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The Labour Court in Johannesburg has declared the dismissal of a former Frame Leisure Trading employee to be automatically unfair.
The company was ordered to pay the employee compensation equivalent to 24 months’ wages within 14 days of the judgment.
Sibongile Mavundla was employed by Frame Leisure Trading as its payroll administrator on 4 July 2016.
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The company is a retail business focusing on sports apparel, footwear and accessories,
Mavundla was initially employed on a three-month probation period. She was confirmed as a permanent employee on 10 October 2016.
Her responsibilities included ensuring the correct processing of the monthly payroll, liaising daily with area managers to obtain input information for the payroll and monthly with area managers for active staff listings, checking each store/department/cost centre and verifying complement with payroll data and report variances (attendances, terminations and new engagements) and process and submit payroll administration on time.
She reported to Tinus Pretorius with whom, initially, she had a good relationship. She also reported to Sharon Pillay who had trained her for the position.
Pretorius and Pillay were both managers in relation to human resources, industrial relations and the payroll. Pretorius was the more senior of the two.
Mavundla was dismissed on 30 December 2016. She alleged that the true reason for her dismissal was her race, and her dismissal was therefore automatically unfair.
Frame Leisure Trading alleged that the sole reason for her dismissal was misconduct.
Initially, Mavundla challenged the fairness of her dismissal at the Commission for Conciliation, Mediation, and Arbitration (CCMA).
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On 29 May 2017, the CCMA found that Mavundla’s dismissal was procedurally and substantively unfair.
The commissioner reinstated her with retrospective effect to the date of her dismissal.
Following a review application brought by the company, the Labour Court reviewed and set aside the arbitration award on the basis that the CCMA had no jurisdiction to hear and determine such dispute, given the applicant’s allegation that she was dismissed on the basis of her race.
At the trial, Mavundla testified on her own, while her employer called two witnesses, Pillay and regional manager Gilbert Ndlovu.
During her employment, Mavundla experienced difficulties securing information from area managers. They would often send the active staff lists only to Pretorius.
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On 9 November 2016, Pretorius sent a letter to Mavundla in which he recorded that one of the employees had received three months’ salary when her name did not appear on the active staff lists.
While Pretorius notified Mavundla that active staff lists must be used as a control mechanism, he did not inform her that she would face disciplinary action for the error.
However, Pillay testified that the error led her to investigate Mavundla.
Between 4 and 11 November, Mavundla was on leave. Although she was due back on 11 November, she only returned on 16 November. She called in sick and informed her employee she had been booked off work for the extra days. In her absence, according to Pillay, there had been no input on the payroll.
On 17 November, the company hired Elize Coetzee, who assisted with duties previously performed solely by Mavundla.
Pillay testified that this was necessary because there was to be a large intake of new employees at the end of 2016.
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Pillay was also aware that Coetzee was Pretorius’ romantic partner. However, she denied that Pretorius had anything to do with his partner’s employment.
Despite this, Pillay did not explain how she discovered that Coetzee was available and had the requisite skills.
Coetzee and Pretorius did most of the work on the November payroll, and there were many errors discovered. However, they were not held responsible for the errors, unlike Mavundla, who was taken to task for her mistake.
Pillay did not attempt to explain why this was the case.
In at least three instances, Mavundla was given, at most, a single working day instead of eight, as per the company protocol, to reconcile the data.
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Despite this, no disciplinary action was taken against the area managers for failing to follow the protocol.
In a meeting held with Pretorius and Pillay, the latter revealed that she had discovered that there were several instances where Mavundla had failed to place a hold on salaries.
While Mavundla was initially invited to the meeting, she was later told she did not need to attend.
Mavundla testified that the company withheld her December 2016 salary in an attempt to force her to acknowledge that she was liable for the losses of approximately R50,000 incurred as a result of errors on the payroll.
The company contended that her salary was withheld because it believed that she was the cause of financial losses
In her written submissions, Mavundla said there was a plot to get rid of her to create space for Pretorius’ girlfriend, Coetzee.
The company found her guilty of all the charges and dismissed her.
The email exchanges between Pretorius and a recruitment agent exposed the former’s alleged racist behaviour. Pretorius told the agent that “another Slu [Mavundla] would sink the ship”.
“It seems these people are not reliable anymore,” the agent told Pretorius.
He responded: “With regards to Slu….We need to look for a back-up but not a black again. I need someone that I can train in Industrial Relations, HR and payroll. Maybe a young graduate white female. I deliberately want to stay away from the liberal element with political agendas. I don’t think she will fit in. We have had so much issues with Slu that another Slu will sink the ship.”
Judge RN Daniels said the email exchanges raised a credible possibility that Mavundla was fired because of her race.
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“In my view, the emails exchanged between Pretorius and the recruitment agent, coupled with the extreme and overt nature of the racism exhibited at the time of the applicant’s dismissal, raise a credible possibility that the applicant was dismissed because of her race,” said the judge.
“The most senior human resources manager, Pretorius, believed that the applicant was unreliable and untrainable because she was black.
“In addition, he wished to replace the applicant with a white female graduate. Not only are his emails racist, but they indicate that Pretorius believed that the applicant was not suitable for her position because she was black.”
Following her dismissal, Mavundla was directed to collect her belongings and leave the premises. When she indicated that she wished to extract and save personal information that was stored on her work laptop onto a memory stick, Pretorius told her that her laptop had been sent to forensics because “blacks are criminals”.
It was also common cause between the parties, and recorded as such in the pre-trial minutes, that shortly after Mavundla had been dismissed and asked to leave the premises, Pretorius called her the K-word.
Pretorius was only disciplined in 2020 for his use of racist and derogatory language – more than three years later.
Pretorius was fired, also in 2020, allegedly because he had insulted Mavundla in November 2016.
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Judge RN Daniels said that the company’s failure to act against Pretorius immediately, or shortly thereafter, signified that it was prepared to condone, or endorse, his racist conduct.
“It is reasonable to infer in these circumstances that respondent, and its management, were capable of dismissing the applicant because she was black,” said the judge.
While the judge said the was little doubt that Pretorius meant that black people were not reliable anymore, at the CCMA, Pillay refused to concede that they were racist.
The company submitted that the emails between Pretorius and the recruitment agent were irrelevant to the engagement of Coetzee and unrelated to Mavundla’s dismissal.
“I cannot accept this,” said Judge Daniels.
“The emails spoke directly to Pretorius’ lack of faith in the applicant and his desire to replace her with a white woman. Pretorius conveyed that, as a black woman, she could not easily be trained.
“When the agent asked Pretorius whether ‘Slu will last’; he responded that the applicant is ‘dangerous’. Clearly, Pretorius was communicating to the agent that the applicant’s future with the respondent was limited.
“Pretorius was looking for someone to assist him with payroll. Not only are Pretorius’ comments deeply offensive, but they clearly conveyed his desire to displace the applicant with a white employee.”
Two days after Pretorius emailed the recruitment agent informing her that he would like a white woman to be brought in to assist with payroll, a white woman was indeed brought in.
“The contents of the emails, and their timing, go well beyond establishing a credible possibility that the applicant was dismissed because of her race. In my view, they establish a significant probability that the applicant was dismissed for her race.”
The company testified that it had restructured its finance department and the position of payroll administrator no longer existed.
Instead, it employed a payroll manager, whose position had long been occupied by another employee, and could therefore not reinstate Mavundla.
Mavundla could not dispute this fact.
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