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[2016] ZALCJHB 83
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Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS40/14
Not
Reportable
In
the matter between:
VANESSA
JUDITH TRUTER
Applicant
and
HEAT
TECH GEYSERS (PTY) LTD
Respondent
Heard:
26 to 28 January 2016
Delivered:
2 March 2016
JUDGMENT
GOLDEN,
AJ
Introduction
[1]
The Applicant has brought a dispute to the
Labour Court in which she contends that she has been dismissed by the
Respondent, and
that her dismissal constitutes an automatically
unfair dismissal. The Applicant claims in the alternative, that her
dismissal was
unfair in that the Respondent did not have a fair
reason to dismiss her and that she was dismissed not in accordance
with a fair
procedure. The Applicant claims compensation in the
amount of 24 months’ remuneration in terms of
s194
of the
Labour Relations Act 66 of 1995
as amended (“the LRA”)
for the automatically unfair dismissal. She also claims notice pay in
the amount of R35 519.24,
commission in the amount of R65 076.81 and
leave pay in the amount of R10 277.56. The Respondent contends that
the Applicant was
not dismissed, but that she resigned of her own
accord. The matter came before me on 26 January 2016 and concluded
with oral argument
on 28 January 2016.
[2]
It
is common cause that the Applicant’s employment terminated on
27 September 2013. It is in dispute how this occurred, and
who
initiated the termination. Regard must be had as to what occurred on
27 September 2013 and what the circumstances were which
culminated in
her dismissal.
[3]
The
Labour Court in
Marneweck
v SEESA
[1]
held
as follows:
‘
[31]
I align myself with the view expressed by Van Niekerk AJ above and
wish to add that the enquiry into whether or not there is
a dismissal
goes beyond investigating whether the employee used the word
“dismissal” in terminating the employment
relationship
with the employee. In other words it is not the label placed on the
termination that determined whether or not there
was a dismissal.
[32]
Thus, as a matter of principle, employment can be regarded as
terminated based on the objective construction of the employer’s
conduct which unequivocally repudiates the contract.’
[2]
[4]
Because the Applicant’s dismissal is
disputed, she bears the
onus
in terms of
s192(1)
of the LRA to prove the existence of her
dismissal.
[5]
S187(1)(f)
imposes an evidential burden on the Applicant to produce evidence
which is sufficient to raise a credible possibility that an
automatically unfair dismissal has taken place. It is then up to the
employer to prove the contrary, and to produce evidence to
demonstrate that the reason for the dismissal did not fall within the
circumstances envisaged in
s187.
[3]
Background
and material facts
[6]
The Applicant was approached by Mr Johan
Stander (“Stander”) to work for the Respondent as a sales
representative. He
was the Respondent’s Sales Manager at the
time that the Applicant was recruited. The Applicant’s
employment was subsequently
confirmed in a letter dated 27 May 2013.
She commenced her employment on 3 June 2013. According to the
Applicant, Stander had allocated
to her certain sales areas which at
the time included half of Pretoria, half of Johannesburg and
Mpumalanga. In the interview that
she had with Stander and Mrs
Suraiya Noormohamed (“Noormohamed”), the owner of the
company, she was promised an amount
of R30 000 a month but this
involved building up her clientele which would entitle her to
commission. Alternatively, she would
be paid an amount of R5 000 for
fuel and petrol if the amount earned was below R30 000. The Applicant
informed Noormohamed that
she had a backup system at home and that
her mother-in-law looked after her children and collected them from
school.
[7]
The
genesis of the events that unfolded after June 2013 was the Applicant
querying her commission with Noormohamed.
[8]
In or about the middle of August 2013, the
Applicant queried her commission with Noormohamed. Noormohamed did
not like the Applicant
querying the commission and told her to leave
her office. The Applicant left and carried on working.
[9]
The Applicant then received an e-mail dated
20 August 2013 from Stander, addressed to all sales agents to discuss
the restructuring
of the sales areas. The Applicant’s
discussion with Noormohamed regarding her unpaid commission predated
this e-mail. Stander
had informed the Applicant that an additional
sales agent would be joining the team.
[10]
The sales agents were informed in an e-mail
dated 30 August 2013 of the restructured sales areas. In terms of the
changes, the Applicant
no longer had Mpumalanga, and instead was
allocated outer lying areas such as Soshanguve, Mabopani and
Hammanskraal, where she
had never worked before. Stander confirmed
these changes in an e-mail dated 2 September 2013 and confirmed that
the changes were
implemented by Noormohamed. Stander confirmed with
the Applicant on 16 September 2013 that she still has to call on
Boksburg/Benoni
until the end of September, as the new sales
representative would take over from 1 October 2013. The Applicant
testified that the
change in areas had a detrimental effect on her
income which was far less as a result of the new areas which she had
been allocated.
[11]
On or about 7 September 2013, the
Applicant’s son suffered a serious injury to the head and was
rushed to hospital. The Applicant
sent Stander an e-mail on 8
September 2013 to inform him of her son’s injury. She remained
close to the hospital but attended
to e-mails, quotations and visited
clients if required.
[12]
The Applicant testified that when she
arrived at work on 27 September 2013, the Human Resources Manager, Ms
Adiela Alli (“Alli”),
requested that the Applicant
accompany her to her office. Alli, Stander and the Applicant were
present. In this meeting, Alli told
her that Noormohamed wants her to
leave the company because of complaints that were received from
clients, that she was not “technical
enough” and because
she was a woman with three children who has no time for her clients.
The Applicants’ children were
two, four and nine years old at
the time. The Applicant was shocked. This discussion occurred less
than three weeks after her son
came out of his coma.
[13]
The Applicant attended a sales meeting
after her meeting with Alli and Stander. Noormohamed came into
the meeting, spoke to
all the agents about a big project involving
Builders Warehouse and proceeded to give all the sales agents
documents relating to
the project, except the Applicant. This upset
her.
[14]
The Applicant testified that she was not
paid for her notice month in October 2013, or for her leave. She
confirmed that the Respondent’s
tender of the notice pay for
October 2013 at the commencement of the trial.
[15]
The Applicant testified that she did not
accept an offer of re-employment that was made by the Respondent’s
attorneys in 2014
a few months after she was dismissed because she no
longer trusted Noormohamed.
[16]
She testified that she was forced to stop
her pension fund contributions and had to look for her eldest son’s
biological father
for a financial contribution. She lost her car and
had to borrow money from her father, who is a pensioner, so that she
could look
for work.
[17]
According to the Applicant, Noormohamed
wanted to get rid of her when she confronted Noormohamed about her
unpaid commission. Noormohamed
was looking for an excuse to get rid
of her when she was absent for three days following her son’s
hospitalisation.
[18]
The Applicant claims commission in the
amount of R65 076.81 for the period June 2013 to October 2013.
According to the Applicant,
she is supposed to receive 3% commission
for independent clients, 2% commission for Build-it (Mica) clients
and 1% commission for
Massbuild clients (Builders Warehouse). She
confirmed the commission claimed as itemised in Exhibit A2. The
commission is due to
her in respect of Chamberlains for purchase
orders from June to October 2013 in the amount of R18 672.08, being
3% of the total
sales for this period. The Applicant also confirmed
that she was entitled to 3% commission in respect of Wholesale
Plumbing Supply
in the amount of R13 892.15 for total sales for the
period June to October 2013. The Applicant was not able to obtain
copies of
the actual invoices to demonstrate the total sales for this
period, but she contacted the client who confirmed the total sales of
R463 071.57 for the period in question. The Applicant also confirmed
that she was entitled to:
18.1
3% commission in the amount of R7 188.84 in
respect of W&S Plumbing Supplies (Pty) Ltd for the months June
2013 to October 2013;
18.23%
commission in the amount of R21744.36 in respect of K Carrim
Wholesale Hardware Distributors for the period June 2013 to
October
2013 in respect of total sales in the amount of R724 812.00;
18.33%
commission in the amount of R733.77 in respect of Benoni Sand &
Buildware (Pty) Ltd for the period June 2013 to October
2013 for
total sales in the amount of R24 459.00;
18.43%
commission in the amount of R2 537.40 in respect of GLR Trading 025
CC t/a Waterways for the period June 2013 to October
2013 for total
sales in the amount of R84 580.00 and
18.5commission
for Bon Accord Build-it in the amount of R816.01 for the period June
2013 to October 2013 for total sales in the
amount of R40 800.60.
[19]
In cross-examination, Mr Venter, who
appeared for the Respondent, put it to the Applicant that there
was no contract of employment
which described the terms and
conditions of her employment, and that there was no contractual
stipulation as to which areas she
would have to service as a sales
agent. It was put to the Applicant that the areas were fluid, and
changed according to the needs
of the business. Although the
Applicant accepted that she was not provided with a written contract
of employment, she was firm
in her view that the areas were given to
her at the commencement of her employment, and that the areas had
been agreed to. She
accordingly accepted that these were her
allocated areas. Although she did not submit a written grievance
regarding the change
in sales areas, she did raise it with Stander
who informed her that the changes in the sales areas were done on the
instruction
of Noormohamed.
[20]
Alli’s version was put to the
Applicant. The pertinent aspect of Alli’s evidence was that she
was instructed by Noormohamed
to address with the Applicant her
dress code and that she had brought her son into the factory. The
Applicant testified that
she brought her child with to work on that
day because it was school holidays and she was on her way to drop him
off at the hospital
for an operation. The Applicant remained firm
that Alli had brought this up as an issue in the meeting on 27
September 2013 as
one of the reasons why Noormohamed wanted her out
of the company.
[21]
It was put to the Applicant that Alli would
testify that the Applicant was not dismissed and that the Applicant
wanted to leave
the company. Further that Alli told the
Applicant that she was not going to be fired, and that they just
wanted to address
her dress code. The Applicant remained firm that
she was told by Alli in the meeting that Noormohamed wanted her to
leave because
she had children with no backup system to care for
them, that she was not technical enough and that there were
complaints from
clients. It was also put to the Applicant that Alli
would testify that the Applicant was told that she does not have to
leave but
that she has one month “to pull up her socks”.
It was also put to the Applicant that Alli would testify that she
(the
Applicant) insisted on a letter, which Alli then typed for her.
[22]
Mr Venter put it to the Applicant that
Italian owners had taken over the company at the time that the offer
of re-employment was
made. The Applicant did not know about a new
owner. According to her, Noormohamed was still the owner of the
company at the time
that the offer was made.
[23]
Stander corroborated the Applicant’s
evidence in material respects.
[24]
He testified that he introduced the
Applicant to Noormohamed who asked the Applicant about her technical
background and whether
she would be willing to work away at times.
The Applicant told Noormohamed that she had three children who were
looked after by
her mother-in-law. Stander confirmed that the areas
which the Applicant would service was discussed with her and
finalised by Noormohamed.
The areas were half of Johannesburg, half
of Pretoria and Mpumalanga. Stander confirmed that the Applicant
questioned her commission.
He informed her that only Noormohamed and
her son, Mr Kabeer Noormohamed (“Kabeer”), had access to
the sales reports
and the system to calculate commission due to sales
agents. Noormohamed had called him and told him that the Applicant
had queried
her commission. She told him to change the Applicant’s
areas to include townships which were further away. He queried this
with Noormohamed because another sales agent, Susan Buys (“Buys”),
did not sleep out or visit any of the townships
or informal
settlements. Noormohamed told him that she wants to see if the
Applicant could cope with these areas, and if she could
not, she
would let her go. Noormohamed told him that the Applicant
should be given more difficult areas that will keep her
away a day or
two longer. He confirmed that the sales areas were not changed
because of the death of another employee, Andries.
He testified that
Andries passed away before the Applicant was employed with the
Respondent.
[25]
Stander confirmed that the Applicant’s
son was hospitalised in September 2013, and that she was entitled to
three days’
compassionate leave. He confirmed that she carried
on with her work and attended to her clients during the time of her
son’s
hospitalisation. He also confirmed that he was aware that
the Applicant had brought her son to work on one occasion, and that
he
was asked by Noormohamed to deal with this issue, as she did not
like employees to bring children to the workplace.
[26]
Stander’s evidence of the events on
27 September 2013 is critical. He confirmed that Alli asked the
Applicant to go to her
office. Prior to 27 September 2013, he and
Alli were called in by Noormohamed who instructed them to give the
Applicant notice
as she was not “technical enough” and
had no backup system for her children. Stander told Noormohamed that
he could
not do so because it was unlawful. He asked Noormohamed to
ask Alli to terminate the Applicant’s employment instead.
[27]
The Applicant, Stander and Alli met in
Alli’s office on 27 September 2013. According to Stander, Alli
told the Applicant that
the Applicant was not technical enough, that
she had no backup system to look after her children, that there were
complaints from
clients and that Noormohamed wanted her to leave for
these reasons. Stander confirmed that the Applicant was shocked and
emotional.
She asked Alli for a dismissal letter.
[28]
After their meeting with Alli, he and the
Applicant attended a sales meeting in the boardroom. Noormohamed
joined the meeting and
handed out documents to all the sales
representatives except the Applicant.
[29]
After the Applicant’s employment was
terminated, Noormohamed told him that Buys did not have baggage, no
small children and
no husband. Noormohamed told him not to employ any
more female staff. He testified that only male sales agents were
appointed after
the Applicant left.
[30]
He confirmed that the Applicant worked the
month of October 2013, and that she was entitled to be paid for that
month.
[31]
When Alli returned from the bargaining
council, she told him that he would have to testify and say what he
is being told to say
if the matter is referred to arbitration.
[32]
He confirmed that Alli dismissed the
Applicant in the meeting on 27 September 2013 without prior warning.
He was not aware of any
formal complaints from clients, and heard
about a complaint for the first time when Alli raised it in the
meeting.
[33]
He confirmed that the Respondent terminated
the Applicant’s employment on one month’s notice.
[34]
Stander confirmed the commission structure,
and in this regard fully corroborated the Applicant’s evidence.
He confirmed,
in particular, that Chamberlains and K Carriem were the
Applicant’s clients and that she was entitled to 3% commission
for
sales generated by these companies.
[35]
Stander stood firm when he was
cross-examined. He confirmed that the Applicant had good technical
ability, and that this was only
used as an excuse by Noormohamed to
get rid of her. He testified that he had no choice but to attend the
meeting on 27 September
2013 as he was fearful of being fired, “
it
was either my job, or someone else’s
”.
He confirmed that Noormohamed told him that she had an issue with the
Applicant and her children.
[36]
Noormohamed told him to make things as
difficult as possible for the Applicant so that this could be a
reason to dismiss her.
[37]
Attempts to discredit Stander in
cross-examination failed.
[38]
Alli was the only witness for the
Respondent.
[39]
She
testified that Noormohamed asked her to speak to the Applicant about
her dress code and that she had brought her child to the
factory. The
Applicant came to work in a mini skirt, which Noormohamed did not
like. Alli noticed that the Applicant’s clothes
were
“frazzled”.
[40]
Her
version as to what transpired at the meeting on 27 September 2013
directly contradicts the evidence of the Applicant and Stander
in
material respects. On the morning of 27 September 2013, she, Stander
and other staff were standing outside smoking when the
Applicant
arrived. She asked the Applicant whether they could meet in her
office. Alli, Stander and the Applicant then met in her
office. She
proceeded to tell the Applicant that they had a few complaints which
they wanted to discuss with her, at which time
the Applicant jumped
up and said “
I
told my husband … because Noormohamed [do not] like me because
I am a woman
!”.
She testified that the Applicant became emotional. She told the
Applicant that they were there to discuss work, her dress
code and
the fact that her child was brought into the factory. She discussed
the issue of uniforms with the Applicant. The Applicant
left her
office hysterical. She then saw the Applicant speaking outside on her
phone. She and Stander left her office and also
went outside. While
outside, the Applicant came to her and said “
Adiela,
I need to speak to you
”.
They returned to her office. The Applicant told her that she did not
like working for the company and that Noormohamed
did not like her.
The Applicant asked her for a letter because she wanted to leave. She
typed the letter for the Applicant, on
the Applicant’s
instruction. Alli gave the Applicant one month to think about whether
she really wanted to leave. She told
the Applicant not to be stupid
and to think about her actions. She did not want the Applicant to
leave, and had nothing personal
against her. She did not include the
words “notice period” in the letter dated 27 September
2013, which was a mistake
on her part. Alli denied that the Applicant
was dismissed, or that Noormohamed instructed her to dismiss the
Applicant.
[41]
Alli
admitted that she spoke to Stander upon her return from the
bargaining council but denied that she told him to lie for the
company.
[42]
She
was requested to assist the Respondent a couple of days before the
matter was initially enrolled at the Labour Court in August
2015, and
had to go to the Respondent’s offices to obtain the file with
the necessary documents pertaining to the Applicant’s
matter.
She confirmed that the documents in the Respondent’s trial
bundle came from the Respondent’s file.
[43]
Alli
confirmed that both she and Noormohamed were still with the company
when the Statement of Case and Response to the Statement
of Case
(“the Response”) were filed at the Labour Court in
January 2014 and on 6 February 2014 respectively. She confirmed
in
cross-examination that Noormohamed was still in control of the
company at this time.
[44]
Alli
confirmed that she would have been involved in the drafting of the
Response because the company depended on her for the events
that
transpired on 27 September 2013. She testified that she was told in
November 2013 that the Applicant was paid for the month
of October.
[45]
Alli
testified that she did not speak with Noormohamed after her meeting
with the Applicant and Stander on 27 September 2013. She
only spoke
with Noormohamed the next day.
[46]
She
testified that she did not calculate commission for sales agents, did
not know what the percentages were for the sales agents
or what the
Applicant was told. She testified that Kabeer gave the percentages to
her.
[47]
The
Respondent’s version was fraught with material contradictions
and glaring deficiencies. It starts with the pleadings.
[48]
In
paragraph 11 of the Response, the Respondent denies that the
Applicant worked for the month of October 2013 and that she never
attended the Respondent’s premises to tender her services after
27 September 2013. Stander and Alli independently testified
that the
Applicant worked in October 2013, and that she was entitled to be
paid. That she worked for the month of October is also
borne out by
the e-mail trail between Alli and Stander on 1 November 2013 where
Alli confirms that 30 October 2013 was the Applicant’s
last day
at work.
[49]
In
paragraph 27 of the Response, the Respondent denies that Stander
assured the Applicant that her work performance was up to standard,
yet this was not borne out by the Respondent’s evidence.
Stander testified that the Applicant had the necessary experience
and
good technical ability in the plumbing field and that to his
knowledge, no formal complaints were filed against her by clients.
The first time that he knew of an alleged complaint was at the
meeting on 27 September 2013.
[50]
The
letter of 27 September 2013 authored by Alli and addressed to the
Applicant is extraordinary. It is not only lacking in clarity,
but
does not at all support the Respondent’s version that the
Applicant had resigned in the meeting on 27 September 2013.
The
letter does not even refer to the Applicant’s resignation, and
is headed “Notice Employment”. The letter
records that
the Applicant’s notice period will start on 1 October 2013
until 31 October 2013. At no stage however did Alli
testify about a
notice period which was discussed at the meeting on the 27
th
nor was this aspect of the evidence addressed with the Applicant and
Stander in cross-examination.
[51]
Alli’s
version of the meeting on 27 September 2013 is unconvincing. Both the
Applicant and Stander contradicted her version
of events in material
respects.
[52]
Her
evidence as to the wording of the letter does not make sense. She
testified at one stage that she told the Applicant to use
the month
as a “probation” period. This aspect of her evidence was
also not put to the Applicant or Stander.
[53]
On
her own admission, Alli never dealt with commission and sales. This
was done by Noormohamed and Kabeer, and Kabeer did all the
calculations. She sat with Kabeer [on one occasion] and saw how the
commission was calculated. Alli was not privy to the source
documentation and/or supporting documents which underpins the
calculation of commission. She was not able to say why certain
entries
on the sales sheets were crossed out. One such example was
the sales made by Chamberlains. She admitted that her evidence in
this
regard was hearsay as she can only calculate the commission due
to the Applicant based on what was recorded on the sales sheets
and
what was given to her. The Applicant’s case is that
certain sales were made by her clients in the period June to
October
2013 for which she was not paid. Alli was not in a position to
testify to this at all. She admitted in cross-examination
that the
Applicant was entitled to certain commission, in particular,
commission in respect of sales made by Chamberlains.
[54]
Other
aspects of Alli’s evidence also remain unconvincing. She
testified that she did not sign the Applicant’s Bargaining
Council referral form as she wanted the Applicant to return to work.
However, her signature appears on the cover of the referral
form.
[55]
Alli
also testified that the Applicant was e-mailed to attend the meeting
on 27 September 2013 with her and Stander. This was not
put to the
Applicant or Stander, nor was the e-mail presented as evidence.
[56]
Alli
testified that she and Stander both spoke to the Applicant about a
complaint from a client in the meeting on 27 September 2013.
This was
also not put to Stander or the Applicant in cross-examination. In
fact, Stander testified that Alli did all the talking
in the meeting.
No details of the complaint or the identity of the complainant was
addressed in evidence.
[57]
Given
the material contradictions and inadequacies in the Respondent’s
case, the Applicant’s version must prevail.
[58]
The
Respondent’s evidence in relation to the dismissal was
seriously lacking in substance. Most notably, there was no
explanation
proffered by Mr Venter why Noormohamed or Kabeer did not
testify on behalf of the Respondent, or why they could not be
subpoenaed
to testify. I must accordingly infer that they would not
have been able to support the Respondent’s defence.
[59]
The
only inference that can be drawn is that Noormohamed wanted to get
rid of the Applicant. When her attempts to engineer the Applicant’s
dismissal by changing her sales areas failed, Noormohamed used the
incidents relating to her children and an alleged complaint
by a
client, to terminate her employment, which she instructed Stander and
Alli to do.
[60]
No
plausible explanation was provided by the Respondent as to why the
Applicant’s sales areas were unilaterally changed in
the course
of July 2013. This, together with Stander’s uncontroverted
evidence that Noormohamed wanted to get rid of the
Applicant and that
Alli had terminated the Applicant’s employment in the meeting
on 27 September 2013, lead to the inescapable
conclusion that the
Applicant was indeed dismissed by Alli in the meeting on 27 September
2013.
[61]
The
Applicant’s family responsibilities and the fact that she was a
woman clearly played a significant role in why Noormohamed
wanted to
get rid of her.
[62]
Given
what had preceded the meeting on 27 September 2013, I accept that the
Applicant being a woman, together with her family responsibilities,
was very much an issue for Noormohamed. I accept, on the
probabilities, that the real reason for the Applicant’s
dismissal
was indeed because she was a woman, and because of her
family responsibilities. These two factors played a pivotal role in
why
Noormohamed wanted to terminate her employment.
[63]
In
the absence of any credible evidence by the Respondent, I find that
the Applicant’s dismissal constitutes an automatic
unfair
dismissal as contemplated in
s187(1)(f)
of the LRA.
[64]
The
Respondent has not at all presented a defence to the Applicant’s
claim for notice pay for October 2013 and the commission.
In fact, Mr
Venter conceded in the course of legal argument that the Respondent
had put up no defence whatsoever against the Applicant’s
claim
for commission.
The
Relief Sought
[65]
The
Applicant seeks maximum compensation of 24 months’ salary for
the automatically unfair dismissal to be calculated at an
agreed
remuneration of R35 519.25 per month. Alternatively, she seeks 12
months’ compensation if I am to find that her dismissal
was
unfair. In respect of the latter, I am satisfied that I may make any
order that a commissioner or arbitrator would have been
entitled to
make in terms of
s158(2)(b)
of the LRA, provided that in relation to
the question of costs, the provisions of
s162(2)(a)
of the LRA are
applicable.
[66]
I
have already found that the Applicant was automatically unfairly
dismissed. In this instance, the maximum compensation is 24 months’
remuneration.
[67]
This
Court has confirmed in several judgments that in cases of
automatically unfair dismissals, compensation attracts a punitive
element
(see
Chemical Energy Paper Printing Wood and Allied Workers Union &
Another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695
(LAC) ).
[68]
Appropriate
compensation raises the issue of the offer of re-employment. Whilst
an offer of re-employment or reinstatement does
not detract from a
determination that the dismissal was unfair, it may impact on the
compensation to be awarded. The Labour Appeal
Court dealt with this
issue in
Kemp
t/a Central Med v Rawlins (2009) 30 ILJ 2677 (LAC)
where the LAC held that factors such as the lapse of time between the
dismissal and the offer of reinstatement; whether the offer
was
unconditional or subject to conditions; whether it gave the employee
certain assurances that he or she would not be victimised
and whether
the offer was
bona
fide,
are
considerations which would impact on the compensation ultimately
awarded.
[69]
I
am not convinced that the offer of re-employment made by the
Respondent in the letter dated 30 January 2014 was genuine. Firstly,
why was the offer not made at the time that the dispute was referred
to the bargaining council in October 2013? The offer was also
made at
a sensitive time when the new owners were about to take over the
business. This suggests that the offer was made in order
to avoid
placing the takeover of the company by the new owners in a precarious
position, and not because the company was genuine
about the offer.
[70]
I
accept the Applicant’s statement that she did not trust
Noormohamed who, to her knowledge, still owned the company at the
time that the offer was made. She would have walked back into the
same workplace environment with the same manager who wanted to
get
rid of her because she was a woman, and because she was a mother of
three small children.
[71]
Alli
testified that she left the Respondent in November 2014, and that
Noormohamed left after her. Noormohamed was clearly still
with the
company for some time after the offer was made. Had the Applicant
accepted the offer of re-employment, she would, needless
to state,
have had to work with Noormohamed as the Manager and owner of the
company.
[72]
The
wording of the offer of re-employment also seems to me contradictory.
The letter records that the company is not in a position
to reinstate
the Applicant since she was never dismissed. However the company
offered her re-employment on the same terms and conditions
that
applied prior to the termination of her employment. In my view, this
offer does not constitute an offer of a complete restoration
of the
status
quo
ante
.
[73]
I
also note that the offer was made six days after the Statement of
Case was served on the Respondent, and that the Applicant was
given
one working day to report for duty after which the offer would lapse
in its entirety, not to be repeated. The offer seemed
rushed in order
to avoid the progress of the claim, and perhaps also to avoid to have
to explain to the new owners the pending
litigation.
[74]
The
Applicant was dismissed on a prohibited ground in terms of
s187(1)(f)
of the LRA based on sex and family responsibility. This must attract
a punitive element in the award of compensation.
[75]
Compensation
must always be just and equitable in all the circumstances of the
case. I am mindful that the Applicant was employed
by the Respondent
for less than six months at the time of her dismissal. This is not to
detract from the nature of the dismissal
and the hardship that the
Applicant suffered as a result of the dismissal.
[76]
The
compensation thus payable to the Applicant as a result of her
automatically unfair dismissal is the sum of R852 462.00,
equivalent to 24 months’ remuneration calculated at R35 519.25
per month. Ms Erasmus, who appeared for the Applicant, submitted
this
as the Applicant’s agreed average monthly income prior to her
dismissal.
[77]
The
Applicant seeks a punitive costs order against the Respondent.
[78]
The
Respondent persisted in its denial that the Applicant was not owed
notice pay for the month of October 2013 yet on the Respondent’s
own version, the Applicant worked the month of October 2013 and was
entitled to be paid. Alli testified that she knew in November
2013
that the Applicant was due to be paid for October 2013. It should
have been abundantly clear to the Respondent at the time
when the
Response was drafted that this was a
bona
fide
claim which had to be paid immediately. The fact that a belated
tender was made for the payment of the notice pay does not detract
from the fact that the Respondent persisted in its denial until the
first day of trial. The Respondent’s opposition to this
claim
was clearly vexatious.
[79]
The
claim for commission was uncontested. Mr Venter could provide me with
no explanation as to why Noormohamed and/or Kabeer were
not called to
testify on behalf of the Respondent. Mr Venter could also not provide
me with any explanation as to why the Respondent
continued to pursue
its opposition to the claim for commission, having known well in
advance that it was not in a position to rebut
the claim at the
trial. The only evidence that it did present on the issue of
commission was speculative and hearsay. Alli conceded
that the
Applicant was entitled to certain commission payments. In my view,
the opposition to this claim was equally vexatious.
I am also
reminded that Mr Venter conceded the claim for unpaid commission
during oral argument at the closure of the trial.
[80]
The
Applicant’s dismissal was driven by malice when Noormohamed
initially attempted to orchestrate the Applicant’s dismissal
when she instructed that her sales areas be changed to make life more
difficult for her, and to take her away more often, knowing
that she
was a mother of three young children. The Respondent’s conduct
was malicious, and cannot be overlooked.
[81]
For
all the reasons that I have addressed above, I consider it
appropriate that the Respondent pay the Applicant’s costs on
an
attorney and client scale.
Order
[82]
For
all the reasons herein, the following Order is made:
(1)
The
Applicant was dismissed by the Respondent, which dismissal
constitutes an automatically unfair dismissal as contemplated in
s187(1)(f)
of the LRA;
(2)
The
Respondent is ordered to pay the Applicant compensation in the amount
of R852 462.00 equivalent to 24 months’ salary for
the
automatic unfair dismissal, which amount shall be paid to the
Applicant by the Respondent within 14 days of the handing down
of
this judgment;
(3)
The
Respondent is ordered to pay the Applicant an amount of R64 768.60
for unpaid commission for the period June 2013 to October
2013. This
amount excludes the amount of R816.01 which is due in respect of Bon
Accord Build-it. This amount is to be paid with
interest calculated
from 31 October 2013;
(4)
The
Respondent shall pay the Applicant’s costs on an attorney
client scale which costs shall include the cost of counsel.
________________
Golden
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. Erasmus
Instructed
by:
Du Randt Du Toit Pelser Attorneys
For
the Respondent:
Adv. F Venter
Instructed
by:
DP Du Plessis Inc.
[1]
(2009)
30 ILJ 2745 (LC)
[2]
At
para 31 and 32
[3]
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26 ILJ 2153 (LAC).