1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO: JS/1378/01
In the matter between:
WARDLAW, ANA LUISA Applicant
and
SUPREME MOULDINGS (PTY) LIMITED Respondent
_______________________________________________________________________
JUDGMENT
________________________________________________________________________
JAMMY AJ
1. The Applicant in this matter was employed by the Respondent on
1 September 1999 and was summarily dismissed by it on 9 October
2002. She contends that the termination of her employment is
automatically and/or substantively unfair for reasons set out in her
statement of case as follows:
“a) The reason for the termination of the Applicant’s employment was not for a
good reason, but instead for reasons relating to the Applicant taking maternity leave. In this
regard the Respondent is in breach of the provisions of Section 187(1)(e) and (f) of the Labour
Relations Act.
b) Even if the Applicant was negligent as alleged, an allegation the Applicant
denies, given the complete absence of any form of corrective discipline as required by the Code of
Good Practice, the summary dismissal of the Applicant is wholly inappropriate.
c) The charges were not proved”.
1
2
2. The termination of her employment was moreover procedurally unfair,
it is alleged, for the reasons, inter alia, that the chairman was biased,
that she was given no opportunity to state her case, that the chairman
was not in the Respondent’s employ, that she was summarily dismissed
rather than being afforded corrective discipline, that she was subjected
to “inappropriate pressure” by the chairman “to plead guilty to certain
charges” and that the Respondent “failed to comply with the provisions
of clause 2, 7, 8 and 9 of the Schedule 8 to the Labour Relations Act”.
3. The relief sought by the Applicant is payment of compensation “in a
sum equal to two years’ salary” and costs. An initial claim for
reinstatement in her former employment was not pursued.
4. Section 187(1) of the Labour Relations Act 1995 (“the Act”) defines
those reasons for an employee’s dismissal which will render it
automatically unfair. That will be the case if, inter alia, the reason for
such dismissal is –
“(e) The employee’s pregnancy, intended pregnancy, or any reason related to her
pregnancy;
or (f) 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”.
5. The applicability in this matter of Section 187(1)(e) will emerge from
what follows. The applicability in the relevant circumstances of the
provisions of sub-section (f) is less clear unless, as the Respondent
suggests, it is based on a contention of gender discrimination sourced
in the common cause fact of the Applicant’s pregnancy.
6. The claim for compensation “in a sum equal to two years’ salary” is
manifestly based on the alleged breach by the Respondent of the
2
3
provisions of Section 187(1)(e) and (f), read with Section 194(3) of the
Act, which limits the compensation awarded to an employee whose
dismissal is automatically unfair to a maximum of the equivalent of
twenty-four months’ remuneration.
7. A pre-trial conference between the legal representatives of the parties
was held on 4 October 2002. The minute of that conference records
the Applicant’s intention “to show that the termination of the
Applicant’s services constitutes unfair discrimination as provided for in
terms of Section 6 of the Employment Equity Act and constitutes breach
of her common law contract of employment”, in addition to being
without a sufficient reason or fair procedure. The prohibited grounds of
discrimination in that statutory provision are recognised as being a
mirror of the automatically unfair criteria defined in Section 187(1)(f) of
the Labour Relations Act.
8. The Respondent’s intention, on the other hand, is precisely and
narrowly stated in the minute. It will argue, it is recorded, that this
Court’s jurisdiction “should be limited to the question whether, having
regard to the reason for the termination of the Applicant’s employment,
such termination constitutes an automatically unfair dismissal.” If it is
found, as there inferred and subsequently vigorously argued, that that
was not the case, that is the end of the matter. Questions of the
fairness or otherwise of substantive reasons unrelated to Section 187 of
the Act and/or the procedural aspects of the Applicant’s dismissal are,
in the absence of the mutual consent of the parties contemplated in
Section 158(2)(b) of the Act, issues for determination by arbitration
under the auspices of the Commission for Conciliation, Mediation and
Arbitration (CCMA). It is common cause, the Respondent correctly
contends, that no such consent was either indicated or alleged in the
present instance.
9. The Jurisdiction Issue
present instance.
9. The Jurisdiction Issue
9.1 Section 191(5)(b) and (13) of the Act limits the jurisdiction of this
3
4
Court in disputes relating to allegations of unfair dismissal, to certain
specified instances, the only one of which having application in this
matter being an allegation that the dismissal was automatically unfair.
As was stated in the unreported Labour Court case of –
Fick and Others v Midi TV (Pty) Ltd. Case No. C96/2002
“This Court, unlike the High Court, does not have a general inherent jurisdiction to adjudicate
upon matters before it. Albeit that this Court has the same status as the High Court, it remains a
creature of statute. Absent the criteria enumerated in Section 191(5)(b) and (13) of the Act, the
Court would therefore not have jurisdiction to entertain a dispute relative to unfair dismissal, other
than in the circumstances envisaged by Section 158(2) of the Act, in which case this Court would
sit as an arbitrator”.
9.2 I have referred to the absence in this matter of any evidence of the
consent criterion there referred to and in these circumstances the
cardinal issue in the determination of the existence or otherwise of
this Court’s jurisdiction to entertain the dispute between the parties, is
whether or not the Applicant was automatically unfairly dismissed as a
consequence of her pregnancy, “or any reason related to her
pregnancy”.
9.3 Counsel for the Applicant argues correctly that in terms of Section
192(2) of the Act, the Respondent, if as in this case it disputes that
any aspect of the Applicant’s dismissal rendered it automatically
unfair, bears the onus to show that a fair reason exists that is
unrelated to her pregnancy and that such a reason justifies her
dismissal. The determination whether or not that onus has been
discharged, is however, save in the specific circumstances to which
the statute makes reference, not a matter falling within this Court’s
jurisdiction but is one to be determined under the auspices of the
CCMA as provided for in Section 191. There is no substance, in my
CCMA as provided for in Section 191. There is no substance, in my
view, for the somewhat startling contention advanced by the Applicant
that jurisdiction can be vested in this Court through the simple
4
5
medium of its arbitrary selection by the employee as the preferred
forum for the adjudication of the dispute in question. That submission
is manifestly sourced in misinterpretation of the provisions of Section
191(5)(b) to which I have already made reference and does not bear
further analysis.
9.4 The Applicant, in the context of her statement of case, the
amendments thereto and the pre-trial minute, seeks in this Court the
adjudication, in addition to her allegation of the automatic unfairness
of her dismissal, of her contention that it was, in any event, “not for a
good reason” and “inappropriate … given the complete absence of
any form of corrective discipline as required by the Code of Good
Practice”, as well as her contention that, having being effected
without notice, it was in breach of her contract of employment and in
contravention of the relevant provisions of the Basic Conditions of
Employment Act. I reiterate, for the reasons which I have stated, that
these latter issues are beyond the jurisdiction of this Court and that
the sole issue to which this judgment will be confined is the
determination whether or not the Applicant’s dismissal was
automatically unfair, entitling her to the relief sought in her statement
of case or otherwise. I turn now therefore to deal with that issue.
10. The Dismissal
10.1 The Applicant went on maternity leave on 28 May 2001 and, following
the birth of her child, returned to work on 1 st October 2001. On that
day she received notice to attend a disciplinary enquiry to be held on
5 October 2001. The charges which she would be required to answer
were set out in that notice as follows:
“1 Gross negligence and dereliction of duties in that you failed/or refused and/or neglected to produce
5
6
proper financial records for the company, which was your direct responsibility.
2 Gross negligence and dereliction of duties in that you failed and/or refused and/or neglected to fulfil
your most basic functions and duties as Group financial Manager of the company in one or more or all of
the following respects.
2.1 Not one of the company’s General Ledger accounts has been reconciled.
2.2 The Cash Book has not been reconciled since September 2000.
2.3 The entire General Ledger was poorly maintained and lacked integrity.
3. Gross negligence and dereliction of duties in that you failed and/or refused and/or or neglected to
properly manage, support and assist your support personnel to ensure that the financial records of the
company are properly kept and maintained, resulting in an almost complete breakdown of the company’s
accounting records, control and system.
4. Gross negligence and dereliction of duties, in that, upon recent of investigation of your department,
for which you are directly responsible, the following material irregularities were found:
4.1 VAT Returns have not been properly reconciled, which makes it impossible to ascertain if VAT has
been correctly claimed.
4.2 VAT for Johannesburg has not been paid for 7 months, resulting in penalties of R65000 and the
Managing Director being summoned to appear in court. This therefore caused direct financial loss to the
company and brought the company into disrepute.
4.3 VAT for Cape Town has not been paid for 8 months, resulting in further penalties (still to come) and
financial prejudice to the company.
4.4 The PAYE payments for employees at Johannesburg has also been paid late, resulting in the
company being liable in an amount of R35000 in fines and interest, to the Receiver of Revenue.
4.5 The Johannesburg RSC levies have not been paid since November 2000, and Cape Town RSC
levies have not been paid for the last year, which will also give rise to a liability by the company for fines
and interest, which are currently being awaited.
4.6 UIF returns have not been properly completed and/or submitted.
5 Breach of your duty of utmost good faith towards the company in your capacity as General Financial
Manager of the company, having regard to your unlawful behaviour as aforesaid”.
6
7
10.2 The chairperson of the enquiry, described in the disciplinary notice as
“independent and external … to ensure complete impartiality”, was
certain Mr Vernon Carr who, following its conclusion on 5 October
2001, presented his findings. They are recorded by him as follows:
“2.1 The accused holds a high profile position within the company and she is adequately qualified to fulfil
the position. The company relies greatly on their employees as they compete in very competitive market.
It is therefore vital that the company be placed in a position where they can trust their employees and
where the employees act in the best interest of the business. The accused should therefore have acted in
a diligent and reliable manner. The accused has through her actions demonstrated a lack of
trustworthiness and has not always acted in the best interest of the company.
2.2 The accused’s negligent behaviour has resulted in the company incurring huge fines with reference
to the late payments of the VAT, PAYE and nonpayment of the RSC levies. It is noted that these
responsibilities are fairly elementary and could have been managed with ease and is indicative of her
dereliction of her duties.
2.3 The accused did not report the fact that she could not timeously produce the company’s financial
records.
2.4 The company views the accused’s misconduct in a very serious light as she has failed and neglected
her duties as Group Financial Manager. The accused initially accepted the responsibilities of her position,
but she failed to act in such a manner and has therefore rendered the continued employment relationship
intolerable.
2.5 It is therefore my recommendation to the company that the accused be dismissed with immediate
effect”.
10.3 Detailed evidence relating to the charges against the Applicant which,
the Respondent contends justified her eventual dismissal, was
the Respondent contends justified her eventual dismissal, was
adduced in the course of this trial, with ongoing references to a
comprehensive volume of documents relative thereto, by the Group
Managing Director, Mr M A Formato, the General Manager of its East
London factory, Mr F J Schultz and, briefly, by a shipping clerk in the
Respondent’s employ, Ms B Doyle. The Applicant, Ms Wardlaw, was
7
8
the sole witness in response. I do not propose to traverse that
evidence in unnecessary detail. In the course of an extended hearing
the Applicant’s position, the responsibilities attaching thereto, the
fairness or otherwise of the Respondent’s perceptions and
expectations of her functions and the perceived extent of her alleged
derelictions in their discharge, as well as the Applicant’s
acknowledgements, disputations, analyses and explanations relating
to her own performance, the computer problems and the general
administrative state of affairs in the company at the time that she left
on maternity leave, were vigorously examined and debated in the
course of prolonged testimony and cross-examination on both sides.
10.4 Comprehensive argument was submitted relating to issues of
probability where facts were disputed and to the perceived credibility
of witnesses. Both Mr Formato and Mr Schultz testified regarding the
problems being experienced with the computer system, cash-flow
problems and pressure from the Respondent’s bank to produce
management accounts relative to its overdraft limit. At the stage
that, in the context of her pregnancy, the Applicant departed on
maternity leave, the Respondent, in the prevailing circumstances was
left in an invidious position in relation to the workload which she had
carried.
10.5 The neglect and inadequacy of various critical aspects of her
performance in the responsibility which she held, it was stated, only
became apparent during her absence in the face of the urgent need to
address the serious problems which had now manifested themselves.
It was in that context that, on the advice of its consultants and
attorneys, the disciplinary action against the Applicant upon her
return to work, was instituted.
10.6 The Applicant’s response to these submissions was based in essence
10.6 The Applicant’s response to these submissions was based in essence
on a defensive challenge to the allegations of her performance
inadequacy. In certain respects, factual allegations were disputed, in
others, blame was diverted. The hostility towards her, resulting in the
8
9
disciplinary proceedings and her eventual dismissal was, she
contended, fundamentally sourced in the Respondent’s irritation at
her enforced absence from work, as a consequence of her pregnancy,
at a critically inconvenient time, having regard to the prevailing state
of affairs in the Respondent’s financial administration.
10.7 That her absence and resultant unavailability to perform her functions
and to assist in addressing the adverse circumstances in which the
Respondent was operating at the time was a source of considerable
inconvenience to it, is not open to debate. Whether or not her
pregnancy and consequent absence was the reason for her dismissal,
rather than the areas and instances of alleged gross negligence,
derelictions of duty and breaches of good faith relied upon by the
Respondent to justify it, is however another question. A comparable
examination of the principles of such an enquiry was conducted by the
Labour Appeal Court in –
SA Chemical Workers’ Union and Others v Afrox Limited (1999) 20 ILJ 1718
The issue in that case was whether or not the dismissal of the Appellants was
automatically unfair as a consequence of their participation in a strike or had been
effected as an operational requirement of the Respondent. At page 1726, Froneman
D J P said this -
“The enquiry into the reason for the dismissal is an objective one, where the
employer’s motive for the dismissal will merely be one of a number of factors to be
considered. This issue (the reason for the dismissal) is essentially one of causation
and I can see no reason why the usual twofold approach to causation, applied in other
fields of law, should not be utilised here … The first step is to determine factual
causation: was participation or support, or intended participation or support, of the
protected strike a sine qua non (or prerequisite) for the dismissal? Put another way,
protected strike a sine qua non (or prerequisite) for the dismissal? Put another way,
would the dismissal have occurred if there was no participation or support of the
strike? If the answer is yes, then the dismissal was not automatically unfair. If the
answer is no, that does not immediately render the dismissal automatically unfair; the
next issue is one of legal causation, namely whether such participation or conduct
9
10
was the “main” or “dominant”, or “proximate”, or “most likely” cause of the
dismissal. There are no hard and fast rules to determine the question of legal
causation … I would respectfully venture to suggest that the most practical way of
approaching the issue would be to determine what the most probable inference is
that may be drawn from the established facts as a cause of the dismissal, in much the
same way as the most probable or plausible inference is drawn from circumstantial
evidence in civil cases. It is important to remember that at this stage the fairness of
the dismissal is not yet an issue. Only if this test of legal causation also shows that
the most probable cause for the dismissal was only participation or support of the
protected strike, can it be said that the dismissal was automatically unfair in terms of
Section 187(1)(a). If that probable inference cannot be drawn at this stage, the
enquiry proceeds a step further”.
10.8 In my view, formed on a conspectus of the evidence adduced in this
matter, the Applicant’s submission that the disciplinary action to
which she was subjected and her resultant dismissal were the
consequence of a vindictive reaction by the Respondent to the fact of
her pregnancy and the inconvenience of her absence in that regard at
a time when the Respondent was under severe administrative
pressure, cannot be sustained in the face of the detailed allegations of
negligence and incompetence upon which the Respondent is adamant
that it was based. I emphasise however that whilst I have concluded
that the Applicant’s allegation of automatically unfair dismissal cannot
therefore stand, it is, in the words of Froneman D J P to which I have
referred, “… important to remember that at this stage the fairness of
the dismissal is not yet an issue”. I reiterate that, if and when it does
become an issue, its adjudication will not be the function of this Court
become an issue, its adjudication will not be the function of this Court
which, as I have made clear, does not have jurisdiction to perform it.
10.9 In the same context, the Applicant’s allegations of breach of contract
and contravention on the part of the Respondent of the applicable
provisions of the Basic Conditions of Employment Act arising from her
dismissal without notice, are inextricably linked to the fairness or
otherwise of her dismissal for the substantive reasons alleged by the
10
11
Respondent. I reiterate that the determination of those specific issues
is not the business of this Court but, as with what the Respondent
contends to be the factually accurate reasons for her dismissal, is the
function of the forum designated by the statute properly to deal with it.
11. Conclusion
11.1 I conclude therefore that on the case brought by her before this Court,
the Applicant has failed to demonstrate that the reason for her
dismissal, whether fair or not, was her pregnancy or any reason
related thereto. She is also unable to establish any other unfair
conduct by the Respondent over which this Court would have
jurisdiction and her application must accordingly fail.
11.2 I can find no reason, in the submissions made to me, to deviate from
the established principle that an award of costs would ordinarily follow
the result and the order that I make is accordingly the following.
11.2.1 The dismissal of the Applicant by the Respondent was not automatically unfair.
Save as aforesaid this Court has no jurisdiction to entertain the dispute
between the parties.
11.2.2 The Applicant’s claims are accordingly dismissed.
11.2.3 The Applicant is to pay the Respondent’s party and party costs of these
proceedings as taxed or agreed between the parties.
___________________________
B M JAMMY
Acting Judge of the Labour Court
5 April 2004
11
12
Representation:
For the Applicant:
Adv A G Heyns
Instructed by
Blake Bester Inc
For the Respondent:
Mr N Schultz
Bate Chubb & Dickson Inc
12