WORDS CAN’T BE RETRACTED ONCE UTTERED

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INTRODUCTION

It doesn’t often happen that employment-related cases dominate the headlines for days on end, but the judgment in Chowan v Associated Motor Holdings (Pty) Ltd and Others (22142/16) [2018] ZAGPJHC 40 did and became one of the most talked about cases in years.

THE FACTS

Ms Chowan, a qualified chartered accountant, was employed by Associated Motor Holdings (Pty) Ltd (AMH).
Instead of enjoying a promising career path, things went horribly wrong when nothing came of the promises made to her by the CEO, Mr Mark Lamberti. Lamberti had promised her that she would be appointed as a Chief Financial Officer within a year – a promise on which he reneged. By way of explanation he told her that she is “a female, employment equity, technically competent” before adding that she was not yet ready for a leadership position.
She sued her employer, as well as Imperial Holdings and Lamberti, because of what she perceived to have been racism and gender discrimination. During evidence she explained why she turned to the High Court:

[21] “Because I pride myself on the fact that I am a qualified professional chartered accountant. I had
built my career. I had been a CFO. And in Mark Lamberti’s eyes I was being narrowed down because
of my colour and being female.”

The court agreed with s Chowan that her sense – that racism and gender discrimination were at work – was justified:

[20] “Ms Chowan’s inference of racial and gender discrimination against her based inter alia on those
facts, as well as what had been said to her by Mr Lamberti when he made the utterance, was
justified….”

The court found that Chowan was, professionally speaking, well qualified and experienced, came highly recommended internally, and had been promised the appointment.

The court not only concluded that she was entitled to damages due to the company’s wrongful actions and injury to her reputation and dignity, but also awarded costs against the respondents.

While this judgment sends a very strong message to employers to ensure that there is neither racism nor gender discrimination at work, it is also a timely reminder to all employers that they must follow a fair procedure at all times.

It is common cause that when the applicant informed the HR director that she wanted to lodge a grievance against Lamberti, he cautioned her that “it would be a career limiting move if [she] raised a grievance against a powerful man like Mr Mark Lamberti’” despite the fact that all she wanted from the grievance procedure “was an apology from Mark Lamberti for insulting me and offending my human dignity, and l wanted him to honour the promise he had made”.

This was a clear attempt to stop her from lodging a grievance, but she persisted and went ahead.

She also lodged a grievance against the CFO, Mr Ockert Janse van Rensburg, inter alia for having said that her brown car matched the colour of her skin. One of the outcomes she sought was that he should “apologise and refrain from making any discriminatory comment, based on race, gender and ethnicity”. Despite Janse van Rensburg’s denials that he uttered those words, the court found that Chowan was a more credible witness, and believed her version.

The outcome of the grievance investigation was a finding that her allegations were “without any foundation in fact and devoid of any substance”.

The court held at paragraph [34] that this should have been the end of the grievance procedure. However, Mr Thulani Gcabashe, a non-executive director and group chairman of Imperial’s board, however, did not see it in the same light.

Gcabashe accused the applicant of “misconduct and an abuse of the grievance procedure”. She was informed that she was suspended with immediate effect pending a disciplinary hearing. In this regard the court held that no one:

[30] “(…) could give any plausible explanation for why Ms Chowan (who was in the position of a
complainant) was summarily suspended, or why Messrs Lamberti and Janse van Rensburg were not also
so suspended. Furthermore, no plausible explanation could be proffered for suspending her prior to
giving her the opportunity to make representations as to why she should not be suspended.”

It is apparent from the judgment that the court had difficulty understanding why the applicant – who had exercised her right to lodge these grievances – was being punished for having done so, and why she was only given the right to object to the suspension after she had already been summarily suspended and marched off the premises in circumstances where the CFO and the CEO, who were the subjects of the grievances, were not suspended.

The court found later in the judgment that the employer not only breached the general practice regarding the grievance procedure and the employee’s rights when it summarily suspended her, but that its conduct was unlawful given that it was the court’s finding that these grievances constituted a protected disclosure:

[51] “The disclosure made by Ms Chowan, therefore, is a protected disclosure and the occupational
detriments – being suspended, subjected to disciplinary action and ultimately dismissed – to which
she had been subjected by her employer, AMH, on account of having made the protected disclosure are
in violation of the provisions of s 3 of the PDA and unlawful.”

THE IMPORTANCE OF THIS JUDGMENT

We have touched on only three of the many issues that are dealt with in this judgment – all three issues serve as a powerful reminder that an employer must not discriminate or allow the abuse of practices and procedures, but must act in a fair and lawful manner by:

Not allowing racism at the workplace;
Not turning a blind eye to gender discrimination;
Not punishing an employee who exercises his/her right to lodge a grievance against any other employee regardless of seniority; and by
Not abusing and breaching established suspension practices.

Although stories in the media have suggested that Ms Chowan stands to make millions in damages, the actual damages to be awarded on both claims will, by agreement between the parties, only be determined at a later date. It is, however, quite probable that the employer might find in the final analysis that the words directed at the applicant by Messrs Lamberti and Janse van Rensburg, and Mr Gcabashe’s decision to turn the tables on the applicant, may have cost it much more than just money.

Written By: Dr. Hilda Grobler