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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN JOHANNESBURG)

CASENO: J1093/06

In the matter between:

ELCIE JACOBA VORSTER APPLICANT

and

REDNAVE ENTERPRISES CC t/a RESPONDENT

CASH CONVERTERS QUEENSWOOD

JUDGMENT

AC BASSON, J

The dispute

1. The Applicant in this matter, Ms Elcie Vorster (hereinafter referred to as “the Applicant”), alleged that she was unfairly dismissed on the basis of her pregnancy and that her dismissal constituted an automatically unfair dismissal in terms of section 187(1)(e) of the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”). In addition hereto it was further also the Applicant’s case that she was unfairly discriminated against on the ground that she is a female as contemplated in section 187(1)(f) of the LRA.

2. It was the Applicant’s case that she was appointed by the Respondent (Rednave Enterprises CC t/a Cash Converters Queenswood) on 1 August 2005 on a three month probation period and that she was told by the Respondent that she will be considered for permanent employment after the expiry of the three month probationary period. It was common cause that the Applicant was not appointed either on a permanent basis or on a further fixed term contract after the expiry of the said three month probationary period. In essence it was the Applicant’s case that she had a legitimate expectation of permanent employment after the expiry of the probation period. It was not the Applicant’s case that she was appointed on a permanent basis and that the probationary period constituted a term of her employment contract as is usually the case. It was her case that her non-appointment on a permanent contract after the (fixed) three month probation period, constituted a “dismissal” as contemplated by section 186(1)(b) of the LRA. It was the case for the Respondent that the Applicant was not dismissed. The Respondent’s case seems to be based on two mutually constructive legs. On the one hand it was the Respondent’s case that there could not have been a legitimate expectation of a further contractual relationship simply because the contract came to an end after the three month period. On the other hand it was the evidence on behalf of the Respondent that a decision was in fact taken not to renew the Applicant’s contract and that this decision was taken in light of the financial position of the Respondent; the fact that the employment relationship was damaged as a result of an incident (see the discussion below); and because the Applicant was the worst employee. I will return to these reasons more fully hereinbelow. Suffice to point out that I am satisfied on the evidence that a decision was in fact taken not to renew the Applicant’s contract and that the evidence does not support a conclusion that the relationship between the Applicant and the Respondent simply came to an end after the expiry of the “probation” period. I will return to the reasons for coming to this conclusion hereinbelow where I discuss whether the Applicant had a legitimate expectation that her contract would be renewed. It was, however, not in dispute (at least in respect of the first two months of the “probation” period) that the Applicant was appointed on a month to month basis during the said three month period and that she had signed two written fixed-term employment contracts: one for August 2005 and one for September 2005.

3. The Respondent called three witnesses: Mr P Bowright (the owner of the business – hereinafter referred to as “Bowright”); Mr Ettienne Louw (hereinfter referred to as “Louw” who was the Applicant’s manager); and Mr Edward Higgs (a former co-employee of the Applicant – hereinafter referred to as “Higgs”).

Condonation application

4. The Applicant filed an application for condonation for the late filing of her the statement of case in which she explains why her statement of claim was only filed on 11 July 2006 despite the fact that she was (according to her) dismissed on 31 October 2005. A perusal of the papers reveals that the dispute that was referred to the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”) is describe in terms of the LRA7.11 referral form as one relating to the Applicant’s pregnancy. Despite this clear characterization of the dispute as one relating to pregnancy, the Commissioner at conciliation nonetheless referred the dispute to arbitration. At the commencement of the arbitration proceedings, the Respondent raised a point in limine in respect of the CCMA’s jurisdiction to adjudicate the dispute. The Commissioner issued a Ruling on 24 March 2006 in terms of which it was found that the CCMA did not have jurisdiction and that the matter is referred to the Labour Court. Despite the fact that the Ruling was issued in March 2006, the Applicant only filed her statement of claim on 11 July 2006 which is just over three months after the Ruling. Although no specific time period is prescribed by the LRA in terms of which a dispute must be referred to the Labour Court after a Ruling was issued by the CCMA at arbitration, it is trite that the Labour Relations Act is premised on the principle of the speedy resolution of disputes and that all the parties to a dispute are required to play their respective parts in ensuring compliance with this underlying principle of the LRA. (See in this regard the decision in Bezuidenhout v Johnston NO & Others (2006) 27 ILJ 2337 (LC).) It is also trite that where the LRA does not prescribe a specific time period within which a step in the proceedings must be taken, a party to the dispute must take such a step within a reasonable time. I have already pointed out that although the jurisdictional ruling was issued on 24 March 2006 the Applicant only filed her statement of claim approximately 3½ months later. The Applicant cannot, in my view be faulted for the referral to arbitration as that was done in accordance with the certificate of non-resolution issued by the Commissioner at conciliation. That referral was also done within the prescribed 90 day period after the CCMA has certified that the dispute remained unresolved (see section 191(11)(a) of the LRA). There is no provision in the LRA which prescribes the time period within which a referring party must refer her statement of claim to the Labour Court once the Commissioner at arbitration rules that it does not have jurisdiction to adjudicate the dispute and that the dispute must be referred to the Labour Court. Where in the past this Court had to consider what would constitute a reasonable time within which a party to a dispute must perform a procedural step, the Court had regard to comparable provisions in the LRA where time periods have in fact been prescribed for a similar or comparable procedural step. The most pertinent example is where the Court had to determine what a reasonable time period would be within which to file a review application in the context of section 158(1)(g) of the LRA. With reference to section 145 review applications where a time limit of 6 weeks has been prescribed by the legislature within which to file a review application, the Court has concluded that a reasonable time within which to file a section 158(1)(g) review application is interpreted to mean 6 weeks. See in this regard: Fidelity Guard Holdings (Pty) Ltd v Epsteen N.O. and Others (2000) 12 BLLR 1389 (LAC) (at paragraph [15]) and JDG Trading (Pty) Ltd t/a Bradlow Furnishers v Laka N.O. and Others (2001) 3 BLLR 294 (LAC) at par. 17 to 20.

5. I could not find a comparable provision in the LRA nor could the parties refer me to such a comparable provision. However bearing in mind the fact that the LRA promotes the speedy resolution of disputes, I have insofar as it may be necessary, considered whether the delay of three and a half months in filing the statement of claim is unreasonable. I have considered the degree of lateness; the explanation therefore; the prospects of success on the merits; the importance of the case; and other considerations and I am of the view that it would be fair in the circumstances of this case to allow the application for condonation insofar as it might be necessary (see also Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (AD).¹ I will now return to the merits of the dispute.

The dispute

6. The case that was referred to this Court concerns an alleged automatically unfair dismissal (in terms of section 187(1)(e) of the LRA) which emanated from a failure to renew the Applicant’s contract of employment as contemplated by section 186(1)(b) of the LRA. I will return to the discrimination claim on the basis of sex hereunder. In order to decide the first dispute, the following questions need to be considered:

1. Was there a dismissal as contemplated by section 186(1)(b) of the LRA?

(ii) If there was a dismissal, was the reason for the dismissal automatically unfair as contemplated by section 187(1)(e) of the LRA? In deciding this question, the pertinent question to consider is whether the Applicant’s pregnancy was the principle or dominant reason for the dismissal.

3. If pregnancy was not the main or principle reason for the dismissal, does this Court have jurisdiction to consider the fairness of the dismissal?

Relevant facts

7. It is common cause that the Applicant was appointed by the Respondent on 1 August 2005 as a buyer. It is the Applicant’s case that she was informed at the commencement of her employment with the Respondent that she would be appointed on a three month probationary period after which she would be considered for permanent employment. It was common cause that Louw informed the Applicant that should she find the work of a buyer difficult she would be moved to sales. Louw confirmed in his evidence that the work of a buyer may be difficult and that he had anticipated that the Applicant may find the work difficult and that he will then have to move her to the position of a saleslady. It is common cause that Louw gave the Applicant a fixed-term contract for the month of August 2005. The contract expressly stipulates that the Applicant was employed for one month only namely from 1 August to 31 August 2005. The contract further states that: “Should the casual employee be required for a further period then a new contract will be signed.” The contract also states that “[u]nder no circumstances may this contract be considered as a permanent employment contract.” The Applicant was paid a monthly salary of R 2 000.00. It was common cause that the Applicant had signed the contract.

8. At the end of August the Applicant was given another similar contract. It was also common cause that the Applicant was moved to sales because she did not perform as a buyer. The second contract was in all respects exactly the same as the previous one but for the term that this contract was for the position of a saleslady and that it was for the period 1 September 2005 – 30 September 2005.

9. Louw testified that the Applicant was again offered further employment for the month of October. It was his unchallenged evidence that he did in fact prepare the paperwork for the third fixed-term contract but that he did not give it to the Applicant. He admitted that it was due to his negligence. He was, however, adamant that he did discuss the (third) renewal with the Applicant and that she had understood that her contract was again only for a further one month. It was the Applicant’s evidence that she was under the impression that she had become a permanent employee because she did not receive a contract. I am, however, satisfied on the evidence that the Applicant was aware of the fact that her contract was again extended for one month only. It was not her evidence that she was told that she was now a permanent employee nor was it her evidence that her employer gave her that impression – she merely thought that she was now a permanent employee. Her evidence was further inconsistent with her statement of claim as well as with her own statement submitted to the CCMA (when the matter was initially referred to the CCMA for arbitration) in terms of which she unequivocally stated that the first three months would have been a probation period after which she would have been considered for permanent employment. It is further also not stated in her statement of claim that she was permanently employed as from the beginning of October.

10. The Applicant underwent a blood test on 18 October 2005 in order to determine whether or not she was pregnant. According to the test the Applicant was approximately four weeks pregnant. It was common cause that the Applicant then informed Bowright and Louw on 19 October 2005 that she was pregnant. It was the Applicant’s evidence that she was informed by Louw during that discussion that he had concerns about whether or not she would be able to continue with her duties whilst pregnant and that she was then informed that she would no longer be required to work. Louw and Bowright strongly disputed this allegation and testified that the Applicant’s pregnancy had no impact on the decision not to renew her contract and that there were in fact other reasons for the non-renewal (see the discussion below). In terms of the notice handed to the Applicant, the reason for the termination of her employment was that: “Miss Vorster was on a month to month contract and it was decided not to review her contract.” She appealed against the decision to termination of her employment but her appeal was dismissed.

11. The evidence on behalf of the Respondent was that they (Louw and Bowright) were informed by Higgs that the Applicant had told him (Higgs) more or less during the last two weeks of September 2005 that the Applicant was pregnant. The Applicant and Higgs were part of a liftclub and this discussion took place whilst on they way to work. The Applicant denied this and her evidence was that she herself did not even know at that stage whether or not she was pregnant and that she only received confirmation of her pregnancy in middle October. She could therefore not have told Higgs that she was pregnant. The Applicant did, however, admit that she had told the people of her liftclub (including Higgs) that she had felt nauseous and that she had an iron deficiency. According to the Applicant, Higgs then made a joke and said that she was pregnant to which she responded that she was not. Higgs confirmed that soon after this discussion he had told Bowright and Louw that the Applicant had told him that she was pregnant. Both Louw and Bowrright confirmed this and both confirmed that this conversation took place somewhere during the last week or two of September (which was before the third renewal of the Applicant’s contract).

12. Although it is in dispute whether the Applicant had told Higgs that she was in fact pregnant (as opposed to merely informing him that she felt nauseous), it is clear that the topic of the Applicant’s possible or actual pregnancy was at least mentioned during the discussion in the car late in September either as a joke (as alleged by the Applicant) or stated as a fact (as alleged by the Higgs on behalf of the Respondent). What is undisputed, however, is the fact that Higgs did go to Louw and Bowright and gossiped about the Applicant’s pregnancy status. Whether the Applicant was in fact pregnant at that stage or whether Higgs exaggerated the discussion that took place in the car, the fact remains that Higgs had told Louw and Bowright that the Applicant was pregnant. It is further common cause that neither Louw nor Bowright said anything to the Applicant about her pregnancy until the discussion on 19 October 205 when the Applicant informed Louw and Bowright that she was pregnant.

13. On the evidence I am persuaded that the Respondent was informed about the Applicant’s pregnancy round about the end of September 2005 cutesy of Higgs who stated it as a fact. It was not disputed that Bowright and Louw did not mention anything about the Applicant’s pregnancy to her and that, despite this information, decided to offer her a further fixed term contract for the month of October.

14. The Respondent’s case was that there were other reasons why the contract was not renewed and that the Applicant’s pregnancy did not play any role. Bowright testified that there were three reasons why the Applicant’s contract was not renewed and his evidence was, to a large extent, corroborated by Louw. The first was the general poor financial position of the Respondent. The second was the fact that the Applicant was the worst salesperson and the third was the fact that there was an incident when the Applicant’s fiancé came to the shop and assaulted Louw. I will now briefly return to each of these reasons:

(i) Financial position of the Respondent. It appears from the management accounts submitted into evidence and confirmed by the evidence of Bowright and Louw, that the Respondent operated at a loss during the preceding few months and that the Respondent was generally not in a very healthy financial position. Bowrigh (and to some extent Louw) testified that the Respondent experienced a serious cash flow problem which in turn had a negative impact on the business because the Respondent was low on stock and as a result of the cash flow problems could not buy sufficient stock. Bowright also testified that he had an overdraft and that he had to take out a second bond on his house. On behalf of the Applicant it was submitted that it was strange that the Respondent had engaged the Applicant’s services at a time when the Respondent was not performing very well. Bowrigh’s response to this argument was that he needed a certain amount of salespeople to run the business and to generate sales but added that he needed people who could generate sales so that the cash flow of the Respondent could improve.

(ii) The Applicant’s performance: It was the evidence on behalf of the Respondent that it was decided not to renew the Applicant’s contract because she was the worst salesperson. In this regard reference was made to the staff sales performance summary for September 2005 and October 2005. If the sales generated by the Applicant in September is compared with the target that was set, it is clear that the Applicant did not meet her target and that she was about R 11 596 short. It is, however, also clear from these figures that the Applicant was not the only one who did not meet the required sales target in September (the first month in this position). In October 2005, the Applicant in fact did very well and almost met her target whereas there were other salespeople who were much further away from their sales targets.

(iii) The assault: It is common cause that the Applicant’s fiancé came to the Respondent and hit Louw in his face. The situation was defused by Bowright whereafter the Applicant and her fiancé left the premises. This altercation was apparently incited by an earlier incident when Louw told the Applicant she could not exchange her lunch hour with another employee without informing him first. According to the Applicant she did apologize to Louw and Bowright on behalf of her fiancé. Bowright and Louw both disputed this. Bowright and Louw both testified that the employment relationship was damaged as a result of this assault and that this assault had played a role in the decision not to renew the contract. Both also testified that the Applicant’s attitude towards them had changed after this incident and that she ignored them and did not adhere to Louw’s instructions.

Was there a dismissal?

15. Before an allegation of “unfair” dismissal can be made, it is trite that an employee must have been “dismissed” as contemplated by section 186 of the LRA. In the majority of unfair dismissal disputes it will not be difficult to establish whether or not a “dismissal” did in fact take place as dismissals are in most cases brought about by the employer terminating of the contract of employment with or without notice. There are, however, other forms of dismissal which are more difficult to establish such as where the allegation is that a dismissal had been effected because the employer had failed to renew a fixed term contract on the same or similar terms. It will generally be more difficult for the employee to establish a dismissal in these circumstances. Section 186(1)(b) provides that such an act may constitute a “dismissal” provided that the employee reasonably expected her employer to renew the fixed term contract. Although fixed-term contracts will in terms of the common law automatically expire on the date on which the parties have agreed that the contract would terminate, such a termination may, however, constitute a form of dismissal in terms of the LRA. This is an important departure from the common law and aimed at protecting employees against unscrupulous employers who keep employees on endless fixed-term contracts as a mechanism to circumvent the provisions of not only the LRA but also legislation which provides permanent employees with social security benefits. See Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA) where the Supreme Court of Appeals stated the following:

“[b]y enacting s 186(b) (now s 186(1)(b) ) the legislature intended to bestow upon an employee whose fixed-term contract has run its course, a new remedy designed to provide, in addition to the full performance of the employee's contractual obligations, compensation (albeit of an arbitrary amount) if the employer refuses to agree to renew the contract where there was a reasonable expectation that such would occur.'

See also Biggs v Rand Water (2003) 24 ILJ 1957 (LC) at 1961A – B where the Court held that:

“Section 186(b) was included in the LRA to prevent the unfair practice of keeping an employee on a temporary basis without employment security until it suits an employer to dismiss such an employee without the unpleasant obligations imposed on employer by the LRA in respect of permanent employees.”

16. In terms of section 192 of the LRA the onus is on the employee to establish the existence of a dismissal. In the present context a dismissal includes that “an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.” An employee on a fixed-term contract who claims to be dismissed therefore has the onus of proving a reasonable expectation of renewal. See University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) at para 21 where the Labour Appeal Court stated:

'In order to determine whether the respondent had a reasonable expectation, it is first necessary to determine whether he in fact expected his contract to be renewed or converted into a permanent appointment. If he did have such an expectation, the next question is whether, taking into account all the facts, the expectation was reasonable.”

17. Where an employer holds out some form of promise to the employee that the contract will be renewed, the employee may well be able to discharge the onus. It is not even necessary that such a promise be expressly conveyed to the employee. Where the employer impliedly gives the impression or assurance through its conduct that the contract may be renewed, such an impression may have been created. Whether or not such an expectation has been created must be viewed objectively and the employee will have to prove facts which should be consistent with the conclusion that she had such a reasonable expectation of renewal. Although the employee’s subjective perception is relevant, there must be an objective basis for such a conclusion. See in this regard Grogan Workplace Law (8 ed) at 110-11 where the following is stated:

“The notion of reasonable expectations clearly suggests an objective test: the employee must prove the existence of facts which would lead a reasonable person to anticipate renewal. The facts that found a reasonable expectation will clearly differ from case to case but will most commonly take the form of some prior promise or past practice - eg where the employer has habitually renewed the contract. That a fixed long term contract has been renewed a number of times is not in itself indicative of the existence of a reasonable expectation of renewal; whether there was a reasonable expectation of renewal must be determined from the perspective of both the employer and the employee. The conduct of the employer in dealing with the relationship, what the employer said to the employee at the time the contract was concluded or thereafter, and the motive for terminating the relationship have been cited as factors to be considered.”

See also SA Rugby (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2006) 27 ILJ 1041 (LC):

“[11] For the employee's expectation to be 'reasonable', there must be an objective basis for the creation of his expectation, apart from the subjective say-so or perception. (See Auf der Heyde at para 26; and Dierks v Unisa at 1246.) This is an objective enquiry: would a reasonable employee in the circumstances prevailing at the time have expected the contract to be renewed on the same or similar terms. As stated in Grogan Workplace Law (8 ed 2005) at 110-11: 'The notion of reasonable expectation suggests an objective test: the employee must prove the existence of facts that, in the ordinary course, would lead a reasonable person to anticipate renewal.'

In the SA Rugby-case² the Court pointed out that for an employee to rely successfully on s 186(1)(b), the employee must establish -

“(a) that he had, subjectively, an expectation that the employer would renew the fixed-term contract in question on the same or similar terms; and

(b) that the expectation was reasonable; and

(c) that the employer did not renew it or offered to renew it on less favourable terms.”

18. The case law appears to be divided on whether an employee can claim to be dismissed in terms of section 186(1)(b) of the LRA where the expectation was that of an indefinite or permanent contract. I am of the view that this section does not only contemplate a situation where an employee reasonable expected a renewal of a fixed term contract, but also includes the situation where an employee had a reasonable expectation of being appointed permanently. See in this regard McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC) at paras 20 and 21:

'What s 186(1)(b) clearly seeks to address is the situation where an employer fails to renew fixed-term employment where there is a reasonable expectation that it would be renewed. It is the employer who creates this expectation and it is then this expectation, created by the employer, which now gives the employee the protection afforded by this section. If the expectation which the employer created is that the renewal is to be indefinite, then the section must be held to also cover that situation.

This approach is also endorsed by Grogan in Workplace Law at 111 where he states as follows:

“It is submitted that there is no reason in logic or law why an expectation of permanent employment should not provide a ground for a claim for dismissal in terms of s 186(b) (amended of course to s 186(1)(b)).”

Although the Labour Appeal Court in Auf der Hyde (supra) declined to settle this debate, the Court for purposes of deciding that case accepted, but without deciding the point, that a reasonable expectation of permanent appointment falls within the ambit of section 186) of the LRA. The Court stated the following at paragraph [20]:

“[20] For the respondent, Mr Janisch submitted that the respondent reasonably expected the appellant to renew his fixed-term contract either by extending it to five years or by appointing him permanently. In Dierks v University of South Africa (1999) 20 ILJ 1227 (LC) it was held that an expectation of renewal in terms of s 186(b) does not include an expectation to be appointed permanently. In McInnes v Technicon Natal (2000) 21 ILJ 1138 (LC) it was held that s 186(b) covers a reasonable expectation of a permanent appointment (at 1143B-F). It is not for present purposes necessary to resolve this difference of opinion. I shall assume, without finding, that a reasonable expectation of a permanent appointment falls within the ambit of s 186(b).”

19. Although the fact that a contract has been renewed a few times may weigh in favour of a conclusion that a reasonable employee could have expected a further renewal, this fact will not necessarily result in such a conclusion. Similarly, even where a contract contains a disclaimer which expressly states that the mere fact that a contract was concluded or renewed the employee should not have an expectation of a further renewal, the Court will still have to consider all factors to determine whether such an expectation was not in fact created despite the express disclaimer. See SA Rugby (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2006) 27 ILJ 1041 (LC):

“[13] There is strong authority for the view that a reasonable expectation of renewal can exist even though the written contract of employment expressly stipulates that the employee fully understands that he has no expectation of the contract being renewed. The Supreme Court of Appeal in Mediterranean Woollen Mills (Pty) Ltd v SA Clothing & Textile Workers Union 1998 (2) SA 1099 (SCA); (1998) 19 ILJ 731 (SCA) at 733-4 dealt with such a case. Although the terms of the contract were clear and explicit, and left no room for the entertainment of expectation of renewal, the court held that the assurances given to the workers clearly conveyed to them that they could entertain such expectations. (See also Dierks v Unisa at 1246 F and 1250 para 161.)”

Did the Applicant have a reasonable expectation of renewal or permanent employment?

20. I have already pointed out that I am not persuaded that the Applicant was already appointed permanently in October 2005. For the month of October 2005 the Applicant was still employed on a fixed term contract. It is common cause that it was not renewed. The question that arises is whether or not the Applicant had a legitimate expectation that the contract will be renewed and that she would be appointed on a permanent basis. I am of the view that the evidence supports this conclusion and that the Applicant did in fact have a legitimate expectation that the contract would be renewed and be made permanent. As a result I am of the view that that Applicant was dismissed as contemplated by section 186(1)(b) of the LRA: I am satisfied on the evidence that the Applicant was informed by Louw that a permanent position will be considered after the three month probationary period. Although it was strongly denied on behalf of the Respondent that the impression was created that the Respondent would consider a permanent appointment after the three month probationary period, the evidence, in my view, point to this conclusion. There are also the following indications all of which serve to tip the balance of the scales in favour of a conclusion that the Applicant did in fact had a reasonable expectation that her contract would be renewed:

1. It was common cause that the Applicant was given a written warning (which was later withdrawn by Louw) on 24 October 2005. If the Respondent’s version is to be accepted that there was no misunderstanding that the Applicant’s contract would be terminated at the end of October without any further possibility of renewal, issuing a warning merely days before the expiry of the contract does appear to convey a different conclusion. Secondly, the warning was valid for a period of 6 months and the date on which this particular warning would have expired is 24 April 2006 which is six months after the alleged termination of the fixed term contract.

2. The Respondent’s principle case before this Court was not that the contract merely expired after the three months. Louw and Bowright both consistently and repeatedly testified that it was decided not to renew her contract because of the financial reasons³ of the business, the assault⁴ that took place which effectively destroyed the employment relationship and the fact that the Applicant was the worst employee⁵ in the business. The evidence is further consistent with the case put forward by the Respondent in its answer to the statement of claim. Bowright and Louw also testified that the Applicant’s attitude changed after the assault incident and that that also played a role in the decision. Mr Verreyne on behalf of the Respondent conceded that the financial situation was not discussed with the Applicant and also conceded that the Applicant was never disciplined for her attitude. Whether or not it was also fair to dismiss an employee on the basis of an assault that her fiancé had committed is doubtful but, as will become clear hereinbelow, the fairness of the dismissal will have to be decided by another forum and not by this Court.

21. In light of the aforegoing, I am satisfied that the Applicant has discharged the onus of proving that she was dismissed as contemplated by section 186(b) of the LRA.

What was the reason for the dismissal (non-renewal)?

22. Once an employee has discharged the onus to prove that she was dismissed, it is still open to the employer to prove that the dismissal was for a fair reason and in accordance with a fair procedure (see section 192(2) read with section 188(1) of the LRA). Where the reason for the dismissal is for a reason which renders the dismissal automatically unfair in terms of section 187 of the LRA, the employee may be entitled to the remedies provided for in section 194 and more specifically compensation as provided for in section 194(3) of the LRA. If the reason for the dismissal is not one contemplated in section 187 of the LRA, this Court will not have jurisdiction to entertain the fairness of the dismissal and the dispute will have to be referred back to the CCMA for adjudication. Section 157(1) of the LRA provides as follows in respect of the jurisdiction of this Court:

'”57 Jurisdiction of Labour Court. - (1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

23. The Labour Appeal Court in Wardlaw v Supreme Mouldings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) confirmed that this Court does not have jurisdiction in respect of disputes which must be referred to adjudication in terms of the provisions of the LRA:

“[17] It is clear from s 157(1) that the Labour Court does not have 'exclusive jurisdiction where this Act provides otherwise'. It has 'exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined' by it. However, all of this is subject to the Constitution and s 173 of the Act. Section 173 of the Act deals with the jurisdiction of this court and is of no relevance to the issue before us. Section 157(5) is very important. It provides:

'(5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.'

This provision lays down a general rule to which there is only one exception. The general rule is that '[t]he Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration'.

This contemplates, for example, a dispute concerning the fairness of a dismissal where the reason for the dismissal as alleged by the employee is misconduct or alleged misconduct on the part of the is of the view that reasons other than those employee. This means that as a general rule the Labour Court has no jurisdiction to adjudicate such a dispute.”

24. As already pointed out, should this Court conclude that the reason for the dismissal is not one that falls within this Court’s jurisdiction, the dispute will have to be referred back to the CCMA. The Labour Appeal Court in Wardlaw stated as follows:

“[18] The exception to the general rule referred to above is the one provided for in s 158(2). Section 158(2) of the Act provides:

'(2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may -

(a) stay the proceedings and refer the dispute to arbitration; or

(b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make.'

[19] It seems to us that the effect of s 157(5) read with s 158(2) is in part that the only situation where the Labour Court has jurisdiction to deal with a dispute that is otherwise required to be referred to arbitration in terms of this Act is a situation that falls within the ambit of s 158(2). Leaving out s 158(2)(a) which does not seem to contemplate the Labour Court adjudicating such a dispute, that scenario seems to be only the one contemplated by s 158(2)(b) of the Act. Even if both parties to a dispute were to agree to ask the Labour Court to resolve a dispute which ought to have been referred to arbitration, for example, a dispute concerning a dismissal for misconduct that would not be enough to confer jurisdiction on the Labour Court to resolve such a dispute. In addition to the consent of both parties, it would have to be shown that it is expedient for the court to continue with the proceedings but, even then, it will not sit as a court but its judge will have to sit as an arbitrator.”

25. The parties in the present matter have not consented to this Court assuming jurisdiction and should it be found on the evidence that this Court does not have jurisdiction, the dispute will have to be referred back to the CCMA for adjudication.

26. As already pointed out, the present case came before this Court because the Applicant alleges that her dismissal (the non-renewal of her contract) was as a result of her pregnancy. The Respondent disputes this and alleges that other reasons gave rise to the dismissal (non-renewal of her contract). It is trite the employee must not only prove the existence of a dismissal and must also produce sufficient evidence of the existence of an automatically unfair dismissal. The Labour Appeal Court in Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) pertinently confirmed that the Applicant (employee) has an evidential burden to produce sufficient evidence which may lead to the conclusion that she was automatically unfairly dismissed:

“[28] In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.

[29] The further question then arises as to the approach to the evidence led by the respective parties. The answer can be illustrated by way of the following example: Assume that an employee can show that she was pregnant and dismissed upon the employer gaining knowledge thereof. The court would examine whether, upon an evaluation of all the evidence, pregnancy was the 'dominant' or most likely cause of the dismissal. Within the framework of this approach, it is now possible to return to the facts of this case and the key finding of the court a quo, that the argument that appellant was dismissed for union activities was completely without merit.”

27. Where the facts show that more than one reason may have been the reason for the dismissal, the Court will have to examine whether pregnancy (as alleged in this particular case) was the “dominant” or “more likely” reason for the dismissal (see Kroukamp ad paragraph [29] supra). The following extract from Kroukamp (supra) explains the approach in respect of automatically unfair dismissals:

“[26] Mr Snyman placed considerable emphasis upon the judgment of this court in SA Chemical Workers Union & others v Afrox Ltd (1999) 20 ILJ 1718 (LAC) at para 32 where Froneman DJP set out an approach in respect of an enquiry relating to an automatically unfair dismissal in terms of s 187(1)(a) of the Act as follows:

'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 two-fold approach to causation, applied in other fields of law should not also be utilized here (compare S v Mokgethi & others 1990 (1) SA 32 (A) at 39D-41A; Minister of Police v Skosana 1977 (1) SA 31 (A) at 34). 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, 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 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 (compare S v Mokgethi at 40). 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 s 187(1)(a) . If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further.'

[27] The question in the present dispute concerned the application of this test. The starting-point of any enquiry is to be found in chapter VIII of the Act. Thus, if an employee simply alleges an unfair dismissal, the employer must show that it was fair for a reason permitted by s 188. If the employee alleges that she was dismissed for a prohibited reason, for example pregnancy, then it would seem that the employee must, in addition to making the allegation, at least prove that the employer was aware that the employee was pregnant and that the dismissal was possibly based on this condition. Some guidance as to the nature of the evidence required is to be found in Maund v Penwith District Council [1984] ICR 143, where Lord Justice Griffiths of the Court of Appeal held at 149 that:

'[I]t is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.’”

28. Does the evidence show that the principle reason for the dismissal of the Applicant was her pregnancy? Put differently, does the evidence lead to one justifiable inference namely that the Applicant’s dismissal was as a result of her pregnancy? The undisputed evidence shows that the Respondent had known about the Applicant’s pregnancy at least by the end of September when the Applicant’s fixed term contract was renewed for a third time. Whether the Applicant told Higgs as a fact that she was pregnant is irrelevant. Higgs informed Bowright and Louw that the Applicant was pregnant. Notwithstanding this information her contract was renewed by the Respondent. There was no evidence to suggest that the Respondent had discriminated against pregnant women or women in general in the past. This fact does not, however, exclude the possibility that the Respondent may have taken the Applicant’s pregnancy into account when deciding not to renew her contract. However, on the facts of this particular case, I am of the view that the Applicant’s pregnancy was not the principle reason for the non-renewal. I have no doubt that the assault which took place played a significant role in the decision not to renew the contract. Whether or not this constitutes a reason to dismiss the Applicant is doubtful but it is a question that will have to be considered by another forum. The Respondent further advanced financial reasons as a further reason for the non-renewal. Although I am not persuaded on the evidence that the Applicant was in fact the worst employee, Bowright does advance a coherent and reasonable explanation for not renewing her contract on a permanent basis with reference to the problems experienced with the Respondent’s cash flow. Again, whether the dismissal in these circumstances is fair is for another forum to decide. Suffice to point out that the evidence does not, in my view show that, but for the Applicant’s pregnancy, the employment relationship would have continued.

Was the Applicant discriminated against on the basis of her sex?

29. In paragraph [1] supra it was pointed out that it was also the Applicant’s case that her dismissal was discriminatory in the sense that she was dismissed because she is female. This contention has no merit. Bowright’s uncontested evidence was that the Respondent had employed a pregnancy lady in the past and that she had worked throughout her pregnancy and in fact returned to her work after the baby was born. His uncontested evidence was also that the Respondent has in the past employed numerous women.

30. In light of the aforegoing, it is therefore concluded that this Court does not have the necessary jurisdiction to adjudicate the dispute that was referred to it. The proceedings before this Court is therefore stayed in terms of section 158(2)(a) of the LRA and the dispute is referred back to the CCMA for arbitration.

31. In the premises the following order is made:

1 The application for the late filing of the statement of claim is granted.

2. The Applicant was dismissed as contemplated by section 186(1)(b) of the LRA.

3. The dispute about the fairness of the dismissal of the Applicant is hereby stayed in terms of s 158(2)(a) of the Labour Relations Act 1995 and the dispute is hereby referred to arbitration under the auspices of the Commission for Conciliation, Mediation & Arbitration.

4. There is no order as to costs.

_____________________

AC BASSON J

FOR THE APPLICANT: ADV VAN DER MERWE

INSTRUCTED BY: CE BOTHA ATTORNEYS

FOR THE RESPONDENT: Q VERREYENE

HEARD ON: 22 MAY 2008

JUDGMENT ON: 29 JULY 2008

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