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[2018] ZALCCT 7
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Simmadari v Absa Bank Limited (C124/17, C728/16) [2018] ZALCCT 7; [2018] 7 BLLR 710 (LC); (2018) 39 ILJ 1819 (LC) (6 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
Case
No: C124/17 and C728/16
Reportable
In
the matter between:
SHIRLEY
SIMMADARI
Applicant
and
ABSA
BANK
LIMITED
Respondent
Heard:
5 March 2018
Delivered:
6 March 2018
Summary
:
Point
in limine
: dual claims under Employment Equity Act s
10(1) and Labour Relations Act s 187(1)(f) – whether
permissible. Exception: Claims
of unfair discrimination and unfair
dismissal based on race not disclosing a cause of action.
JUDGMENT
STEENKAMP
J:
INTRODUCTION
[1]
The
applicant, Ms Shirley Simmadari, has referred two claims to this
Court: One claiming unfair discrimination
[1]
in terms of ss 6, 10 and 50 of the Employment Equity Act
[2]
;
and one claiming automatically unfair dismissal
[3]
in terms of s 187(1)(f) of the Labour Relations Act.
[4]
The two claims were consolidated on 31 January 2018.
[2]
The matter was set down
for trial commencing on Monday 5 March 2018. It was set down for five
days, being the time requested by
the parties in their pre-trial
meeting conducted on 26 October 2017; but a week before the trial Mr
Chamisa
,
for the applicant, filed a practice note indicating that he wished to
call 20 witnesses, many of whom had been subpoenaed. It
became clear
that the trial would not be finalised in the allocated time.
[3]
In the EEA claim, the
respondent (ABSA) raised a point
in
limine
relating to
jurisdiction. It argued that the applicant sought unfair dismissal
relief and not relief for alleged unfair discrimination;
that the EEA
claim and the LRA claim arose from the same facts and comprised the
same dispute; and that the Court did not have
jurisdiction to hear
the EEA claim. At the pre-trial meeting the parties agreed that the
point
in limine
should be decided after the Court had heard the evidence; but Mr
Sibanda
,
for ABSA, sought to persuade the Court otherwise at the commencement
of the trial, as will appear below.
[4]
ABSA had also raised an
exception to the applicant’s original statement of claim in the
LRA claim. She amended her statement
of claim. But, as will appear
below, Mr
Sibanda
argued that the
amended statement of claim remained excipiable.
POINT
IN LIMINE
AND EXCEPTION
[5]
Shortly before the
commencement of the trial – in fact, on the Saturday before the
Monday on which the trial was to start
– ABSA’s attorneys
delivered heads of argument pertaining to the exception in the LRA
claim (also pertaining to the
EEA claim) and the point
in
limine
in the EEA
claim. He argued that, despite the agreement in the pre-trial minute,
the Court should hear both before the leading
of evidence as, if
successful, it would dispose of the issues and of the costs that will
be incurred in what would be a lengthy
trial, given the applicant’s
insistence to call some twenty witnesses. Mr
Chimasa
did not deliver any heads of argument but addressed the Court orally.
[6]
As Mr
Sibanda
pointed out, at the commencement of a trial, the Court has the
discretion,
mero
motu
, to decide
matters that can separately be resolved. This discretion arises
from Uniform Rule 33(4) of the High Court which
is applicable to this
Court where the rules of this Court are silent, and given this
Court’s overall discretion in terms
of rule 11. Rule 33(4) of
the High Court rules states:
“
(4)
If, in any pending action, it appears to the court mero
motu that there is a question of law or fact which may
conveniently
be decided either before any evidence is led or
separately from any other question, the court may make an order
directing the disposal
of such question in such manner as it may deem
fit and may order that all further proceedings be stayed until such
question has
been disposed of, and the court shall on the application
of any party make such order unless it appears that the questions
cannot
conveniently be decided separately.”
[5]
[7]
This
principle is vital to eliminating avoidable delays and costs.
[6]
This is consonant with the objectives of expedient resolution of
disputes under the Labour Relations Act, 66 of 1995 (“LRA”).
Mr
Sibanda
invited
the Court to exercise this discretion, as both claims, he argued, are
fatally defective.
[8]
I decided to exercise
my discretion to hear the preliminary points, albeit at the
insistence of the respondent and not
mero
motu
, as it would,
if successful, eliminate a lengthy trial and significant legal costs
for both sides. I also took into account that
the applicant’s
counsel had been forewarned and had indeed been furnished with a copy
of Mr Sibanda’s heads of argument
two days before, apart from
the point raised in the response to the EEA claim.
THE
POINT
IN LIMINE
AGAINST
THE EEA CLAIM
[5]
ABSA raised this
jurisdictional point
in
limine
in its
response, based upon s10(1) of the EEA. It is premised upon an
argument that s10(1) of the EEA excludes disputes about automatically
unfair dismissals from adjudication under the EEA.
[6]
Section 10(1) of the
EEA states:
“
(1) In
this section, the word “dispute” excludes a
dispute about an unfair dismissal, which must
be referred to the
appropriate body for conciliation and arbitration or adjudication in
terms of Chapter VIII of the
Labour Relations Act.”
[7
]
[7]
Mr
Sibanda
argued that
section 10(1)
of the EEA only has meaning if
automatically unfair dismissal disputes are excluded from
adjudication under the EEA. He did so
by addressing —
7.1
the literal and
purposive interpretation of
s10(1)
;
1.2
5cm; margin-bottom: 0cm; line-height: 200%">
7.2
the presumptions of
interpretation that support this contention; and
7.3
the disparity –
in his view -- in the authorities.
(i
)
The literal and purposive interpretation
[8]
Section 10
is located
within Chapter II of the EEA, which prohibits unfair discrimination.
It applies only to disputes in “this
section”. The
section goes on to establish procedures under “this chapter”,
being Chapter II.
[9]
Section
6(1)
is the substantive provision of Chapter II. It proscribes unfair
discrimination on,
inter
alia
,
grounds of race.
[8]
Section 6(2)
excludes affirmative action measures from its ambit.
Conversely,
s6(4)
includes claims for equal pay within the ambit of
discrimination.
[10]
Section 10(1)
expressly
excludes disputes about “unfair dismissal”. I agree
with Mr
Sibanda
that
the only species of unfair dismissal to which the LRA could have
referred in relation to
s6(1)
, is automatically unfair dismissal.
An automatically unfair dismissal includes a dismissal where the
reason is:
“…
that
the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but
not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
political
opinion, culture, language, marital status or family
responsibility…”
[9]
[11]
Section
10(1)
cannot be read to refer to what he called a “plain
vanilla” unfair dismissal.
[10]
This
is so because the moment a “vanilla” unfair dismissal is
for the reasons espoused in
s6(1)
of the EEA, it becomes an
automatically unfair dismissal. The notion of a “vanilla”
unfair dismissal for reasons
espoused in
s6(1)
of the EEA is absurd.
Thus, when
s10(1)
refers to an “unfair dismissal,” it can
only mean an automatically unfair dismissal.
[12]
The effect of
s10(1)
is, therefore, to consign disputes about automatically unfair
dismissal to be dealt with under Chapter VIII of the LRA.
[13]
Given its peremptory
language,
disputes
about automatically unfair dismissal “must” be
adjudicated under the aegis of the LRA. They cannot be
determined under the EEA.
[14]
I
agree that this reading is the only way to preserve the meaning of
s10(1)
of the EEA. The legislature’s clear purpose was to
remove disputes about automatically unfair dismissal from the ambit
of
s10(1)
of the EEA. Moreover,
this
contextual and purposive reading harmonises
s10(1)
of the EEA with
Chapter VIII of the LRA.
[11]
[15]
But does that mean that
an employee cannot refer to separate claims – one under the EEA
and one under the LRA – and
that this Court is precluded from
adjudicating both claims? I think not, despite the further argument
raised by Mr
Sibanda
on the basis of
interpretive presumptions.
(ii)
Interpretive Presumptions
[16]
Mr
Sibanda
further relied upon
two presumptions of statutory interpretation.
[17]
The
first is the presumption against legislation removing rights. This
presumption was captured as follows in
Wolfaardt
:
[12]
“
In
considering whether the 1995 Act should be construed to that effect
it must be borne in mind that it is presumed that the legislature
did
not intend to interfere with existing law and a fortiori, not
to deprive parties of existing remedies for wrongs
done to them. A
statute will be construed as doing so only if that appears expressly
or by necessary implication”.
17.1
Section 10(1) of the
EEA expressly, and in peremptory terms, abrogates the right to refer
dismissal disputes under s6(1).
And
in order to give s10(1) any meaning, argued Mr
Sibanda,
it must expressly, or by necessary implication, deprive a party of a
cause of action under s6(1) when the nub of the dispute is
an
automatically unfair dismissal. I do not agree. What it does, is to
deprive an employee of the right to refer an
unfair
dismissal dispute under the EEA
;
but it does not necessarily prevent the employee from referring a
separate dispute in terms of s 187(1)(f) of the LRA. And indeed,
the
latter view seems to be supported by the weight of authority, as I
will show below.
[18]
The second argument
raised by Mr
Sibanda
is that when the Legislature envisages a specific remedy for
proscribed conduct, a party cannot seek refuge in a general remedy.
18.1
Support
for this principle can be found in
Madrassa,
[13]
which formulated it as follows:
“
T
o my
mind it is more in keeping with principle and authority to state the
canon of construction in the following terms. If
it be clear from the
language of a Statute that the Legislature, in creating an
obligation, has confined the party complaining
of its
non-performance, or suffering from its breach, to a particular
remedy, such party is restricted thereto and has no further
legal
remedy; otherwise the remedy provided by the Statute will be
cumulative.”
18.2
The similarities
between s6(1) of the EEA and s187(1)(f) of the LRA are immediately
apparent:
18.2.1
Both
sections animate the constitutional right to equality.
[14]
In
this regard, there is an important distinction to be drawn between
unfair and automatically unfair dismissals. An automatically
unfair dismissal vindicates the right to equality and the right to
fair labour practices. An unfair dismissal vindicates
only the
latter.
18.2.2
Both sections deal with
similar themes, reflecting the language of the Constitution in their
listed and analogous grounds.
18.2.3
Both
sections create special remedies for unfair discrimination. The
legislative provisions providing remedies for the breach
of the
right, grant similar remedies, including (i) compensation and (ii)
conferring a wide discretion upon the Court, to order
a just and
equitable remedy.
[15]
The
only difference is that the EEA also provides for “damages”.
[16]
18.3
Despite these
similarities, they are fundamentally different. The mischief targeted
by s187(1)(f) of the LRA is dismissal for discriminatory
reasons.
18.4
The specific remedy
which Parliament crafted for this mischief is fully and specifically
expressed in Chapter VIII of the LRA.
Section 6(1) of the EEA
provides a general remedy for unfair discrimination.
18.5
But this does not, in
my view, preclude an employee from pursuing both claims. Conceivably,
in a trial involving the same facts,
an employee could be
unsuccessful in proving that her dismissal was based on race and
therefore automatically unfair in terms of
s 187(1)(f) of the LRA;
but she could succeed in showing that, while employed, she was
subject to harassment and discrimination
based on race, and thus
succeed in an EEA claim.
18.6
I
can see no reason why those two claims cannot be consolidated, as in
this case. By analogy, in the recent Constitutional Court
case of
CMI
[17]
the applicants had referred two disputes arising from the same facts
to the CCMA – one in respect of an alleged unfair labour
practice and one in respect of alleged unfair discrimination in terms
of the EEA. During conciliation, it became apparent that
the primary
issue was one of constructive dismissal. They referred a dispute to
the Labour Court in terms of s 187(1)(f) of the
LRA. The
Constitutional Court accepted that it was a valid referral and
cautioned against an “overly formalistic approach”.
(iii)
Judicial Interpretation
[19]
Mr
Sibanda
further argued that there has been “disharmony” in the
Courts’ interpretation of s10(1) of the EEA. But on a
closer
reading of the two LAC judgments that he referred to – and the
reported judgments of this Court – I think that
the perceived
“disharmony” is more apparent than real.
[20]
In
Ditsamai
,
[18]
the employee referred a dispute about a substantively unfair
dismissal to the CCMA. He was granted relief under the LRA.
From the same facts, Mr Ditsamai subsequently referred a dispute to
the Labour Court about unfair discrimination, under s6(1) of
the
EEA. The employer complained that the EEA dispute was
res
judicata
.
In deciding the matter, the LAC said:
“
[17] When
the relevant facts are set out thus, it is clear that the second case
brought by respondent was predicated on an allegation
of unfair
discrimination as set in s 6 of the EEA. This dispute requires a
completely different determination to that which confronted
the
arbitrator, which turned on the fairness of an early termination of
the contract. In the case based on the EEA, the court
was
required to make a determination as to whether there had been unfair
discrimination in the refusal to appoint the respondent
to a
permanent position and the concomitant preferences given to other
applicants who were of a different racial group.”
[21]
Mr
Sibanda
did not take issue with this judgment. Neither do I. The LAC
recognised that an employee is entitled to refer an unfair dismissal
dispute to the CCMA. Conceivably, from the same facts, a cause
of action can arise from s6(1) of the EEA. But Mr
Sibanda
urged me to distinguish that from a dispute such as this one, where
the employee has referred an automatically unfair dispute in
terms of
s 187(1)(f) as well as a discrimination claim under the EEA to this
court. But I am not persuaded that it precludes this
court from
hearing both claims, as indeed the LAC found in the next case that he
referred to (albeit without referring in terms
to s 10(1) of the
EEA).
[22]
In
Hibbert
,
[19]
the LAC dealt in some detail with duality of claims under the EEA and
the LRA. Specifically, it dealt with automatically
unfair
dismissal and unfair discrimination. It held that there is no bar to
claiming compensation for both an automatically unfair
dismissal and
discrimination.
[20]
[23]
Mr
Sibanda
argued that
Hibbert
is distinguishable for two reasons:
23.1
First
,
the LAC did not deal with the impact of s10(1) on its enquiry. In
holding that there is no bar to dual claims of this nature,
there was
no analysis of s10(1) of the EEA.
23.2
Second
,
and in any event, Ms Simmadari does not seek damages; she only seeks
compensation.
[21]
In this regard,
Hibbert
discouraged
dual compensation claims.
[22]
[24]
I
disagree. Although the LAC did not interpret s 10(1) of the LRA in
terms, it held in very clear terms, having held that the employee’s
dismissal was automatically unfair in terms of s 187(1)(f) of the
LRA:
[23]
“
The next
issue is whether the Respondent’s dismissal was
also
an act of
unfair discrimination as
contemplated by s6 of the EEA
and if
so, is the Respondent (i) entitled to claim under
both
the LRA and EEA and do so
in a single
action
; and, (ii) entitled to separate
remedies under both Acts for what is effectively a single wrongful
act by the employer.
There is also no bar for an employee
to claim “compensation” for an automatically unfair
dismissal based on being discriminated
against under the LRA
and
to claim “compensation” for being unfairly discriminated
under the EEA, and to do so in a single action. All evidence
led in
support of each of the claims will be the same. In the circumstances,
not only is it expedient to institute one action but
a party who
institutes two separate claims could, if it seeks to lead same
evidence in two separate actions, face a costs order
for not
combining the two claims in a single action.”
[25]
That is, essentially,
what has been done in this case. The two claims have been
consolidated, thus combining it in a single action
and preventing
unnecessary and costly duplication.
[26]
The
same approach has been followed in a number of decisions in this
Court, as summarised by the learned authors in
Labour
Relations Law: A comprehensive Guide
[24]
:
“
If the
alleged unfair discrimination took the form of dismissal, it should
be dealt with as a dispute concerning automatically unfair
dismissal
in terms of s 187(1)(f) of the LRA and referred as such to the
appropriate Council or to the CCMA in accordance with
Chapter VIII of
the LRA [s 10(1)]. It may, however, also give rise to a separate
claim based on unfair discrimination, which will
be treated as a
separate cause of action. In this event any damages claimed in terms
of the EEA, over and above compensation in
terms of the LRA, must be
proved.”
[27]
In
this case, the applicant did not claim damages. But that does not bar
her claim for compensation under both the EEA and the LRA.
This Court
retains jurisdiction to hear both; whether it will award compensation
on both claims, should both succeed, is a different
question. In
Hibbert
[25]
the LAC expressed a strong view against “double dipping”:
“
Where there
is a single action with claims under the LRA and the EEA based on the
employee being discriminated against and the court
is satisfied that
there has been an automatically unfair dismissal and that the
employer’s action also constitutes a violation
of the EEA, it
must determine what is a just and equitable amount that the employer
should be ordered to pay as compensation. In
arriving at this
determination, the court should not consider separate compensation
under the LRA and the EEA but what is just
and equitable for the
indignity the employee has suffered. In doing this, it may take
various factors into account inter alia,
as set out in Tshishonga,
additionally, including but not limited to the position held by the
employee within the employer’s
establishment, the remuneration
he earned, how reprehensible and offensive was the employer’s
conduct, how if at all did
it affect the employee and what motivated
the wrongful conduct by the employer to act as it did etc. If
the claim is under
the LRA only, the court must, if the amount
determined by the court to be just and equitable exceeds the
threshold set in s194(3)
of the LRA, reduce the amount of
compensation to bring it within the limitation provided in s194(3).
The amount will not have to
be reduced though if, like in this
matter, the claim is brought under both the LRA and the EEA because
there is no limit prescribed
to the amount of compensation that can
be awarded under the EEA. The importance of this is that the
employee’s right to claim
under both the EEA and the LRA is
recognised and given effect to while at the same time the employer is
not being penalised twice
for the same wrong as a single
determination is made as to what is just and equitable compensation
for the single wrongful conduct.”
[28]
Mr
Sibanda
submitted
that the correct approach has been followed in the unreported case of
Boeyens
,
[26]
where Everett AJ held:
“
This makes
it clear that discrimination disputes must be distinguished from
dismissal disputes and the two types of disputes have
different
dispute resolution procedures.
Automatically unfair dismissal
disputes must be conciliated by the CCMA or a bargaining council with
jurisdiction and may then be
adjudicated by the Labour Court, unless
the applicant earns less than the threshold and elects CCMA
arbitration. In this case,
no automatically unfair dismissal dispute
was referred to the CCMA or the MEIBC, nor conciliated by the CCMA or
the MEIBC. The
only dismissal dispute that was referred and
conciliated was the dispute about unfair dismissal for misconduct
which was correctly
referred to the bargaining council.”
[29]
But
that very passage distinguishes the cited case from
Hibbert
and
the other cases cited above. In
Boeyens
,
the applicant had not referred an unfair dismissal dispute and no
such dispute had been conciliated, thus depriving the Labour
Court of
jurisdiction.
[27]
In the case before me, there is no dispute that there was an attempt
at conciliation – albeit unsuccessfully -- in both disputes
before the applicant referred them to this Court and before they were
consolidated.
[30]
For all these reasons,
the first point
in
limine
is
dismissed.
THE
EXCEPTION TO BOTH CLAIMS
[31]
But that is not the end
of the matter. ABSA argues further that, in any event, Ms Simmadari’s
statement of claim (in both
referrals) does not disclose a
valid cause of action.
[32]
In
its statement of claim, a party is required to set out (i) the
material facts in chronological order; and (ii) the legal issues
arising from those material facts.
[28]
[33]
The
Labour Court Rules do not expressly deal with exceptions. It is
accepted that the Labour Court will deal with exception based
on rule
11 of its rules read with Uniform Rule 23.
[29]
[34]
The
test on exception is “…
whether
on all possible readings of the facts no cause of action may be made
out. It is for the excipient to satisfy the court that
the conclusion
of law for which the plaintiff contends cannot be supported on every
interpretation that can be put upon the facts.
”
[30]
[35]
The
object of pleading is to define the issues so as to enable the other
side to know what case it must meet. This only requires
the
applicant to set out the architecture of its claims. She does this by
pleading the
facta
probanda
and not the
facta
probantia
.
The Rules contemplate that this matrix is completed during pre-trial
procedures and evidence.
In
Harmse
,
[31]
Waglay
J set out the following test for exceptions:
“
When an
exception is raised against a statement of claim, this court must
consider, having regard to what I have said above, whether
the matter
presents a question to be decided which, at this stage, will dispose
of the case in whole or in part. If not, then this
court must
consider whether there is any embarrassment that is real and that
cannot be met by making amendments or providing of
particulars at the
pretrial conference stage.”
[36]
Ms Simmadari has
already had one opportunity to amend her statement of claim (in the
LRA dispute) as, on the statement of claim
as it stood, it did not
disclose a valid cause of action. Has this been rectified in
the amended statement of claim? And
does the EEA claim disclose a
valid clause of action? I shall deal with each in turn.
(i
)
The EEA cause of action
[37]
The
unfair discrimination enquiry involves three stages. The
Constitutional Court described it as follows in
Mbana
:
[32]
37.1
The first step is to
establish whether there is differentiation.
37.2
The second step is to
establish whether that differentiation amounts to discrimination.
37.3
Finally, the Court must
establish whether that discrimination is unfair.
[38]
When
differentiation is based on a listed ground, it is presumed to be
unfair unless the employer proves (i) that it did not take
place; or
(ii) it is rational, not unfair and justifiable.
[33]
[39]
The
employer’s onus is only triggered when the employee brings
herself within the provisions of s6(1) of the EEA. That is,
she must
allege and prove that she is a victim of discrimination.
[34]
[40]
In
Nombakuse
[35]
this Court summarised the position thus:
“
[27]
The burden of proof in claims of this nature is codified in s 11 of
the EEA:
“
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.”
[28]
Is it enough for the applicant merely to allege discrimination, i.e.
has the onus
shifted to the respondent to prove that the alleged
discrimination is fair? If so, it cannot succeed in its application
for absolution
for the instance; because, in that case, the court can
only make a finding once the respondent has discharged the onus.
[29]
Our courts have consistently held that, in order for the applicant to
shift the burden
of proof to the defendant to prove that the alleged
discrimination was fair, the applicant must at least establish that
there was
discrimination on a listed (or analogous) ground.
[30]
The legal position was perhaps best explained by Murphy AJ in
IMATU
& another v City of Cape Town
[36]
:
“
Moreover,
section 11 of the EEA provides that whenever unfair discrimination is
alleged, the employer against whom the allegation
is made must
establish that it is fair. This in effect creates a rebuttable
presumption that once discrimination is shown to exist
by the
applicant it is assumed to be unfair and the employer must justify it
(
Jooste v Score Supermarket Trading
(Pty) Ltd (Minister of Labour Intervening)
1999 (2) SA 1
(CC) and
Hoffmann v South
African Airways
2000 (2) SA 628
(W)).
Once discrimination has been established, the employer will have to
prove that the discrimination was fair or have to justify
the
discrimination as justifiable under section 6(2)(b)...
The approach to unfair discrimination
to be followed by our courts has been spelt out in
Harksen v Lane
NO & others
[1997] ZACC 12
;
1998 (1) SA 300
(CC). Although the
Harksen
decision concerned a claim under section 9 of the Constitution (the
equality clause), there is no reason why the same or a similar
approach should not be followed under the EEA.
The
Harksen
approach contains a
specific methodology for determining discrimination cases. The first
enquiry is whether the provision differentiates
between people or
categories of people. If so, does the differentiation bear a rational
connection to a legitimate governmental
purpose? If it does not, then
there is a violation of the guarantee of equality. Even if it does
bear a rational connection, it
might nevertheless amount to
discrimination. The second leg of the enquiry asks whether the
differentiation amounts 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 was discrimination
would
depend upon whether, objectively, the ground was based on attributes
and characteristics which had the potential to impair
the fundamental
human dignity of persons as human beings or to affect them adversely
in a comparably serious manner. Secondly,
if the differentiation
amounted to “discrimination”, did it amount to “unfair
discrimination”? If it is
found to have been on a specified
ground, unfairness will be presumed under the Bill of Rights by
virtue of the provisions of section
9(5) of the Constitution, which
transfers the onus to prove unfairness to the complainant who alleges
discrimination on analogous
grounds. As I read section 11 of the EEA,
no similar transfer of onus arises under the EEA. In other words,
whether the ground
is specified or not the onus remains on the
respondent throughout to prove fairness once discrimination is
shown.”
He continued at para [88]:
“
I doubt
whether the shift of the burden applies in the context of the EEA.
The shift of the burden in constitutional cases is the
result of the
unambiguous language of section 9(5) of the Constitution which
provides expressly that discrimination on one or more
of the grounds
listed in section 9(3) of the Constitution is unfair unless it is
established that the discrimination is fair. No
similar provision
exists in the EEA. Nevertheless, it is still necessary to determine
whether there has been differentiation on
a ground specified in
section 6(1) of the EEA.”
[31]
In other words, the applicant must still establish that she was
treated differently
on the grounds of her political affiliation,
gender or race. Thus, in the earlier case of
Woolworths
(Pty) Ltd v Whitehead
[37]
, the Labour Appeal Court held that the employee was “unable to
show that, but for her pregnancy, she would have been appointed
to
the position despite the appellant having another candidate who was
better suited for the job than herself. The result of this
is that,
in my view, there is no causal connection between her not being
appointed and her pregnancy.”
[32]
As Christof Garbers
[38]
puts it:
“
[E]ven if we
move away from thought processes and focus on effect, discrimination
as a legal concept still suffers from the challenges
of comparison,
cause, causation and context. In legal terms – there still has
to be differentiation which is linked to a
ground of discrimination.”
[33]
In the context of an equal pay claim, Van Niekerk J explained:
“
Writing in
Essential Employment Discrimination Law
,
Landman suggests that to succeed in an equal pay claim, the claimant
must establish that ‘the unequal pay is caused by the
employer
discriminating on impermissible grounds’ (at 145). This
suggests that a claimant in an equal pay claim must identify
a
comparator, and establish that the work done by the chosen comparator
is the same or similar work (this calls for a comparison
that is not
over-fastidious in the sense that differences that are infrequent or
unimportant are ignored) or where the claim is
for one of equal pay
for work for equal value, the claimant must establish that the jobs
of the comparator and claimant, while
different, are of equal value
having regard to the required degree of skill, physical and mental
effort, responsibility and other
relevant factors. Assuming that this
is done, the claimant is required to establish a link between the
differentiation (being the
difference in remuneration for the same
work or work of equal value) and a listed or analogous ground. If the
causal link is established,
section 11 of the EEA requires the
employer to show that the discrimination is not unfair, i.e. it is
for the employer to justify
the discrimination that exists.
This Court has
repeatedly made it clear that it is not sufficient for a claimant to
point to a differential in remuneration and
claim baldly that the
difference may be ascribed to race. In
Louw
v Golden Arrow
[39]
,
supra, Landman J stated:
‘
Discrimination
on a particular ‘ground’ means that the ground is the
reason for the disparate treatment complained of.
The mere existence
of disparate treatment of people of, for example, different races is
not discrimination on the ground of race
unless the difference in
race is the reason for the disparate treatment...’
This formulation
places a significant burden on an applicant in an equal pay claim. In
Ntai & others v South African
Breweries Ltd
(2001) 22
ILJ
214 (LC) the court acknowledged the
difficulties facing a claimant in these circumstances and expressed
the view that a claimant
was required only to establish a
prima
facie
case of discrimination, calling
on the alleged perpetrator then to justify its actions. But the court
reaffirmed that a mere allegation
of discrimination will not suffice
to establish a prima facie case (at 218F, referring to
Transport
and General Workers Union & another v Bayete Security Holdings
(1999) 20
ILJ
1117 (LC)”.
[41]
The following
principles stem from this passage, and other authorities.
41.1
The
mere allegation of discrimination is not enough. The employee
must substantiate that this discrimination is as legally
defined.
[40]
41.2
It
is not enough to merely allege that this discrimination is based upon
race. The applicants must allege and prove that the
disparate
treatment exists
because
of race.
[41]
Causation is a necessary element to uphold discrimination. The
applicant must link the differentiation to a listed ground.
[42]
41.3
The
coexistence of race and differentiation does not, on its own,
establish discrimination.
[43]
41.4
The
correct approach to causation is that the discrimination is unfair
only to the extent that it is caused by a prohibited ground.
[44]
41.5
The
discrimination alleged must be relative to another person. In
Aarons
,
[45]
Waglay J phrased various flaws vitiating a pleading in unfair
discrimination as follows:
“
It would
appear that the applicant's claims can only be based in s 87(1)(d)
and/or s 187(1)(f) of the Act. Whilst the applicant
does allege that
she was unfairly discriminated against, she does not plead the
grounds of this discrimination. For example, the
applicant does not
plead that she was discriminated against on any one or more of the
grounds listed in s 187(1)(f) nor does the
applicant plead that she
was discriminated against on grounds not listed in s 187(1)(f) but
analogous to the listed grounds. To
the extent that the applicant
alleges discrimination,
she does not at
all, or sufficiently claim that she has been discriminated against
(or treated differently) relative to others,
or another
.
The applicant does, in respect of the portfolio of acting chair in
the temporary absence of Botha, allege that one Oosthuizen
was
appointed in circumstances that warranted her appointment. However
this, at best for the applicant, is mere differentiation,
On the
facts pleaded, a case for unfair discrimination as contemplated in s
187(1)(d) and (f) is not foreshadowed by the statement
of case. The
applicant does not allege that the reason for the different treatment
is based on one of the grounds listed in s 187(1)(f)
or an analogous
ground that adversely affects some characteristic that impacts upon
her human dignity. The applicant does no more
than allege that she
was being persecuted. This is insufficient.”
[42]
For her claim to stand,
Ms Simmadari must allege and prove that her victimisation was
because
of her race. She fails to do so.
[43]
As Mr
Sibanda
pointed out, there are two possible constructions of Ms Simmadari’s
claim -- one pleaded and the other not.
43.1
In the pleaded claim,
she contends that there was differential treatment on grounds of
race. This is so, she says, because she pursued
transformation.
43.2
The
unpleaded claim’s most flattering iteration appears in the
pre-trial minute, where this Court is asked to determine whether
“…
the
failure to discipline Spangenberg and the failure to treat the
applicant in a similar manner to Spangenberg by ‘allowing
her
to retire gracefully’ amounts to unfair discrimination.
”
[46]
[44]
The pleaded claim
should fail for two reasons:
44.1
First, Ms Simmadari
only alleges that there was differentiation on grounds of race, but
does not identify a comparator. She merely
says that she was
“targeted for dismissal through artificial charges because of
her race, vis-à-vis her [unnamed]
colleagues who were allowed
to retire by not being charged for non-performance” and that
she was “being treated differently
through victimisation and
harassment by the respondent due to the fact that she is black
spearheading transformation…”.
And then, in an apparent
non sequitur
,
the statement of claim reads: “It is therefore submitted that
there was differential treatment based on race between the
applicant
and her colleagues who were of white race” [
sic
].
Spangenberg is first mentioned as a comparator in the pre-trial
minute. Consequently, there is no case, on the pleadings, that
there
has been discrimination as defined. There is no attempt to
identify in respect of whom she has been unfairly discriminated.
44.2
Second, where she says
there has been victimisation because of her role in pursuing
transformation, this is not in relation to her
race. She says
that she referred a dispute to the CCMA “based on victimisation
and harassment due to the fact that
she was pursuing transformation
agenda of which it was her duty to implement such” [
sic
].
Her version is hotly disputed; but even if this Court were to accept
it (perhaps after hearing evidence), this is still not in
relation to
her race. On her version, even if she was white and pursued
transformation, she might still have been victimised.
Consequently, whatever her race, this had no link to her alleged
discrimination.
[45]
The glaring defect with
the unpleaded claim is that it is not pleaded. Even if it were, it
also suffers another fundamental defect:
Ms Simmadari relies upon her
own inaction to sustain a cause of action against Absa.
45.1
It
is common cause that Ms Simmadari was Mr Spangenberg’s
immediate superior.
[47]
45.2
It is also common cause
that discipline of her subordinates was within Ms Simmadari’s
sole discretion. This is apparent from
the request for further
particulars and the response thereto.
45.2.1
In the request for
further particulars, Absa asked Ms Simmadari whether she acknowledges
that she had the discretion to proceed
with the disciplinary process.
In the reply to the request for further particulars, Ms Simmadari
responded in the affirmative.
45.3
On the pleadings, the
failure to discipline Mr Spangenberg was Ms Simmadari’s fault,
not ABSA’s. She seeks to
impute her failure to discipline
Spangenberg to ABSA. This is illogical and impermissible.
Simply put, Ms Simmadari
cannot benefit from her own wrongdoing.
45.4
The applicant’s
claim under the EEA does not disclose a valid cause of action. The
exception in this regard must be upheld.
(ii)
The automatically unfair dismissal
[46]
The
test for automatically unfair dismissals was set out in
Afrox
as follows:
[48]
46.1
First, the Court must
determine the reason for dismissal. If that reason falls within
section 187, then the second stage becomes
relevant. This leg
is objective, and considers the employer’s motive.
46.2
Secondly, the Court
must determine whether the automatically unfair reason was the
factual and legal cause of the dismissal.
46.2.1
The test for factual
causation is whether the protected action was a
sine
qua non
for
dismissal. Or rather, would dismissal have occurred without the
listed ground? If the answer is yes, then the dismissal
cannot
be said to be automatically unfair. (Put differently, would the
employee have been dismissed, but for the grounds she relies
upon).
46.2.2
Legal causation
requires a determination of the proximate cause for the dismissal.
This is determined by drawing inferences
from the established facts.
[47]
In
the pre-trial minute, this Court is called upon to determine whether
“…
the
main reason for the applicant’s dismissal was unfair
discrimination based on grounds of race, gender and conscience.
”
[49]
[48]
Again,
this cause of action is premised upon ABSA’s alleged failure to
discipline Mr Spangenberg.
[50]
This is impermissible for reasons mentioned above.
[49]
In any event, the
misconduct for which Ms Simmadari was dismissed is far more serious
than the misconduct she claims Spangenberg
committed (no such
misconduct was proven). She claims that he was a poor performer; and
at most, that he had been subordinate on
one occasion. Ms Simmadari,
on the other hand, was dismissed because of gross misconduct
comprising the following:
49.1
Harassment and bullying
of her subordinates. For example, she referred to individuals as
“monkeys”; handed out inappropriate
gifts such as
oversized playing cards for Spangenberg (a reflection on his age) and
gifts of a sexual nature; and threatened their
jobs.
49.2
Making racist, ageist
and other inappropriate comments. For example, she referred to
management as “old white men who do not
know what they’re
doing” and “oxygen thieves”; with regard to
Spangenberg and Deist she made references
to “old white men and
old age homes”; and made comments about “boere”.
[50]
With regard to the LRA
claim also, the applicant has not set out her cause of action. She
has not established that she was dismissed
on the grounds of her race
rather than for misconduct; and she has not shown that she was
treated differently to Spangenberg because
of her race, gender or
conscience.
CONCLUSION
[51]
The first point
in
limine
is
dismissed, but the exception is upheld.
[52]
As Mr
Sibanda
pointed out, the applicant has had three opportunities to amend her
statement(s) of claim. It will serve no purpose to afford her
yet
another opportunity, given the fatal flaws identified in her case. It
would only lead to further delays and unnecessary costs.
[53]
On
the subject of costs, both parties asked for costs to follow the
result. I see no reason in law or fairness
[51]
to
differ. There is no longer any relationship between the parties. And
the applicant has made far reaching allegations against
ABSA and
against individuals such as Spangenberg without laying any basis
therefor.
ORDER
[54]
I therefore make the
following order:
54.1
The first point
in
limine
is
dismissed.
54.2
The exception relating
to both claims is upheld.
54.3
The applicant’s
claims in case numbers C 728/2016 and C 124/2017 are dismissed with
costs.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Dennis Chamisa
Instructed
by: Swigelaar attorneys.
[52]
RESPONDENT:
Mabasa Sibanda
Instructed
by: Gillian Lumb of
Cliffe Dekker Hofmeyr.
[1]
Case number
C 728/16.
[2]
Act 55 of
1998 (the EEA).
[3]
Case number
C 124/17.
[4]
Act 66 of
1995 (the LRA).
[5]
Erasmus,
Superior Court Practice, Volume 2 OS 2015, D1, 435.
[6]
Rauff v
Standard Bank Properties
2002 (6) SA
693
(W) at 703I-J.
[7]
According
to s1 of the EEA, a dispute includes an alleged dispute.
[8]
Section
6(1) states:
“
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.
”(my emphasis)
[9]
s187(1)(f)
of the LRA
[10]
As opposed
to an automatically unfair dismissal
[11]
Natal Joint Administrative
Pension Fund v Endumeni Municipality and Others
2012
(4) SA 604
(SCA).
[12]
Fedsure
Assurance Limited v Wolfaardt
2002 (1) SA
49
(SCA) at para 16.
[13]
Madrassa
Anjuman Islamia v Johannesburg Municipality
1917 AD 718
at 727.
[14]
Sections
9(3) and (4) of the Constitution state:
“
(3) The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including
race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion,
conscience, belief, culture,
language and birth.
(4)
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National legislation must be enacted to prevent or prohibit unfair
discrimination.
”
[15]
Compare
s193 of the LRA with s50 of the EEA
[16]
See
s50(1)(e) read with s50(2)(b) of the EEA
[17]
September
& ors v CMI Business Enterprise cc
[2018]
ZACC 4
(27 February 2018).
[18]
Gauteng
Shared Service Center v Ditsamai
(2012) 33
ILJ
348 (LAC).
[19]
ARB
Electrical Wholesalers v Hibbert
(2015) 36
ILJ
2989 (LAC); [2015] 11 BLLR 1081 (LAC).
[20]
Hibbert
at para 27.
[21]
SOC, p12,
para 8.2 read with Pre-trial minute, p10, para 8.1
[22]
Hibbert
at para 30.
[23]
At para 26
– 27 (my underlining).
[24]
Du Toit
et
al, Labour Relations Law: A Comprehensive Guide
(6ed)
at 717, citing
Dial
Tech cc v Hudson
(2007)
28
ILJ
1237 (LC);
Evans
v Japanese School of Johannesburg
[2006]
12 BLLR 1146
(LC);
Allpass
v Mooikloof Estates (Pty) Ltd
[2011] 5 BLLR 462
(LC);
Atkins
v Datacentrix (Pty) Ltd
[2010]
4 BLLR (LC); and
Ehlers
v Bohler Uddeholm Africa (Pty) Ltd
(2010)
31
ILJ
2383 (LC).
[25]
At para 33.
[26]
Jan
Boeyens v Murray & Roberts (Pty) Ltd
[2016]
ZALCJHB 163 (4 Feb 2016) paras 16-17.
[27]
Cf
NUMSA
v Intervalve (Pty) Ltd
[2015]
3 BLLR 205 (CC).
[28]
Rules
6(1)(b)(ii) and (iii) of the
Rules
for the Conduct of Proceedings in the Labour Court
(“Rules”)
[29]
See:
Eagleton & Others
v You Asked Services (Pty) Ltd
(2009) 30
ILJ
320 (LC) at para 15. Uniform
Rule
23(1) reads:
“
Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and
may set it
down for hearing in terms of paragraph (f) of subrule (5) of rule
(6): Provided that where a party intends to take
an exception that a
pleading is vague and embarrassing he shall within the period
allowed as aforesaid by notice afford his opponent
an opportunity of
removing the cause of complaint within 15 days: Provided further
that the party excepting shall within ten
days from the date on
which a reply to such notice is received or from the date on which
such reply is due, deliver his exception.
”
[30]
H v
Fetal Assessment Centre
2015 (2) SA
193
(CC) at para 10.
[31]
Harmse v City of Cape Town
(2003) 24
ILJ
1130
(LC) at paras 8 and 9
.
[32]
Mbana v
Shepstone and Wylie
2015 (6)
BCLR 693
(CC); (2015) 36
ILJ
1805 (CC) at para 27.
[33]
Section
11(1) of the EEA.
[34]
Transport
& General Workers’ Union and Another v Bayete Security
Holdings
(1999)
20 ILJ 1117 (LC) at para 4;
Mothoa
v SA Police Service & Others
(2007) 28 ILJ 2019 (LC) at para 20.
[35]
Nombakuse v Department of
Transport and Public Works: Western Cape Provincial Government
(2013) 34
ILJ
671 (LC) paras 27-33.
[36]
[2005] 11 BLLR 1084
(LC) paras [79] – [81].
[37]
[2000] 6 BLLR 640
(LAC) para [24].
[38]
Garbers, “The prohibition of discrimination in employment”
in Malherbe & Sloth-Nielsen (eds), Labour Law into
the Future:
Essays in Honour of D’Arcy du Toit (Juta 2012) p 21.
(Footnotes omitted).
[39]
Louw v Golden Arrow Bus
Services (Pty) Ltd
(2000)
21
ILJ
188
(LC).
[40]
Mothoa
v
SAPS
(2007)
28
ILJ
2019
(LC) at para 17.
[41]
Louw
at
para 26. See also:
Mangena
and Others v Fila SA (Pty) Ltd and Others
at para 7.
[42]
NUMSA v
Gabriels (Pty) Ltd
(2002) 23
ILJ
2088
(LC) at para 18
[43]
Raol
Investments (Pty) Ltd t/a Thekwini Toyota v Madlala
2008 (1) SA
551
(SCA);
Pretoria
City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) at para 105
[44]
Louw
at para 33.
[45]
Aarons v
University of Stellenbosch
(2003) 24
ILJ
1123
(LC) at para 17.
[46]
Pre-trial Minute, p8, para 6.2.3
[47]
Pre-trial
minute, p3, para 4.5.1.
[48]
SACCAWU
and Others v Afrox Ltd
[1999] 10
BLLR 1005
(LAC) at para 31-32. See also
Mouton
v Boy Burger (Edms) Bpk
(2011)
32
ILJ
2703
(LC).
[49]
Pre-trial
Minute, p8, para 6.3.1 and 6.3.2
[50]
Pre-trial
Minute, p9, para 7.1 and, in particular, para 7.1.3.2
[51]
LRA s 162.
[52]
Mr Chamisa
claimed in his practice note, filed a week before trial, for the
first time, that he was briefed as counsel, instructed
by Swigelaar
attorneys. These attorneys have never come on record. All pleadings
were signed and delivered by Mr Dennis Chamisa
under the name and
style of “Dech Legal” situated at Icon Building, third
floor, 24 Hans Strijdom Avenue, Cape Town,
and his email address
given as
dennisc@dechlegal.co.za
.