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[2017] ZALCJHB 460
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Van Wyk v AE and Underwriting Managers (Pty) Limited (JS68/10) [2017] ZALCJHB 460 (22 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JS 68/10
In
the matter between:
KARIN
ELISMA VAN WYK
Applicant
and
AE
& E UNDERWRITING MANAGERS (PTY) LIMITED
Respondent
Heard:
2 & 3 November 2017
Delivered:
22 November 2017
Summary:
Automatically unfair dismissal relating to pregnancy – onus –
factual dispute whether
applicant was dismissed and if so the reason
for the dismissal – applicant failed to show a dismissal –
application
dismissed
JUDGMENT
COETZEE
AJ
Introduction
[1]
The respondent appointed the applicant as Administration/Processing
Assistant in terms of a written agreement dated 1 March
2009. The
applicant is a major unemployed female.
[2]
The respondent is AC & E Underwriting Managers (Pty) Ltd and
conducted business
inter alia
, in underwriting special
engineering business and dealing in professional indemnity insurance.
[3]
The applicant left the premises of the respondent on 4 December 2010.
It is in dispute whether the applicant deserted or whether
the
respondent dismissed the applicant. The respondent further disputed
that if it were to be held that the respondent dismissed
the
applicant that such dismissal was related to the pregnancy of the
applicant as alleged by the applicant.
[4]
It was common cause between the parties that the applicant had to
establish the fact of a dismissal and the reason for such
dismissal
whereupon the respondent had to show that the dismissal, if any, was
for a fair reason.
[5]
The applicant claimed payment of compensation equal to 24 months'
remuneration amounting to R180,000.00 and payment of two weeks'
notice in an amount of R 3461.52.
[6]
The applicant testified to the events of 4 December 2010. Anne-Marie
Fourie testified on behalf of the respondent. So did Ms
Cheryl
Beverley Grobbelaar (“Grobbelaar”). The applicant
testified in support of her case.
The
disputes arising from the pleadings
[7]
The parties exchanged pleadings and concluded a pre-trial meeting
followed by a minute of the meeting.
[8]
The applicant approached this Court for relief based on an alleged
automatically unfair dismissal by reason of her pregnancy.
There is
no alternative claim for compensation in respect of the alleged
unfair dismissal.
[9]
The respondent placed in dispute the allegation that the respondent
dismissed the applicant. The respondent further contended
that even
if there were to be a dismissal, that a dismissal would have been
related to the applicant's pregnancy.
[10]
The facts as to what exactly occurred on 4 December 2010 are in
dispute.
The
facts
[11]
The applicant first met Anne-Marie Fourie in a different capacity.
The applicant, for reward, conveyed Anne-Marie Fourie's
child to and
from school.
[12]
The applicant was looking for a more permanent income and asked
Anne-Marie Fourie for a job. The applicant was offered a position
with the respondent which position she accepted. She continued with
the arrangement to transport Anne-Marie Fourie's child to and
from
school for which Anne-Marie Fourie separately remunerated the
applicant. According to the applicant she traded her lunchtime
for
this duty.
[13]
The applicant was also responsible for office and shopping and
attended to various personal matters for Anne-Marie Fourie.
[14]
According to Anne-Marie Fourie she tasked the applicant with
administrative duties, supporting credit control and mainly attending
to reception duties.
[15]
The applicant fell pregnant in July 2009 and informed Anne-Marie
Fourie of her pregnancy on 30 September 2009.
[16]
Anne-Marie Fourie from time to time enquired as to the state of the
applicant's pregnancy with a view to arrange a substitute
for her
during her maternity leave.
[17]
The applicant admitted that Anne-Marie Fourie had said that the
applicant would be welcomed back to the office after her maternity
leave.
[18]
The applicant testified that she was afraid of Anne-Marie Fourie. She
further said that Anne-Marie Fourie from time to time
threatened to
dismiss and replace her as she was a low wage earner. Anne-Marie
Fourie denied this.
[19]
The above threats occurred prior to her notifying Anne-Marie Fourie
of her pregnancy. The threats and the treatment at the
hands of
Anne-Marie Fourie intensified after she had told Anne-Marie Fourie of
her pregnancy. Anne-Marie Fourie denied this.
[20]
It is common cause between the parties that on 4 December 2009 a
conversation took place between the applicant and Anne-Marie
Fourie
in the latter’s office. It is common cause that during this
discussion the following occurred:
[20.1]
The applicant was counselled regarding smoke breaks;
[20.2]
Anne-Marie Fourie counselled the applicant regarding her dress code
and indicated that the
applicant should not wear jeans to work;
[20.3]
The applicant requested from Anne-Marie Fourie to provide her
concerns in writing and failing
that to issue her with a written
warning or final written warning which she would take to the
Commission for Conciliation, Mediation
and Arbitration (CCMA);
[20.4]
The applicant became agitated and raised her voice;
[20.5]
The applicant left Anne-Marie Fourie's office in distress, angry and
crying;
[20.6]
The applicant immediately packed up all her belongings in a
distressed state and collected
from the kitchen her belongings;
[20.7]
Anne-Marie Fourie demanded the applicant's access card and office key
and the applicant complied
with the demand;
[20.8]
Anne-Marie Fourie took from the applicant and office pad.
[21]
The parties differ on whether Anne-Marie Fourie first asked for the
office keys and access card or whether she did so once
the applicant
started packing her belongings to leave the office.
[22]
The applicant testified that two of the respondent's employees
informed her that Anne-Marie Fourie had a problem with the
applicant's pregnancy. The applicant did not call these two witnesses
to testify and also did not testify on behalf of the respondent.
[23]
The applicant also relies upon her perception that Anne-Marie Fourie
increased her unacceptable behaviour towards the her once
the
applicant had informed her of the her pregnancy. The only other
reason why the applicant contended that the alleged dismissal
related
to her pregnancy was that the pair of jeans that she wore on 4
December 2009 were designed as a maternity wear.
[24]
The applicant conceded that at no time did Anne-Marie Fourie
personally indicate that she had a problem with the applicant's
pregnancy or the fact that she had to go on maternity leave in a few
months.
[25]
The applicant relies upon the conduct of Anne-Marie Fourie to prove
her dismissal. The applicant conceded that at no time did
Anne-Marie
Fourie tell her that she had been dismissed.
[26]
According to the testimony of Anne-Marie Fourie, she had counselled,
on an informal basis, the applicant about wearing jeans
to the
office. Because the applicant did not stop doing so she decided to
have a more formal discussion to bring home the importance
of wearing
proper clothing in the corporate environment. The applicant disputed
this.
[27]
The applicant conceded that in a telephone discussion between
Grobbelaar and the herself after she had left the offices, Grobbelaar
advised her that she had not been dismissed.
[28]
The applicant admitted that after leaving the respondent's offices
she went to the offices of PCBS and badmouthed Anne-Marie
Fourie.
[29]
The applicant, later during the day on 4 December 2009 sent an email
to Anne-Marie Fourie in which she enquired as to what
her position
with the respondent was. She went on to say that she was under the
impression that Anne-Marie Fourie had terminated
her services because
she phoned security to remove her and took away her access card and
office keys and told her not to enter
the building. She concluded the
email by saying that unless she heard from Anne-Marie Fourie
regarding her future at the respondent
by 7 December 2009 she would
report for duty because she had not received any formal notice
regarding her position.
[30]
She stated unequivocally that had she not received any reply from
Anne-Marie Fourie she would have reported for duty on Monday,
7
December 2009.
[31]
Anne-Marie Fourie replied with a fairly long email also on 5 December
2009. The more relevant part relied upon by the applicant
is the
following:
"I
trust that you understand that it is now impossible for me to allow
you access to the clients of AC & E or to the office
environment
as you have already tried to damage the company by your actions are
not broken your position of trust in the company
(sic). I also
strongly suggest you do go and read the email you have sent me again
and to ensure that all your allegations are
correct as I will take
legal action on all written and verbal allegations that is not true
and defamatory in nature."
[32]
The respondent issued a notice to the applicant on 7 December 2009.
The notice advised the applicant of a pending disciplinary
enquiry
into a number of aspects. It further advised the applicant that the
applicant was suspended pending the disciplinary enquiry.
The
suspension was with full benefits.
[33]
The applicant did not attend the disciplinary enquiry. The enquiry
was then postponed and the applicant did not attend the
enquiry of
the postponed date.
[34]
The applicant obtained legal advice from 4 December 2009 onwards from
a senior advocate, the CCMA and a Labour consultant.
Nonetheless she
remained uncertain as to whether the respondent terminated her
services.
Analysis
of the facts
[35]
There is no reason to find that the evidence of any of the witnesses
has been fabricated. The events occurred almost 8 years
ago. Memories
fade. The exact sequence of events of the meeting of 4 December 2009
will remain shrouded in doubt.
[36]
The respondent's conduct after 4 December 2009 is consistent with its
position that the respondent did not dismiss the applicant.
[37]
On the other hand, the applicant at least on 4 December 2009 when she
wrote the email to Anne-Marie Fourie, was in doubt as
to her status.
Subjectively she believed that she could report for duty on Monday, 7
December 2009. The only reason why she would
not report for duty
would be if the respondent before 7 December 2009 informed her not to
come to work.
[38]
It is probable that when the applicant received from Anne-Marie
Fourie the reply on 5 December 2009, she interpreted that part
which
said that it was impossible for the respondent to allow her access to
its clients or the office environment as confirmation
that she had
been dismissed.
[39]
Read in context, all that the respondent said was that having regard
to the applicant's visit to the respondent's customer
and badmouthing
Anne-Marie Fourie, the respondent had to protect its business in this
way.
[40]
It is for the applicant to persuade the Court that the respondent
dismissed her. It is not for the respondent to prove that
the
applicant absconded.
[41]
Having regard to the uncertainty as to the exact sequence of events
on 4 December 2009, the applicant has not discharged the
onus to show
that the respondent dismissed her. This is amplified by the
applicant's subjective belief on 4 December 2009 when
writing the
email that unless otherwise informed, she would attend the office on
Monday, 7 December 2009 to continue with her duties.
[42]
From the above, the Court has not been presented with evidence to
support the applicant’s claim that she was dismissed
by the
respondent. It follows that the applicant’s claim of an
automatically unfair dismissal should fail.
[43]
The respondent did not ask for a cost order as the applicant was
represented pro bono. Having regard to all the relevant factors,
it
is appropriate that I do not make a cost order.
[44]
I make the following order:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Advocate J D Napu
Instructed
by:
Wits Law Clinic
For
the Respondent:
JD Crawford
of Crawford & Associates Attorneys