the LRA which
provides as follows:
‘
18
7
(1) A dismissal is automatically unfair if the employer, in
dismissing the employee acts contrary to section 5 or, if the reason
for the dismissal is-
(e)
the employee’s pregnancy, or any reason related to her
pregnancy;’
The respondent
denied dismissing the second applicant. Dealing with the question of
the onus of proof in dismissals for reasons
related to pregnancy,
this court in
Mushava
v Cuzen and Woods Attorneys
1
held as follows:
‘
If
the employee simply alleges unfair dismissal the employer must show
that it was fair for a reason permitted in section 188. If
the
employee alleges it was for a prohibited reasons, eg pregnancy, then
it would seem that the employee must in addition to making
the
allgation at least prove that the employer was aware that the
employee was pregnant and that the dismissal was possibly on
this
account.’
In
Wardlaw
v Supreme Mouldings (Pty) Ltd
,
2
the court
expressed the view that it was for the applicant to demonstrate that
the reason for her dismissal was her pregnancy
or any reason related
thereto. In
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood
,
3
the court
confirmed that is trite that the employee must not only prove the
existence of a dismissal, the employee must also produce
sufficient
evidence of the existence of an automatically unfair dismissal.
In
Kinemas
Ltd v Berman
,
4
it was held that
the employer’s refusal to accept an employee’s tender
for services constitutes a repudiation of the
employment contract
and section 186 (1) (a) of the LRA defines a dismissal as the
termination of the contract of employment with
or without notice.
The basis for the second applicant’s
version that she was dismissed on 14 April 2008 for reasons related
to her pregnancy
was that Bosman failed to intervene when security
guards denied her access to her work place.
I have rejected the respondent’s
version presented during the trail that the second applicant
resigned on her own volition
on 9 April 2008. Firstly, because, in
the respondent’s response to the applicants’ statement
of case the following
averments are made:
‘
12.3
In terms of Kwa-Sizabantu Mission’s code of conduct 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 on the premises;
12.7
During on or about the latter part of 2007/2008 the 1
st
and end applicants fell pregnant;
12.8
Because they had breached the code of conduct of KwaSibantu 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;’
Under cross-examination, Bosman
denied having knowledge that the second applicant left her job of
her own accord. All the applicants’
papers, from their CCMA
referral documents, reflect that the applicants were dismissed on 14
April 2008. I have considered the
clocking documents the respondent
sought to rely on to prove that the second applicant’s last
day on duty was 9 April 2008.
They are inconsistent with the
respondent’s response to the statement of case. They
constitute a departure from the respondent’s
case as pleaded
and may therefore not be relied upon to prove the second applicant’s
last day on duty. I have also rejected
Hlongwane’s evidence
that on the first applicant’s last day on duty she had a
discussion with Bosman in the absence
of the second applicant. His
evidence is inconsistent with the respondent’s pleaded case.
Hlongwane was unable to identify
the day in April 2008 he was
referring to and I am not convinced that as he was performing his
duties as a cleaner, he was in
a position to observe all the
discussions Bosman had with his subordinates on the last day he saw
the first respondent at work.
Bosman tried unsuccessfully to
divorce himself from the events which led to the termination of the
applicants’ services.
He, however, conceded that the second
applicant was denied entry by the landlord’s security guards
because she was pregnant
whilst an unwed woman. Bosman testified
under cross-examination that he arranged a meeting between the
applicants and the landlord
for 9 April 2008 for them to resolve
their problems. On Bosman’s own version, he could not
communicate with the second
applicant because she did not understand
English and he did not understand Zulu. This version is consistent
with the second applicant’s
version that she spoke to Bosman
through the first applicant. It confirms the second applicant’s
version that she was present
and spoke to Bosman through the first
applicant when the discussions regarding breaching the code of
conduct of the mission were
held. In the statement of defence, the
respondent pleaded that any breach of the code will result in the
person being refused
entry to the premises.
For these reasons, I am satisfied
that the second applicant discharged the onus of proving that she
was dismissed by the respondent.
Her dismissal took the form of
Bosman’s refusal to intervene when the second applicant was
being denied entry to the workplace
by the security guards of the
mission. One of the duties of the employer is to receive an employee
into service. By entering
into an employment relationship with the
second applicant, the respondent acquired the obligation to receive
her into the workplace.
It cannot be allowed to abdicate that
responsibility by hiding behind the rules of the mission. Bosman’s
refusal to intervene
when requested to do so by the second
applicant, when she was prevented from entering the workplace,
constituted the termination
of the contract of employment by the
respondent and therefore a dismissal.
Having proved her
dismissal, the second applicant was required to prove that her
dismissal was related to her pregnancy. In
Mashava
(supra),
5
the court
expressed the view that if an employee alleges that her dismissal
was for a prohibited reason, e.g. pregnancy, then
it would seem that
the employer was aware that the employee was pregnant and that the
dismissal was possibly on this account.
In
De
Beer v SA Export Connection CC t/a Global Paws
.
6
the court relied
on the decision in
Kroukam
v SA Air Link (Pty) Ltd
7
in dealing with
the question of proof and expressed it as follows:
‘
The
issue that needs to be decided by this Court is whether the applicant
was dismissed for any reason related to her pregnancy
in terms of
section 187(1)(e) of the LRA. It was held in
Kroukam
v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC) that section 187 of the LRA imposes an
evidential burden upon the employee to produce evidence, which is
sufficient to raise
a credible possibility that an automatically
unfair dismissal has taken place. It then behoves the employer to
prove the contrary,
i.e. is to produce evidence to show that the
reason for dismissal did not fall within the circumstances envisaged
in section 187
of LRA for constituting an automatically unfair
dismissal. In my view, the onus to prove that the dismissals was not
automatically
unfair rests on the employer. The applicant must adduce
some evidence to raise the issue whether the dismissal is for a
reason
related to pregnancy. Once this is done, the respondent must
refute this in the course of establishing a fair reason.’
The second applicant made it clear
that her basis for alleging that she was dismissed for reasons
related to her pregnancy is
that she was prevented from gaining
access to the workplace because she had breached the rule of the
mission against falling
pregnant outside wedlock. When she asked
Bosman to intervene, he refused to come to her assistance and she
was left without access
to the workplace. In its response to the
applicants’ statement of case, the respondent concedes that
the applicants were
denied entry to the premises by security of the
mission because they had breached the code of conduct of the mission
by falling
pregnant whilst unmarried.
When the respondent became an
employer, it acquired rights and obligations of employers. One of
the obligations is compliance
with employment legislation. The law
is clear; it protects employees against dismissal for reasons
related to pregnancy. Bosman
sought to pass the buck to the mission
by testifying that the respondent does not dismiss employees for
falling pregnant, it
even grants them maternity leave. It is the
landlord that does not want unmarried pregnant women on its
premises. It was argued
for the respondent that the mission has a
constitutional right to lay down a code of conduct for people
entering its premises.
The flaw in this argument is that no
constitutional right is absolute. Constitutional rights can
therefore be limited. The respondent
cannot be allowed to abdicate
its responsibility towards its unmarried women employees by allowing
its landlords to violate the
rights of its unmarried women
employees. The responsibility the respondent owes to its unmarried
female employees endures for
the duration of the employment
relationship.
Bosman was evasive when dealing with
the respondent’s obligations towards the second applicant in
April 2008. In his evidence
in chief, he testified that on 9 April
he set up a meeting between the landlord and the 2 ladies. He did
not attend the meeting.
He gave no further material evidence on the
involvement of the respondent in the problem of the applicants’
denial of access
to the workplace by reasons of pregnancy. Under
cross-examination, Bosman testified that he told the first applicant
to resolve
her issue with the landlord. He denied knowledge of the
issue the first applicant had with the landlord. This denial is in
contradiction
with his evidence in chief that he set up a meeting
between the landlord and the ladies. He must have known the reasons
for the
meeting which had been set up by him. Surprisingly, under
cross-examination he conceded knowing that the second applicant was
pregnant. He also conceded that the second applicant was denied
access by the landlord. He added that ‘we tried to resolve
it
in a meeting of 9 April’.
To prove that the version the
respondent presented in court is a fabrication, Bosman testified
under cross-examination that even
before the applicants were denied
entry, he had arranged a meeting between the landlord and the
applicants. He had no knowledge
that the second applicant had
resigned. These responses are consistent with the second applicant’s
case that she was denied
entry on 14 April 2008. They do not support
Bosman’s evidence in chief that the second applicant’s
last day on duty
was 9 April 2008. By Bosman’s own admission,
the meeting he had arranged was on 9 April 2008 and the second
applicant was
denied entry on 14 April 2008.
The applicant led sufficient evidence
to prove that the reason for her dismissal was related to her
pregnancy while she was an
unmarried woman. What was found
objectionable was the second applicant’s pregnancy outside
wedlock. The labour legislation
of this country protects unmarried
women employees from being punished with dismissal when they fall
pregnant. Protection from
dismissal by reason relating to pregnancy
is not a preserve of married women. All women enjoy legal protection
of not losing
their jobs when they fall pregnant. It is the employer
that has the obligation to negotiate with the landlord the manner in
which
its women employees can be protected against dismissal for
reasons relating to pregnancy. That responsibility cannot be shifted
to the employees. Had the second applicant not fallen pregnant, the
security guards of the mission would not have denied her
entry to
her work place. The only reason the second applicant was denied
entry to her work place was that she fell pregnant outside
wedlock.
In the circumstances, I find that the second applicant was dismissed
unfairly by the respondent for reasons related
to her pregnancy.
The second applicant sought 24
months’ compensation. I have considered that the second
applicant was unfairly dismissed
through no fault on her part. The
gravity of this kind of dismissal is expressed by the doubling of
the maximum amount of compensation
that can be granted to general
victims of unfair dismissal. I have considered the second
applicant’s length of service
and that she has not found
proper alternative employment since her unfair dismissal. She does
odd jobs from time to time. It
would be just and equitable to award
the second applicant compensation in the amount of R7945.50, which
is equivalent to remuneration
she would have earned over a period of
10 months.
I could find no reason, both in law
and fairness, for costs not to follow the result.
In the premises. the following order
is made:
The second applicant’s
dismissal is automatically unfair in terms of section 187(1)(e) of
the LRA;
The respondent is to pay the second
applicant compensation in the amount of R7945.50, which is
equivalent to remuneration she
would have earned over a period of
10 months;
The respondent is to pay the costs
of the second applicant.
________________
Lallie, J
Judge of the Labour Court
Appearances:
For the Applicant: Mr. Ponoane of
Ponoane Attorneys:
For the Respondents: Adv. Gerber
Instructed by: Clarinda Kügel
Attorneys
1
[2000]
6 BLLR 691
(LC) at para 23.
2
[2004]
6 BLLR 613
(LC) at para 11.
3
[2008]
1 BLLR 1111
(LC) at para 26.
4
1932
AD 246
at 247.
5
Above
n 1
at para 23.
6
[2007] ZALC 104
;
[2008]
1 BLLR 36
(LC) at para 13.
7
[2005]
12 BLLR 1172
(LAC).