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[2017] ZALCCT 64
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Shoprite Checkers (Pty) Ltd v Samka and Others (C844/15) [2017] ZALCCT 64; [2018] 9 BLLR 922 (LC); (2018) 39 ILJ 2347 (LC) (29 November 2017)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 844/15
In
the matter between:
SHOPRITE
CHECKERS (PTY)
LTD
Applicant
and
BULELWA
SAMKA
First respondent
CCMA
Second respondent
ELDRIDGE
EDWARDS
N.O.
Third respondent
Heard
:
19 October 2017
Delivered:
29 November 2017
SUMMARY:
Appeal in terms of s 10(8) of
Employment Equity Act. Alleged unfair discrimination. Employer not
liable in terms of s 60 of EEA
for conduct by customer.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an
appeal and a cross-appeal in terms of s 10(8) of the Employment
Equity Act
[1]
against an
arbitration award made in terms of s 60 of the EEA. The arbitrator
[2]
found that the appellant, Shoprite Checkers (Pty) Ltd, had unfairly
discriminated against an employee, Ms Bulelwa Samka
[3]
,
on the ground of race.
Background
facts
[2]
The
employee, Ms Samka, worked at the Fish Hoek branch of Shoprite
Checkers as a cashier. She alleged that that the controllers
and
managers at the store victimised, bullied and harassed her because of
her race. She said that the reason was that she raised
grievances
about the way the management treated black cashiers. She also
complained about an incident in which an elderly white
customer, a
Mrs Price, called her a “stupid kaffer”.
[4]
[3]
The employee referred a dispute to the CCMA in terms of s 60 of the
EEA. There were three aspects to her referral:
3.1
She submitted that the company’s practices in the workplace are
racist towards black cashiers
in general.
3.2
She was being bullied and victimised because she raised her
grievances.
3.3
The company failed to protect her from the racist utterance by the
customer and in fact condoned
the customer’s action.
The
legal framework
[4]
The arbitrator correctly located the dispute in the EEA. Section 6 of
that Act reads:
“
6. Prohibition
of unfair discrimination
(1) 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, ethnic or social origin,
colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth
or on any other arbitrary ground.”
[5]
Section 10
provides for dispute resolution – through conciliation and, if
that fails, through arbitration – for employees
who earn less
than the threshold referred to in s 6(3) of the Basic Conditions of
Employment Act
[5]
, such as Ms
Samka. And s 10(8) provides for an appeal such as this one:
“
A person affected
by an award made by a commissioner of the CCMA pursuant to a dispute
contemplated in subsection (6)(a) may appeal
to the Labour Court
against that award within 14 days of the date of the award, but the
Labour Court, on good cause shown, may
extend the period within which
that person may appeal.”
[6]
Section 11 deals with the onus in disputes where the employee alleges
discrimination, as in this case:
“
Burden of proof
(1) If unfair
discrimination is alleged on a ground listed in section 6(1), the
employer against whom the allegation is made must
prove, on a balance
of probabilities, that such discrimination-
(a) did not take place as
alleged; or
(b) is rational and not
unfair, or is otherwise justifiable.
(2) If unfair
discrimination is alleged on an arbitrary ground, the complainant
must prove, on a balance of probabilities, that-
(a) the conduct
complained of is not rational;
(b) the conduct
complained of amounts to discrimination; and
(c) the discrimination is
unfair.”
[7]
And lastly, s 60 deals with the liability of employers:
“
60.
Liability
of employers
(1) If it is alleged that
an employee, while at work, contravened a provision of this Act, or
engaged in any conduct that, if engaged
in by that employee's
employer, would constitute a contravention of a provision of this
Act, the alleged conduct must immediately
be brought to the attention
of the
employer.
(2) The employer must
consult all relevant parties and must take the necessary steps to
eliminate the alleged conduct and comply
with the provisions of this
Act.
(3) If the employer fails
to take the necessary steps referred to in subsection 2, and it is
proved that the employee has contravened
the relevant provision, the
employer must be deemed also to have contravened that provision.
(4) Despite subsection
(3), an employer is not liable for the conduct of an employee if that
employer is able to prove that it did
all that was reasonably
practicable to ensure that the employee would not act in
contravention of this Act.”
The
arbitration award
[8]
The arbitrator considered each of the employee’s three
complaints. In summary, he reached the following conclusions:
The
alleged racist practices aimed at black cashiers
[9]
A number of cashiers raised a grievance well after Ms Samka had
referred her dispute alleging unfair discrimination. A management
representative, Petersen, conducted an investigation. At the time of
the hearing it had not been concluded. None of the witnesses
subpoenaed by Samka attended the arbitration. On the evidence before
the arbitrator, he concluded that the company had taken steps
to
address the grievances. There was no evidence that any of the issues
raised related to racial discrimination.
Bullying
and victimisation
[10]
The arbitrator accepted that Ms Samka had been bullied and victimised
by Elton Arendse, Herman Byleveld (the branch manager)
and someone
identified only as Chantelle. However, there was no racial element to
it.
[11]
Instead, the identified persons were fed up with Ms Samka’s
numerous complaints and grievances, many of which they considered
to
be petty and frivolous. About 80%V of the cashiers are black, yet
no-one else experienced bullying or victimisation; and the
insults
aimed at Samka were not based on race.
The altercation with
Price
[12]
The altercation with the customer, Mrs Price, is perhaps the most
important and disturbing aspect of Ms Samka’s complaint.
[13]
It is not disputed that Price uttered the offensive words. Yet, the
arbitrator found, the company did not investigate it properly.
He
found that it did not take appropriate steps “to prevent the
misconduct from happening again”; and that it should
have
considered steps like preventing Price access to the shop in future.
[14]
The arbitrator considered the provisions of s 60 of the EEA and found
that subsections (1), (2) and (3) were applicable. He
found that the
steps taken by Roberts and Byleveld (two of the managers) were
insufficient to address the racial abuse that the
employee had
suffered. He found that it amounted to indirect discrimination on the
ground of race.
The award
[15]
Having found that the appellant had indirectly subjected Ms Samka to
unfair discrimination on the ground of race, the arbitrator
considered an award of compensation of R75 000, 00 to be an
appropriate sanction.
The
appeal
[16]
The appeal is based on strictly legal grounds. Mr
Bosch
submitted that, quite simply, section 60 of the EEA only holds the
employer liable for an action by its employee, and not by a
customer.
The
cross-appeal
[17]
Mr
Sidaki
argued that the Commissioner erred in not concluding
that there was sufficient evidence supporting the employee’s
complaint
of unfair discrimination because of bullying and
harassment.
Evaluation:
The appeal
[18]
The words
that the customer, Mrs Price, directed to the employee, Ms Samka,
constitute one of the worst racial insults imaginable
in our country.
As Kathree-Setiloane AJA remarked in
SAB
v Hansen
:
[6]
“
[O]ur courts have
taken a very firm stand on the use of racist language in the
workplace, in particular, the use of the word “kaffir”,
visiting upon such misconduct the sanction of dismissal.
[7]
More recently, the Constitutional Court in
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[8]
said
this in relation to the history, meaning and implications of the use
of the word “kaffir”:
‘
[T]he word kaffir
was meant to visit the worst kind of verbal abuse ever, on another
person. Although the term originated in Asia
in colonial and
apartheid South Africa it acquired a particularly excruciating bite
and a deliberately dehumanising or delegitimising
effect when
employed by a white person against his or her African compatriot. It
has always been calculated to and almost always
achieved its set
objective of delivering the harshest and most hurtful blow of
projecting African people as the lowest beings of
superlatively
moronic proportions.’
The Constitutional Court
went on to quote the words of Brook J in
Thembani
v Swanepoel
,
[9]
which it said captured the best rendition of the use of the word
kaffir as being “undoubtedly disparaging, hurtful and
intentionally
hateful”:
[10]
‘
The term “kaffir”
historically bandied about with impunity, is a term which today
cannot be heard without flinching
at the obvious derogatory and
abusive connotations associated with the term. It is rightly to be
classified as an inescapable racial
slur which is disparaging,
derogatory and contemptuous of the person of whom it is used or to
whom it is directed. Considered objectively,
the use can only be an
expression of racism with a clear intention to be harmful and to
promote hatred towards the person of whom
it is used or to whom it is
directed. This brings its use clearly within the ambit of section 10
of [the
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000
].’
In relation to the
seriousness of the misconduct of using the word “kaffir”
in the workplace, the Constitutional Court
quoted the words of Zondo
JP in
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and
Others
, where he said this:
‘
The attitude of
those who refer to, or call, Africans ‘kaffirs’ is an
attitude that should have no place in any workplace
in the country
and should be rejected with absolute contempt by all those in the
country – black and white – who are
committed to the
values of human dignity, equality and freedom that now form the
foundation of our society. In this regard, the
courts must play their
proper role and play it with the conviction that must flow from the
correctness of the values of human dignity,
equality and freedom that
they must promote and protect. The courts must deal with such matters
in a manner that will ‘give
expression to the legitimate
feelings of outrage’ and revulsion that reasonable members of
our society – black and
white – should have when acts of
racism are perpetuated.’ “
[19]
Those sentiments can only be endorsed by this Court. But could the
employer, Shoprite Checkers, be held liable for the racist
utterance
of its customer, Mrs Price, as opposed to an employee?
[20]
Analysing the clear language of
section 60
of the EEA, it cannot.
Section 60
envisages that, if an employee, while at work,
discriminates against another employee, the employer is liable if it
does not take
the necessary steps to eliminate the racist conduct.
[21]
In
Mokoena
v Garden Art (Pty) Ltd
[11]
the Court noted that an employer will be held liable if the following
requirements are met:
21.1 the
conduct must be by an employee of the employer;
21.2 the
conduct must constitute unfair discrimination;
21.3 the
conduct must take place while at work;
21.4 the
alleged conduct must immediately be brought to the attention of the
employer;
21.5 the
employer must be aware of the conduct;
21.6 there
must be a failure by the employer to consult all relevant parties, or
to take the necessary steps to eliminate
the conduct or otherwise to
comply with the EEA; and
21.7 the
employer must show that it took all that was reasonable practicable
to ensure that the employee would not act
in contravention of the
EEA.
[22]
It is clear
that
section 60
only applies in cases of conduct
by
an employee
of the employer. And the courts have repeatedly stipulated that.
[12]
[23]
Prof
Rochelle le Roux has also pointed this out:
[13]
“
In order to
establish vicarious liability on the part of the employer, the
plaintiff must prove that:
(a) the perpetrator
was an employee of the employer;
(b) the perpetrator
committed a delict against the plaintiff while
(c) acting
within the course and scope of his or her employment.”
[24]
In this case, deplorable as the conduct of the customer was, the
employer cannot be held liable for her conduct against its
employee
in terms of
s 60
of the EEA.
[25]
As an
aside, it should be noted that an employee in this position is not
without remedies. She could, for example, bring a delict
shall claim
against Mrs Price in the civil courts or pursue an unfair
discrimination claim in the Equality Court in terms of the
Promotion
of Equality and Prevention of Unfair Discrimination Act.
[14
]
The employer could conceivably even be held liable on the basis of
vicarious liability outside of the scope of the EEA.
[15]
[26]
In this case, though, the arbitrator was wrong to conclude that the
employer was liable in terms of
section 60
of the EEA. The appeal
succeeds.
Evaluation:
cross-appeal
[27]
The employee has lodged a cross-appeal on the basis that the employee
was subject to harassment by the employer, even though
it could not
be linked to race. Mr
Sidaki
argued that the arbitrator ought
to have found that the employer was also liable for unfair
discrimination on the ground of bullying,
harassment and
victimisation on the basis that it had been sufficiently proved by
the evidence. He did not challenge the finding
that these actions
were not based on race.
[28]
The arbitrator accepted that the employee was bullied and victimised
by three fellow employees. However, it did not occur because
of her
race. He therefore could not uphold her claim of unfair
discrimination based on race with regard to these incidents.
[29]
In order to decide whether this conclusion was correct, one must,
once again, consider the provisions of the EEA.
Section 6(1)
prohibits discrimination “on one or more grounds”,
including race, “or any other arbitrary ground”. And
s
6(3)
provides that:
“
Harassment of an
employee is a form of unfair discrimination and is prohibited on any
one, or a combination of grounds of unfair
discrimination listed in
subsection (1).”
[30]
In terms of
s 11
of the EEA, if unfair discrimination is alleged on a
listed ground, the employer must prove on a balance of probabilities
that
it did not take place; or that it is rational and not unfair, or
otherwise justifiable. If unfair discrimination is alleged on
arbitrary ground, the complainant must prove that the conduct
complained of is not rational; that it amounts to discrimination;
and
that it is unfair.
[31]
It would
appear that these provisions dealing with the burden of proof and
with harassment as a form of unfair discrimination on
any of the
grounds listed in subsection (1) have not changed the test set out in
Harksen
v Lane N.O.
[16]
:
“
Does the
differentiation amount to unfair discrimination? This requires
a two stage analysis:
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.
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.
If, at the end of this
stage of the enquiry, the differentiation is found not to be unfair,
then there will be no violation of
section 8(2)
[of the
Constitution].”
[32]
In
Aarons
v University of Stellenbosch
[17]
Waglay J held:
“
The applicant does
allege that her constructive dismissal was based on harassment.
“Harassment” is not specifically
referred to in the Act.
It is not one of the listed grounds in section 187(1)(f ) of the Act.
However, the grounds listed in section
187(1)(f) are not exhaustive.
Harassment is specifically referred to and defined in the
Employment
Equity Act 55 of 1998
(“the EEA”).
Section 6(3)
of the
EEA provides that “harassment of an employee is a form of
unfair discrimination and is prohibited on any one, or a
combination
of grounds of unfair discrimination listed in subsection (1)”.
The grounds listed in
section 6(1)
of the EEA is no different to
those listed in
section 187(1)(f)
of the Act. Harassment may indeed
be a form of unfair discrimination that is recognised under
section
187(1)(f)
of the Act. However, an employee claiming harassment must
do more than just make the bald allegation; it must clearly set out
why
the harassment amounts to unfair discrimination. The applicant
has not done so.”
[33]
Rochelle le
Roux has commented critically on the wording of the Act relating to
workplace bullying and has called for judicial reform
in this regard;
but as the law stands, it seems that the interpretation in
Aarons
remains
the correct one. That is also the interpretation preferred by the
arbitrator. Le Roux comments:
[18]
“
While workplace
bullying is undefined in statute, the consequences of harassment are
made clear. However part of the reason for
the ambiguity surrounding
workplace bullying lies in the uneasy formulation of
section 6(3)
of
the EEA, which states that:
‘
Harassment of an
employee is a form of unfair discrimination and is prohibited on
anyone, or a combination of grounds of unfair
discrimination listed
in subsection (1).’
While declaring
harassment (which is undefined) to be a form of unfair
discrimination, the subsection links the prohibition of harassment
to
any one of, or a combination of the listed grounds of unfair
discrimination in
section 6
one of the EEA. This, arguably, can be
read to mean that while all forms of harassment should be regarded as
unfair discrimination,
only those forms of harassment which can be
linked to a listed ground (for example, race, sex, sexual
orientation, age et cetera)
are prohibited by the EEA. However, the
alternative reading is one which sees harassment to be prohibited
unfair discrimination
only if it relates to the specific grounds.
This reading is consistent with the full definition of harassment in
the PEPUDA (which
explicitly limits the definition of harassment to
sex, gender, sexual orientation and race) and with the judgement in
Aarons v University of Stellenbosch
, where the Labour Court
held that an employee claiming harassment ‘must do more than
just make the bald allegation; it must
clearly set out why the
harassment amounts to unfair discrimination’.
The exclusion of
harassment on unlisted grounds has been argued to be inconsistent and
it has been suggested that
section 6(3)
should be interpreted in the
light of the general prohibition of unfair discrimination intended by
section 9(3) of the Constitution.
Certainly this more purposive
interpretation is required to bring workplace bullying within the
ambit of prohibited unfair discrimination.
However, it may be that
discrimination is not the best legal category into which workplace
bullying should be fitted. As Yamada
has noted, what bothers people
about abuse of workplace conduct is not the fact that it may be
discriminatory, but it that it is
abusive in the first place; if a
work environment is sufficiently abusive, it should not save an
employer from liability because
the abuse is dispensed without regard
to race, sex or gender or sexual orientation.”
…
“
The preceding
sections indicate the uncertainty of existing legal remedies to deal
with workplace bullying. The existing unfair
discrimination law seems
not to prohibit workplace bullying, because it is not harassment on a
listed ground.”
[34]
In this case, the employee has not shown that the harassment was on a
listed or other arbitrary ground. She has not shown any
unfair
discrimination. The cross-appeal must fail.
Conclusion
[35]
The award is not sustainable on the finding of unfair discrimination
based on race. The appeal succeeds. The appellant, Shoprite
Checkers,
did not discriminate against the first respondent, Ms Bulelwa Samka.
[36]
The cross-appeal is unsuccessful. The award cannot be faulted with
regard to the arbitrator’s findings on the other two
complaints
and his application of the legal principles to the evidence.
[37]
Although
the appellant has been successful, this is not a case where costs
should follow the result. The employee was represented
by Legal Aid
South Africa to defend the award in her favour. Although her initial
complaint was against a private employer and
not the State, she tried
to vindicate her constitutional rights against unfair discrimination.
Applying the principles in
Biowatch
,
[19]
I make no order as to costs.
Order
[38]
I therefore make the following order:
38.1 The
appeal is upheld and the cross-appeal is dismissed.
38.2 The
award of Commissioner Eldridge Edwards under case number WECT
12300-16 dated 8 November 2016 is substituted
with an award that the
appellant, Shoprite Checkers (Pty) Ltd, did not discriminate against
the employee, Ms Bulelwa Samka.
38.3 There is
no order as to costs.
_______________________
A
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPELLANT:
C S Bosch
Instructed
by
Cliffe Dekker Hofmeyr.
FIRST
RESPONDENT: T S Sidaki
Instructed
by
Legal Aid South Africa.
[1]
Act
55 of 1998 (EEA).
[2]
Commissioner
Eldridge Edwards (the third respondent), a commissioner of the
Commission for Conciliation, Mediation and Arbitration
(CCMA) (the
second respondent).
[3]
The
first respondent.
[4]
For
the sake of this judgment, and given that it forms the substance of
the employee’s complaint, it is unfortunately necessary
to
quote the offensive statement.
[5]
Act
75 of 1997 (BCEA).
[6]
South
African Breweries (Pty) Ltd v Hansen and Others
(2017) 38
ILJ
1766 (LAC);
[2017] 9 BLLR 892
(LAC) para 14.
[7]
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[2002] 6 BLLR 493
(LAC) at para 35;
City
of Cape Town v Freddie and Others
[2016] 6 BLLR 568 (LAC).
[8]
(2017) 38
ILJ
97 (CC) at para 4.
[9]
2017 (3) SA 70 (ECM).
[10]
South
African Revenue Service v CCMA
at para 5.
[11]
[2007] ZALC 90
;
[2008]
5 BLLR 428
(LC);
(2008)
29
ILJ
1196 (LC) par 40. See also
Potgieter
v National Commissioner of SAPS
[2009]
2 BLLR 144
(LC); (2009) 30
ILJ
1322 (LC) par 46.
[12]
Cf
Piliso
v Old Mutual
(2007)
28
ILJ
897 (LC) par 15;
Makau
v Department of Education, Limpopo Province
[2013] ZALCJHB 222 (20 September 2013) par 37.
[13]
Le
Roux et al,
Harassment
in the Workplace: Law, Policies and Processes
(LexisNexis
2010) at 139.
[14]
Act
4 of 2000.
[15]
See
the discussion by Darcy du Toit,
Labour
Relations Law: A Comprehensive Guide
(LexisNexis
6 ed 2015) at 714-6 and
Media
24 Ltd v Grobler
[2005]
7 BLLR 649 (SCA).
[16]
[1997] ZACC 12
;
1998
(1) SA 300
(CC) par 52.
[17]
[2003]
7 BLLR 704
(LC) par 18.
[18]
Le
Roux et al,
Harassment
in the Workplace: Law, policies and processes
4.4.1
at pp 62-63 s.v. “Anti-harassment protection” (footnotes
omitted); and 4.5 at p 65 s.v. “The need for
new legislation”.
See
also the critical discussion in Du Toit et al,
South African
Labour Law: A Comprehensive Guide
(6 ed) at 699-700 s.v.
“Harassment”.
[19]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC) ;
2009 (10) BCLR 1014
(CC)