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Senekal v Ancro Building Projects CC (JS 1090/13) [2015] ZALCJHB 132 (15 April 2015)

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Labour Law
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Brief Summary

Labour Law — Unfair dismissal — Automatic unfair dismissal due to pregnancy — Applicant claimed dismissal was due to her pregnancy, invoking section 187(1)(e) of the Labour Relations Act — Respondent contended dismissal was based on applicant's inability to perform her duties — Court found that the applicant's dismissal was indeed related to her pregnancy, rendering it automatically unfair — Respondent ordered to compensate the applicant for unfair dismissal.

Comprehensive Summary

Summary of Judgment


Introduction


This was an application in the Labour Court in which the applicant, Ms Cindy Senekal, alleged that her dismissal by the respondent, Ancro Building Projects CC, was automatically unfair because it was allegedly caused by her pregnancy, as contemplated in section 187(1)(e) of the Labour Relations Act 66 of 1995 (“the LRA”).


The respondent opposed the claim. It denied that the applicant’s pregnancy was the reason for the dismissal and contended that the dismissal occurred because the applicant was unable to perform the duties for which she had been appointed, particularly the reconciliation (“recon”) work expected of a creditors’ clerk.


The matter proceeded to trial in the Labour Court, with evidence led over several hearing dates (7 and 8 August 2014, and 8 December 2014), followed by written closing arguments delivered on 27 January 2015. Judgment was delivered on 15 April 2015.


The general subject-matter of the dispute was causation in an automatically unfair dismissal claim, namely whether the applicant’s pregnancy (or a reason related to it) was the dominant/proximate/most likely cause of the dismissal, as opposed to poor work performance during a short period of employment.


Material Facts


The following material facts were treated as common cause or otherwise relied upon by the Court in determining the automatically unfair dismissal claim.


The applicant commenced employment with the respondent on 25 September 2013 as a creditors’ clerk. Her employment was terminated on 15 October 2013, meaning she worked for approximately 19 working days. On 1 October 2013, six days after starting employment, the applicant disclosed to the respondent (specifically to Wayne Crous and thereafter to Maryna Crous) that she was pregnant.


The respondent’s business structure was relevant context. The respondent conducted building projects with both site-based and office-based functions. Mr André Crous (owner/CEO) was responsible for the site-based part of the business and client liaison, while Mrs Maryna Crous headed office-based operations. The office staff included Ms Daniella Van Heerden, who assisted in office matters, and Mr Wayne Crous, who shared offices (as a sales manager for another entity) and acted as second-in-command when Maryna was not present.


The respondent had sought to fill the creditors’ clerk position urgently because business had increased and because Maryna was scheduled to travel to Australia for three months (November 2013 to January 2014). The respondent used Decker Recruitment Agency to source candidates. The applicant was interviewed by Maryna and appointed at R8 500 per month. Evidence accepted by the Court included that the appointment was made on an urgent basis and that the respondent required someone who could function with minimal training due to operational pressures and Maryna’s impending absence.


It was also common cause that the applicant was dismissed, and that the respondent later recorded the reason for termination in a letter dated 18 October 2013 as being the applicant’s “inability to perform the Recon duties”. The parties disputed when the applicant received that letter, but the Court treated the dismissal (termination communicated on 15 October 2013) as established.


The core disputed factual issue was the reason for the dismissal. The applicant alleged that, when terminating her employment on 15 October 2013, Maryna informed her that André did not want her employed because she was a “risk” to the company due to pregnancy and potential maternity leave, and that there was reluctance to train her only for her to go on maternity leave shortly thereafter. The respondent disputed this and contended that the dismissal arose from the applicant’s poor performance and inability to do the required reconciliation work, despite errors being identified and explained to her.


The Court considered it material that, on the applicant’s own version, when she disclosed her pregnancy on 1 October 2013, both Wayne and Maryna congratulated her, and that the pregnancy was not mentioned again between 1 October and the dismissal on 15 October 2013 (save for later versions the applicant introduced under cross-examination). The Court also considered the timing of Maryna’s Australia trip relative to the applicant’s stage of pregnancy, and the improbability (on the Court’s assessment) of the pregnancy creating an operational maternity-leave risk during Maryna’s absence.


Legal Issues


The central legal question was whether the applicant proved facts sufficient to support an inference that the dismissal was automatically unfair under section 187(1)(e) of the LRA, namely that the reason for the dismissal was the applicant’s pregnancy, intended pregnancy, or a reason related to pregnancy.


This required the Court to determine a question of causation (the reason for dismissal) based on factual findings (what was said and what occurred) and the application of the section 187 test to those facts (whether pregnancy was the dominant/proximate/most likely cause). It also implicated an evaluative judgment as to credibility and probabilities, because the versions of the parties diverged sharply on the alleged pregnancy-related remarks and on the circumstances of dismissal.


A further issue arose from the Court’s conclusion on causation: if pregnancy was not the reason for dismissal, the dispute (being a performance-based dismissal fairness dispute) fell outside the Labour Court’s jurisdiction in these proceedings and instead within the jurisdiction of the CCMA or bargaining councils, as framed by the Court.


Court’s Reasoning


The Court began by setting out the statutory framework. It referred to section 187(1)(e) of the LRA, which renders a dismissal automatically unfair if the reason is the employee’s pregnancy or a reason related to pregnancy. It then distinguished the position in ordinary dismissal disputes, where an employee must establish the existence of a dismissal and the employer must justify fairness, from automatically unfair dismissal claims, where an employee must do more than make an allegation and must at least show that the dismissal was related to pregnancy and that the employer was aware of the pregnancy.


Relying on authority, the Court articulated the evidential burden applicable to section 187 claims. It adopted the approach stated in Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC), namely that section 187 imposes an evidential burden on the employee to produce evidence sufficient to raise a credible possibility that an automatically unfair dismissal took place. Once that threshold is crossed, the employer must produce evidence showing the reason for dismissal did not fall within section 187. The Court emphasised the further inquiry identified in Kroukam, namely whether, on an evaluation of all the evidence, pregnancy was the dominant or most likely cause of dismissal.


The Court accepted that the applicant had established two foundational facts: she was dismissed, and the respondent had knowledge of her pregnancy (having been told on 1 October 2013). The central inquiry therefore became causation, framed in the judgment as whether pregnancy was the dominant, proximate, or most likely cause of dismissal. The Court held that if pregnancy was shown to be the most probable cause, the dismissal would be automatically unfair; if not, the claim would fail and there would be no need to reach broader fairness issues in the Labour Court under section 187.


Given the factual dispute, the Court applied the fact-finding methodology set out in SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), requiring findings on witness credibility, reliability, and probabilities, and then determining whether the party bearing the onus succeeded. The Court rejected the applicant’s submission that the respondent’s witnesses were necessarily not credible merely because they had an interest in the matter, and rejected the notion that conjecture about the respondent being “old school” could substitute for evidence of a prohibited reason for dismissal.


On the Court’s assessment, the applicant did not meet the evidential burden required to raise a credible possibility that pregnancy caused the dismissal. The Court found the applicant not to be a credible witness, pointing to contradictions and improbabilities in her versions. A key feature of the Court’s evaluation was that, on the applicant’s own evidence, the pregnancy was not discussed between disclosure and dismissal, and the immediate reactions to disclosure were congratulatory. The Court considered it significant that allegations of pregnancy-related statements were introduced later under cross-examination (including a claim that on 12 October 2013 Maryna conveyed André’s alleged unhappiness), which the Court treated as undermining reliability.


The Court also relied on timing probabilities. It reasoned that the applicant was approximately 10 to 11 weeks pregnant at dismissal; Maryna’s absence was scheduled from early November 2013 to late January 2014; and by the time maternity leave would likely arise, Maryna would have returned, making it improbable that Maryna or André would have been concerned about maternity leave coinciding with Maryna’s trip. This probability analysis was used to reject the applicant’s assertion that maternity leave would occur while Maryna was overseas and that André would not permit it in Maryna’s absence.


In addition, the Court treated certain post-dismissal conduct as relevant to credibility. It considered the applicant’s request for a letter confirming “retrenchment” (to persuade her father) as inconsistent with the asserted pregnancy-dismissal narrative, and rejected as far-fetched the explanation that she did not understand the difference between retrenchment and other forms of termination, particularly given her employment history and prior CCMA involvement referred to in the record.


The Court further rejected the applicant’s attempt to attribute the dismissal to André’s wishes, noting it was undisputed that André did not manage the office and did not work closely with her, and accepting André’s evidence that he was not involved in hiring or firing office-based staff. The Court concluded that any reference to “risk” in the dismissal conversation was more probably linked to the applicant’s work performance rather than pregnancy.


Having found that pregnancy was not shown to be the dominant or most likely cause, the Court held that the automatically unfair dismissal claim could not succeed. It nevertheless observed that the evidence suggested the dismissal process may have fallen short of the standards of Schedule 8 of the LRA (Code of Good Practice: Dismissal), including that the applicant was dismissed without warning or a hearing. However, the Court treated this as a different species of dispute (ordinary fairness of a performance dismissal) and held that, because the dismissal was for performance rather than a prohibited ground, the Labour Court lacked jurisdiction in this case to determine that issue; it fell within the jurisdiction of the CCMA or bargaining council structures.


On costs, the Court applied a law-and-fairness approach. While concluding that the applicant had no basis to approach the Labour Court on an automatically unfair dismissal claim, it also recognised that there may have been grounds to complain about the fairness of the dismissal procedure. In those circumstances, it declined to grant a costs order.


Outcome and Relief


The Labour Court dismissed the applicant’s claim that her dismissal was automatically unfair under section 187(1)(e) of the LRA.


No relief was granted in respect of the applicant’s claims for notice pay compensation, compensation equivalent to 24 months’ salary, or punitive costs, because the automatically unfair dismissal claim failed on causation.


There was no order as to costs.


Cases Cited


Wardlaw v Supreme Mouldings (Pty) Ltd [2004] 6 BLLR 613 (LC)


Mushava v Cuzen and Woods Attorneys [2000] 6 BLLR 691 (LC)


Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC)


SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)


Heath v A & N Paneelkloppers (JS932/2012) [2014] ZALCJHB 343 (9 September 2014)


Sasol Mining (Pty) Ltd v Ngceleni NO and Others (2011) 32 ILJ 723 (LC)


Legislation Cited


Labour Relations Act 66 of 1995, section 187(1)(e)


Labour Relations Act 66 of 1995, section 5


Labour Relations Act 66 of 1995, section 186


Labour Relations Act 66 of 1995, section 188


Labour Relations Act 66 of 1995, section 192


Labour Relations Act 66 of 1995, Schedule 8 (Code of Good Practice: Dismissal)


Rules of Court Cited


No rules of court were expressly cited in the judgment.


Held


The Court held that, although dismissal and employer knowledge of pregnancy were established, the applicant failed to discharge the evidential burden of producing evidence sufficient to raise a credible possibility that her dismissal was because of her pregnancy or for reasons related to pregnancy, as required for an automatically unfair dismissal claim under section 187(1)(e).


On an evaluation of credibility, reliability, and probabilities, the Court found the applicant’s evidence to be contradictory and improbable on the key causation issue, and concluded that the more probable reason for dismissal related to the applicant’s work performance rather than pregnancy. As a result, the automatically unfair dismissal claim fell to be dismissed, and any dispute about procedural or substantive fairness of a performance dismissal was treated as falling within the jurisdiction of the CCMA or bargaining councils rather than the Labour Court in these proceedings.


LEGAL PRINCIPLES


Section 187(1)(e) of the LRA requires proof that the reason for dismissal was pregnancy, intended pregnancy, or a reason related to pregnancy; it is not sufficient merely to show that the employee was pregnant and dismissed while pregnant.


In an automatically unfair dismissal claim, the employee bears an evidential burden to produce evidence sufficient to raise a credible possibility of an automatically unfair reason for dismissal, after which the employer must produce evidence to the contrary. The causation inquiry focuses on whether the prohibited ground was the dominant, proximate, or most likely cause of the dismissal, assessed on all the evidence.


Where factual disputes are central, courts determine them by making findings on credibility, reliability, and probabilities, and then assessing whether the party bearing the onus has discharged it, in line with the approach described in SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).


If the evidence does not support a probable inference that pregnancy was the reason for dismissal, the automatically unfair dismissal claim fails; issues about the fairness of a performance-based dismissal (including compliance with Schedule 8) may arise on the facts but do not convert a performance dismissal into an automatically unfair dismissal and may fall outside the Labour Court’s jurisdiction in a claim framed solely under section 187.

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[2015] ZALCJHB 132
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Senekal v Ancro Building Projects CC (JS 1090/13) [2015] ZALCJHB 132 (15 April 2015)

REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 1090/13
DATE: 15 APRIL
2015
Not Reportable
CINDY
SENEKAL
....................................................................................................................
Applicant
And
ANCRO BUILDING
PROJECTS
CC
.................................................................................
Respondent
Heard:
7, 8 August 2014 and 8 December 2014
(Written
closing arguments – 27 January 2015)
Delivered:
15 April 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
applicant brought this matter before this Court, claiming that her
dismissal by the respondent was due to her pregnancy, and
was thus
automatically unfair as contemplated in section 187(1) (e) of the
Labour Relations Act
[1]
(the
LRA). The respondent opposes the application and disputes that the
applicant’s dismissal was related to her pregnancy.
It contends
that the dismissal was due to the applicant’s inability to
perform her duties.
[2]
The relief sought by the applicant is as
follows:
“
9.
Relief sought
9.1 Monetary
compensation for the notice period that I was not afforded at a
quantum equal to 1 (one) week’s salary.
9.2 Monetary
compensation for the unfair dismissal at a quantum equal to 24
(twenty-four) month’s salary.
9.3
Costs of suit on a punitive scale.
”
[3]
The respondent in turn prays for the
applicant’s claim to be dismissed with costs on a punitive
scale.
Common
cause facts:
[4]
The applicant was employed on 25 September
2013 as a creditor’s clerk. Her services were terminated on 15
October 2013. Effectively,
she was in the employ of the respondent
for a period of 19 working days. On 1 October 2013, and six days into
her employment, the
applicant disclosed to the respondent for the
first time that she was pregnant.
[5]
The respondent is a close corporation in
the business of building projects. The respondent’s set up is
office-based and site-based.
The owner/CEO of the respondent, Mr
André Crous (“André”) runs the site-based
part of the business, as
well as being responsible for dealing
directly with the respondent’s clients. The office-based
operations are headed by his
wife Mrs Maryna Crous (“Maryna”).
[6]
The respondent has a small office
compliment comprising of Ms Daniella Van Heerden (“Daniella”)
who is employed as a
personal assistant/secretary to André but
also assists elsewhere in the office when the need arises. One of
Crous’
sons, Wayne Crous (“Wayne”) shares offices
with the respondent. He is a sales manager of an entity called X35,
and
acts as second in command whenever Maryna is not in the office.
[7]
During September 2013, the respondent’s
business had picked up, and it had become necessary to employ another
person. Furthermore,
Maryna was booked on a three months’ trip
to Australia for the period November 2013 to January 2014. The
respondent therefore
urgently needed to employ a skilled creditors’
clerk, and in this regard, it had appointed a recruitment agency to
source
suitable candidates.
The
evidence:
[8]
The respondent utilised the services of
Decker Recruitment Agency to look for a suitable candidate. Decker
Recruitment provided
the respondent with copies of CVs of a number of
possible candidates, including that of the applicant. Interviews were
thereafter
scheduled and eventually the applicant was appointed. The
recruitment and appointment was done on an urgent basis over a short
period of time.
[9]
Sandy McCartney (“Sandy”)
testified that she is a partner at Decker Recruitment, whose business
is to source candidates
for clients looking for employees. Maryna had
contacted her company with a job specification for a creditor’s
clerk who was
strong on reconciliation and general office work. The
applicant was sourced through her CV, which Decker Recruitment found
on what
is referred to as the ‘P Net’. Where successful
candidates are placed with the client, a placement fee calculated on

the candidate’s yearly income is charged, with placements being
guaranteed for a period of three months.
[10]
The applicant, who was working at another
company at the time according to Sandy, was contacted through
references obtained from
her latest employer, Mrs Leo.  Sandy
testified that the she had reference checked the applicant with Mrs
Leo and got a glowing
report about her. Sandy was informed that the
applicant was the best creditor’s clerk that Mrs Leo had ever
had. Sandy however
was not advised at the time that Mrs Leo was in
fact the applicants’ mother.
[11]
Sandy had also telephonically interviewed
the applicant and compiled further information on her profile. The
contents of the applicant’s
CV were further discussed and
verified with her and were then imported into the
pro
forma
Decker Recruitment CV, which was
provided to the respondent. Two interviews were scheduled between
Maryna and the applicant pursuant
to which the applicant was
thereafter employed at a salary of R8 500.00 per month. Sandy’s
understanding was that the employment
relationship would be reviewed.
[12]
Subsequent to the applicant having
commenced her employment with the respondent, Sandy spoke to Maryna
and made enquiries about
payment for the placement. Maryna informed
her that she was unhappy with the applicant as she was unable to do
the job despite
being spoken to.  She had requested a
replacement candidate to be provided in terms of the guarantees
between the respondent
and Decker Recruitment.
[13]
Sandy further testified that had she been
aware of the relationship between the applicant and Mrs Leo, she
would not have placed
the applicant with the respondent. Sandy
testified that after Maryna had complained about the applicant’s
performance, she
had advised her about the procedures to be followed
in terminating her services. She denied that she had instructed
Maryna to terminate
the applicant’s services. She further
denied that the applicant could have been dismissed due to her
pregnancy, as Maryna
had complained about her performance and the
fact that she repeated mistakes even after being shown what to do.
Applicant’s
testimony:
[14]
The applicant testified that she had 14
years of experience in the creditors/debtors field. She confirmed
that two interviews were
held with Maryna prior to her appointment.
Her duties with the respondent were
inter
alia
to request statements from
suppliers, compile invoices, do manual reconciliations, maintain a
payment schedule and provide a pack
of documents to Maryna for
payment to be effected.
[15]
The main component of her responsibilities
was the manual reconciliations. The applicant testified that she was
not familiar with
manual reconciliations, as she had used the
computer program Pastel in the past. She nevertheless contended that
she was able to
do the reconciliations manually. The applicant listed
the following computer programs in her CV under the heading PC
skills: MS
Excel, PowerPoint, Word Perfect, Brilliant Accounting,
Compu-Clearing, Revelation/Parcel Perfect/Syspro, MS Word, Outlook
Express,
Pastel Accounting, Pastel Evolution, Internet, and JD
Edwards. She testified that the respondent had intended to implement
the
pastel system. However that was not yet in place hence the
reconciliations were still being done manually.
[16]
The applicant testified that she did not
feel well on Friday, 27 September 2013 and at 13h00 during her lunch
break, she had requested
permission to leave and to consult her
doctor. Wayne gave her the permission as Maryna was not in the office
at the time. The applicant
had consulted with her gynaecologist on
Monday, 30 September 2013 and was advised that she was pregnant.
[17]
The applicant returned to work on Tuesday 1
October 2013, and informed Wayne of her pregnancy and the latter had
congratulated her.
Later in the day Maryna came to the office and the
applicant also informed her. Maryna also congratulated her and said
to her that
they will discuss the matter later. This however never
took place.
[18]
Under cross-examination the applicant
altered her version of the events on the above dates, stating that
she had instead consulted
with her GP on 30 September 2013 and with
her gynaecologist on 7 October 2013. As at the time of her dismissal
she was 10 or 11
weeks pregnant.
[19]
The applicant testified that she was able
to perform her duties without problems, and that if there were any,
she was not made aware
of them. She contended that she was not
provided with training when she started her employment and that she
was only provided with
the tools she needed and was expected to work.
As she put it, ‘
she was thrown
into the deep end’
without any
assistance. The applicant acknowledged that companies operated
differently, but she however contended that even though
the
respondent’s accounting was done manually, she should have been
shown how to do it.
[20]
The applicant testified that on 15 October
2013 her services were terminated in circumstances where Maryna came
into her office
and advised her that André did not want her
any more as she was a risk to the company and he did not want her to
be trained
just to go on maternity leave a few months later. She
stated that Maryna told her that she was tired of the “
huismoles”
from André and that it would be better if the applicant left.
[21]
Wayne had then effected an ‘EFT’
payment, and thereafter, the applicant said “
dankie”
and left. The respondent disputed this version regarding the
pregnancy during the applicant’s cross-examination. It was put

to her that Maryna was in charge of the office portion of the
respondent and furthermore that it was not possible for André

to demand that the applicant be dismissed when he didn’t even
know her let alone work with her.
[22]
The applicant testified further that she
would have been on maternity leave while Maryna would have been
overseas and accordingly,
André was not willing to permit her
to take maternity leave in the absence of Maryna. This was disputed
under cross examination
and it was put to the applicant that Maryna
would have been back in South Africa already for over a period of six
months by the
time that the applicant would have gone on maternity
leave.
[23]
The applicant contacted Maryna the day
after the termination of her employment and requested her to consider
employing her sister
in the same position as her sister could do the
same work and further since the respondent was looking for her
replacement. Thereafter
the applicant again contacted the respondent
and requested to be furnished with a letter confirming her
‘retrenchment’
as her father did not believe that she had
not just left her job. A letter was subsequently sent to her, dated
18 October 2013
wherein the reason given for her dismissal was that
she was unable to perform recon duties.
[24]
The applicant thereafter referred an unfair
labour practice, unfair dismissal and severance pay dispute to the
CCMA. The relief
sought by the applicant was reflected as:
“
Payment
in Full for my duration of my pregnancy. Including the 4 months
maternity leave. Including balance of October Salary and
notice pay.
(Months being Nov, Dec, Jan, Feb, March, Apr, May, Jun, Jul 2014”
(sic)
[25]
The applicant alleged that her dismissal
was unfair because:
“
Discrimination
against pregnancy and won’t be able to find alternative
employment until July 2014”.
[26]
The applicant further testified that after
the CCMA referral form was served, Maryna called her telephonically
and begged her not
to take the respondent to the CCMA. She further
testified that Maryna accused her of being unfair and called her an
“
ungrateful little bitch”.
This version was disputed under cross-examination and by Maryna in
her evidence.
[27]
The applicant was cross-examined at length
on her employment history as reflected in her CV, the numerous
positions she had held,
the short duration of those positions with
long gaps of unemployment between the positions, as well as on the
reasons for termination.
The applicant testified that the positions
were temporary in nature and that it had been her decision not to
have permanent employment
due to health issues experienced by her
second son who was born in 2007. The respondent had however pointed
out that the reasons
for termination of those short positions were
generally that they were temporary, or that the temporary contract
were not renewed
or that she was retrenched. It was also put to her
that a number of her past employers were in fact businesses ventures
of her
mother (Mrs Leo) whose surname was different to that of the
applicant and that she had however not disclosed this relationship in

her CV.
[28]
The applicant was cross-examined
extensively on a number of aspects of her performance of her duties
wherein it was put to her that
she was unable to perform her duties
and that she had been made aware of various problems, which had
arisen, during her employment.
[29]
One of the incidents mentioned was related
to the applicant requesting Wayne to pay an amount of R95 000.00 into
Beni Hinn Ministries
as monies owed to it based on a paid bank
deposit slip which she had been requested to record and file. It was
put to the applicant
that she had added Beni Hinn Ministries as a
creditor who was owed money on the respondent’s age analysis,
even though Beni
Hinn Ministries was in fact a beneficiary of
occasional monetary donations made by André in his personal
capacity and not
from the respondent. The applicant simply stated
that she did not add Beni Hinn Ministries to the age analysis as it
was already
there (irrespective of the fact that it was not a
creditor).
[30]
The applicant was also cross-examined on
the errors she made when compiling the packs for payment by Maryna
and entering data into
Microsoft Excel spread sheets as well as the
occasions where Maryna sat with her and explained the error to her
and how to do things
correctly. These incidents were admitted by the
applicant who maintained that the sessions with Maryna were not
training but were
mere discussions.
[31]
It was further put to the applicant that
she was a risk to the respondent because she was unable to correctly
enter information
into an excel spread sheet and that she was unable
to perform her duties resulting in situations such as the Beni Hinn
Ministries
incident where she requested that R95 000.00 be paid to a
donation beneficiary, on the basis that according to her a paid bank
deposit slip meant that the amount reflected was still owed and that
the beneficiary was a creditor due to be paid.
The
evidence of Maryna Crous:
[32]
Maryna testified about the history and set
up of the respondent. She confirmed that she was in charge of the
office-based portion
of the respondent, and that she took her own
decisions without the involvement of  André. She
testified that as she
was going to Australia for three months from 1
November 2013 until 28 January 2014, she urgently needed to employ a
person in the
office before she left, as Danielle could not be
expected to handle the additional workload, which would be created in
her absence.
[33]
Having been provided with the applicant’s
CV by Sandy, she was impressed with the list of computer programs,
which were reflected
in the CV, which gave the impression that the
applicant knew what was expected of her and how to perform her
duties. She testified
that she had warned the applicant prior to
appointing her that she would need to be fully functional from the
start of her employment
as she (Maryna) would not be able to train
her. Following this initial discussion, she believed that the
applicant agreed with
her approach and knew what was expected of her.
The applicant did not have a written contract of employment with the
respondent
but Maryna testified that when the applicant was appointed
she advised her that she would be on a trial period of three months,

which the applicant had not objected to.
[34]
Maryna also testified that the one issue
which she had concerns about was that the applicant smoked. She
testified that she was
allergic to cigarette smoke and that the
office was a smoke free area. The applicant agreed to smoke outside
around the side of
the building and that this arrangement was
satisfactory. She testified that irrespective of the agreement the
applicant nevertheless
did not strictly abide by it. An example in
this regard was when she found the applicant standing and smoking
outside of the building
but close to the entrance to the office. It
was whilst she was standing outside and smoking near the entrance
when she informed
Maryna of her pregnancy.
[35]
Maryna testified in regards to the process
followed in doing reconciliations and further to the type of errors
committed by the
applicant. She testified that she had raised her
concerns with the applicant and told her that she couldn’t have
done reconciliations
before because of the type of mistakes she made.
Maryna testified that the applicant included Beni Hinn ministries on
the list
of creditors and the implications thereof. She testified
that the reconciliations needed to be done correctly as the payments
are
done by her or Wayne directly from the information provided to
them without checking it again.
[36]
Maryna testified that the applicant’s
pregnancy had had no bearing on the respondent’s attitude
towards her, but that
the termination of her services was based
purely on the fact that she was unable to perform duties assigned to
her despite her
errors being pointed out to her and being shown and
told how to do her job. When the applicant’s services were
terminated,
Maryna had calculated the remuneration due to her for the
days that she had worked as well as the days where she had attended
at
the doctor, even though she had not worked during this time. The
total days which the applicant was paid for was 11 days, being

effectively the period that she had rendered any services.
[37]
Maryna went to the applicant’s office
to speak to her about terminating her employment and had requested
Wayne to stand out
of sight outside the office and she left the door
ajar so that he could hear what was said inside. She testified that
she did not
want Wayne to come in with her because it would be
embarrassing enough for the applicant being told that that she
couldn’t
do the job. Maryna did not want Wayne there as well as
the applicant may feel that they had teamed against her, but that she
wanted
a witness to what was said. When she was advised of the
termination of her service, the applicant did not react negatively or
appear
to be unhappy. She had merely thanked Maryna for the
opportunity and stated that it would be difficult for her to find
another
job since she was pregnant. Maryna had then called Wayne and
requested him to effect the payment once the details were agreed
upon.
[38]
Subsequent to the termination of the
applicant’s employment, the latter had requested to be provided
with a letter confirming
her retrenchment. Maryna had however ignored
the request, as she was of the view that the applicant was not
retrenched and furthermore
had considered the matter closed already.
[39]
Maryna was cross-examined on a number of
discrepancies between the content of the response to the statement of
case and the evidence
tendered and put to the applicant during the
proceedings. She explained these discrepancies as being due to the
fact that the statement
of response was drafted in her absence while
she was overseas, and there was limited communication with the André
who was
liaising with the respondent’s attorneys of record in
compiling a response in her absence. The statement of response was
compiled based predominantly on the content of a document, which she
had drafted prior to her departure, which simply recorded her

recollection of events.
The
evidence of Danielle Van Heerden:
[40]
Danielle testified that she had been
employed by the respondent for 5 years and had done credit control
duties for 3 of the years
of her employment. She testified that she
had assisted the applicant and shown her how to do her work, both
when she started and
thereafter whenever the applicant asked her for
assistance. She testified that the applicant continued to make the
same mistakes
even after she was shown how to do the work correctly
and that this worried Danielle who was of the view that the applicant
should
have known how to do the work if she had the 11 years of
experience in the field as she alleged. Danielle testified that both
she
and Maryna had assisted and corrected the applicant’s work,
and she was concerned about the applicant’s ability to perform

her duties as she did not know about things such as POD’s and
brought forward accounts. She had approached Maryna about her

concerns.
[41]
Danielle testified that after the CCMA
referral forms were received, Maryna had at some point asked her and
Wayne to come to listen
to telephonic conversations over a
speakerphone whenever the applicant called and accused Maryna of
certain things. Danielle testified
that Maryna was unhappy that the
applicant had lied in saying that she was dismissed due to her
pregnancy when it was due to her
being unable to do her work.
Danielle further denied that Maryna had during one of the telephonic
conversations swore at the applicant
or called her an “
ungrateful
little bitch”
and that it was the
applicant who had instead put the phone down on Maryna.
The
evidence of André Crous:
[42]
André is the CEO of the respondent
and he looks after the site-based part of the business, whilst Maryna
was responsible
for the office-based operations. He testified that he
was not involved in the hiring or firing of office based employees,
let alone
of the applicant. He denied that he was even aware of the
applicant’s pregnancy at the time. He testified that he did not

have a problem with staff members going on maternity leave, and his
view was that he did not care if an employee was pregnant or
not, as
long as she could do the work.
[43]
He testified that when the respondent
received the statement of claim, he was provided with the details of
the respondent’s
attorneys of record by Sandy. He arranged a
consultation as soon as possible and the statement of response was
drafted pursuant
thereto. He testified that he did not have personal
knowledge of everything required and was unable to contact Maryna who
was in
Australia at the time. Thus the statement of response was
completed as best as possible under the circumstances as the time
period
for delivering same did not allow for the delays which would
have been occasioned by waiting for Maryna to come back or provide

further input.
[44]
He testified that Maryna was under pressure
at the time of hiring the applicant as she was due to travel to
Australia, and she wanted
to ensure that a person to be appointed
could be trusted to do the job in her absence. He further contended
that the respondent
handled large sums of money, and it could not
afford mishaps, especially because it relied on discounts received,
and timeous payments.
The
evidence of Wayne Crous:
[45]
Wayne testified that he had made the
necessary arrangements for the applicant to perform her duties when
she first came in by assisted
in setting up an electronic calculator
for her, arranging new plug points for her to perform her duties, and
having a locksmith
come to the office to unlock a cupboard which
contained the laptop to be used by her. He confirmed that the
applicant had advised
him of her pregnancy and that he had
congratulated her.
[46]
Wayne further testified that he did
payments on the accounts if Maryna was not in the office. On one
occasion he was about to process
a payment based on documents
provided do him by the applicant, and had realised that the totals
did not tally. He had given the
documents back to her and requested
that she correct the document. She however took about a week to do
so. He confirmed that the
applicant’s request for an advance on
her salary was granted, and this was after she had disclosed her
pregnancy.
[47]
Wayne confirmed that he stood outside the
door when Maryna and the applicant spoke about the termination of her
employment on 15
October 2013, and that he could hear the
conversation from inside when he was standing there. He testified
that he was called in
and requested to effect the payment of the
monies due to her, which he did. He testified that when he returned
with the proof of
payment, the applicant thanked them, asked to leave
early and told them that they could contact her if they needed
anything
.
[48]
Wayne testified that when the CCMA referral
forms were received Danielle brought them to him and he contacted
Maryna.  He testified
that he was present for part of the
telephonic conversation between Maryna and the applicant, and the
latter was asked why she
had lied in the referral forms.
The
legal framework and evaluation of the evidence:
[49]
In the light of the dispute to be
determined, Section 187 of the LRA provides that:
‘
Automatically
unfair dismissals.
-
(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-
(a
- d)….
(e) the
employee’s pregnancy, intended pregnancy, or any reason related
to her pregnancy;’
[50]
With
ordinary cases of dismissal falling under the provisions of section
186 of the LRA a duty is imposed on an employee to establish
the
existence of a dismissal
[2]
, and
it is thereafter for the employer to prove that the dismissal was for
a fair reason permitted in section 188 of the LRA. Where
an employee
however alleges that a dismissal was based on prohibited reasons such
as pregnancy, more than a mere allegation in
that regard is required.
At most, the employee must establish that the dismissal was indeed
related to the pregnancy, which fact
the employer was well aware
of
[3]
.
[51]
In
Kroukam
v SA Airlink (Pty) Ltd
[4]
,
the
Labour Appeal Court in dealt with the question of onus in respect of
automatically unfair dismissal claims under section 187
of the LRA in
the following terms
[5]
;
‘
In
my view, s 187 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 to the contrary, that is to produce

evidence to show that the reason for the dismissal did not fall
within the circumstances envisaged in s 187 for constituting an

automatically unfair dismissal.’
And
The further
question then arises as to the approach to the evidence led by the
respective parties. The answer can be illustrated
by way of the
following example: Assume that an employee can show that she was
pregnant and dismissed upon the employer gaining
knowledge thereof.
The court would examine whether, upon an evaluation of all the
evidence, pregnancy was the 'dominant' or most
likely cause of the
dismissal.’
[52]
In
this case, and in regards to whether a dismissal was established, it
was common cause that the applicant was informed on 15 October
2013
of the termination of her services. Her final payment was prepared
and Maryna gave a copy
[6]
in
that regard to her. According to the respondent, a formal letter of
termination was issued to the applicant on 18 October 2013,
albeit
the latter contends that she only received it on 13 November 2013. In
this letter, the applicant was informed that the termination
of her
services was with effect from 15 October 2013, on account of ‘
your
inability to perform the Recon duties”.
[53]
It was further common cause that the
applicant had informed Maryna and Wayne of her pregnancy on 1 October
2013. With the dismissal
having been established and further with the
respondent having been made aware of the applicant’s pregnancy,
the next leg
of the enquiry pertains to causation. Thus, what needs
to be determined is whether the applicant’s pregnancy or
reasons relating
to her pregnancy was the ‘
dominant’
,
‘
proximate’
,
or ‘
most likely cause’
of her dismissal.
[54]
Thus if it is shown that the most probable
cause for the dismissal was as a result of the employee’s
pregnancy or reasons
related to her pregnancy, then it can be said
that the dismissal was automatically unfair in terms of section
187(1)(e) of the
LRA. If however, that probable inference cannot be
drawn, and it is established on the facts that the dismissal was due
to some
other unrelated reason or considerations, that should be the
end of the enquiry.
[55]
In this case therefore, if it is
established that the reason for the dismissal was unrelated to the
applicant’s pregnancy,
i.e. that the pregnancy was not the
principle or dominant reason for the dismissal, and had more to do
with her performance as
an employee as the respondent has contended,
the claim should then fail, and the court should decline to consider
the fairness
of the dismissal.
[56]
The crux of the applicant’s case is
that when she was dismissed, Maryna walked into her office, slid a
copy of a document
showing payments due to her across the table
towards her and informed her that she could no longer keep her in the
respondent’s
employ. The applicant alleged that she was further
informed that her pregnancy was a risk to the company in that she
would have
to take maternity leave, and further that the respondent
would have to employ another person during her maternity leave.
Furthermore,
the applicant alleged that Maryna informed her that she
could no longer stand the ‘
huismoles’
(a term described as pressure put on Maryna by André at home
as a result of the applicant’s continued employment at
the
respondent whilst she was pregnant).
[57]
The respondent’s contention on the
other hand was that Maryna went to the applicant’s office,
informed and explained
to her that since she was incapable of
performing her duties as per her job requirements, and further since
she was still on probation
she could not be kept.
[58]
In
resolving factual disputes that arise as in this case, this Court in
a number of decisions has adopted the approach elucidated
in
SFW
Group Ltd and Another v Martell et Cie and Others
[7]
held as follows;
“
,
the Court said that the technique generally employed by Courts in
resolving factual disputes of the kind as set out above may
be
summarised as follows:
‘…
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities.
As
to (a), the court's finding on the credibility of a particular
witness will depend on its impression about the veracity of the

witness. That in turn will depend on a variety of subsidiary factors,
not necessarily in order of importance, such as (i) the witness's

candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to (b), a witness's reliability will depend,
apart from the
factors mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the
event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis
and evaluation of
the probabilities and improbabilities of each party's version on each
of the disputed issues. In the light of
its assessment of (a), (b)
and (c) the court will then, as a final step, determine whether the
party burdened with the onus of
proof has succeeded in discharging
it. The hard case, which will doubtless be the rare one, occurs when
the court's credibility
findings compel it in one direction and
evaluation of the general probabilities in another. The more
convincing the former, the
less convincing will be latter. But when
all factors are equipoised probabilities prevail’
(Citations omitted)
[59]
Both parties’ representatives had
submitted lengthy written heads of arguments containing an exposition
of the evidence as
summarised above and findings, which should be
made on the credibility of each of the witnesses. One of the claims
made in the
applicant’s written heads of argument was that
since Maryna had described the respondent as ‘old school’,
it
was apparent that it never kept abreast with labour legislation
and thus dealt with employees as it saw fit, a fact that supported

the applicant’s contention that she was dismissed due to her
pregnancy. Furthermore, it was submitted on behalf of the applicant

that all of the respondent’s witnesses had a vested interest in
its success in the matter and therefore their version could
not have
been credible
[60]
It is my view that when the courts refer to
section 187 of the LRA as imposing 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,
the significance
of this is that such evidential burden is indeed
onerous. Thus conjecture and subjective perceptions as to what could
have led
to a dismissal as evident from the above summation of the
applicant’s case would not carry weight in discharging that
onus.
[61]
On the whole, it is my view that the
applicant has not produced evidence, which is either sufficient or
probable to raise a credible
possibility that her dismissal was on
account of her pregnancy. In my view, she was not a credible witness,
and her testimony consisted
of inherent improbabilities and
contradictions, coupled with a demeanour that did not display
openness or honesty. In the end,
it is my view that the issue of her
pregnancy was red-herring, conjured up to conceal the real reasons
for the dismissal, being
her inability to perform the tasks required
of her. She proffered no evidence to support any contention that her
pregnancy was
the proximate or most probable cause of her dismissal.
These conclusions are fortified by the following observations as
gleaned
from the evidence;
61.1
Her evidence was that after she had
informed Maryna and Wayne of her pregnancy, the two had congratulated
her. Neither Maryna nor
Wayne had reacted negatively to the news, and
on her version, and after congratulating her, Maryna told her that
they will discuss
the matter further, but this however did not take
place.
61.2
In her evidence in chief, she had testified
that from 1 October 2013 when she disclosed her pregnancy and until
15 October 2013
when her services were terminated, the issue of her
pregnancy was not mentioned or discussed at all. On her version, her
relations
with Maryna thereafter remained normal, and the latter had
remained supportive of her even when she had to take time off to go
and see her doctor or requested an advance on her salary.
61.3
For the first time in her
cross-examination, she alleged that on 12 October 2013, Maryna had
informed her that André was
unhappy with her pregnancy and
that she was a risk to the company. In the same vein, she contended
that she was informed on 15
October 2013 that her dismissal was due
to her pregnancy.
61.4
It was further common cause that as at 15
October 2013, the applicant was at least 10 – 11 weeks
pregnant. Maryna would have
left for Australia
at
the beginning of November 2013 and was to return on 28 January 2014.
When Maryna returned, at the most, the applicant would have
been 5 –
6 months pregnant, and thus three months prior to her maternity
confinement. Even if the applicant was to take her
maternity leave in
April 2014, it is highly improbable, that Maryna or André for
that matter would have been worried about
her taking maternity leave,
as Maryna would long have returned from her Australian trip.
61.5
The applicant’s testimony therefore,
to the effect that she would have been on maternity leave whilst
Maryna was overseas
and that André was not willing to permit
her to take maternity leave in the absence of Maryna is clearly not
probable, nor
does it support her contentions in regard to the
reasons for the dismissal.
61.6
After
the dismissal, the applicant had on 16 October 2013, asked Maryna via
‘sms’ for a letter of ‘retrenchment’,
as her
father thought that she had resigned from her employment. If indeed
the applicant firmly held the view that she was dismissed
on account
of her pregnancy, surely that is a matter that she could have
disclosed to her father to gain his support, rather than
mislead him
into believing that she was in fact retrenched. The submission made
on her behalf that she was a layperson and therefore
did not
understand the difference between an ordinary dismissal, resignation
and retrenchment is clearly far-fetched. On her version,
and as
evident from her career history
[8]
,
she was retrenchment at a company known as Casino Suppliers in
November 2001 and had referred a dispute to the CCMA. Surely she
must
have known the difference between retrenchment and ordinary
dismissal, and to attempt to misrepresent to her father that she
was
retrenched when this was not the case in my view casts doubts on her
credibility.
61.7
It was not disputed that André had
nothing to do with the running of the office, and even on the
applicant’s version,
she did not work closely with him. I have
no reason to doubt his version that he was not even aware of the
applicant’s pregnancy
and even if he was, it is improbable that
he would have been concerned with it since these were matters to be
dealt with by Maryna,
and the latter would have been back in the
event the applicant wanted to take maternity leave.
61.8
As correctly pointed out on behalf of the
respondent, the applicant has done nothing more than merely make an
allegation, which
is false if not misleading. She has failed dismally
in producing any evidence sufficient to raise a credible possibility
that her
dismissal was related to her pregnancy.
61.9
The determination of this case, in the
absence of any other evidence to show that the applicant’s
pregnancy was an issue at
least until 15 October 2013 as per her
version, hinges on what Maryna had said to her on that date when
informing her of her dismissal.
In the light of the improbabilities
already alluded to, I am of the view that any reference to the word
‘risk’ in the
conversation between the two could only
have been in relation to the complaints surrounding the applicant’s
performance rather
than her pregnancy. I am further of the view that
it could not have been for the first time that the applicant would
have heard
of complaints about her performance on 15 October 2013 or
subsequent to her dismissal as she alleged. Her version that Maryna
told
her that she was happy with her performance is improbable, on
the grounds that she could not recall when Maryna has informed her

so, and also in view of the problems Maryna had confronted her with
in regards to recons as early as 3 October 2013.
[62]
In conclusion therefore, the applicant has
not discharged the evidentiary burden placed on her to show that her
dismissal was consequent
upon her disclosing her pregnancy to the
respondent. There is no basis for a probable inference to be drawn
that indeed her pregnancy
was the proximate cause of her dismissal.
[63]
The bulk of the evidence led in this case
pertained to the applicant’s performance and whether she could
meet the requirements
of her job. I am in agreement with submissions
made on her behalf that the evidence led in regards to assisting or
counselling
her might have fallen short of the requirements of
Schedule 8 of the LRA. It did not appear to be seriously challenged
that the
applicant was dismissed without a warning or hearing, nor
was she afforded an opportunity to challenge the decision why she
should
not be dismissed. The applicant was barely 19 days in the
employ of the respondent, and to the extent that the respondent might

be found wanting with the manner with which she was dismissed, it
cannot nevertheless be said that the dismissal was on a prohibited

ground as contemplated in section 187 (1) (e) of the LRA. The reason
for the dismissal pertained to the applicant’s performance,
and
this court lacks jurisdiction to determine such an issue, as it falls
within that of the CCMA or Bargaining Councils. To this
end, the
applicant’s claim should fail.
Costs:
[64]
It has already been concluded that the
applicant failed to establish that her dismissal was consequent upon
her disclosing her pregnancy,
and had more to do with her
performance. In the light of the doubts expressed about the fairness
of her dismissal (which had nothing
to do with her pregnancy), it is
my view that considerations of law and fairness militates against an
order of costs, as she might
have had cause to complain about the
fairness of her dismissal. She nevertheless had no basis for
approaching this court.
Order:
i.
The applicant’s claim of an
automatically unfair dismissal is dismissed.
ii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCE:
On
behalf of the Applicant: Mr MN Rajah of MN Rajah Attorneys
On
behalf of the Respondent: Ms A Dippenaar of Kirchmans Inc
[1]
Act 66 of 1995
[2]
Section
192
[3]
See
Wardlaw
v Supreme Mouldings (Pty) Ltd
[2004] 6 BLLR 613
(LC) at para 11. See also
Mushava
v Cuzen and Woods Attorneys
[2000] 6 BLLR 691
(LC) at para 23, where the Court held that;
“
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 prohibited reasons, e.g. pregnancy, then
it would seem that the employee must in addition
to making the
allegation at least prove that the employer was aware that the
employee was pregnant and that the dismissal was
possibly on this
account.”
[4]
(2005)
26 ILJ 2153 (LAC)
[5]
Per
Davis AJA at paras [28] and [29]
[6]
page
71 of the evidence bundle
[7]
2003
(1) SA 11
(SCA) at para 5. See also
Heath
v A & N Paneelkloppers
(JS932/2012) [2014] ZALCJHB 343 (9 September 2014) at para 45;
Sasol
Mining (Pty) Ltd v Ngceleni NO and Others
(2011) 32 ILJ 723 (LC)
[8]
page 50 of the bundle

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