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[2018] ZALCJHB 435
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Samancor Chrome Ltd (Eastern Chrome Mines) v NUM obo Mahlangu and Others (J817/15) [2018] ZALCJHB 435; [2019] 1 BLLR 82 (LC) (29 August 2018)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 817/15
In
the matter between:
SAMANCOR
CHROME
LTD Appellant
(EASTERN
CHROME MINES)
and
NUM
OBO KHOMOTJO
MAHLANGU First
Respondent
CCMA Second
Respondent
MAHLOMELELE
CHRISTOPHER Third
Respondent
MELLO
N.O.
Heard
:
1 August 2018
Delivered
:
29 August 2018
Summary:
Appeal – Employment Equity Act s 10(8) – alleged
discrimination on grounds of pregnancy. Employee placed on unpaid
leave
in accordance with employer’s maternity leave policy when
alternative position could not be found. Commissioner’s
findings
erroneous and relief
ultra vires
. Appeal upheld.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an appeal from the CCMA
in terms of s 10(8) of the Employment Equity Act
[1]
and Rule 9 of this Court’s rules. The arbitrator
[2]
found that the employer, Samancor
[3]
,
had unfairly discriminated against its employee, Ms Mahlangu
[4]
,
on the basis of the prohibited ground of pregnancy. He ordered
Samancor to pay her R20 000, 00 as compensation and R42 000, 00
as
damages. He also ordered Samancor to “take the necessary steps
to redraft its policy on the treatment of pregnant employees
to
prevent the same or similar unfair discrimination occurring in future
in respect of other employees”. The company appeals
against
that finding and the relief ordered.
Background
facts
[2]
The employee, Ms Mahlangu, worked for Samancor as a “utility
vehicle operator” (i.e. a heavy duty truck driver)
underground.
She fell pregnant for the second time in a period of three years. She
reported her pregnancy to her employer on 28
May 2014. In accordance
with the company’s health and safety policy it relieved her of
her hazardous responsibilities underground
with immediate effect.
[3]
The employee’s maternity leave would commence on 29 November
2014. However, the company placed on unpaid leave from 3
June 2014.
The central controversy in this dispute and appeal is what the reason
for that first period of unpaid leave was. The
company says that it
was unable to find her a suitable alternative position and therefore
placed her on unpaid leave in accordance
with it maternity policy.
The employee says that the company unfairly discriminated against her
by reason of her pregnancy.
[4]
The employee’s trade union, NUM, referred a dispute on her
behalf to the CCMA in terms of section 6 of the Employment
Equity
Act, alleging unfair discrimination on the grounds of pregnancy.
The
arbitration award
[5]
The arbitrator found that the company had unfairly discriminated
against the employee, having heard the evidence of Ms Mahlangu
and
that of the mine’s human resources superintendent, Ms Gladys
Dube.
[6]
Ms Dube referred the arbitrator to the company’s pregnancy
policy. It provides that if no suitable alternative work can
be found
for a pregnant employee working in hazard this area is, the employee
is placed on unpaid leave until she goes on maternity
leave. The
reason why the employee was not offered an alternative position is
that there was no suitable alternative post available.
Ms Mahlangu
disputed that and testified that she was told by one Lucetta Motala
in the human resources Department that the reason
for her unpaid
leave was that she fell pregnant twice in a three year cycle.
[7]
Having considered the burden of proof codified in section 11 of the
EEA, the arbitrator found:
“
There is no question that the
applicant was treated differently to other employees and the reason
for the different treatment was
her pregnancy. The applicant has thus
succeeded in linking the alleged discriminatory conduct of the
respondent with one of the
prohibited grounds listed in section 6(1)
of the Act. The onus of proof is therefore the respondent in terms of
section 11(1) supra,
to prove that unfair discrimination complained
of did not take place as alleged; or is rational and not unfair, or
is otherwise
justifiable.”
[8]
The arbitrator noted that Ms Mahlangu was the only person who was not
offered alternative work before the commencement of her
maternity
leave and was put on unpaid leave before the commencement of her
maternity leave. He found that the reason for her “forced
unpaid leave” prior to her official maternity leave was that
she fell pregnant twice within a three-year cycle. The reason
for
this conclusion is that it was recorded on a document headed
“pregnant employees details”.
[9]
The arbitrator also took into account that another employee, Ms Elsie
Mmanoge, reported her pregnancy a few days after Ms Mahlangu
did, yet
she was given alternative work to clean offices.
[10]
The arbitrator concluded:
“
There is no doubt that the
applicant was subjected to unfair treatment by being put on unpaid
leave simply because she fell pregnant
twice in three years. She was
the only person who fell pregnant twice in three years; that is why
she was the only person subjected
to this type of treatment out of a
total of 18 pregnant employees. She was clearly unfairly
discriminated against on the basis
of her pregnancy.
The employer failed to show that the
different treatment on a listed ground was rational and not unfair,
or otherwise justifiable.
I accordingly find that the applicant was
unfairly discriminated against on the listed ground of pregnancy.”
[11]
Although he did not form part of the complaint before him, the
arbitrator further found that the company’s policy on
pregnant
employees, which allows for unpaid leave where no suitable
non-hazardous position can be found, “is problematic”.
He
ordered the company to redraft it pregnancy policy “to ensure
that it removes any provisions that may lead to any unfair
discrimination.
[12]
Turning to the appropriate remedy for the employee, he ordered the
company to pay her compensation of R20 000, 00 for the impairment
of
her dignity and self-esteem. He also ordered the company to pay her
damages equivalent to 5 months’ remuneration.
Appeal
grounds
[13]
Ms
Mthalane
argued that the appeal revolves around one central
factual controversy: What was the reason for which the company placed
Ms Mahlangu
on unpaid leave from 4 June to 28 November 2014, i.e.
before her maternity leave started on 29 November 2014?
[14]
The further ground of appeal is that it was not competent for the
Commissioner to make the order directing the company to redraft
its
pregnancy policy.
Evaluation
/ Analysis
[15]
The question to be decided, differently put, is: was the company’s
conduct justifiable in terms of s 11(1)(b) of the
EEA?
[16]
Before setting out the legal
framework, it is important to understand the concepts of “unpaid
leave” and “maternity
leave” in the context of
Samancor’s maternity leave policy. The “pregnancy in
workplace procedures” state
as its objective: “to address
the needs and protect both pregnant and lactating (breastfeeding)
employees at Eastern Chrome
Mine. It goes on to note that section
26(1) of the Basic Conditions of Employment Act
[5]
prohibits an employer from requiring or permitting a pregnant
employee or an employee who is breastfeeding to perform work that
is
hazardous to the health of the employee or the health of her child or
foetus. Where reasonably practicable, the company may
offer suitable
alternative employment to an employee who is engaged in hazardous
work during pregnancy. If there is no suitable
alternative work, the
employee will be sent on unpaid leave.
[17]
Employees in the bargaining unit are granted four months’ paid
maternity leave. The policy goes on to state:
“
The maternity leave will only
be applicable once during a three-year cycle. Should a female take
maternity leave twice during a
three-year cycle, the second
occurrence would be as per the BCEA stipulations, i.e. four months
unpaid.”
[18]
The policy therefore makes a distinction between paid maternity
leave; unpaid maternity leave; and unpaid leave granted as
a result
of the company not being able to find suitable alternative placement
for a pregnant employee who otherwise works in hazardous
conditions.
[19]
In this case, the company says it placed Ms Mahlangu on unpaid leave
before her maternity leave commenced because it could
not find any
suitable placement for her. And her (subsequent) maternity leave was
unpaid because it was her second pregnancy in
three years. Ms
Mahlangu says the reason for her (initial) unpaid leave was because
it was her second pregnancy in three years,
and that that reason is
discriminatory.
The
central factual controversy
[20]
The central factual controversy, then, is whether the reason for Ms
Mahlangu’s unpaid leave from 4 June to 28 November
2014 (i.e.
before the commencement of her maternity leave on 29 November 2014)
was because the company could not find an alternative
position in
which to accommodate her (the company’s position); or whether
it was because she fell pregnant for a second time
in a three-year
cycle (the employee’s allegation).
[21]
On an undated spreadsheet headed “pregnant employees details”,
Ms Mahlangu’s name appears together with those
of 20 other
employees. It is recorded that she reported her pregnancy on 28 May
2014 and had been granted maternity leave from
November 2014 to
February 2015. Under the heading, “suggested alternative work
areas”, the following appears:
“
To be sent on unpaid leave –
second occurrence in a three-year cycle – employee refuses to
sign the unpaid leave form
still sitting at union offices.”
[22]
When questioned by the Commissioner, Ms Dube stated that the reason
why the employee went on unpaid leave from four June to
20 no
November was because “there was no alternative work where she
could be accommodated”. She further testified that
she had
consulted extensively with two shop stewards, in the presence of Ms
Mahlangu, regarding her investigations to identify
an alternative
position. No such positions could be found. Regarding the fact that
the other employee, Ms Mmanoge, had been accommodated,
she surmised
that at the time when Ms Mmanoge’s accommodation was
investigated a vacancy had arisen which did not exist when
Ms
Mahlangu’s accommodation was investigated.
[23]
With regard to the spreadsheet recording the details of pregnant
employees, Ms Du be explained that the unpaid leave being
referred to
on the spreadsheet was the unpaid maternity leave that Ms Mahlangu
was to go on from 29 November 2014, and not the
period of unpaid
leave before then. This was consistent with the provision in the
pregnancy policy to the effect that, where an
employee takes
maternity leave twice in a three-year cycle, the “second
occurrence” is treated as being unpaid maternity
leave in
accordance with the BCEA.
[24]
Ms Mahlangu, on the other hand, alleged that Ms Motala had told that
the reason she was being sent on unpaid leave was that
it was a
second pregnancy in a three-year cycle.
[25]
Ms
Mthalane
pointed out in argument
that this version (regarding Ms Motala) had not been put to Ms Dube
before the company had closed its case.
It only makes for the first
time during Ms Mahlangu’s evidence in chief. In those
circumstances, Ms Mahlangu’s evidence
on this point felt to be
disregarded by the Commissioner.
[6]
[26]
As Ms
Mthalane
pointed out, there are also aspects of Ms
Mahlangu’s evidence which are consistent with Ms Dube’s
evidence that frigates
attempts were made to secure an alternative
position. This includes the following testimony by Ms Mahlangu:
26.1 Mr Brits, an HR manager, told her
that there was no alternative position in which she could be
accommodated.
26.2 The same information was conveyed
to the shop stewards, Messrs Tsoaledi and Ratang.
26.3 Ms Dube had a meeting with NUM
regarding investigating the availability of an alternative position.
26.4 She was aware that the company
was seeking an alternative position and the shop stewards told her
so.
[27]
I agree with Ms
Mthalane
that, on the evidence before the
arbitrator, the balance of probabilities weighed in favour of the
company’s case to the effect
that Ms Mahlangu was placed on
unpaid leave (before the commencement of her maternity leave) because
an alternative position could
not be identified for her, and not
because of her second pregnancy in a three-year cycle.
[28]
The arbitrator erred in relation to a number of findings:
28.1 He found that Samancor had
treated Ms Mahlangu differently to other employees because of her
pregnancy and that it put her
on unpaid leave because she had fallen
pregnant twice in a three-year cycle. But the evidence shows on a
balance of probabilities
that the reason for her unpaid leave (prior
to her maternity leave) was that the employer could not find another
suitable, non-hazardous
position in which to accommodate her.
28.2 The arbitrator rejected Ms Dube’s
evidence about the recordal on the spreadsheet. He ignored her
reasonable explanation
for the reference to the second pregnancy.
28.3 He accepted the version that Ms
Motala had told the employee that the reason for her unpaid leave was
her second pregnancy,
ignoring the fact that this version was never
put to the company’s witness.
28.4 He found that Ms Dube could not
explain why the other pregnant employee, Ms Mmanoge, was placed in an
alternative position.
But Ms Dube explained that the company looked
for and found a position for Ms Mmanoge after they had been unable to
do the same
for Ms Mahlangu. This may not have been the best way to
go about it, but it was a cogent explanation.
28.5
The arbitrator found
mero
motu
that Samancor’s
pregnancy policy is “problematic” and could lead to
discrimination on the grounds of pregnancy.
The union and the
employee never complained about the policy itself. This was not part
of the dispute before the arbitrator. He
impermissibly decided on an
unarticulated complaint.
[7]
28.6 He found, without any evidence,
that the company had told Ms Mahlangu how many times and when she
should fall pregnant.
28.7 He found that the employee “might
have suffered” humiliation “having to explain to her
family and probably
the community that the reason for her forced
unpaid leave was that she fell pregnant twice within a three year
period”. The
employee led no such evidence.
[29]
For all these reasons, the appeal must succeed.
[30]
Furthermore, the employee showed no differentiation between her and
other, non-pregnant, employees. The reason why she was
placed on
unpaid leave was in accordance with the pregnancy policy and the
BCEA. The only difference she could point to was in
the treatment of
Ms Mmanoge, who was placed in an alternative position. And the reason
for that treatment was explained by Ms Dube.
The employer had
discharged the onus in s 11(1) of the EEA:
“
(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.”
[31]
Ms
Mthalane
referred in this regard to
the recent judgment of this Court in
Jonase.
[8]
In that case, in
circumstances not dissimilar to this one, the Court held:
“
In this case, the employees
complained that they were treated differently from other pregnant
employees. Yet the commissioner simply
found that the company had
discriminated against them because they were pregnant. The complaint,
contrary to what the commissioner
found, was negated by their
comparator being other pregnant women. The treatment of some pregnant
women compared to other pregnant
women simply cannot constitute
discrimination based on pregnancy. They were not treated differently
because they were pregnant;
they were treated differently from some
other pregnant employees who were given alternative employment
because they did not have
the requisite skills.”
[32]
For that reason too, the appeal must succeed.
The
order to redraft the pregnancy policy
[33]
The other reason why the appeal must succeed is that the Commissioner
acted beyond his powers when deciding on the remedy.
He ordered the
company to redraft its pregnancy policy in circumstances where that
was never part of the relief sought by the union
or its member. The
policy was, quite simply, never under attack.
[34]
This, too, is remarkably
similar to
Jonase
’s
case, where the Court held:
[9]
“
As set out above, the
complainants never complained about the fairness of the policy on
pregnant employees itself; yet the commissioner
mero motu ordered
Impala Platinum to amend it.
It was not within the commissioner’s
powers to strike down the policy. It was not part of the complaint
before her.
As Murphy J pointed out only last week
in
South African Reserve
Bank v Public Protector
[10]
in the context of a review application, a functionary may not impose
a remedy that goes beyond the original complaint before her.
The same
goes for this appeal: The commissioner was not empowered to impose
the remedy that she did. The fairness of the policy
was not part of
the complaint before her. And Impala Platinum was not called upon to
defend the fairness of the policy as applied
to all pregnant
employees. The appeal must succeed on that ground as well.”
[35]
The same holds true for the case before me.
Conclusion
[36]
For all these reasons, the
appeal must be upheld. With regard to costs, I take into account that
Ms Mahlangu is still employed on
the mine and that there is an
ongoing relationship between the parties. In law and fairness
[11]
,
I do not consider a costs award to be warranted.
Order
[37]
I therefore make the following order:
37.1 The appeal is upheld, with no
order as to costs.
37.2 The arbitrator’s award is
replaced with the following:
“
The complaint of unfair
discrimination is dismissed.”
____________________
Steenkamp
J
APPEARANCES
APPLICANT:
Ms Gugu Mthalane of Solomon Holmes attorneys (Heads of argument
drafted by Anton Myburgh SC and Riaz Itkin).
FIRST
RESPONDENT: Mr E S Makinta (Heads of argument drafted by P L Mokoena
SC and M Z Makoti)
[1]
Act 55 of 1998 (EEA).
[2]
Mohlemelele Christopher Mello, the third respondent.
[3]
The appellant.
[4]
The first respondent, represented by her trade union, the National
Union of Mineworkers (NUM).
[5]
Act 75 of 1997 (BCEA).
[6]
Referring to Small v Smith
1954 (3) SA 434
(SWA) at 438 E-G: “It
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so
much of his own case or defence as
concerns that witness and if need be to inform him, if he has not
been given notice thereof,
that other witnesses will contradict him,
so is to give him fair warning and an opportunity of explaining the
contradiction and
defending his own character. It is grossly unfair
and improper to let a witness’s evidence go unchallenged in
cross-examination
and afterwards argue that he must be disbelieved."
This principle was applied by the LAC in the context of arbitration
proceedings
in ABSA Brokers (Pty) Ltd v Moshoana NO
[2005] 10 BLLR
939
(LAC) pa [39].
[7]
Cf Rustenburg Platinum Mine v SAEWA obo Bester and Others (2018) 39
ILJ 1503 (CC);
2018 (8) BCLR 951
(CC);
[2018] 8 BLLR 735
(CC) par
[46].
[8]
Impala Platinum Ltd v Jonase & ors (Unreported, J 689/15, 24
August 2017) par [15].
[9]
Jonase (supra) par [26] – [28].
[10]
[2017] ZAGPPHC 443 (15 August 2017) paras 39-42.
[11]
Cf Zungu v Premier of the Province of KwaZulu-Natal and Others
(2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC);
2018 (6) BCLR 686
(CC).