Ekhamanzi Springs (Pty) Ltd v Mnomiya

(DA2/13) [2014] ZALAC 38; [2014] 8 BLLR 737 ; (2014) ILJ 2388 (LAC) (13 May 2014)  Coram: Ndlovu JA Molemela and Sutherland AJJA

Appeal disallowed with costs.

LAC Summary:

Dismissal dispute.  Employee denied access to the workplace by the security guards employed by the employer’s landlord.  Whether the court a quo correctly concluded that the employee had established her dismissal and that the dismissal was automatically unfair as contemplated in section 187(1)(e) of the LRA; whether the court a quo correctly found that the employer failed to accept the employee’s tender of services.

On appeal, held, that the employee had established her dismissal.

Held, that the unique circumstances of the case were such that the employer’s failure to intervene in its landlord’s discriminatory practice of denying the employee access to the workplace on account of pregnancy was tantamount to a refusal to accept the employee’s tender of services and thus constituted a repudiation of the employment contract.

Excerpts

[1] This is an appeal against the judgment of the Labour Court (Lallie, J) in which it found that the respondent, Ms Mnomiya, was dismissed by the appellant and that the reason for her dismissal was her pregnancy.

The court a quo ordered the appellant to pay the respondent twelve months’ compensation, which amounted to R7,945.00 (seven thousand nine hundred and forty five rand), plus costs.

[2] The respondent was employed by the appellant as a general assistant at its factory (“the workplace”), where spring-water known with the brand-name of Aquelle was bottled.  She was one of 150 (one hundred and fifty) employees employed by the appellant.  The springs from which the water in question was sourced by the appellant are located on the premises of its landlord, viz KwaSizabantu Mission (“the Mission”).

In order to gain access to the workplace, an employee would first have to enter the Mission’s premises through a gate that is manned by security guards that are in the landlord’s employ.  In terms of the Mission’s code of conduct, access to the Mission’s premises is conditional, as certain acts and forms of behaviour by any person would result in the Mission’s security guards preventing such a person from entering the landlord’s premises, which in turn prevented access into the workplace.

The code of conduct in question inter alia prohibits ‘amorous relationships between any two persons outside of marriage’.  I will return later to this aspect.