VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 1 SEPTEMBER 1999 CASE NO. J2653/98
In the matter between:
VAN DER WALT, P J Applicant
and
BURGER SCHOLTZ Respondent
J U D G M E N T
BRASSEY, AJ:
[1] The applicant in this matter was employed by the
respondent firm in June or July 1997 as a cashier at a
University tuckshop at a monthly wage of R790,00.
[2] It is common cause between the parties that the
relationship that she had with the proprietors of the
respondent, Mr and Mrs Scholtz, was a good one.
[3] Towards the end of 1997 she became engaged and
took up residence with her fianc é, whose salary at the
time was about R1 200,00 per month. In February 1997
she discovered that she was pregnant. She was proud of
the fact and she discussed it with Mrs Scholtz, who,
the applicant says, was pleased for her. Mrs Scholtz,
who testified before me, confirmed that this was indeed
her attitude.
[4] In the conversation the question arose, as to what
would happen about the applicant’s future employment.
The applicant asked whether the employment would
continue and, according to her, Mrs Scholtz said that
they would have to see what happens.
[5] The applicant continued in employment with the
respondent throughout the period until 26 June, when
her employment terminated. The issue that I have to
decide is whether she terminated the employment of her
own free will or whether the respondent dismissed her.
She says that she was dismissed whereas the respondent
says that she resigned. If I find that she resigned, I
must dismiss this application since the claim that she
brings, which is based on an automatically unfair
dismissal, will be without substance.
[6] According to the applicant she had a discussion in
May with Mrs Scholtz. Mrs Scholtz herself was by no
means clear about the contents of this discussion, but
the applicant most certainly was. According to her she
asked Mrs Scholtz what was to happen to her in the
light of her pregnancy and Mrs Scholtz said that she
had discussed the matter with her husband and that the
applicant should leave the employment as from 26 June
1997, that date being the close of the university term.
When she heard the news, the applicant says, she
consulted family members about the respondent’s
standpoint, but did nothing further concerning her
dismissal.
[7] On 26 June she was handed her final pay cheque
together with a covering note, written on a compliments
slip by Mr Scholtz, to the following effect:
"Dankie vir al jou hulp en bydrae gelewer. Voorspoed
met dit wat volg. Bye."
[8] While Mr Scholtz was giving her a lift home that
evening, there was a discussion about her future, in
which it is common cause, Mr Scholtz invited her to
continue to work for the respondent firm on a casual
basis. The applicant, however, was going on holiday to
the coast and it is common cause that she declined the
offer.
[9] When she returned from the coast she referred the
matter to the CCMA for conciliation on the basis that
she had been "dismissed because she was pregnant".
That, at any rate, was what is recorded in a
certificate of outcome of dispute that has been signed
by the CCMA commissioner. From that certificate it
appears that the dispute was referred on 14 July 1998.
[10] The applicant gave birth on 7 September 1998.
About seven or so days later she received a visit from
Mrs Scholtz, who came bearing a gift of baby clothes,
during which the latter made an offer ,the exact terms
of which were properly not disclosed to me, in order to
resolve the dispute between the parties. Mrs Scholtz
said that she explained to the applicant that
litigation was expensive and sought to put an end to
the problem between them. The applicant's standpoint
was that she would have to discuss the matter with her
lawyer and the issue was left there.
[11] In evidence it was the respondent’s case that the
applicant , before she left the respondent, was given
time off in order to seek another job with Sterns
Jewellers, a firm in the area for which her mother
worked. Suggestions were made to the respondent's
witnesses, which were rejected, that she had in fact
taken time off to visit the clinic. For the purposes of
this judgment I find it unnecessary to enter upon the
merits of that dispute which appears to me collateral
to the question I have to decide.
[12] It was accepted by the applicant that others
within the
respondent's employ had taken maternity leave and that
she was aware of that fact prior to her departure from
the company. When she was asked why she did not
likewise request maternity leave, she said that she
thought there must be a distinction between the way
that whites and blacks were treated within the firm.
There was some evidence that another employee had
ceased to work at the time when she was nearing
confinement and a suggestion was made, albeit only
tentatively, by counsel for the applicant that she too
had been the victim of a policy of firing people as
their confinement approached. The respondent's
witnesses made it clear, however, that the engagement
of this employee had been on a casual basis and her
case provided no parallel for the one with which I am
concerned.
[13] During argument I put it to counsel for the
applicant that one or other of the parties must be
found to have lied in the case. That, on reflection,
appears to be an overstatement of the position. It is
enough for me to conclude that the onus of proof has
not been discharged. I am satisfied that it has not.
[14] So far as the demeanour of the parties is
concerned, I found nothing in the applicant's testimony
with which
to quarrel. She made a good impression on me. She
answered the questions firmly and directly. She was not
evasive and she was both sensible and candid. The same
must be said for the witnesses for the respondent. They
too made a good impression on me. There was nothing in
the manner of their giving evidence or the manner in
which they answered the questions under cross
examination that might suggest to me that they were
lying.
[15] Given that, it is necessary for me to examine the
facts of the case to consider where the probabilities
take us. The first difficulty that I have with the
applicant's case is to discover why she should have
been singled out for dismissal when, she herself
accepted, others in the employ of the respondent were
not dismissed in consequence of their pregnancy. I can
find no basis on which the respondent might be taken to
have discriminated between black people and white
people in dealing with matters of pregnancy. It may be
that the applicant’s condition caused the respondent
some embarrassment. It might have felt that, while she
could well continue in her employment behind the
scenes, she could not do so as a front of house
employee. That proposition was not put to the
respondent's witnesses, however, and it seems, in any
event, to be inconsistent with the tenor of the
evidence. It is clear, from the evidence of the
applicant herself that Mrs Scholtz expressed pleasure
when told by the applicant of the pregnancy. The
applicant was in any event engaged to be married and
so there was little reason why she would feel shame or
why others should feel embarrassed.
[16] Secondly I cannot understand why the applicant
did not complain in May when, according to her, she was
notified that her employment would be terminated at the
end of June. The applicant seeks to convey the
impression that she was an innocent abroad, but her
insistence on speaking to her lawyer before considering
the settlement proposed by Mrs Scholtz hardly suggests
a person who is naive in the ways of the world. It is
conceivable that somebody who is illiterate may be
unaware of the kinds of rights, so far as the equality
is concerned, that the Constitution entrenches and
endeavours to promote. But it is not easy for me to
accept that the applicant is in the same position. She
said in answer to questions from me that she was angry
at the way she was being treated. In those
circumstances, it seems to me, she would have
complained about her treatment.
[17] The third difficulty I have, which is related to
the second, is to know why she did not seek to obtain
professional advice during the period from May through
to 26 June. If she was angry at the way she was being
treated, she could have been expected to have solicited
advice, if not from a lawyer, then certainly from an
advice centre of the sort that is available to
listeners to radio, to correspondents of newspapers and
through such offices as Legal Aid Board. She does say
that she spoke to members of her family about her
plight; if she herself did not have the initiative to
seek advice, one could have expected that they would
have encouraged her to do so.
[18] The fourth factor that counts against her version
is that Mr Scholtz gave her an open ended offer of
continued employment, albeit as a casual employee. On
her version, one would have expected the Scholtz's to
be happy to sever ties with her completely. She admits,
however, they were content to continue their
relationship with her and went so far as to make an
offer to do so on a casual basis. The point, of course,
is not that she was obliged to accept the offer (casual
employment is obviously not to be compared with
permanent employment); the point is that the offer was
made in circumstances where it appears that the
respondent, far from being desirous of terminating its
relationship with her as she asserts, was willing to
continue it.
[19] Finally, what strikes me as strange, given the
good relationship that both sides testified to, is why
she did not return to the respondent once she
discovered that she had been illicitly dismissed,
explain to the respondent that what had been done was
wrong and unlawful and ask it to reinstate her . The
respondent would have been able to take her back since
it had not filled her post. That she should have
preferred instead to lodge a complaint with the CCMA
and proceed to launch a case that would culminate in a
claim for compensation provides some support for the
contention that she was seeking to profit from what had
happened. It is unnecessary for me, however, to go that
far. It is enough for me to record the fact that,
despite the good relationship that existed between the
parties, she did not return to the respondent to take
up the fact of the illegality.
[20] Against those factors must be set the argument,
which was tellingly pressed by her counsel, that it is
improbable that she should have left at that stage when
to do so would expose her to added financial hardship.
The combined earnings of the applicant and her fianc é
were scarcely more than R2000,00 per month, of which
the applicant was contributing R800,00 per month. It
does seem strange that she should have been willing to
forego her earnings at the stage she did.
[21] The strangeness, however, is not so acute once one
appreciates that in any event she would shortly be
going on maternity leave. Also relevant is the fact
that she wished to take a vacation with her parents and
leaving work at that stage would have given her the
option to take it at her sole discretion. What has to
be borne in mind, moreover, is that during the period
of her unemployment the applicant derived support from
her fatherinlaw. The degree of the support and the
basis on which it was given were not explored before me
in evidence and so too much should not be made of this
point. Nonetheless, the fact that outside support was
available to the couple goes some way to explain why
she left when she did.
[22] In the circumstances I find that the applicant has
not discharged the burden of proof that rests upon her
to demonstrate that she was dismissed. Accordingly her
application must be dismissed.
[23] So far as costs are concerned, it appears from the
papers that attorneys were from time to time employed
by the respondent in order to act for it in its
defence. Before me the matter was argued by an official
of an employer's organisation of which the respondent
is a member. The organization is not entitled to costs,
whether in relation to travelling or otherwise, but the
attorneys who previously acted are entitled to costs
and in so far as they may seek them, they should get
them.
[24] In the circumstances I dismiss the application
with such costs as may have been incurred by legal
advisers prior to the hearing of this matter.
__________
BRASSEY AJ
LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF APLICANT : MR A VAN ZYL
: Mr N Vorster
ON BEHALF OF RESPONDENT : MS R SERRAO
: GENBA
DATE OF HEARING: 1 SEPTEMBER 1999
DATE OF JUDGMENT : 1 SEPTEMBER 1999