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[2017] ZALCJHB 404
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Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd (JS706/14) [2017] ZALCJHB 404; [2018] 1 BLLR 52 (LC); (2018) 39 ILJ 415 (LC) (7 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of
interest to other Judges
Case
no: JS 706/14
In
the matter between:
TSHEGOFATSO
MANYETSA
Applicant
and
NEW
KLEINFONTEIN GOLD MINE (PTY) LTD
Respondent
Heard:
23, 24, 25 & 27 October 2017
Delivered:
7 November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
Since the
advent of the democratic dispensation and the adoption of the
Constitution of the Republic of South Africa
[1]
,
our country has come a long way in advancing women’s rights
through various pieces of progressive legislation, more particularly
for their protection in the world of work
[2]
.
In giving effect to the constitutional right to equality, the primary
focus of these pieces of legislation is to protect women
and pregnant
employees from unfavourable treatment in the workplace. Landman J (as
he then was) in
Mashaba
v Cuzen and Woods Attorneys,
long recognised that;
‘…
the purpose of
protecting female employees from dismissal for reasons of pregnancy,
intended pregnancy or reasons related to pregnancy,
is to ensure as
far as possible that female employees are not disadvantaged, as they
traditionally have been, by virtue of them
being women and the
child-bearing members of the human race
[3]
’
.
[2]
In a
study conducted in 2010 under the ILO, South Africa was found to rank
the highest in Africa with its four months’ maternity
leave
[4]
,
whilst the standard
established
by Convention 183
[5]
is at
least 14 weeks. (Tunisia, with its leave period of 30 days, provides
the shortest leave period among the African countries
covered in the
report).
[3]
Notwithstanding
great strides made in the protection of pregnant women in the
workplace, they nonetheless continue to find themselves
in unenviable
positions where they suffer economic hardship as a consequence of
their temporary condition, which forces them to
be off work. As an
example, and in extreme cases such as to be discussed in this case,
pregnant employees are compelled to take
unpaid maternity leave where
they work in high risk areas and where suitable alternative
employment cannot be secured for them
in the workplace. Effectively,
these employees are rendered ‘unemployed’ whilst still
officially employed, until such
time that they can claim whatever
nominal amounts are claimable under the Unemployment Insurance Fund,
or when they can officially
return to work.
[4]
It can
further not be doubted that whilst on maternity leave, whether paid
or not, pregnant employees by virtue of their absence
from the
workplace in certain instances invariably lose out on advantages of
being at the workplace, such as bonuses, promotions,
and career
development in the form of training and development offered to other
employees. They continue to worry about the prospects
of their
continued employment once they disclose their pregnancy or even after
child birth. They worry about the health of their
babies and their
own general wellbeing upon their return to the workplace or their
normal work-stations. Workplaces that provide
child care facilities
are a rarity. These problems cuts across industries, but are even
more prevalent in sectors of our economy
that are traditionally male
dominated such as mining. In the end, and in a cruel twist of irony,
rather than enjoying motherhood
and child rearing, female employees
become unintended casualties of their own pregnancies or womanhood.
[5]
It is
appreciated that the Labour Relations Act (LRA) covers instances of
unfair labour practices where pregnant employees feel
hard done by
what may be seen as employer unfair practices. However, specific
pieces of legislation that deal with pregnant employees
such as the
Basic Conditions of Emploment Act (BCEA) still fall short in
addressing some of the problems highlighted as above.
I am constraint
to state that in my view, any unfair, unjust and unreasonable
consequence flowing from a female employee’s
pregnancy is
directly attributable to the shortfalls in legislation meant to
protect them. The facts of this case highlight the
inadequacies in
our legislative measures that were meant to protect pregnant
employees especially in the mining industry.
[6]
The
applicant approached this Court by way of a statement of claim for an
order declaring the conduct of the respondent to have
constituted
unfair discrimination as contemplated in the provisions of section
6(1) of the Employment Equity Act (the EEA). Her
claim is that the
respondent’s policy on maternity and its implementation
discriminated against her on the grounds of her
pregnancy.
[7]
In the
event that this Court found in her favour, the applicant seeks
damages in terms of the provisions of section 50(2)(b) of
the EEA,
equivalent to R159 501.25 which is her actual monetary loss
suffered during the period she was placed on unpaid suspension
during
her pregnancy.
[8]
Moreover,
the applicant seeks compensation equivalent R79 750.63 in terms
of the provisions of section 50 (2) of the EEA, which
is calculated
taking into account her normal monthly salary and multiplied with the
period for which she was on unpaid maternity
leave for five
months. On a general note, she further sought an order directing the
respondent to take steps to prevent the same
unfair discrimination or
similar practice in the future in respect of other employees in terms
of section 50 (2) of the EEA.
Background:
[9]
The
respondent is a subsidiary of Gold One Africa Limited. As at 2013,
the respondent had 2000 employees, of which 10%
were
females. Many of the female employees are employed in the
respondent’s A, B, and C bands. The applicant’s
claim came about within the context of the following common cause
facts as outlined in the parties’ signed pre-trial minutes;
[10]
She
commenced her employment with the respondent on 2 November 2009
as an Underground Electrician based at its sub-Nigel.
With effect
from 1 March 2010 to date, she has been based at the
respondent’s Modder East plant as a Plant Electrician
in its
Metallurgical Department. In 2014, or at the time of the dispute, she
was employed at grade C2 and earned R31 900.00 per
month.
[11]
On
3 July 2013, the respondent adopted the ‘
Maternity
Leave and Women in Risk Areas Policy’
(the Policy) to be applicable at its Modder East mine. The purpose of
the Policy is
inter
alia
to
make provisions for the protection of pregnant female employees
rendering their services in work areas defined as high risk
or
hazardous to their health and that of their unborn children
[6]
.
[12]
The
respondent also has a mandatory code of practice (Code of Ethics)
dealing with the fitness of persons within its ranks to perform
work
at Modder East. In terms of this Code, female employees who are
pregnant are prohibited from performing any duties in any
high risk
areas which are considered hazardous to their health or that of their
unborn babies. There is also a Women in Mining
Task Team consisting
of representatives from Modder East management and female employees
(as represented by National Union of Mineworkers),
that is meant to
look after the welfare and interests of female employees.
[13]
In
May 2014, the applicant informed her direct supervisor, Mr R.
Berry that she was pregnant. As the applicant’s area
of work is
considered to be a health risk or hazardous because of the presence
of chemicals such as cyanide, ionising radiation,
hazardous gases,
fumes etc., the respondent had to move her from that area and find
her ‘
risk
free alternative, suitable work’
(a term used in the Policy).
[14]
On
20 June 2014, the applicant approached the respondent’s
Human Resources Superintendent, Ms Karen Rule (Rule),
and advised her
of her pregnancy. This was out of her concern about the nature of the
duties she performed at that point. At that
meeting, Rule provided
the applicant with a copy of the Policy and explained it to her in
detail.
[15]
At the
stage that the applicant met with Rule, she was now stationed at the
adjacent offices performing administrative tasks. The
tasks that the
applicant were performing were however not attached to any position.
In effect, there was no position available
in the plant offices for
the administrative work that the applicant was performing. Moreover,
there was no such position on the
respondent’s organogram, nor
did it form part of its labour plan.
[16]
With effect
from 20 June 2014, the applicant was placed on leave. On
23 June 2014, Mr G. Shadow, the respondent’s
Chief
Safety Office sent correspondence to plant management, and expressed
his concerns that due to health and safety reasons,
the applicant
could not perform any tasks at the plant or plant offices. On the
same day, the applicant was requested by Mr M.
Moeketsi, the
respondent’s Human Resources Superintendent, to attend a
Pregnancy Consultation Committee meeting which was
to be held on
26 June 2014. Clause 5.2 of the Policy
[7]
makes provision for such a meeting. The meeting was also attended by
Dr S. Ranchhod, the respondent’s Occupational Health
Medical
Practitioner. At the same meeting, Dr. Ranchhod issued a note stating
that in view of her pregnancy, appropriate work had
to be found for
the applicant on surface.
[17]
On
27 June 2014, the Plant Management informed Mr F. Mokoena,
the respondent’s Human Resource Supervisor that it
wished to
retain the applicant at the plant offices to perform administrative
duties. Rule was also informed of the Plant Management’s
wishes. Her response was that there was no position available at the
plant office for the applicant while she was pregnant. Moreover,
Rule
indicated that the applicant could not be accommodated where there
was no position available as that would have been unfair
to all other
pregnant employees who were already on unpaid maternity leave while
awaiting to be placed in alternative suitable
positions.
[18]
On
1 July 2013, Rule communicated with the applicant and
requested her to wait for a management meeting which was to
deliberate and decide on whether she could be placed in the Control
Room for the duration of her pregnancy. During the same period,
the
applicant was called to a meeting attended by the respondent’s
Messrs S. Fani and M. Phillips, and was informed that
there was an
open position for her at the AMMS offices, as the incumbent, Mr Gert
was on leave. The applicant was directed to continue
working at the
plant offices during Mr Gert’s absence. The applicant was
furthermore informed by Phillips that the position
at the AMMS office
was on inferior terms and conditions than those of her position as
Electrician.
[19]
The
management meeting referred to above occurred on 1 July 2014.
In that meeting, it was concluded that the applicant
could not be
placed in the Control Room in the position of Supervisor as
underground working experience was a requirement for that
position.
The applicant did not possess such working experience. On
2 July 2014, the applicant’s counsel in this
case, Mr
Mmusinyane directed correspondence to the respondent, wherein he
complained that the latter was unfairly discriminating
against the
applicant based on her pregnancy.
[20]
On
3 July 2014, the applicant was informed by Rule that there
was no alternative position available for her for the duration
of her
pregnancy. She was further informed that in terms of the Policy, she
had to commence with her unpaid extended maternity
leave. The
applicant was requested by Rule to sign a leave form but she had
declined to do so.
[21]
On
7 July 2014, the respondent invited the applicant to a job
interview for a position of Receptionist. The interviews
were held on
11 July 2014. During the interview, the applicant enquired
whether the position would be offered on the
same terms and
conditions as those of her current position as an Electrician. Upon
being advised that the position would be offered
on less terms and
conditions, she declined to participate any further in the interview
process.
[22]
The
applicant’s period of unpaid maternity leave commenced from
3 July 2014 until 20 November 2014. She
then took
four months’ paid maternity leave from 21 November 2014
until 22 March 2015. On 4 July 2014,
the
applicant referred a dispute to the Commission for Conciliation
Mediation and Arbitration. Conciliation having failed, she
then
referred the present claim on 5 September 2014.
The
issues for determination:
[23]
These
issues to be determined were narrowed down in the parties’
supplementary pre-trial minutes. Evidence in this regard
was led on
behalf of the respondent by Ms. Rule; Ms Angelique Booysen (neé
De Kok), the respondent’s Senior Supervisor:
Inventory Control
and Spares; Mr. Izak Marais, the respondent’s then COO; Ms.
Marlie Van der Walt, the respondent’s
Junior Safety Officer,
and the applicant, who was the sole witness in her case. Some of the
issues raised for determination fell
by the ways side as a result of
concessions made either during cross-examination or arguments. These
issues and my conclusions
therein are as follows;
(a)
Was
the Policy which came into effect on 1 January 2013 and approved on 3
July 2013 binding on the applicant?
[24]
As recorded
in the supplementary pre-trial minute, it was common cause that in
terms of clause 3.3 of the applicant’s contract
of employment,
she is bound by all company policies, and is deemed to have received
notification of new and amended policies if
they are posted on the
company’s official noticeboards. The only dispute between the
parties is whether the Policy was communicated
to employees in July
2013 by it being posted on the official noticeboards, and being
emailed to those who had access to emails.
[25]
The
applicant conceded that the Policy was binding on her. She however
denied that she ever received a copy the Policy, and contended
that
she only got to know of it when she disclosed her pregnancy. She
denied further that she was made aware of the Policy during
her
induction training, and disputed that a copy was ever posted on the
notice boards in her department. This was so, as even her
senior
managers were not aware of it, hence they had allowed her to work in
high risk areas for a period of 25 days after it was
known that she
was pregnant.
[26]
The
respondent’s case through Rule’s evidence was that the
Policy was communicated to all employees through the internal
‘
Fastlane
Communication’
on 8 July 2013,
[8]
and
that the copies of the Policy were further placed on notice boards.
As far as Rule was aware, there were four notice boards
in the
applicant’s department where the Policy was posted.
Furthermore, as part of all employees’ induction, the Policy
was also discussed at those inductions amongst other HR policies, and
the applicant had attended such induction on 21 October 2013
[9]
[27]
One cannot
quarrel with the submissions made on behalf of the applicant that
employees should be informed of new policies or changes
in existing
policies. At the same time however, where an employee’s
contract of employment stipulates that she is deemed
to be bound by a
variety of the employer’s various policies, there is a duty
upon that employee to keep abreast of these
policies and new
developments in that regard. In this case in particular, by virtue of
the deeming provisions of clause 3.3
[10]
of the applicant’s contract of employment, it does not assist
her to deny knowledge of the Policy.
[28]
I
nonetheless find it inconceivable let alone improbable that a senior
employee in the applicant’s position could not have
known of
such a policy. In any event, even if there is merit that she could
not have known of it, it was common cause that upon
disclosing her
pregnancy, she was furnished with a copy of the Policy by Rule, which
details were explained to her. For all intents
and purposes
therefore, that Policy remained binding on her as she had conceded,
and I fail to appreciate how her denial of the
knowledge of the
Policy has any impact on the further issues to be determined in this
case.
(b)
Is
paragraph 5.4 of the Policy in contravention of the provisions of
section 26 (2) of the Basic Conditions of Employment Act?
[29]
The
applicant’s case was that where she performed work considered
high risk during her pregnancy, the provisions of section
26(2) of
the BCEA
guaranteed
her suitable alternative employment on no less favourable terms and
conditions of employment applicable to her, and that by placing
her
on unpaid maternity leave in accordance with paragraph 5.4 of the
Policy, the respondent acted contrary to the provisions of
the BCEA
to her detriment.
[30]
Clause 5.4
of the Policy provides that;
‘
5.4. Alternative Work and
Lactating
If the Company is unable to offer
suitable alternative ‘risk free’ work for the duration of
an employee’s pregnancy
and 6 (six) months after the birth of
the child (where the mother is breastfeeding), management would allow
the employee to go
on extended unpaid maternity leave. However, every
endeavour must be made to offer suitable alternative risk free work
(with necessary
training) on terms and conditions that are no less
favourable than the ordinary terms and conditions of employment’
[31]
Section 26
of the BCEA provides that;
‘
Protection
of employees before and after birth of a child
(1)
No
employer may require or permit a pregnant employee or an employee who
is nursing her child to perform work that is hazardous
to her health
or the health of her child.
(2)
During
an employee’s pregnancy, and for a period of six months after
the birth of her child, her employer must offer her suitable,
alternative employment on terms and conditions that are no less
favourable than her ordinary terms and conditions of employment,
if—
(a)
the
employee is required to perform night work, as defined in section
17(1) or her work poses a danger to her health or safety or
that of
her child; and
(b)
it is
practicable for the employer to do so.’
[32]
I will not
burden this judgment with the interpretation of the Policy safe to
state that as I understand the provisions, once an
employee is found
to be pregnant, the employer is obliged, (flowing from the word
‘
must
’
),
to make
every endeavour
to offer her suitable alternative risk free work on terms and
conditions that are no less favourable than the ordinary terms and
conditions of employment. Where necessary, training should be
provided to the employee to perform the alternative work.
[33]
I do not
understand the above obligations to involve a meaningless box-ticking
exercise. Thus, there must be a genuine endeavour
to offer the
affected employee suitable alternative risk free work in view of the
adverse consequences for the affected employee
if the employer is
unsuccessful in that regard. Ultimately, whether such a genuine
endeavour was made is a question of fact and
evidence. Be that as it
may, in the event that every endeavour made at securing ‘suitable
alternative risk free’ work
did not yield any positive results,
the provisions related to extended unpaid maternity leave kicked in.
Thus on its plain reading,
the provision does not guarantee (reading
from the word
endeavour
)
that alternative work will be found, nor is there an obligation on
the employer to create any such alternative suitable work.
[34]
In
interpreting the provisions of the BCEA, which interpretation must be
purposive
[11]
, the starting
point is section 39(2) of the Constitution of the Republic which
provide that;
“
When interpreting
any legislation . . . every court, tribunal or forum must promote the
spirit, purport and objects of the Bill
of Rights.”
[12]
[35]
Section 26
(2) of the BCEA further ought to be read within the context of the
purpose of that Act as outlined in its section 2
[13]
.
The respondent’s case was that the applicant’s
interpretation of section 26 (2) of the BCEA to the effect that it
guaranteed suitable alternative employment on no less favourable
terms and conditions of employment was wrong.
[36]
The Policy,
as per its paragraph 6 stipulates that it is modelled on the
provisions of the BCEA. Both the Policy and the BCEA recognise
the
importance of the health and safety of a pregnant employee and the
unborn child, and both places an obligation on the employer
to
offer
the pregnant employee ‘
suitable,
alternative employment’
(the BCEA) or ‘
suitable
risk-free work’
(the Policy) on terms and conditions that are no less favourable than
her ordinary terms and conditions of employment.
[37]
The
obligations as indicated above are essentially in tandem with
the
International Labour Organisation's (ILO) Maternity Protection
Recommendation
[14]
,
which deals with the protection of pregnant and breastfeeding
employees. The provisions of section 26 of the BCEA together
with
those of the Code give effect to the Recommendation,
albeit
South Africa has yet to ratify it.
[38]
In
terms of Article 6 (2) of the Recommendation, where a pregnant or
nursing employee works in a job where significant risk has
been
identified the employer must take measures to:
1.
eliminate
the risk;
2.
adapt
the employees working conditions;
3.
transfer
the employee to another post without loss of pay, and if this is not
feasible;
4.
provide
the employee with paid leave.
[39]
The
difference therefore between the Policy, the provisions of section 26
(2) of the BCEA, and the Recommendation becomes apparent
when the
employer reaches a point where a conclusion is reached that
‘suitable, risk free alternative’ or ‘suitable
alternative employment’ cannot be secured, or where it is not
practicable or ‘feasible’ to offer the pregnant
employee
such an alternative
[15]
. There
is a clearly a
lacuna
in provisions of the BCEA in this regard, as well as in the Code. In
terms of the Policy however, and obviously with the purpose
of
addressing the
lacuna
in the BCEA, a pregnant employee is placed on extended unpaid
maternity leave.
[40]
In terms of
the Recommendations as is apparent on the other hand, an employer is
obliged to provide the employee with paid leave.
Consistent with this
Recommendation, and as further submitted on behalf of the respondent,
EEC Directive 92/85
[16]
as
well as the UK Employment Rights Act, 1996, makes provision for
employees suspended from work on maternity grounds to be paid
remuneration whilst on suspension. Other legislative provisions in
the UK extent female employees’ protections
[17]
.
[41]
The
applicant’s contention nonetheless that by virtue of the word
‘
must’
in the provisions of section 26(2), she is guaranteed suitable
alternative employment on the same terms and conditions applicable
to
her position as an Electrician. This contention however as correctly
pointed out on behalf of the respondent is erroneous, as
it
demonstrates a failure to read these provisions in their totality and
within context.
[42]
Section 26
(2) (b) adds a
proviso
to the effect that suitable alternative employment on terms and
conditions that are no less favourable that an employee’s
ordinary terms and conditions must be offered
if
it is
‘
practicable’
for the employer to do so. This
proviso
is equally emphasised in the Code of Good Practice
[18]
.
Thus section 26 (2) of the BCEA cannot be read to the exclusion of
section 26 (2) (b).
[43]
The term
‘
practicable’
is not defined in the BCEA, and its ordinary meaning implies whether
something is capable of being put into practice or of being
done or
accomplished. Various meanings can equally be ascribed to the term,
including, feasible
[19]
, which
is also a term used in the Recommendation. It can also be in
reference to something realistic, possible, workable, attainable,
achievable, or viable.
[44]
As to
whether it is ‘
practicable’
or feasible for the employer to offer suitable alternative employment
is a question of fact, to be objectively determined by whether
inter
alia
,
employment positions not involving risk to which pregnant or
breast-feeding employees could be transferred are available, and
if
available, whether they are also suitable. Thus, ‘
practicable’
is intrinsically attached to ‘
suitability’
.
[45]
The above
approach is supported by Du Toit
[20]
as pointed out on behalf of the respondent, particularly in regards
to the meaning of ‘
suitable,
alternative employment’
and ‘
terms
and conditions that are no less favourable’
.
To this end, the learned author states that alternative employment
should be suitable from a health and safety point of view and
appropriate to the skills level of the employee. On a more
contentious level however as demonstrated in this case, the learned
author further states that an employees’ remuneration cannot be
reduced even if the alternative employment is graded at a
lower level
that her ordinary job. This however is not supported by an
interpretation of the provisions of section 26 (2) of the
BCEA.
[46]
It cannot
therefore be doubted that the test of ‘suitable alternative
employment’ involves a consideration of whether
upon the
employer’s assessment, the position is indeed available,
whether that positions is capable of being a suitable alternative,
and whether in fact suitable for that particular employee. The test
will further involve an assessment of the job content of the
identified alternative position, the appropriate skills and
experience of the affected pregnant employee, the terms of the
alternative
position and its concomitant responsibilities. The
employee's specific personal circumstances also need to be
considered. In the
end, a proper assessment needs to take into
account that, what may be considered as an alternative, may not
necessarily be suitable
for that employee, and in the same vein, what
might appear suitable might not necessarily be an alternative or
available for the
employee.
[47]
Applying
the above to the facts of this case, it follows that it cannot be
read in the provisions of section 26 (2) of the BCEA
that suitable,
alternative employment is guaranteed in the event of a pregnant
employee having to be moved from high risk or hazardous
work area. A
purposive interpretation of these provisions reveal that they were
meant
to protect pregnant employees by guaranteeing the right to be
considered for alternative suitable employment in the event
that they
had to be removed from their ordinary duties. This is in line with
the constitutionally guaranteed right to fair labour
practices. These
provisions however do not guarantee the right to alternative
employment or guarantee that the employer will make
that alternative
employment available. Furthermore, and to the extent that the
differences between the provisions of the Recommendations
and those
of section 26 (2) of the BCEA have been outlined above in an instance
where alternative suitable employment cannot be
found for that
employee, there is further no obligation to place that employee on
paid maternity.
[48]
To conclude
on this issue then, a combination of factors as outlined elsewhere in
this judgment must be considered in determining
not only whether a
position is a suitable alternative, but also whether it is
practicable to place that pregnant employee in the
alternative
position identified. It follows therefore that it cannot be said that
paragraph 5.4 of the Policy is in contravention
of the provisions of
section 26 (2) of the BCEA as the latter provisions do not guarantee
suitable alternative employment, nor
do they guarantee paid extended
maternity leave.
(c
) Is clause 5.4 of the Policy in
contravention of section 6 (1) of the EEA?
(d)
If clause 5.4 of the Policy is not in contravention of section 26 (2)
of the BCEA and/or
section 6 (1) of the EEA, did the company
discriminate against the applicant on the grounds of her race in its
application of the
policy?
[49]
The two
issues for consideration are intertwined and will for the sake of
expedience be dealt with simultaneously. The applicant’s
further contention was that since clause 5.4 of the Policy provided
for the respondent to place pregnant employees on unpaid maternity
leave before their paid maternity leave kicked in, it unfairly
discriminated against them on the grounds of their pregnancy.
[50]
The
respondent’s contention on the other hand was that clause 5.4
read together with the Policy as a whole did not give rise
to the
alleged discrimination. In the alternative, the respondent’s
contention was that insofar as it does, such discrimination
was
rational and not unfair, or is otherwise justifiable.
[51]
Section 6
(1) of the EEA provides that;
“
No person
may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnical social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscious,
belief, political opinion, culture, language, birth or on any other
arbitrary ground.”
[52]
To
the extent that the respondent had submitted that in the event that
it is found that the policy was contrary to the provisions
of section
6 (1) of the EEA,
section
6(2) of the EEA further provides that:
“
It is not
unfair discrimination to—
(a)
take
affirmative action measures consistent with the purpose of this Act;
or
(b)
distinguish,
exclude or prefer any person on the basis of an inherent requirement
of a job.”
[53]
As
further submitted on behalf of the parties, the Constitutional Court
in
Mbana
v Shepstone & Wylie
[21]
confirmed
that
the
test
for unfair discrimination in the context of labour law is comparable
to that laid down by the Constitutional Court in
Harksen
[22]
.
The
Court further confirmed that the first step is to establish whether
the respondent’s policy differentiates between people.
The
second step entailed establishing whether that differentiation
amounted to discrimination. The third step involved determining
whether the discrimination was unfair. If the discrimination was
based on any of the listed grounds in section 9 of the Constitution,
it is presumed to be unfair. Once an allegation of unfair
discrimination based on any of the listed grounds in section 6 of the
EEA is made, section 11 of the EEA places the burden of proof on the
employer to prove that such discrimination did not take place
or that
it is justified
[23]
.
[54]
It cannot
be doubted that an important consideration in this and similar cases
is that it
involves
the creation of a balance between pregnant employees’ right not
to be unfairly discriminated against, and their employers’
obligation to ensure a safe and healthy working environment for them
and their foetuses or new borns.
[55]
As to
whether the Policy discriminates against female pregnant employees in
contravention of section 6 (2) of the EEA needs to be
assessed
against the conclusion reached above that the Policy is not in
contravention of the provisions of section 26 (2) of the
BCEA. The
constitutionality of either the provisions of the Policy or those of
the BCEA is not a matter before me. In my view,
once it was concluded
that the provisions of the Policy do not contravene those of section
26 (2) of the BCEA, there can be no
basis for a conclusion that they
nonetheless contravene those of section 6(1) of the EEA, especially
since it was common cause
that the Policy is modelled on the BCEA. To
hold otherwise would in effect countenance an attack on the
constitutionality of the
BCEA, which as already indicated, is not a
matter before me.
[56]
For the
sake of completeness however, and it being apparent that the Policy
only applies to women on account of their pregnancy,
it can be
accepted on the face of it that indeed it differentiates between
people. It is however trite that not all differentiation
amounts to
discrimination
[24]
, as a
determination in that regards involves a two - stage enquiry set out
in
Harksen
[25]
.
At most, it was conceded on behalf of the respondent that the
provisions indirectly discriminates against pregnant employees.
[57]
The
burden of proof is on the respondent to prove that the discrimination
is justified. The applicant’s case was that the
alleged
discrimination was also based of her race, in view of her being
placed on unpaid maternity leave whilst her white female
colleagues
were protected and provided with alternative positions in the plant
and closer to radiation areas during their pregnancy.
The evidence in
this regard however revealed that in respect of the two white female
colleagues;
57.1
Booysen worked in the main stores on surface, which is considered an
area that is risk
free. During her pregnancy, she was instructed to
work for about six days in the stores within the metallurgical plant
to attend
to some urgent and extraordinary audit. Upon it being
brought to her attention that she should not be in the area, she
returned
to her safe area of work.
57.2
The applicant’s complaint in regard to Van der Walt is similar
in relation to Booysen,
who is employed as Junior Safety
Officer/Radiation Protection Monitor. The applicant’s testimony
was that she saw Van der
Walt taking radiation measurements at the
metallurgical plant when she was pregnant.
57.3
The applicant further complained that as evident from an analysis of
the figures compiled
in respect of the respondent’s schedule of
employees who went on maternity leave, black female employees were
generally discriminated
against as the respondent was quick to find
alternative suitable employment for white pregnant colleagues whilst
the bulk of black
females were sent on extended unpaid maternity
leave.
[58]
It
was argued on behalf of the applicant that in view of the above
evidence, the respondent endeavoured to cover up racial
discrimination
in all facets and why it could not reasonably
accommodate the applicant with a suitably alternative risk-free job.
The difficulty
with the logical conclusion of this argument is that
if white employees are allowed to work in hazardous areas during
their pregnancy,
black pregnant employees should be deserving of the
same hazardous treatment. If the applicant’s arguments are
taken to their
logical conclusion, effectively, the respondent is
encouraged to flout all health and safety regulations together with
all applicable
legislative provisions, failing which it is deemed to
have been discriminatory in its practices. This proposition is
clearly problematic.
[59]
Marais
in his evidence conceded that it was wrong to expose Van der Walt and
Booysens to health risks whilst they were pregnant.
The only
conclusion to be reached based on the evidence is that both of them,
to the extent that they had found themselves working
in hazardous
area, were not placed in those areas as part of any process under
clause 5.4 of the Policy. The applicant’s
contentions and
arguments therefore that she should have been afforded alternative
work in the same vein as was offered to De Kock
and Van der Walt is
clearly untenable and devoid of any logic. The basis of the
applicant’s alleged racial discrimination
therefore ought to be
rejected.
[60]
In
regard to the general complaint of discrimination against black
pregnant employees, this argument as demonstrated through Rule’s
evidence lacks any merit as the figures referred to in these
proceedings indicate that as at November 2014, there were 200
females employed by the respondent of which 10% were white. Of these,
only two worked in high risk/hazardous areas. During the
period under
consideration, i.e., between August 2011 and November 2014,
56 employees became pregnant and 46 of those
were black, one was
coloured and 9 were white. Of the 46 black pregnant employees, 16
were placed on unpaid maternity leave due
to no alternative risk-free
positions being available; 16 were placed in alternative risk-free
positions, and 13 worked in non-hazardous
areas, and there was no
need to move them to other areas. On the other hand, one coloured
employee and 9 white employees worked
in non-hazardous areas, and
there was equally no need to remove them from their workstations
during their pregnancy.
[61]
In
the light of the above figures,
albeit
it was conceded that some of the black female employees were only
placed in alternative positions after having gone on unpaid maternity
leave, there can be no basis for a conclusion that the respondent
generally discriminated against black pregnant employees. By
some
fate, the two white female employees’ normal duties were
conducted in risk-free areas and there was therefore no need
to
remove them upon they becoming pregnant, whilst a bulk of black
employees’ normal duties were in hazardous areas. Any
comparison to the applicant’s white colleagues is therefore not
only negated by the work stations the black and white female
employees found themselves in, but also by the untenable consequences
already pointed out in this judgment had the applicant been
allowed
to work in similar circumstances as Van der Walt and De Kock when
they were pregnant.
[62]
I
further did not understand the applicant’s case to be that she
compared herself to other black pregnant females, as this
would have
been a non-starter. Furthermore, it was not her case that she was
discriminated against on arbitrary grounds for any
comparison to be
made with her black counterparts.
In
the end, black pregnant employees were placed on unpaid maternity
leave, not as a consequence of their pregnancy or their race,
but
purely due to the respondent not being able to place them in
suitable, risk-free, alternative positions because there existed
no
other positions, or because they did not have the required skills to
fill the positions on offer
[26]
.
The issue of whether any such positions were explored shall further
be explored below in the course of this judgment.
[63]
In
the light of the above, I am in agreement with the submissions made
on behalf of the respondent that even if it could be argued
that the
applicant and other black pregnant employees found themselves having
to take unpaid extended maternity leave, this was
necessitated by the
inherent requirements of their jobs in line with the defence
contemplated in section 6 (2) of the EEA. Thus,
the applicant being
an Electrician undertaking hazardous work, once she disclosed her
pregnancy, she had to be removed from that
work, because not only the
Policy, but also the BCEA, the Code and other applicable regulations
required her to be removed from
that work. Effectively as the
applicant had conceded, she was incapacitated to perform her normal
duties.
[64]
To
the extent that the applicant had alleged that the unfair
discrimination based on account of her pregnancy further arose when
she was placed on unpaid suspension/extended maternity leave, it is
already concluded in this judgment that as a result of the
lacuna
in the provisions of section 26 (2) of the BCEA, and further based on
her own concessions, it was left to the respondent as to
what to do
in circumstances where suitable alternative risk-free employment
could not be secured.
[65]
It was
correctly pointed out on behalf of the respondent that the placing of
the applicant on unpaid suspension was at a point of
a statutorily
sanctioned reasonable process arising from her no longer meeting an
inherent requirement of her job as an Electrician.
The contention
however on behalf of the respondent that it is implicit in section 26
(2) of the BCEA that incapacitated employees
can be placed on unpaid
suspension is partly correct. As persistently repeated in this
judgment, there is a l
acuna
in that provision, which in my view implies that the employer in such
circumstances, can fill that void from a range of possibilities,
which include placing the pregnant employee on paid suspension, or
placing her on unpaid suspension, or, even considering other
forms of
leave which will not impact on the finances of the employee whilst
she is pregnant and unable to work to perform her duties
prior to
taking official maternity leave.
[66]
As already
indicated however, clause 5.4 of the Policy is explicit in this
regard. It can therefore not be correct that in circumstances
where a
suitable, alternative risk-free work cannot be secured, and the
pregnant employee is placed on extended unpaid maternity
leave, the
employer would have acted unfairly. This is even moreso in
circumstances where an employee cannot demonstrate that the
employer
had not made genuine endeavours to find that alternative. Thus,
any alleged unfairness or lack of rationality in
implementing the
extended unpaid maternity leave ought to be considered within the
context of whether indeed genuine endeavours
were made to find
alternatives.
[67]
Be that as
it may, the Policy having been modelled on the BCEA and the Code,
clause 5.4 cannot therefore be attacked on the grounds
of being
unfair or not rational, particularly in the light of the
lacuna
in section 26 (2) of the BCEA, and further
(d)
If clause 5.4 of the Policy is not in contravention of section 26 (2)
of the BCEA and/or
section 6 (1) of the EEA, did the company comply
with clause 5.4 of the Policy in relation to the applicant?
[68]
This issue
has to a large extent been answered, particularly within the context
of what is deemed to be a ‘suitable alternative
risk free’
job. However, for the sake of completeness, the four ‘suitable
alternative risk free’ jobs identified
by the applicant as
being available will be explored. This in any event boils down to
complaints regarding the procedures followed
in concluding that there
was no suitable risk-free job available to the applicant, and as
correctly pointed out on behalf of the
respondent, the relief sought
by the applicant is not in relation to procedural fairness.
(i)
Administrative
positions in the plant and AMMS offices:
[69]
Marais’
testimony was that in seeking suitable, alternative risk free
positions for pregnant employees, the respondent looked
at available
positions, and the requirements of the position which were then
matched with a candidate’s experience, skills
set and
qualifications. It was common cause that after the applicant had
disclosed her pregnancy, and prior to being finally placed
on unpaid
maternity leave, she had performed administrative duties in the plant
office between 24 June 2014 and 3 July 2014. This
position however,
like that in the AMMS office did not exist, nor was it in the
respondent’s labour plan. Worst still, there
was no vacancy in
the AMMS office where the applicant could be placed.
[70]
The
applicant conceded that the above was indeed the position in respect
of the two positions, and in my view, her contention that
she never
sought a permanent post, but reasonable accommodation does not take
the matter any further. Reasonable accommodation
in this instance is
clearly a euphemism for securing suitable alternative employment, and
if this was not feasible on the common
cause facts that the
administration position was out of bounds, that should be the end of
the matter. This was particularly so
since on the applicant’s
own version, it was not her expectation that the respondent should
create a position for her. Her
reliance therefore on the fact that
Mokone, the Human Resources Supervisor informed her that she could be
retained in the administration
position does not further assist her,
as it is not for Mokoena to decide what her fate should be and what
was a suitable alternative
for her. A further consideration in this
regard was that on Rule’s uncontested version, it would have
been unfair to other
pregnant employees who were placed on extended
maternity leave and waiting for placements, to have simply placed the
applicant
in any other available position.
(ii)
The
receptionist position:
[71]
The less
said about this position the better. It was common cause that this
position was at level A, at a salary of R5 000.00, even
though
Marias’ contention was that the actual position offered was
that of a Switchboard Operator. The applicant nonetheless
contended
that the position should have been offered to her on the same terms
and conditions to her those applicable to her as
an Electrician in
accordance with clause 5.4 of the Policy. Her argument is further
based on the fact that the respondent had invited
her for the
interview.
[72]
This again
goes back to the issues already discussed, i.e. that an alternative
position may be available but not necessarily suitable
for an
employee. Furthermore, it was common cause that the applicant had
refused to take any further part in the interview process
for this
position upon being informed that it would be offered at its
applicable terms. It therefore follows that even if the position
was
offered to her, it would not have been offered on the same terms and
conditions applicable to her. The positions of switchboard
operator
and that of Electrician are clearly not in same league in terms of
skills and responsibilities. I further did not understand
the
applicant’s case under cross-examination to be that she pursued
this issue.
(iii)
The
Control Room Supervisor position:
[73]
The
applicant’s contention was that this position was available and
should have been offered to her. She accused the respondent
of having
failed to consult her about it or even conducting any investigation
in determining the extent to which she could lack
or be in need of
the necessary training to perform its tasks.
[74]
Marais’
testimony was that the position was indeed available as a
consideration. The applicant however was not qualified to
take over
the control room as she did not have a blasting certificate, nor had
she worked as a Miner. Training for a blast certificate
takes nine
months, and the applicant’s four months’ stint
underground was not sufficient for her to assume the role
of control
room supervisor.
[75]
I did not
understand the applicant’s case to be that she had extensive
underground experience, or that she had the necessary
qualification.
Her contention that she should have been trained for the job equally
lacks merit in view of Marais’ uncontested
version that the
training period for the position extended to nine months. Marais was
adamant that even if training was considered,
it was not possible to
conduct such training on surface to accommodate the applicant.
[76]
The
conclusion therefore is that position of control room supervisor was
available but not suitable for the applicant in view of
her skills,
knowledge, experience and the inherent requirements of that post. She
was further excluded from consideration of that
position as she had
not qualified as a Miner in terms of the provisions of Mines Health
and Safety Act, and I fail to appreciate
how it can be said that the
provisions of clause 5.4 on the whole were not complied with.
Conclusions:
[77]
To
summarise then, the respondent’s Policy which came into effect
on 1 January 2013 and approved in July 2013
was
binding upon the applicant. Paragraph 5.4 of the Policy is not in
contravention of the provisions of section 26 (2) of the
BCEA nor
those of section 6 (1) of the EEA. The respondent, in ultimately
placing the applicant on unpaid extended maternity leave
complied
with the provisions of clause 5.4 by making endeavours to find
suitable, alternative risk free employment for the her.
In the
absence of success in that regard, the only option under the
circumstances was to place the applicant on extended unpaid
maternity
leave in terms of the provisions of the Policy. That ultimate
decision cannot be construed as unfair or not rational,
as it accords
with the interpretation of section 26 (2) of the BCEA. Equally so,
there is no merit in the applicant’s contentions
that she was
unfairly discriminated against either on account of her pregnancy or
her race. It follows that her claim should be
dismissed.
Costs:
[78]
In terms of
the provisions of section 162 of the LRA, the Court may make an order
of costs upon a consideration of the requirements
of law and
fairness. The issues for consideration in this case cannot by any
stretch of imagination be construed as trivial, as
they raise
pertinent questions surrounding maternity rights of female employees
and a proper interpretation of the provisions of
section 26 (2) of
the BCEA. The applicant had in her testimony, attested to the
devastating consequences of being placed on extended
unpaid maternity
leave, which include having to give up her residence and vehicle, and
having to be looked after by her family
before and after
childbirth. These, as already indicated elsewhere in this judgement,
are unintended consequences of her pregnancy,
and the failure of
legislative measures, or the failure of recognised unions to
negotiate for provisions of satisfactory or fair
guidelines in regard
to circumstances where pregnant employees have to be removed from
their normal positions, and where ultimately
the employer cannot find
suitable, risk-free alternatives despite genuine endeavours. The
provisions of section 26 (2) of the BCEA
clearly fall short of the
ILO Recommendations referred to in this judgment in that regard. To
this end, it has to be concluded
that there is no basis in either law
or fairness that warrants a cost order in this case.
[79]
In the
premises, the following order is made;
1.
The
Applicant’s claim is dismissed.
2.
There is no
order as to costs
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. B.
Mmusinyane
Instructed
by:
TR Attorneys
On
behalf of the Respondent:
A.T Myburgh SC with Adv. P.M Pillay
Instructed
by:
Edward Nathan Sonnenberg Inc.
[1]
Act 108 of 1996
[2]
Viz, The
Labour Relations Act 66 of
1995
, the
Employment Equity Act 55 of 1998
; Act 4 of 2000; the
Basic
Conditions of Employment Act 75 of 1997
; the
Unemployment Insurance Act 63 of 2001
;
Promotion
of Equality and Prevention of Unfair Discrimination Act (No. 4 of
2000); The Protection from Harassment Act (no. 17
of 2011,
and
the Occupational Health and Safety Act 85 of 1993.
[3]
(2000) 21 ILJ 402 (LC)
at para 14
[4]
Maternity at Work:
A Review of National Legislation. Cornell University ILR School at
page 6. In terms of
section 24
(4) of the
Unemployment Insurance
Act, maximum
period of maternity leave is 17.32 weeks
[5]
ILO Maternity
Protection Convention, 2000 (No. 183)
[6]
Clause 4 of the
Policy provides that;
‘
RISK
AREA/WORK
Risk work in areas such as
underground, refineries, concentrators and laboratories where there
are physical, chemical or biological
dangers and exposures would
generally be considered to be work that is hazardous to the health
of a pregnant employee or an employee
nursing a child. Physical
exposures (such as ionizing radiation and thermal stresses),
chemical exposures (such as vapours and
fumes, gases, flammable,
combustible and explosive material) and physical stresses such as
extended periods of working, sitting
or standing in awkward
positions, often accompanied by vibration, could be detrimental to
the health of both the pregnant worker
and her unborn child.
Any
work where there is exposure to physical, chemical or biological
hazards must be considered potentially dangerous to the health
of a
female pregnant employee.’
[7]
5.2
Consultation
A
consultation process will be done with the affected employee no
later than 5 working days after the diagnosis. The following
will be
present:
·
The
Occupational Health Practitioner
·
The
Human Resources Manager Modder East
·
The
Human Resources Superintendent Staffing
·
The
employee
·
The
employee’s representative
·
The
recognised union representative
[8]
Page 10 of the
Combined Bundle of Documents
[9]
Page 71O of the
Combined Bundle of Documents
[10]
‘
3.
EMPLOYEE OBLIGATIONS
The
Employee hereby
3.1…
3.2…
3.3
Agrees to comply with all Company policies, procedures and
regulations, as amended
from time to time. The Employee will be
deemed to have received notification of any changes to the Company’s
existing policies,
procedures and regulations, provided that such
amendments on your policies have been posted on the Company’s
Official notice
boards as prescribed by the policy governing the
publication of new policies and amendment’
[11]
Steenkamp and
Others v Edcon Limited
(2016)
37 ILJ 564 (CC) at para 101
[12]
Section 39
(2) was
interpreted in
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors: In Re Hyundai Motor Distributors
(Pty) Ltd and Others
v Smit NO and Others
2000
(10) BCLR 1079
(CC) at para 22 to mean;
“
The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental
values.
Consistently with this, when the constitutionality of legislation is
in issue, they are under a duty to examine the objects
and purport
of an Act and to read the provisions of the legislation, so far as
is possible, in conformity with the Constitution.”
[13]
Which is;
to
advance economic development and social justice by fulfilling the
primary objects of this Act which are—
(a)
to give effect to and regulate the right to fair labour practices
conferred by section
23(1) of the Constitution—
(i)
by establishing and enforcing basic conditions of employment; and
(ii)
by regulating the variation of basic conditions of employment;
(b)
to give effect to obligations incurred by the Republic as a member
state of the
International Labour Organisation.
[14]
200 (No. 183) and
Recommendation 200 (No. 191)
[15]
See also
Employer
duties towards pregnant and lactating employees in the hospitality
industry in South Africa
(Professor Advocate Stella Vettori. Graduate School of Business
Leadership, UNISA) in African Journal of Hospitality, Tourism
and
Leisure - Vol. 5 (4) - (2016) at page 3
[16]
Council Directive 92/85/EEC
of
19 October 1992 in the Introduction of Measures to Encourage
Improvements in the Safety and Health at Work of Pregnant Workers
and Workers who have Recently Given Birth or are Breastfeeding
[17]
Further legislative protections in
the United Kingdom come in the form of the Equality Act 2010; the
Employment Protection (Consolidation)
Act 1978; the Employment
Rights Act 1996; the Pregnant Workers Directive 92/85/EC of 19
October 1992; and the Management of Health
and Safety at Work
Regulations 1999.
[18]
Code of Good Practice on the
Protection of Employees during pregnancy and after the birth of a
child. Government Gazette Vol.
401, No. 19453, 13 November 1998.
Regulation Gazette, No. 6342. No. R. 1441 at Item
5.
PROTECTING THE HEALTH OF PREGNANT AND BREAST-FEEDING EMPLOYEES
5.3
which provides that;
‘
Where
appropriate, employers should also maintain a list of employment
positions not involving risk to which pregnant or breast-feeding
employees could be transferred.*
*
In terms of section 26(2) of the BCEA an employer must offer
suitable alternative employment to an employee during pregnancy
if
her work poses a danger to her health or safety or that of her child
or if the employee is engaged in night work (between
18:00 and
06:00, unless it is not practicable to do so. Alternative employment
must be on terms that are no less favourable than
the employee's
ordinary terms and conditions of employment.’
[19]
Xstrata South Africa (Pty) Ltd
(Lydenburg Alloy Works) v Num Obo Masha and Others (2016) 37 ILJ
2313 (LAC at para 11, where it
was held that;
“…
The
object of section 193(2)(c) of the LRA is to exceptionally permit
the employer relief when it is not practically feasible
to
reinstate; for instance, where the employee’s job no longer
exists, or the employer is facing liquidation, relocation
or the
like. The term "not reasonably practicable" in section
193(2)(c) does not equate with "practical",
as the
arbitrator assumed. It refers to the concept of feasibility.
Something is not feasible if it is beyond possibility. The
employer
must show that the possibilities of its situation make reinstatement
inappropriate…”
[20]
Du Toit et al,
Labour Relations Law (6
th
ed) at 613, fn 159
[21]
Harksen v Lane
NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC)
at
para 54.
[22]
2015) 36 ILJ
1805 (CC)
at
para
[23]
At paras 25 - 27
[24]
Prinsloo v Van der Linde and
Another
1997 (3) SA 1012
(CC) at para 17
[25]
At para 54 where
it was held that;
“
Firstly,
does the differentiation amount to discrimination? If it is on a
specified ground, then discrimination will have been
established. If
it is not on a specified ground, then whether or not there is
discrimination will depend upon whether, objectively,
the ground is
based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons
as human beings or
to affect them adversely in a comparably serious manner.
(b)(ii) If the differentiation
amounts to discrimination, does it amount to unfair discrimination?
If it has been found to have
been on a specified ground, then
unfairness will be presumed. If on an unspecified ground, unfairness
will have to be established
by the complainant. The test of
unfairness focuses primarily on the impact of the discrimination on
the complainant and others
in his or her situation.”
[26]
See similar
conclusions in
Impala
Platinum Ltd v Jonase and Others (J698/15) [2017] ZALCCT 39 (24
August 2017)
at
para 15