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[2017] ZALCCT 41
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Wentzel v Harding Trend Sales (Pty) Ltd (C73/2015) [2017] ZALCCT 41 (5 September 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
no: C 73/2015
In
the matter between:
FAIDA
WENTZEL
First
Applicant
and
HARDIN
G
TREND
SALES
(PTY)
LTD
First
Respondent
Heard:
24 March 2017
Delivered
:
05 September 2017
Summary:
(Unfair discrimination - alleged remark -
gender discrimination - alleged offensive remark not proven)
JUDGMENT
LAGRANGEJ
[1]
Regrettably this judgment was finalised in March but owing to an
administrative error in email communications, was never handed
down
and it is only now that the problem has come to light, hence the
delay.
[2]
In this matter, the applicant is claiming that she was the victim of
unfair discrimination based on her gender because the representative
of the respondent made a certain statement in a meeting on 23 October
2014 which was convened to discuss her absenteeism and treatment
following an injury at work some months previously.
[3]
The alleged remark made was that "we want a man to do your job•.
[4]
For the sake of context a brief background is necessary, the facts of
which are not disputed. The applicant had suffered in
April 2014 as a
result of which it was necessary for her to receive physiotherapy
over an extended period of time. The absenteeism
resulting from her
treatment was a matter of concern and a meeting was held to discuss
it in mid-may 2014. At the meeting, the
applicants condition and
treatment were discussed. It was contended by the applicant that at
this meeting the representative of
the employer's organisation, Mr
Howard, had told her that her pattern oi absence on account of
illness could lead to her retrenchment
He denied making such·
remark and said that the outcome of that meeting had simply been that
her absenteeism would continue
to be and that it was merely an
Informal counselling meeting.
[5]
It was further common cause that before the next meeting in October,
the applicants leave applications had been reviewed in
the light of
medical certificates she was able to produce showing her ongoing
treatment tor her injury and leave which had been
designated as
ordinary leave was redesignated as sick leave. The applicant was
unhappy with this redesignation of the leave because
she fell it
resulted from her injury at work. At some stage before the meeting in
October the applicant had also requested assistance
in loading and
packing because of her injury. but the sales manager had refused this
request because the company at that stage
could not the additional
expense of another staff member at a time when retrenchments were
taking place. There is some inconsistency
about whether the Issue of
assistance was also discussed at the meeting of 23 October, but on
the balance of the evidence it seems
that this issue came up again on
that occasion.
[6]
The meeting on 23 October was also convened to deal with the
applicant's ongoing absenteeism. In fact, Howard said he
was
asked to conduct an incapacity hearing but when the meeting got
underway he turned it into another counselling session about
the
applicant's condition and absenteeism. The outcome of the meeting
according to Howard was the same as the first meeting namely
that her
absence would continue to be monitored.
[7]
It was common cause that the applicant was employed as a field
marketer and that the gender composition of the employees
occupying field marketer or merchandising positions was
60% male and 40% female. It is also common cause that the applicant
still performs the same duties though she mentioned in her evidence
that she is also performing merchandise duties currently. It
was not
the applicant's case and neither was there evidence that the
respondent took any concrete step to prejudice her on the
basis that
she had asked for assistance or that it wanted to replace her with a
male employee. Similarly, the applicant did not
complain of any
prejudice subsequent to the meeting of 23 October 2014 which she
might have suffered as a result of referring her
claim of unfair
discrimination to the CCMA and to this court
[8]
The applicant's representative,
Mr
Z
Parker.
correctly pointed out that the applicant's version and that of
the three witnesses of the respondent as to whether the offensive
remark was made at the meeting of 23 October 2014 are mutually
exclusive. Consequently he argued that the credibility of the
witnesses
must be assessed. In this regard he pointed out some minor
inconsistencies in the evidence of the three respondents witnesses,
but conceded that they did not, on the face of it, appear to be
dishonest He also suggested that lt would be unsurprising if they
had
agreed that the remark had been made.
[9]
The respondent's representative
Mr
C
De
Kock
argued that the probabilities weighed
heavily In favour of the respondent's version . Amongst the factors
favouring
their version on the probabilities are:
9.1
The evidence that the respondent had not Invoked any formal
procedures such as an incapacity
hearing to deal with the applicant's
absenteeism as a result of her injury, but had pursued a consultative
approach.
9.2
Howard's own approach had been to scale down the formal status of the
meetings in May and
October two more informal consultative
proceedings.
9.3
Even though the sales manag.er had declined to employ someone to
assist the applicant,
Mr
A Jaffer, the regional sales
manager to whom the applicant reported at the time. testified that he
had approached the store where
the applicant worked to assist her
with packing and a commitment had been made to help her when
possible. This attempt to assist
the applicant was not disputed.
9.4
The applicant said that she did not challenge the alleged comment at
the meeting when it was made because
she was so stunned at the time,
but did raise it with Jaffer immediately after the meeting.
9.5
It was put to Jaffer that the applicant had approached him
immediately after the meeting
and asked him if he had heard Howard
making the offensive remark.. He had denied that she had raised it
with him immediately after
the meeting but stated that she only
raised it during the course of a normal stock meeting at her store
about a week later. He
had told her that he didn't hear Howard making
the remark but that if she felt strongly about the issue she should
take It further.
However, when the applicant testified she went much
further. She claimed that Jaffer had actually said that he had heard
the remark
and had agreed with her that the company was
discriminating against her and encouraged her to pursue the matter.
She also stated
that a week later he had simply denied hearing the
statement. This 09viously critical aspect of her version was never
put to Jaffer.
It was also never part of her pleaded case.
9.6
lt was common cause that the applicant was not happy with the fact
that the respondent had
declined to employ someone to assist her, and
on a balance of the evidence
it
would appear that this matter
had already been dealt with before the meeting on 23 October, but was
raised again at the meeting.
What this points to is that the
applicant remained dissatisfied about this issue and still felt
aggrieved by il However, she denied
any suggestion that it was this
issue which had prompted her to make the accusation against Howard.
9.7
Howard, as the employer's organisation representative, was not in a
position to speak on
behalf of the respondent without a mandate. II
was not himself who decided that the respondent would not employ
someone to assist
the applicant but the sales manager of the
respondent Both Jaffer and Ms A Bouwers, currently the
respondent’s customer
services manager, had agreed
that they would not have allowed such a comment to pass if it
had been made.
[10]
The onus of proving that the remark was made rests on the applicant.
Given the general tenor of both the meetings in
May and October 2014,
the alleged remark seems completely Inconsistent with the approach
adopted by the respondent and Howard towards
the applicant's
situation and with the outcome of both meetings. Further, nothing
about the gender composition of the merchandising
and marketing staff
suggests that the respondent would have been trying to replace the
applicant with a male employee. Further.
to this day the applicant
remains In the same position she held then.
[11]
I am also disinclined to accept the applicant's attempt to suggest
that Jaffer both agreed that the remark had been made
and that
he concurred with her that she was- being discriminated against when
this was never directly put to him In .evidence.
I also note that the
version that followed had allegedly said the applicant could face
retrenchment during the meeting in May was
also not part of her
pleaded case. These factors do not reflect well on the
applicant's credibility in my view, While
the applicant did contend
that she would never have taken up this complaint if it were not
true, there was evidence
that she
remained disgruntled about the respondent's failure to
appoint someone to assist her and this might
have been a factor
prompting her to try and elevate her unhappiness with the situation
to another level.
[12]
ln the circumstances I am satisfied that on a balance of
probabilities, the applicant has failed to prove that the remark was
made and accordingly has not established a primary factual basis for
a claim of discrimination.
[13]
I accept that the parties have an ongoing relationship and that aside
from this matter the relationship appears to remain a
harmonious one.
In the circumstances reluctant to make a cost award against the
applicant and the respondent did not press this
issue in argument.
Order
[14]
The- applicant's unfair discrimination claim is dismissed.
[15]
No order ls made as to costs.
__________________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Z Parker of Parker Attorneys
RESPONDENT:
C De Kock
Instructed by C K Attorneys