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[2016] ZALCCT 51
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Faris v TFD Network Africa (Pty) Ltd (C151/13) [2016] ZALCCT 51 (15 December 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA ,CAPETOWN
JUDGMENT
Not Reportable
Case
No: C151/13
In
the matter between:
DEIDRE BEVERLEY
FARIS
Applicant
and
TFD
NETWORK AFRICA (PTY)
LTD
Respondent
Delivered: 15
December 2016 (In Chambers)
Summary: Application for leave to
appeal – application refused.
JUDGEMENT:
APPLICATION FOR LEAVE TO APPEAL
MOOKI AJ
Introduction
1.
The
parties are referred to as in the trial proceedings. Judgement in
this matter was delivered on 24 June 2015. The application
for leave
to appeal is dated 13 July 2015. It appears that the application was
served on the applicant’s representative on
13 July 2015. The
respondent seeks condonation for the late filing of its application
for leave to appeal. The condonation application
is dated 6 August
2015. The respondent states the following in relation to that
application, that: that Shai AJ handed down judgement
on 24 June 2015
and that the application for leave to appeal had to have been filed
by 15 July 2015 but that it was filed in court
on 7 August 2015,
which is 17 court days late.
2.
The
attorneys for the respondent (the applicant in the application for
leave to appeal) wrote to the registrar on 2 December 2015
recording,
among others, that the application was filed on 7 August 2015 and
that there was no opposition to the application as
at 2 December
2015. The attorneys recorded that they wrote to the registrar on 7
October 2015 enquiring about the outcome of the
application but that
the registrar had not replied to their enquiry. The attorneys
requested urgent advice on when the respondent
could expect to
receive the outcome of the application. It appears that the registrar
did not respond to both letters on 2 December
2015 and 7 October
2015.
3.
The
attorneys for the respondent again wrote to the registrar on 5
December 2016. They referred to the correspondence on 7 October
2015
and 2 December 2015 respectively. They recorded that they had
received no response to both letters and sought urgent advise
when
they could expect to receive the outcome of the application.There is
equally a record of the registrar responding to this
letter.
4.
This
application thus came for my consideration after much delay,which
delay has not been explained by the registrar.The notice
for the
application for leave to appeal was filed with the registrar on 7
August 2015. The notice to oppose the application is
dated 28 July
2015. This is according to the date shown on the court stamp. The
application itself is dated 13 July 2015.there
is no record of
submissions opposing the application despite the notice to oppose.
5.
The
respondent lists the following as the grounds for its application for
leave to appeal:
5.1.
It
is not competent to find a dismissal automatically unfair and
procedurally and substantively unfair;
5.2.
It
is an improper exercise of judicial discretion to grant compensation
for unfair discrimination in addition to compensation for
automatically unfair dismissal;
5.3.
The
court erred in determining the incapacity dismissal when such
dismissal ought to have been determined by the CCMA;
5.4.
The
issue of the fairness or otherwise of the dismissal did not arise
because the applicant was dismissed for incapacity; whilst
the
fairness or otherwise of an automatically unfair dismissal in terms
of section 187 (1) (f) “has little significance”;
5.5.
The
court erred in not finding that working on a Saturday from time to
time was an essential component of the applicant’s
position;
5.6.
There
was no automatic unfair dismissal because the applicant was
contractually obliged to work on Saturdays when required. The
applicant was scheduled to work on Saturdays but she refused;
5.7.
The
applicant was dismissed because of her inability to work on
Saturdays. She was not dismissed because of her religion;
5.8.
The
applicant could not do her work because she could not work on
Saturdays. The court misconstrued the issue that whether or not
the
applicant could be accommodated elsewhere or rotated to a different
position was a relevant consideration in deciding whether
the
incapacity dismissal was unfair, when the court had no jurisdiction
to decide the fairness or otherwise of the incapacity dismissal;
5.9.
The
court committed an error in law by considering the fairness of the
applicant being dismissed for incapacity;
5.10.
The
court’s finding that there was procedural unfairness is an
error in law because the issue of whether the respondent failed
to
comply with section 189 was not before the court and that the unfair
dismissal case was one of dismissal for incapacity;
5.11.
The
court erred in not referring the case for the fairness of the
dismissal for incapacity to arbitration before the CCMA;
5.12.
The
court became embroiled in irrelevant considerations such as whether
or not the applicant was, in the past, placed on the roster
to work
on a Saturday; an issue with “no significance”, and that
“in terms of the specific terms of her contract
of employment,
the [applicant] is entitled to be so rostered”;
5.13.
The
court did not enquire as to why the applicant’s contract of
employment did not specify that the applicant could not work
on
Saturdays;
5.14.
The
applicant’s views about her religion were her opinion. She was
obliged “to prove the terms and conditions”
relating to
her religion by presenting evidence of a church official or pastor or
church leader, but failed to do so;
5.15.
The
applicant did not comply with section 60 of the Employment Equity Act
and that, as a result, the respondent cannot be liable
for Smith’s
conduct;
5.16.
The
court erred in awarding costs in favour of the applicant; and
5.17.
the
court erred by not accepting evidence on behalf of the respondent and
for being “unduly influenced by considerations of
sympathy for
the [applicant], following her testimony in court.”
6.
The
grounds are essentially that:
6.1.
The
court was not competent to make a finding that the dismissal was
automatically unfair and that the dismissal was procedurally
and
substantively unfair;
6.2.
The
court could not grant compensation for unfair discrimination in
addition to compensation for an automatic unfair dismissal;
6.3.
The
applicant was not entitled to compensation, in relation to the
conduct by Smith, because the applicant did not comply with section
60 of the Employment Equity Act;
6.4.
The
applicant was dismissed for incapacity because the applicant could
not work on a Saturday and the court lacked jurisdiction
to determine
a dismissal based on incapacity;
6.5.
The
applicant was required, but failed to present evidence about her
religion
6.6.
The
court was “unduly influenced following the Applicant’s
evidence;
6.7.
The
court erred in awarding costs in favour of the applicant.
7.
The
respondent essentially states that the court had no jurisdiction
because the dispute before the court dealt with dismissal for
incapacity which should have been heard by the CCMA. The respondent
did not raise this as a preliminary issue during the trial.
Equally,
the respondent did not take this as a law point in its submissions at
the conclusion of the trial.
8.
Paragraph
5 of the pre-trial minute records the issues for determination by the
court. The court was not called upon to determine
if the court were
competent to determine the matter or to refer the matter to the CCMA.
A pre-trial agreement obliges the court
“to decide only the
issue set out therein.”
[1]
9.
The
pre-trial minute records, under “common cause facts, that the
“respondent was satisfied with the manner in which
the
applicant was carrying out her work”. The following is recorded
in the pre-trial minute in relation to facts in dispute:
whether the
dismissal of the applicant “for her inability to work on
Saturdays was dismissal for incapacity or it was dismissal
for
operational requirements on prohibited (sic) ground”; “whether
the above Honourable Court has no jurisdiction to
consider the
fairness or not of a dismissal for incapacity and whether only the
bargaining Council can do so. Whether the above
Honourable Court can
only determine if the dismissal of the applicant was based on her
religious belief and thus be automatically
unfair as contemplated by
section 187 (1) of the LRA”.
10.
The
applicant sought an order that, among others, her dismissal was
“automatically unfair” in terms of section 187 (1)
of the
LRA. The applicant alleged that she was dismissed because of her
religion. She did not allege that she was dismissed because
of her
incapacity.
11.
The
court found that the applicant was discriminated against because of
her religion. The Court is competent to make this determination.
There is no substance to the complaint that the court lacked
jurisdiction. It bears noting, in passing, that a court is called
upon to determine the real dispute between the parties. Reference to
“incapacity” in the pre-trial minute is not
determinative.
It is common cause, in any event, that the “respondent
was satisfied with the way the applicant was carrying out her work.”
The respondent cannot, on the face of this common cause fact, seek to
pitch the dispute between it and the applicants as an “incapacity”
dismissal.
12.
The
next primary ground of appeal is that the court could not consider
whether the applicant’s dismissal was substantively
and
procedurally unfair once the court found that the dismissal was
automatically unfair. This ground of appeal is contrary to
paragraph
5 of the pre-trial minute, in which the parties defined the issues
for determination by the court, namely:
“
5
ISSUES
THE LABOUR COURT IS REQUIRED TO DECIDE
The
above Honourable Court will be required to determine whether
5.1
Applicants’ (sic) dismissal was substantively unfair,
5.2
Applicants’ (sic) dismissal was procedurally unfair,
5.3
Applicant was discriminated against, if so, whether that
discrimination was unfair,
5.4
The appropriate remedy, and
5.5
The above Honourable Court has jurisdiction to determine if the
applicant’s dismissal was either substantively or procedurally
unfair”.
13.
It
is manifest, regarding paragraph 5 of the pre-trial minute, that the
court was called upon to determine both the substantive
and
procedural aspects leading to the dismissal of the applicant. It
bears repeating that the respondent did not take the point,
during
the proceedings, that the court lacked jurisdiction.
14.
I
now consider the application in relation to the court’s
findings pertaining to the applicant’s religion. The respondent
submits that the applicant’s religion was not the “dominant
reason” for her dismissal and that the applicant
failed, in any
event, to lead expert evidence to prove the tenets of her religion.
It is common cause between the parties that
“part of the reason
for the applicant’s refusal to work on a Saturday when she was
asked to is that she is a Seventh-day
Adventist and Saturday was part
of a Sabbath and she is prohibited by her religion from working on a
Saturday”. It was also
common cause that “the applicant
never agreed to work on Saturdays. The applicant could not and would
not agree to work on
Saturdays”.
15.
The
respondent refers the case of Dlamini and Others v Green for
Security
[2]
.
This case is not authority for the proposition that a person who
asserts an impediment based on religion
must
prove the tenets of such religion, and that such proof be advanced
through expert evidence. The court did not, in addition, say
that the
religious tenet can only be proved through expert evidence.
16.
Courts
should adopt a sensible approach in matters where a litigant asserts
religious convictions. That is because courts are not
arbiters of
what is or isn’t a religion. The applicant gave evidence that
she was raised by her grandmother subscribing to
beliefs of members
of the Seventh-day Adventists faith. She gave evidence that that has
been her faith throughout her life. The
respondent did not contest
this evidence. The very conduct of the applicant demonstrates, as far
as the court is concerned, her
convictions regarding her religious
beliefs. She has never worked on a Saturday, having been employed for
almost a year. The court
did not require expert evidence to be
satisfied that Seventh-Day Adventists consider Saturdays as their
Sabbath, a day on which
those who subscribe to that faith are
forbidden to work but for dispensations such as for doctors and
nurses.
17.
The
respondent submits that the applicant, in any event, failed to
establish the existence of discrimination and that the applicant
was
dismissed because she refused to conduct stock-taking on weekends,
which she was contracted to do as a manager and that she
was obliged
to work with all other managers. The applicant’s contract does
not mention stock-taking. The contract refers
to the applicant having
to work overtime as and when it was necessary to do so. Her contract
does not stipulate that overtime is
worked on Saturdays.
18.
It
was common cause that the applicant:
18.1.
Started
working for the respondent on 9 January 2012;
18.2.
Worked
overtime outside the Sabbath ;
18.3.
Was
involved in stocktaking on days outside the Sabbath; and
18.4.
Her
contract does not specify that stock- takes were scheduled for
Saturdays or that she was to work overtime on Saturdays.
19.
The
respondent relies on Food and Allied Workers Union v Rainbow Chicken
Farms
[3]
in support of its application. This case is not on point. The court
found in that decision that the individual applicants were
specifically employed because they are Muslim and that it was an
operational requirement for them to be at work on a religious
holiday. The applicant was not specifically employed to do
stocktaking. Her contract stipulated that she undertook and agreed
“to perform such overtime duties as may be reasonably required
of [her] from time to time.” She was not obliged to take
part
in stocktaking on Saturdays. She was equally not obliged to work on
Saturdays.
20.
The
respondent submits that, if the applicant was discriminated against,
that such discrimination was justified considering the
respondent’s
business and the essential requirements of the job itself. The
applicant took part in stock counts other than
those that fell during
her sabbath. Her contract of employment, as recorded above, does not
prescribe that she is obligated to
conduct stock counts on Saturdays.
The court does not see how participating in stock counts on Saturdays
is an “essential
requirements” of the job itself when, on
the evidence, the applicant never participated in such stock
counts and the
respondent was satisfied with the applicant’s
performance as an employee.
21.
The
respondent submits that the court made errors of fact, including the
court’s finding in relation to the conduct of Smith
towards the
applicant about her religion. The respondent submits that such
conduct did not impair the applicant’s dignity
because the
conduct “happened in one meeting”. The respondent can
hardly suggest that it is permissible for Smith to
have abused the
applicant, as found by the court, because it was a “once off”.
Whether a person’s dignity is
impaired cannot be a function of
the duration of the event or circumstances that are said to have led
to the impairment. There
is no reason why a once-off event cannot
impair a person’s dignity.
22.
The
respondent agrees that Smith was derogatory towards the applicant. It
is incomprehensible, this notwithstanding, that the respondent
equally submits that the applicant’s dignity was not impaired
because the event was a once-off episode. The decision in Lewis
v
Media 24 Ltd
[4]
does not support the point being advanced on behalf of the
respondent. The Lewis decision is distinguishable. It dealt with
harassment,
which is not the case in this matter. I refer to
paragraph 40 and 41 of the main judgement that Smith was abusive
towards the applicant;
including degrading her in public about the
applicant being a Seventh-day Adventist.
23.
The
next ground is that the applicant did not meet the requirements of
section 60 of the Employment Equity Act and that this disentitled
her
to compensation because conduct of Smith’s, and that the court
was punitive in awarding compensation in the amount of
R60 000
after making the finding that the dismissal was automatically unfair.
The applicant’s claim is not based on
the EEA.
24.
The
applicant sought compensation “in respect of unfair
discrimination”. The court determined that the applicant was
unfairly discriminated against because of her religion. This entitled
the applicant to compensation. The respondent’s reliance
on
Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd
[5]
is not on point. That decision concerned a claim for compensation
and/or damages against the employer “in terms of s 50 (2)
(a)
and (b) of the EEA…”. The respondent in this matter did
not, in any event, plead that the applicant failed to
comply with the
requirements of section 60 of the Employment Equity Act. The
pre-trial minute is silent on this point.The stated
non-compliance
was not raised as a preliminary point.
25.
The
applicant sought relief on the basis of section 187 (1) of the LRA,
specifically section 187 (1) (f). The Court is competent
to award
damages and/ or compensation, as contemplated by section 193 (1) (c)
read with section 193 (3) of the LRA.
26.
I
am not persuaded that the court committed errors of fact as contended
for by the respondent; including the contention that one
such fact
pertains to the court’s determination concerning Smits conduct
towards the applicant in relation to her religion.
The respondent’s
submission that all that transpired was that the applicant “…
was distraught and upset because
Smith did not want to accommodate
her” underplays the import of the evidence.
27.
The
respondent did not make submissions on the cost order despite this
being raised as one of the grounds for the application for
leave to
appeal. Similarly, the respondent did not make submissions in
relation to its other grounds for the application,including
that the
court’s decision was arrived at on the basis of the court being
sympathetic to the Applicant following her evidence.
28.
I
am not persuaded that the court’s finding on the procedural and
substantive and unfairness of the dismissal is incompatible
with the
finding that the dismissal was automatically unfair. That finding, at
best for the respondent, would amount to a
brutum
fulmen.
The order by the court in relation to payments to be made to the
applicant remain competent even if one were to discount reference
in
the order to the dismissal being substantively and procedurally
unfair. That on its own does not merit this application succeeding.
29.
I
have considered the application for condonation. The late filing of
the application is condoned. I am not persuaded that there
is a
reasonable prospect of another court coming to a different
conclusion.
30.
I
make the following order:
30.1.
Condonation
is granted for the late filing of the application for leave to
appeal.
30.2.
The
application for leave to appeal is refused.
Omphemetse
Mooki
___________________
Judge
of the Labour Court (Acting)
[1]
National Union of Metalworkers of South Africa
and Others v Driveline Technologies (Pty) Ltd and Another (2000) 21
ILJ 142 (LAC)
at para 16
[2]
(2006) 27 ILJ 2098 (LC)
[3]
(2000) 21 ILJ 615 (LC)
[4]
(2010) 31 ILJ 2416 (LC)
[5]
(2015) 36 ILJ 1111 (LC)