[3]
In her papers the applicant stated that she was dismissed by the
respondent because she fell pregnant.
[4]
These allegations were not denied by the respondent as it did not
file any opposing papers even though it was served with the
application.
[5]
The evidence of the applicant before the court was as follows; she
was employed by the respondent as a machinist in June 2004.
[6]
She was in continuous employment with the respondent until 1st
February
2005 when she was dismissed. She said she was dismissed by the
employer because she became pregnant.
[7]
She reported the matter at the Labour Office. The matter was in turn
referred to the Conciliation, Mediation and Arbitration Commission
(CMAC) for mediation.
[8]
The parties attended the mediation process. She said the respondent
offered to take her back, but she refused. She said she refused the
offer for re-instatement because she knew that she was going to be
victimized at work by the employer.
[9]
She told the court that the respondent has a tendency of badly
treating employees who report it to law enforcement agents like
CMAC. She said employees who report the employer to CMAC are falsely
accused of having committed a misdemeanor and get dismissed.
[10]
The matter thus remained unresolved as she refused to be re-instated
for fear of victimization. She said there were cases of
victimization that had taken place at her workplace prior to her
dismissal.
[11]
She said she was earning E328.00 per fortnight. She was not paid any
terminal benefits when she left. She is twenty six (26) years old
and is unemployed. The father of her child works at a hairdressing
salon and earns E500.00 per month. She said he is unable to
sufficiently provide for the child.
[12]
She is asking the court to make an order that the respondent pays
her the sum of E656.00 as notice pay and the sum of E8,528.00 as
compensation for the unfair and unlawful dismissal.
[13]
The applicant's evidence was not controverted as she was the only
witness before the court. Her evidence revealed that she was indeed
an employee to whom section 35 of the Employment Act applied as she
had completed the probationary period having worked for an effective
eight months' period for the employer.
[14]
She was however not entitled to maternity leave as a matter of right
as she had not completed twelve months' continuous employment with
her employer as per the provisions of Section 102 of the Employment
Act. That however did not give the employer the right to dismiss
her.
[15]
The parties could simply have agreed that the Applicant takes unpaid
leave and come back after confinement.
[16]
The applicant cannot be faulted for failing to accept the
re-instatement. she told the court that she was afraid that she was
going to be victimized and that there were cases of victimization of
other employees who had taken legal steps against the employer.
[17]
The court is satisfied with the evidence led by the applicant about
the circumstances that led to her dismissal. The application
therefore succeeds.
REMEDY
[18]
In determining the amount to be awarded to the applicant the court
will take into account that she is still unemployed and has a child
to take care of. Although the father of the child is employed, the
salary of E500.00 that he earns cannot be said to be sufficient to
take care of his needs and that of the child.
[19]
The court will also take into account that the Applicant was
dismissed merely for the fact that she was pregnant. Although her
employer offered to re-instate her, she cannot be faulted for not
going back to work as she said she was going to be victimized and
forced to leave in some other ways. She said that has happened to
other employees before. Her fear was therefore justified.
[20]
Taking into account all the above circumstances of the case the
court will make an order that the respondent pays to the applicant
the following:
Notice
pay =
E 656.00
Compensation
for unfair dismissal
(E656.00X10) =
E6.560.00
TOTAL = E7.216.00
The
members agree
NKOSINATHI
NKONYANE A-J
INDUSTRIAL
COURT
