[1] The applicant, Lisa Daniels, filed two separate disputes against her former
employer, Argo Icarus Travel (Pty) Ltd (the respondent), with this court in
December 2023. By mutual agreement, an order was made consolidat ing the
disputes, which were scheduled for hearing from 20 to 24 October 2025.
[2] The applicant’s four claims are for (i) constructive dismissal, or alternatively,
automatically unfair dismissal, and in the further alternative, unfair dismissal for
reasons that are not automatically unfair; (ii) a n unfair discrimination dispute;
(iii) a violation of the constitutional rights to bodily integrity; and (iv) a claim for
outstanding salary.
[3] At the commencement of the proceedings, Ms Ntsewa, for the applicant,
delivered an opening statement in which she addressed the applicant’s four
claims. She also informed the court that the parties had agreed to separate the
merits from the quantum.1
[4] In his opening statement, Mr Jonker , for the respondent, submitted that the
respondent denied all of the applicant’s claims, asserted that the applicant was
exploiting the COVID-19 situation to claim money she was not entitled to , that
she was on a fishing expedition , and that the claims were vexatious and
frivolous.
[5] On the first day of the trial, the applicant led evidence in support of her case .
She was cross-examined and re-examined on the second day, after which the
court was informed that her case was closed. At that point, Mr Jonker moved
an application for absolution from the instance. Before addressing the facts and
the applicant’s evidence, I will outline the principles relevant to applications for
absolution from the instance.
Absolution from the instance
1 This is not reflected in the pre-trial minute, but Mr. Jonker, for the respondent, did not dispute Ms.
Ntsewa’s submission that an agreement had been reached to separate the merits from the quantum.
[6] In Carmichele v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)2, the Court set out the test as follows:
‘[79] An order for absolution from the instance is an appropriate
order to make at the end of the plaintiff's case where a court,
applying its mind reasonably to the evidence, could not or
might not find for the plaintiff. The underlying reason is that it
is ordinarily in the interests of justice to bring the litigation to
an end in such circumstances. A determination of what is in
the interests of justice necessarily involves the exercise of a
discretion.’
[7] Therefore, a court exercises discretion whether to grant absolution from the
instance after considering the evidence led, and whether, based on that
evidence, it could or might find in favour of a plaintiff. In exercising the
discretion, the cou rt considers whether it is in the interests of justice to allow
the matter to proceed or whether the litigation must be ended at that stage
because the court, applying its mind to the material before it, could not or might
not find in favour of the plaintiff.
[8] In Gordon Lloyd Page & Associates v Rivera and Another 3 (Gordon Lloyd
Page), the Court stated this:
[2] The test for absolution to be applied by a trial court at the end of a plaintiff's
case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403
(A) at 409G - H in these terms:
'. . . (W )hen absolution from the instance is sought at the close of plaintiff's
case, the test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established, but whether there
is evidence upon which a Court, applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for the plaintiff.
This implies that a plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements of the claim - to
sense that there is evidence relating to all the elements of the claim - to
survive absolution because without such evidence no court could find for
2 2001 (4) SA 938 (CC) at para 26 and 79.
3 2001 (1) SA 88 (SCA).
the plaintiff… The court ought not to be concerned with what someone
else might think; it should rather be concerned with its own judgment and
not that of another 'reasonable' person or court. Having said this,
absolution at the end of a plaintiff's case, in the ordinary course of
events, will nevertheless be granted sparingly , but when the occasion
arises, a court should order it in the interests of justice.
[9] Therefore, absolution from the instance is not granted because the evidence
led by the plaintiff establishes what would ultimately be required. It is sufficient
if a prima facie has been made, in which case the court could or might find for
the plaintiff. Whether the plaintiff is in fact entitled to the relief they seek is an
issue to be determined at the end of the trial.
[10] The additional principle is that absolution from the instance is granted sparingly.
Background facts
[11] These facts are derived from the pleadings, the applicant’s evidence (including
in chief, cross-examination, and re-examination), and the documents referred
to during the applicant’s testimony.
[12] Since 11 November 2019, the applicant had been employed by the respondent
as a store manager at the respondent’s Travel Experience store outlet in
Cavendish Square Shopping Centre, Claremont, Cape Town (the store). The
employment contract did not specify the store manager's duties, but it was
understood that these would be those normally carried out by the store
manager, the person responsible for the store.
[13] Working hours aligned with the shopping centre’s business hours and did not
exceed 45 hours per week.
[14] During the probation period, she earned R9,500 per month, which increased to
R10, 000 per month after the probation period.
[15] The applicant reported to Mr Jaco Taylor (Taylor), the respondent's director
based in Johannesburg. The two communicated via email or telephone.
[16] It will be remembered that in March 2020, the world faced the COVID -19
pandemic, and most people and businesses were adversely affected in several
ways. The respondent was not spared. To address the situation, in July 2020,
the parties agreed to reduce the salaries of all employees, including the
applicant’s, by 25% until the ban on international travel is lifted and the
respondent resumes normal business operations.
[17] Although the arrangement was supposed to take effect from July 2020
onwards, the applicant states that the last month she received her full salary
was February 2020, and that even after the July 2020 agreement, she did not
receive 75% of her salary. Instead, she received amounts ranging from R4, 000
to R4, 700 per month. From May 2022, her mont hly salary was increased to
R8, 000, and from October 2022 until May 2023, 4 she received R8 , 500. It
appears that the respondent paid the employees according to the actual hours
worked.
[18] The international travel ban was lifted on 1 October 2020.
[19] The employees’ salaries were not adjusted to their pre -COVID-19 levels, but
they continued to be paid based on the hours worked.
[20] While the applicant claims that in 2021/2022 the respondent’s business
operations grew to the point where pre -COVID-19 sales were surpa ssed, the
respondent’s case appears to be that it paid all its employees based on hours
worked. It remains unclear what the respondent’s position is regarding whether
its operations ever returned to normal.
[21] By the end of 2022, four employees, including he r, were working at the store.
The applicant claims that Taylor did not support her in managing the staff,
especially Shahida Solomons (Solomons). In December 2022, Taylor visited
the branch and reassigned tasks to the staff.
[22] In January and again in February 2023, the applicant contracted COVID -19,
which meant she could not attend work on all the days she was required to be
4 When she was placed on temporary incapacity leave until she was fit to resume all her duties as
store manager.
present. The applicant alleges that she received several threats about her
absence from work, returned to work despite being ill, was informed that her
performance was being monitored, some of her managerial duties were
reassigned to staff, her off days were removed from the roster, and at some
point during one of his visits to the branch, Taylor informed the applicant that
he would dismiss her.
[23] In early March 2023, the applicant informed the respondent that she was
pregnant, and her pregnancy was classified as high -risk. At the same time,
another colleague was also pregnant. The applicant claims that the two were
unable to carry stacked boxes, resulting in unopened boxes accumulating in
the storeroom. The applicant states that, despite being pregnant, they were still
required to handle, carry, and move stock boxes, even though the other two
employees could have done this task.
[24] In March 2023, Taylor visited the store, and according to the applicant, he
showed no compassion for her situation. He called her mentally unstable,
threatened to dismiss her for sharing his emails with her medical professionals,
and claimed that if she took him to the Commission for Conciliation, Mediation
and Arbitration (CCMA), he knew people there.
[25] The applicant lodged a grievance against Taylor, which the respondent did not
process. Instead, Taylor sent the applicant an email denyi ng the allegations in
the grievance document and stating that the respondent would not assume
responsibility should any health or pregnancy complications arise, because the
applicant had refused the offer of unpaid leave for the rest of her pregnancy
and the four months afterwards.
[26] On 28 March 2023, the applicant referred two disputes to the CCMA. In the first,
she alleged unfavourable treatment,5 and in the second dispute, she claimed
full salary from 1 October 2020, when the ban on international travel was lifted
and, according to the applicant, the respondent’s business returned to normal.
and, according to the applicant, the respondent’s business returned to normal.
5 It is submitted that the applicant, who was unrepresented at the time, in fact meant to allege unfair
discrimination.
[27] The applicant alleges irregularities at the CCMA involving the commissioner
who conciliated the disputes and the respondent’s representative, 6 whom she
alleges met in her absence. She states that the respondent’s representative
mockingly asked, ‘How can anyone work with her when she can't even open
any boxes?’ The applicant states that nothing came out of the CCMA referrals
and that she returned to work the following day. She also states that t he day
she attended the CCMA was deemed unpaid leave, despite her request for it
to be treated as annual leave.
[28] During March and April 2023, the applicant continued to communicate with the
respondent regarding her duties, in light of her medical reports issued by her
treating medical practitioners, stating that she suffered from acute anxiety due
to being forced to lift and move heavy objects, that she should not lift heavy
objects, that she should be on light duty and not stand for prolonged periods,
and that she needed to see a cardiologist.7
[29] On or about 23 April 2023, the applicant provided the respondent with a list of
tasks she could perform. She excluded tasks involving lifting or moving heavy
objects, climbing, and bending.
[30] On 25 April 2023, the applicant was asked to resume her duties, excluding
strenuous activities, and she responded that she would set aside all ill feelings
if the respondent was willing to cooperate with her.
[31] On 2 May 2023, the applicant was issued with a Notice to attend an incapacity
hearing on 4 May 2023.
[32] On 4 May 2023, the applicant reported for work. That day, Shahida Solomons
(Solomons) allegedly pushed a chair into the applicant’s stomach, and she
reported the incident. She also stated that similar incidents had occurred in
March and April 2023 and that she had reported them to the Head Office without
any repercussions for Solomons.
6 The respondent disputes that Mr Venter is/was a legal representative.
6 The respondent disputes that Mr Venter is/was a legal representative.
7 Dr Lagardien report dated 19 April 2023.
[33] The applicant challenged the fairness of the incapacity hearing on the grounds
that the legal representative who represented the respondent in the CCMA
proceedings was the chairperson.
[34] The outcome of the hearing held in the applicant’s absence was communicated
via an email sent later that day, which stated, inter alia, that ‘due to the high risk
factors uncovered which are out of the company’s control to adapt, and as there
are no suitable alternative positions available ’, the applicant was placed on
unpaid leave for the remainder of her pregnancy, and four months later, and
was informed that she would be provided with a UI-19 form and a service
certificate.
[35] The applicant responded on the same day, stating that the only hazard in the
workplace was Solomons, denying that there was no work for her, given that
the majority of her work was administrative in nature, and that in the past,
pregnant employees were treated differently than she was being treated.
[36] In a follow-up email sent later the same day, the applicant was informed that
she had not been dismissed and that she needed to give the respondent one
month’s notice before returning to work. The UI -19 form pr ovided to the
applicant records the termination date as 4 May 2023, and the reason for
termination as Code 10: illness/medically boarded. The applicant was also
given a ‘salary schedule’ showing the salary she had earned since starting work
for the respondent.
[37] On 3 July 2023, the applicant sent an email to the respondent, stating that she
was willing and able to work, and that, as an alternative, an incapacity hearing
should be reconvened to allow her to make representations. The respondent
acknowledged receipt of the applicant’s email and informed her that the matter
had been referred to the labour consultant.
[38] The applicant never heard from the respondent again, and on 21 July 2023,
she sent an email stating she was resigning from her employment because the
she sent an email stating she was resigning from her employment because the
respondent had made continued employment intolerable. She referred to being
forced into unpaid leave despite not being declared unfit to work and noted that
her pleas to be deemed fit to work were ignored, culminating in no response to
her email of 3 July 2023.
[39] The applicant also allege s that shortly after she was placed on unpaid leave,
the respondent appointed a former employee as the store manager of the
Cavendish branch.
[40] She referred two separate disputes to the CCMA, which were not resolved
during the conciliation stage, and therefore , the referral s were made to this
Court.
[41] Her baby was born in October 2023.
The applicant’s pleaded claims
[42] The applicant pleaded that during her employment with the respondent, she
was pressured to undertake tasks that were unsafe for her unborn baby , the
respondent ignored medical advice indicating she could perform her duties with
reasonable accommodation as required by section 26(2) of the BCEA , and
instead placed her on forced, unpaid leave. She remained on unpaid leave until
her resignation in July 2023.
[43] Therefore, the first contention is that she was constructively dismissed as
contemplated in section 186(1)(e)8 of the Labour Relations Act9 (LRA), in that,
inter alia , the respondent not pay ing her full salary, fail ing to reasonably
accommodate her pregnancy, pressurring her to perform tasks that risked her
unborn baby’s safety, failed to support her in managing staff, reallocated her
managerial duties , failed to take disciplinary action against Solomons,
threatened to dismiss her while pregnant, failed to process the grievance
against Taylor , h eld an unfair incapacity hearing against her due to her
8 Which provides as follows:
186 Meaning of dismissal and unfair labour practice
(1) 'Dismissal' means that-
(e) an employee terminated employment with or without notice because the employer made
continued employment intolerable for the employee;
9 Act 66 of 1995, as amended.
pregnancy, placed her on unpaid incapacity leave without medical reports
indicating she was unfit to work, and failed to engage with her on returning to
work or in reconvening the incapacity hearing.
[44] Cumulatively and/or alternatively, she claims that the dismissal was
automatically unfair in terms of (i) section 187(1)(e) of the LRA, because the
reason for dismissal relates to pregnancy or related to pregnancy, (ii) section
187(1)(f) of the LRA, as she was unfairly discriminated against on the grounds
of sex, gender, and pregnancy, and (iii) section 5 of the LRA, because the
applicant referred disputes against the respondent to the CCMA. In the further
alternative, it is contended that the dismissal was both procedurally and
substantively unfair for reasons that do not constitute automatically unfair
grounds.
[45] The applicant seeks 24 months' compensation for the unfair dismissal claim.
[46] The second claim is that she was unfairly discriminated against on the grounds
of sex and/or gender , and pregnancy , as contemplated in section 6(1) , and
sections 51(1)10 and 51(2)(b)(ii)11 of the Employment Equity Act 12 (EEA), inter
alia, in that the respondent failed to accommodate her as a pregnant woman ,
held an incapacity hearing whilst she was fit to work, and placed her on unpaid
leave due to her pregnancy and discriminated against her for taking action
against the respondent (referring disputes to the CCMA).
[47] She also contends that Taylor and Solomons harassed her on the grounds of
sex, gender, and/or pregnancy, and/or for reasons related to pregnancy as
contemplated in section 6(3) of the EEA. This occurred in circumstances where
10 Which states the following:
51 Protection of employee rights
(1) No person may discriminate against an employee who exercises any right conferred by this Act.
11 Which states as follows:
(2) Without limiting the general protection conferred by subsection (1), no person may threaten to do, or do
any of the following:
(b) prejudice an employee because of past, present or anticipated-
(ii) exercise of any right conferred by this Act; or
12 Act 55 of 1998, as amended.
she has the right to equality as provided for in section 9 of the Constitution of
the Republic of South Africa , 1996 (Constitution), and the right to fair labour
practices as provided for in section 23 of the Constitution.
[48] In respect of the discrimination claim, the applicant seeks R500, 000 in general
damages, R206 , 69213 in patrimonial damages , an unconditional written
apology to be published on the respondent's website , an order for the
respondent to take specified reasonable measures to prevent future unfair
discrimination and harassment on the grounds of pregnancy, sex and/or
gender, and to report to the Court on measures taken.
[49] The third claim concerns an alleged vio lation of the applicant’s constitutional
rights to human dignity and bodily and psychological integrity, which are
protected by sections 10 and 12(2), respectively, of the Constitution. It is
alleged that the respondent knowingly and unlawfully subjected her to a hostile
work environment created, among others, by Taylor and Solomons, by placing
her on forced , unpaid leave, thereby depriving her of income without
justification, and by failing to provide her with documents that would have
enabled her to claim UI-maternity benefits. All of these actions are alleged to
have had a negative impact on her, both physically and psychologically, as a
pregnant woman. The relief sought is R500,000 in general damages.
[50] The fourth claim is for R153, 857.90, plus interest from the date each amount
became due, in terms of section 73A(3),14 77(3),15 and 77A(e)16 of the Basic
13 Costs in respect of psychological counselling and therapy, psychiatrist visits and psychiatric
medication.
14 Which deals with claims for failure to pay any amount owed to an employee, and where such
disputes should be referred.
15 Which states as follows:
(3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter
concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a
term of that contract.
16 Which provides as follows:
77A Powers of Labour Court
Subject to the provisions of this Act, the Labour Court may make any appropriate order, including an order-
(e) making a determination that it considers reasonable on any matter concerning a contract of employment in
terms of section 77 (3), which determination may include an order for specific performance, an award of
damages or an award of compensation;
Conditions of Employment Act 17 (BCEA), representing the difference between
the salary paid and the R10, 000 monthly salary that should have been paid to
her from March 2020 until 21 July 2023.
The respondent’s defences
[51] The respondent’s defences to the applicant’s claims are as follows:
51.1 Save for admitting what is contained in the email correspondence, the
disputes declared at the CCMA, and the birth of the child, it denies that
the applicant was constructively dismissed and alleges that the
resignation was premeditated, opportunistic, and vexatious.
51.2 It also denies that the dismissal was automatically unfair.
51.3 It denies the allegations of unfair treatment, v ictimisation, and
discrimination, and denies violating any of the applicant’s constitutional
rights, and puts the applicant to the proof.
51.4 It alleges the following:
51.4.1 That a risk assessment was conducted in terms of the Code of
Good Practice on the Protection of Employees During Pregnancy
and after the Birth of a Child18, after which the applicant was placed
on light duty during the first three months of her pregnancy.
51.4.2 The applicant refused to attend the incapacity hearing on 4 May
2023.
51.4.3 The applicant was laid off and was provided with the UI19 form.
51.4.4 It held a grievance hearing, after which the applicant declared a
dispute.19
51.4.5 It denies owing the applicant any money and submits that, in any
case, this dispute was never handled by the CCMA under section
73A of the BCEA.
17 Act 75 of 1997, as amended.
18 GoN R1441, G. 19453.
19 It is unclear what this relates to.
The applicant’s evidence
[52] She lives in Mitchells Plein, and at the time of the trial, she was employed by
Fitness Fusion Lifestyle, which is also located at Cavendish Square. She
applied for the job with the respondent on Gumtree and was invited for an
interview. During the interview, Taylor asked if she was single and whether she
planned to get a boyfriend. She found the question confusing but chose to
overlook it. She was appointed and started work on 11 November 2019. It was
agreed that her initial monthly salary would be R9,500 for the first three months
of probation, after which it would increase to R10,000.
[53] She reported to Taylor and commuted to work by bus. She was flown to
Johannesburg for training, and once she started, the store's losses decreased
from R2900 to R600. Her duties included administrative work, managing staff,
the store, customers, and compiling reports. When she began at the store, she
was warned that the staff were problematic, did not last, and that Solomons
was an issue.
[54] Before COVID-19, she had four colleagues, all of whom were sales consultants.
In her absence, Solomons acted as the store manager. As a new employee,
she found Solomons particularly difficult to manage, but she coped. She learnt
that Solomons wanted her job. She got along well with the other two colleagues.
She always attended work every day and was never late. On weekdays, she
worked from 9 am to 7 pm, and on weekends, until 5 pm. She communicated
with Taylor by phone and email. The most challenging part of her job was
making Taylor happy, but management was very responsive.
[55] In July 2020, it was agreed that staff salaries would be reduced by 25% until
the travel ban was lifted. Despite this agreement, she received R4,000 instead
of the agreed R7,500. The travel ban was lifted effective 1 Oct ober 2020, but
salaries were not restored to their pre-COVID-19 levels.
[56] During the COVID-19 period, only two colleagues were in the store at any given
[56] During the COVID-19 period, only two colleagues were in the store at any given
time. They worked one day on and one day off. Eventually, their hours returned
to 180 per week, but they finished work at 6 pm instead of 7 pm, and on
weekends, they worked until 5 pm. Over time, they resumed pre -COVID-19
hours and inquired about their salaries, which had not been adjusted. She was
told she would be retrenched if she kept asking. Until she left the respondent in
July 2023, her salaries were never readjusted to pre -COVID-19 levels. She
wanted to leave, but jobs were scarce. Her responsibilities remained
unchanged. In 2022, the store performed exceptionally well, and stock losses
dropped to zero. She raised the issue of salary adjustments, as the store was
very busy and staff couldn't take breaks. She received an email confirming the
store's strong sales.
[57] Solomons frequently caused problems, especially with banking summaries,
and she refused the training offer. She would shout and swear at the applicant.
In June 2022, Taylor authorised her to issue a warning to Solomons. When she
asked for guidance on issuing the warning, Taylor told her to speak to
Solomons instead. Helga, one of the colleagues , used to borrow money from
the applicant, and at some point, the applicant decided she would no longer
lend her money. From that moment, their relationship deteriorated.
[58] In October 2022, she injured her neck while installing printers at work. She took
sick leave and reported the incident to the head of HR, who told her it was not
a workplace concern. In November 2022, Taylor sent her an email about
banking issues, which left her feeling hopeless. Management ignored her
emails regarding staff problems. The environment became extremely toxic, with
staff giving her orders, despite holding the title.
[59] Taylor promised to visit the store in December 2022. When he arrived, he
threatened to retrench all the employees and claimed he knew people at the
CCMA. He also dismissed the issues as petty problems. She could not
understand why she was being called petty when Solomons was behaving as
she was.
[60] In the same month, Taylor sent an email reallocating tasks to everyone. By the
end of December 2022, she no longer wanted to be there but decided to endure
end of December 2022, she no longer wanted to be there but decided to endure
the unfair treatment because she needed the money until she found another
job.
[61] Explaining what happened in 2023, the applicant stated that the respondent’s
main business is selling luggage, but that it als o offers assistance with
international driver’s licences, travel bookings, and other services. The head
office is based in Boksburg, and it has between seven and nine branches.
Phillip Christofides is in charge of the businesses, followed by Taylor, the
director.
[62] They began work on 1 January 2023. The working environment became more
toxic than in 2022. Taylor informed the applicant that he wanted to dismiss her
and reinstate Helga, who had resigned due to personal issues with the applicant
after the applicant stopped lending Helga money.
[63] On 29 January 2023, she collapsed at home. The doctor said she had a throat
infection. Later that day, she was informed that she tested positive for COVID-
19. She sent an email to management, and Taylor insinuated that she was
faking it. On 31 January 2023, Taylor told her that her Thursday day off had
been cancelled due to her absence from work. She was advised not to return
to work until she was feeling better.
[64] Her stress levels in February 2023 were very high. Taylor kept accusing her of
pretending to be ill and refused to answer his calls. She struggled to be at home
or at work. She returned to her job in the second week of February 2023. When
Taylor called her, she told him she was still unwell, and he told her to go home.
[65] When she visited the doctor for a check-up on 1 March 2023, she found out she
was five weeks pregnant and informed management. In 2012, she had also
become pregnant but lost the baby because she was working in a store at the
time, lifting suitcases. She had been pregnant three times. When she told
management about her pregnancy and its high risk, she was advised to
undertake light duties. However, the staff were unsupportive of her doing only
light duties, which led to her getting into trouble for un opened boxes. She
light duties, which led to her getting into trouble for un opened boxes. She
couldn't open the boxes because they were stacked, each weighing between
12 and 15 kilograms. Taylor instructed her to carry the boxes regardless of the
risk to her pregnancy. Her stress levels were very high, but she was unable to
take medication. She wanted to leave but needed the money.
[66] At the time, another employee, Chelsea Du Plessis (Du Plessis), was also
pregnant. Du Plessis's pregnancy was further advanced than hers. As store
manager, she assigned Du Plessis light duties. Taylor w as kind to Du Plessis.
When she informed Taylor about the light duties given to Du Plessis, Taylor
disagreed and said she should have opened the boxes and that it did not matter
if she lost the baby.
[67] On 12 March 2023, Dr. Lagardien wrote a letter to the respondent to assign her
to light duties. He also warned her that she might lose the baby if she did not
resign from her job. She obtained another letter from Mitchells Plein Hospital -
Antenatal Unit, addressed to the respondent, indicating that the unborn baby
was at risk. She sent this letter to Jarod Jantjes (Jantjes) because Taylor no
longer wished to deal with her. Jantjes advised her to do light duties but also
told her over the phone to open boxes with her colleagues' help. However, the
colleagues refused to assist.
[68] On 16 March 2023, she was asked to provide a statement regarding unopened
boxes. At that time, only she and Du Plessis were present at work, as the
temporary employee was absent. Jantjes accused her of dishonesty.
[69] The store exclusively employed female staff. Taylor explained that he preferred
female employees because he enjoyed looking at them. He claimed women are
much more visually appealing. He would tell them to tuck in their shirts so he
could see their fig ures. During interviews, he hired women with their blouses
unbuttoned. He also mentioned being accused of sexual harassment after
touching a woman’s neck.
[70] On 28 March 2023, she referred a dispute to the CCMA, alleging discrimination
on the grounds of pregnancy and claiming that her salary was being short-paid.
The CCMA ruled that it lacked jurisdiction to determine the salary claim. Life
turned into hell after the CCMA referral, as they had been specifically told not
to approach the CCMA.
to approach the CCMA.
[71] At Taylor’s reque st, Dr Lagardien wrote a letter explaining what ‘light duty’
meant. In April 2023, several emails were exchanged between the applicant
and the respondent's representatives regarding the applicant’s duties. On 25
April 2023, in an email to all employees, Taylor attached a final, non-negotiable
list of allocated tasks. According to the applicant, the list did not match the
duties Dr Lagardien had recommended as light duty. For example, she was still
required to climb ladders.
[72] She was sidelined. For instance, ‘reps’ visited the store, and she was unaware
of the visits, while all staff were aware of them. She felt embarrassed.
[73] On 2 May 2023, she received a letter summoning her to an incapacity hearing.
She immediately declined the invitation upon seeing that Venter, who had
represented the respondent at the CCMA, would chair the hearing. He had
remarked, ‘How can a store manager not open boxes ,’ and she felt he would
not be impartial.
[74] After the hearing, she received the UI-19 form and a salary schedule, but there
was no outcome. She was told to return the keys and leave the store. She saw
the ‘Risk Assessment’ document for the first time while giving evidence. She
was unable to claim Unemployment Insurance (UI) maternity benefits as the
respondent refused to sign the corrected UI19 form.20
[75] On 3 July 2023, she emailed the respondent requesting permission to return to
work or to reconvene the incapacity hearing. She was informed that the matter
had been referred to a labour consultant for advice. She did not hear f rom the
respondent again, and on 21 July 2023, when she was six months pregnant,
she decided to resign. She believed she had been discriminated against on the
grounds of pregnancy and noted that the respondent had not contacted her
since 3 July 2023. After resigning, she felt a sense of relief but was concerned
about unemployment. She believed she had protected her baby by resigning.
[76] An attorney assisted her in describing the nature of the disputes in the CCMA
referral forms.
Cross examination
20 The UI19 form she had received recorded that she was terminated for ill health/medically boarded.
[77] She was asked about her employment history before joining the respondent.
She confirmed that her salary was R10,000 per month and that she was not
paid by the hour. She denied ever depleting her sick leave whilst employed by
the respondent. She was referred to her claim for outstanding salary, and it was
put to her that she had been placed on unpaid leave; therefore, her claim for
unpaid salary did not make sense. She explained that the claim was for
underpaid salaries. She was asked whether she received TE RS money, and
she confirmed that she received R750 per month and that the respondent had
informed her it was a loan to be repaid. She had no knowledge of the UIF Covid
TERS Audit Employer Sign-Off Certificate signed by the respondent in October
2023.
[78] She confirmed that she had referred three disputes to the CCMA. She attended
the initial hearing alone, and by the September 2023 hearing, she had legal
representation. At that time, her baby had not yet been born. She did not consult
a labour attorney before the CCMA referrals because she could not afford it.
[79] During her pregnancy, she consulted a psychologist and a psychiatrist. She
gave birth in October 2023 and had been prescribed anxiety medication for life.
She took anxiety medication from late 2022 to early 2023 due to work -related
stress. When asked for p roof that she had consulted a psychiatrist and a
psychologist, he stated that the evidence was in the folder. When asked for
proof of the medication she had purchased, she replied that she had some in
her bag, and the rest she could bring to court the following day. She also stated
that she had handed all the documents to her legal representatives.
[80] It was put to her that the law requires an employee to take maternity leave four
weeks before the birth and three months afterwards. It was also put to her that
she was not medically boarded or dismissed because of her pregnancy, but
that she expressed her desire to return to work, which she confirmed. She
that she expressed her desire to return to work, which she confirmed. She
confirmed that after she was placed on incapacity leave, she visited the
Department of Labour , was informed she could claim maternity benefits, and
was given the correct forms that the respondent was required to sign. The
respondent refused to sign the documents.
[81] It was put to her that she could not claim UI benefits because she resigned, and
she responded that she resigned after the Department informed her that she
could not claim UI benefits unless the correct UI19 forms were signed by her
employer.
[82] The decision to resign was hers, as the respondent was ignoring her, and she
did not know what else to do. Christofides cared about the staff, but not Taylor.
[83] Thereafter, the applicant was asked to read emails exchanged with Taylor on
18 March 2020 regarding Symptoms and Prevention of COVID -19. These
emails indicated that she could work from home if unwell and included a March
2020 letter from the respondent to all employees stating that they were being
temporarily laid off due to the lockdown. She stated that after the lockdown, the
business improved, and from 2021 to 2022 she sent the respondent an email
stating that the business was making more money than before COVID-19. She
was referred to the March 2020 email about leave not being credited while
employees were on lockdown. She was also referred to Taylor’s March 2020
email about salary adjustments, which ha d been overlooked and would be
rectified. She responded that she had never received the promised R500
increase. She was further referred to an email to employees stating they would
receive a R750 weekly allowance for 15 weeks, over and above the TERS
money. She confirmed that employees received TERS from the government.
She stated that both the TERS and the R750 weekly allowance were
discontinued in July 2020, when it was agreed that employees' salaries would
be reduced by 25% until the travel ban was lifte d and business returned to
normal.
[84] Regarding tension in the workplace, she was referred to Taylor’s September
2020 email, in which he instructed staff to cease hostile behaviour. She was
also directed to the email Taylor sent to Solomons in May 2022, whic h stated
that if she did not know how to prepare banking summaries, then she should
that if she did not know how to prepare banking summaries, then she should
resign. This was after the applicant complained that Solomons was not
preparing banking summaries correctly. She was also referred to her April 2022
email requesting that s alaries be returned to pre -COVID-19 levels, as well as
Taylor’s email to Christofides requesting that the matter be treated as a priority.
She stated that the issue was never resolved.
[85] She referred to an email she sent in June 2022 regarding Solomons fall ing
behind with her work , and was asked whether she had disciplined him. She
responded that she was instructed to escalate staff matters to Taylor. She then
referred to an email from January 2023 concerning Solomons and Taylor’s
response to Solomons, indicating she should respond to the allegations. It was
suggested to her that this shows Taylor intervened when issues about
Solomons were raised with him, to which she replied that this was done solely
for administrative reasons.
[86] She was referred to an email she sent to Taylor on 26 October 2022 about
being booked off sick for the rest of the month, which demonstrates that she
communicated openly with Taylor and was not ignored.
[87] She was referred to Taylor’s December 2022 email regarding tensions at the
store, and she responded that it concerned another store, not Cavendish
Square. She was also referred to another email from Taylor, sent in December
2022, which advised her to discipline staff and issue warnings as necessary;
she replied that, until then, she w as not authorised to do so. Additionally, she
was directed to Taylor’s January 2023 email, in which he stated he would visit
the store because the staff were unhappy and unfriendly to customers. She was
also referred to her December 2022 email to HR about meal intervals and
Taylor’s October 2022 email. No questions were asked about these emails.
[88] She was referred to the work attendance register from July 2022 to October
2022, and the fact that she was paid R30 per hour. She responded that this
was her contracted salary.
[89] She was referred to her email to Taylor dated 14 February 2023, in which she
stated that the doctor said he was partly responsible for her slow recovery.
Taylor responded that her accusations were false and that her emails were
Taylor responded that her accusations were false and that her emails were
causing her stress. She replied, acknowledging that Taylor had shown ongoing
concern for her health.
[90] She was referred to the emails from March 2023 regarding the Interbrand
invoices, and the fact that she stated Taylor’s emails were offensive because
he accused her of being mentally unstable, a claim which Taylor denied.
[91] She was also referred to the email from April 2023, in which she reported a
workplace incident, among other matters. She confirmed that Solomon s had
swung a chair out, knowing the applicant was be hind her, hitting her stomach,
and had done so a second time, with a grimace on her face. Solomons told the
applicant that she should not have been behind her.
[92] She stated that her pregnancy was high-risk from the outset. It was put to her
that Dr Largadien’s note dated 2 March 2023 indicated she should be on light
duties for the first three months, and that she would be able to return to normal
duties on 3 March 2023. There was no response.
[93] She confirmed that the respondent accepted all the sick notes she s ubmitted
and paid her. Regarding the diagnosis of acute anxiety, she stated that this was
due to work pressures and confirmed that she had started taking anxiety
medication towards the end of 2022.
[94] She was referred to the medical notes from Mitchells Plei n dated 12, 14, and
19 April 2023, which stated that she should be placed on light duty. She
confirmed this but stated that it was not implemented.
[95] She was unaware of the risk assessment conducted before the incapacity
hearing. She did not attend the hearing because Venter, the chairperson,
mocked her at the CCMA, claiming she could not open boxes. At that time, she
did not have a lawyer. She feared Venter would be biased. When she requested
another incapacity hearing, she never received a response from the
respondent. When asked about the delay in requesting the reconvening of the
incapacity hearing, she said she could not recall the dates.
[96] The risk assessment report noted that they sat in traffic because of load
shedding, but they remained in the store all day.
[97] It was put to her that she staged the case to illegally claim money from the
respondent, and she disputed this. When asked why she resigned, she replied
that she received no assistance because the respondent refused to sign the
correct UI-19 form. It was also put to her that if her complaint was about a lack
of money during COVID-19, everyone suffered, as there was no money during
COVID-19.
[98] She stated that after she was placed on incapacity leave, her health worsened.
There was no income coming in, she lost her appetite, and she felt stressed.
Her father advised her to visit the Department of Labour. The Department of
Labour did not tell her to resign but to claim maternity benefits. The UI19 form
she received from the respondent recorded the reason for termination as Code
10, but the Department of Labour said it should be Code 9 (maternity leave, not
termination of employment).
[99] It was put to her that altering the previously issued UI19 form would have
constituted fraud because she was not dismissed, and she responded that the
Department advised her to obtain a UI19 form, which indicated that she was on
maternity leave. It was also put to her that neither a layoff nor medically boarded
status applied. Furthermore, she was asked why, if she was not satisfied with
the Department’s responses, she did not lodge a formal complaint against
them, to which she replied that she was happy with the Department’s response
but not with the respondent, who refused to sign the correct UI19 form.
[100] She reiterated that she had no choice but to resign, refused to participate in the
incapacity hearing because of Venter, and stated that no lawyer had advised
her to r esign, as she could not afford one. When asked if she had taken a
shortcut by resigning and claiming what she was not entitled to, she responded
that she had resigned because the situation was intolerable.
Re-examination
[101] She testified that the respondent did not explain the purpose of the incapacity
[101] She testified that the respondent did not explain the purpose of the incapacity
hearing and felt she was being targeted. She did not receive the email
explaining why the respondent would not sign the UI-19 form she received from
the Department of Labour be cause an incorrect email address was used. The
table in the statement of case reflects the amounts she received from the
respondent during that period, which are not the R10 000 she was contractually
entitled to. According to the report, the risk assessment was completed before
the incapacity hearing. Dr Lagardien listed the light duties she could perform.
Colleagues did not assist her much, and management accepted their version
over her own. She was placed on incapacity leave during the first trimester of
her pregnancy.
Respondent’s submissions in the application for absolution from the instance
[102] In respect of the constructive dismissal claim, it was submitted that the applicant
had alternatives to resigning. It was argued that she should have waited until
she was fully recovered and then indicated when she was able to return to work,
supported by a medical certificate. She was considered high risk and suffered
from anxiety, and she did not testify that she was ready to return to work,
supported by a medical certificate. The submission was that she instead wanted
the respondent to medically board her so that she could claim UI maternity
benefits, and that this was what was agreed in the pre -trial minute. Therefore,
it was submitted that a dismissal had not been established.
[103] Regarding the discrimination claim, the submission was that COVID -19
affected everyone, not just the applicant, so she was not subjected to
discrimination, so the submission went.
[104] Regarding the alleged violation of constitutional rights, i t was argued that no
evidence had been presented to substantiate the claims. The purported hostile
environment was caused by other staff members, whom she was responsible
for managing. Consequently, the submission was that the claim could not get
off the g round. Reliance was placed on Solidarity obo K ellerman v Western
Cape Education Department and Others 21 (Solidarity obo Kellerman ), which,
according to the submission, held that workplace disputes and strained
according to the submission, held that workplace disputes and strained
relationships do not constitute grounds for discrimination claims.
21 (C70/22) [2024] ZALCCT 59 (22 November 2024).
[105] Regarding the claim for the alleged outstanding salary, it was submitted that in
her evidence, the applicant did not refer to her payslips or attendance register.
It was also argued that she sought payment for hours she did not work and that
only she wanted to receive her full salary, but not the other employees. It was
further submitted that the applicant had been referred to documents she did not
deny.
[106] Reliance was placed on the decision in Lagadien v Minister of the Department
of Science and Technology and Another 22, (Lagadien) and it was submitted
that, like the employee in that matter, the applicant had not established a prima
facie case, and therefore, absolution from the instance was appropriate.
Evaluation
Alleged constructive dismissal
[107] The first claim concerns an alleged constructive dismissal, founded on reasons
that automatically make the dismissal unfair on the grounds of gender, sex, and
pregnancy.
[108] An employee is considered constructively dismissed when they resign because
an employer has made continued employment unbearable. In this case, the
resignation is not contested. Whether continued employment was made
intolerable is assessed objectively, not based on the employee’s personal
opinion. If employment was made intolerable, the next question is whether the
employer is responsible for that situation. Finally, even if these conditions for
constructive dismissal are met, it only proves that a dismissa l occurred. A
further question then arises as to whether the dismissal was fair, both in
substance and in procedure.
[109] The respondent’s only submission in the application for absolution from the
instance is that the applicant had other options besides resigning. However, in
Lagadien, which Mr Jonker quoted extensively in oral argument , the court
referred to Sanlam Life Insurance Limited v Mogomatsi and Others 23, which
22 (JS1042/17) [2023] ZALCJHB 261 (27 September 2023).
22 (JS1042/17) [2023] ZALCJHB 261 (27 September 2023).
23 (2023) 44 ILJ 2516 (LAC).
found that an employee who claims constructive dismissal need not prove that
they had no choi ce but to resign. All that an employee is required to
demonstrate is that an employer made continued employment intolerable.
Having relied on an incorrect test in constructive dismissal cases, it follows that
absolution from the instance cannot be granted.
[110] In stating the above, it must be remembered that to succeed in a constructive
dismissal case, an employee must meet all the criteria. If those criteria are
satisfied, the employee must still demonstrate that the dismissal was both
substantively and procedurally unfair. The applicant has claimed that the
respondent created intolerable conditions and is responsible for them. Prima
facie, she has established a case that this Court, considering th e facts, could
or might find in her favour. However, the Court can only make a final decision
after hearing the respondent’s version of the case presented by the applicant.
All questions concerning whether the applicant was constructively dismissed
can onl y be properly addressed if the matter is allowed to proceed to
completion, including hearing the respondent’s side.
[111] It must also be remembered that the applicant’s case is that she was fit for light
duty and could have continued working until she needed t o go on maternity
leave. The respondent’s version of whether it was not possible for the applicant
to be placed on light duty must be heard and considered. In this regard, I noted
Mr Jonker’s submission that the applicant wanted to be medically boarded so
that she could claim UI maternity benefits. The court w as unable to find the
substantiation for the submission.
[112] The respondent also promised to reply to the applicant’s letter of 3 July 2023
but never did. She further alleges that the respondent failed or refused to
complete the correct UI19 form, which would have indicated she was on
maternity leave, but provided her with an incorrect UI19 form stating she was
maternity leave, but provided her with an incorrect UI19 form stating she was
terminated due to ill health and/or was medically boarded. Her case is
essentially that she was left in limbo. If these claims are accurate, the key issue
is whether the respondent's conduct , viewed objectively, could have created
intolerable conditions. The respondent must be given a chance to present its
side of the story, including its view that c ompleting a leave form stating the
applicant was on maternity leave would have amounted to fraud.
[113] The applicant’s additional contentions were that her difficult relationship with
Solomons made continued employment intolerable because the respondent
failed to intervene. The evidence before the court thus far suggests that the
respondent did not discipline Solomons but also indicates that the applicant
was authorised to do so, though she did not. The court cannot make a
determination on the issue with the li mited information before it, which is why
absolution would not be an appropriate order to grant.
[114] Regarding the alleged difficult relationship with Taylor, the respondent has not
provided a competing version apart from referencing emails between the
applicant and Taylor to demonstrate communication. At this stage of the
proceedings, the court might rule in favour of the applicant but may also decide
against them after considering Taylor’s account of the issues raised.
Alleged automatic unfair dismissal
[115] The applicant alleges that she resigned due to reasons related to her sex,
gender, pregnancy and reasons related to pregnancy. In Kroukam v SA Airlink
(Pty) Ltd24, the Court stated that section 187 of the LRA imposes an evidential
burden on an employee to present evidence that raises a credible possibility of
an automatically unfair dismissal, after which it is incumbent upon the employer
to prove otherwise by demonstrating that the reason for the dismissal did not
fall within the circumstances outlined in section 187.
[116] The respondent’s sole submission, in support of an application for absolution
from the instance, is that COVID -19 affected all employees, not just the
applicant. The Court finds this submission difficult to understand, as the
applicant is not r elying on COVID -19 to support her case. In the interests of
24 (2005) 26 ILJ 2153 (LAC).
justice, the respondent must be given an opportunity to respond to the
applicant’s claim that her dismissal was automatically unfair.
[117] Prima facie, the applicant has presented evidence that raises a credible
possibility that her dismissal falls within the scope of section 187(1)(f) of the
LRA. She was placed on light duty for the first three months after she disclosed
her pregnancy. If that arrangemen t worked during those three months, it
prompts the question of what changed and why she could no longer remain on
light duty. Mr Jonker suggested to the applicant that a medical note indicated
she would be fit to return to normal duty after the initial thr ee months. How
should the Court interpret the medical notes issued as recently as April 2023,
which state that the applicant must be placed on light duty? If there were
difficulties in maintaining the applicant on light duty for the remainder of her
pregnancy, only the respondent can explain them. The applicant claims that the
final, non-negotiable light-duty task allocation sent by Jantjes did not align with
Dr Lagadien's recommendations, as she was still required to bend. Only the
respondent can address this allegation.
[118] An additional matter needing an answer is what happened to the other pregnant
employee, including whether her pregnancy was also high risk and if she was
similarly placed on incapacity leave. The applicant’s evidence was that Taylor
was sympathetic to the employee’s situation but also criticised the applicant for
the light duties assigned to the employee. What is the respondent’s account of
these issues?
[119] I have also considered the applicant’s undisputed evidence that she was neither
involved in nor made aware of the risk assessment conducted by the
respondent prior to the incapacity hearing. The risk assessment also mentioned
sitting in traffic, whereas the applicant’s pregnancy was in 2023. The
respondent should be given the opportunity to clarify these matters.
respondent should be given the opportunity to clarify these matters.
[120] Having considered the decision in Lagadien, which Mr Jonker quoted
extensively from during oral argument, I believe that the outcome in that case
was fact specific. The employee involved, who had a disability, failed to provide
credible evidence that the employer created intolerable working conditions due
to her disability, which led to her resignation, and that she claimed was
automatically unfair. In my view, the facts of the present case are
distinguishable. The applicant in this m atter has, prima facie , established,
among other things, that the respondent placed her on incapacity leave despite
her ability to perform light duties and failed to respond to her request to return
to work or to reconvene an incapacity hearing. In oral argument, Mr Jonker did
no more than read paragraphs of the judgment, without making any
submissions as to the relevance of what he read into the record.
[121] The respondent did not make any submissions on the applicant’s claim that her
life became a nightmare after she referred the two disputes to the CCMA. Prima
facie, she has established that the employer acted in breach of section 5 of the
LRA, rendering her dismissal automatically unfair. It is only fair that the
respondent be given a chance to respond to that case.
Discrimination claim
[122] The second claim concerns unfair discrimination as outlined in section 6 of the
EEA. This provision prohibits unfair discrimination, whether direct or indirect,
against any employee through employment policies or practices based on listed
or arbitrary grounds. These grounds include, but are not limited to, sex, gender,
and pregnancy. However, section 6(2) states that it is not regarded as unfair
discrimination to differentiate someone based on the inherent requirements of
a specific job.
[123] The applicant asserts she was placed on temporary incapacity leave due to her
sex, gender, pregnancy, and pregnancy -related reasons. Since the alleged
discrimination is based on these grounds, section 11 of the EEA requires the
employer to prove that the discrimination did not occur or that it was justified.
Unless the respondent submits its version before the Court, it cannot
demonstrate that no discrimination took place or that it was justified. Therefore,
its version must be heard, in the interests of justice.
its version must be heard, in the interests of justice.
[124] The applicant also alleges harassment, which, under section 6(3) of the EEA,
constitutes a form of discrimination that is prohibited on any of the listed or
arbitrary grounds.
[125] The Code of Good Practice on the Prevention and Elimination of Harassment
in the Workplace25, provides as follows:
"4.1 The term 'harassment' is not defined in the EEA. Harassment is generally
understood to be-
4.1.1 unwanted conduct which impairs dignity;
4.1.2 which creates a hostile or intimidating work environment for one or
more employees or is calculated to, or has the effect of, inducing
submission by actual or threatened adverse consequences; and
4.1.3 is related to one or more grounds in respect of which discrimination
is prohibited in terms of section 6(1) of the EEA."
[126] As the applicant has relied on listed grounds in her claim that she was harassed
by Taylor, who allegedly treated her unfairly on several occasions, and by
Solomons, who allegedly pushed the chair into her pregnant stomach on at
least three occasions, the respondent bear s the burden of proving that the
applicant was not harassed or that the harassment was justified.
[127] Section 60 of the EEA states that an employer is liable for the conduct of an
employee who breaches any provision of the EEA if the employer fails to take
the steps outlined in that provision. The applicant alleges that the respondent
is responsible for the conduct of Solomons and Taylor because it did not
undertake the steps specified in the provision. Only the respondent can
challenge this prima facie case by answering whether Solomons and Taylor
breached the EEA, and if so, whether the respondent took the steps outlined in
section 60 to evade liability.
[128] In the Solidarity obo Kellerman judgment relied upon by Mr. Jonker, the
applicant alleged discrimination on an unspecified arbitrary ground and was
unable to specify what that ground was. Furthermore, in that case, it was not
pleaded, and no evidence was presented that the employee was being treated
in that way because of his race. Consequently, the case could not proceed
further. In this instance, the applicant relies on sections 6(1) and (2) of the EEA
further. In this instance, the applicant relies on sections 6(1) and (2) of the EEA
25 As published in GN R1890 contained in GG No 46056 dated 18 March 2022.
and explicitly states the listed grounds of pregnancy, gender, and sex. This is
the main factor that distinguishes the two cases.
[129] But more importantly, in Solidarity obo Kellerman, a key consideration was that
the two employees had a difficult relationship and had lodged grievances
against each other. In the present case, the applicant, who lodged complaints
against Solomons and sought to raise a grievance against Taylor, alleges that
no action was taken against either Solomon s or Taylor. This appears to be a
further distinguishing factor.
[130] Also in Solidarity obo Kellerman , the employee a ccused of harassment was
disciplined and dismissed, while in the present case, nothing was done to
Solomons or Taylor. Therefore, the employer in Solidarity obo Kellerman could
not be held liable under section 60 of the EEA for the conduct of an employee
whom it had dismissed for their behaviour towards a fellow employee. This is
very different from what happened in this case.
[131] Prima facie, the applicant established a nexus between the ill treatment and the
pregnancy. The interests of justice are best served by giving the respondent an
opportunity to demonstrate that there was no discrimination or that it was
justified.
Violation of constitutional rights
[132] The third claim concerns the alleged violation of the applicant’s dignity and
bodily and psychological i ntegrity. The respondent seeks absolution on the
grounds that no evidence was provided to support the claim. The question that
arises is whether evidence can be presented to support such a claim, or
whether the applicant failed to present it. Unless the court has the benefit of the
parties' arguments on the legal point, it cannot rule that the applicant cannot
succeed with her claim.
[133] The respondent also argued that the applicant could have but failed to discipline
Solomons. This issue was addressed above. What was not addressed was
what the applicant could have done about Taylor, whom she reported to, and
what the applicant could have done about Taylor, whom she reported to, and
the fact that the respondent did not process the applicant's grievance against
Taylor. Per haps the respondent can explain itself and should be given the
opportunity to do so.
[134] Insofar as Solidarity of Kellerman was relied upon, the employee had a difficult
relationship with a colleague, who was ultimately dismissed for his behaviour
towards a f ellow employee, and then resigned after being informed that his
contract would not be renewed. In that regard, there may well be some
similarities between the present case and that of Solidarity obo Kellerman, but
the final decision can only be made once both sides of the story have been
heard. However, in this case, the difficult relationship between the applicant and
Taylor, a director, cannot be explained by referencing the Solidarity obo
Kellerman decision.
[135] The court stays uninformed unless given all n ecessary information to make a
proper decision.
Salary claims
[136] The final claim relates to the salary, which the applicant asserts was not
readjusted after the ban on international travel was lifted. At this stage of the
proceedings, the dispute between the parties is whether employees could, at
some point, claim salary only for hours actually worked. While the applicant
relies on the contractual arrangement of R10,000 per month, the respondent’s
case is that the applicant was claiming for more hours than sh e had worked.
Whether the applicant was requesting something different from what other
employees were claiming, if that was the case, is irrelevant. The court needs to
hear the respondent’s version in relation to the applicant’s version. Therefore,
absolution from the instance cannot be considered.
[137] The respondent’s argument that the applicant’s claim for outstanding salaries
cannot be considered because she did not refer the dispute for conciliation is a
matter the court requires legal submissions on before reaching a decision. This
further emphasises why absolution from the instance would not serve justice.
further emphasises why absolution from the instance would not serve justice.
[138] The fact that the applicant read emails into the record, which she did not deny,
does not strengthen the respondent’s case. She was asked to read the emails,
but in most cases, no questions followed. The court remained uninformed about
the point intended to be emphasised.
[139] On the facts, it could not properly be said that no court, reasonably considering
the matter, could or might find that the applicant was not short paid, given that
her salary was not readjusted after the ban on international travel was lifted.
Concluding remarks
[140] The court is satisfied that the applicant has met the threshold of establishing a
prima facie case against the respondent on all claims, with some being stronger
than others. The statement of response mainly consists of bare denials. The
applicant’s cross-examination primarily involved asking her to read, one after
another, very lengthy emails. When the Court sought to guide Mr Jonker, as he
is not a legal representative and might have needed the Court’s assistance, he
took offence at the Court’s offer. The consequence was that the Court held back
but was also unable to determine which inferences or deductions to draw from
the several emails the applicant was asked to read under cross-examination.
[141] In argument, Mr Jonker also read extensively from the two judgments referred
to above, without drawing any parallels between the facts of the case before
the court and those of the two judgments he relied upon. Unfortunately, this did
not assist the court, which also considered the f act that he is not a legal
representative.
[142] When all is considered, the interests of justice require that the respondent
should be given an opportunity, if advised to do so, to present its version on all
of the applicant’s claims, beyond the bare denials in the statement of response
and the few illuminating questions posed during cross-examination. Whether
the applicant will succeed with any or all her claims can be determined in due
course.26
26 Commercial Stevedoring Agricultural & Allied Workers Union on behalf of Dube & Others v Robertson
Abattoir (2017) 38 ILJ 121 (LAC) at para 25.