MRL3702
Assignment 1
Semester 2
DUE August 2025
, IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D581/2023
Not Reportable
In the matter between:
TIISETSO KEFILWE DAISY MOLEME Applicant
and
INDURADEC COATINGS (PTY) LTD Respondent
Heard: 15 and 16 August, and 4 September 2024
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-
down is deemed 11h00 on 7 May 2025
JUDGMENT
ALLEN-YAMAN J
Introduction
[1] The applicant instituted action against the respondent in terms of s10 of the
Employment Equity Act, 1998 (‘the EEA’) in which she claimed the following relief,
, 2
‘1. A finding that the Respondent had failed to comply with the provisions
of s26 of the BCEA, in removing the Applicant from the Laboratory without
any duties and / or functions and placing the applicant on extended unpaid
maternity leave.
2. A finding that the Respondent had unfairly discriminated against the
Applicant due to her pregnancy and / or any other ground of discrimination
referred to in section 6(1) of the EEA.
3. The Respondent to make payment of 24 months’ compensation to the
Applicant.
4. Costs of suit.’
[2] The respondent disputed that it had acted as alleged, and so defended the
applicant’s claim.
Background
[3] The applicant was employed by the respondent on 18 October 2021. Albeit
that her contract of employment defined her Job Title as that of a ‘Chemist’, the
evidence introduced by both parties demonstrated that in such position her functions
included aspects of both research relating to, as well as the development of,
products for the respondent, a chemical coating company.
[4] Having fallen pregnant some twelve weeks earlier, the applicant notified the
respondent of her pregnancy in March 2023 by the transmission of an email to
another of the respondent’s employees, Ms Denise Foster, whom she was aware
dealt with the respondent’s Human Resources matters. The applicant was
concerned about continuing to work in the respondent’s laboratory which would
expose her to certain chemicals, including Bisphenol A, and requested to be moved
out of that environment. Ms Foster called her into her office and informed her that
she had never had occasion to deal with such an issue and was unsure of what to
do, but that she would notify the applicant’s immediate superior, Mr Geoff Powell (the
respondent’s Technical and Commercial Manager) who would be in contact with her.
, 3
[5] Mr Powell approached the applicant later that day and instructed her to move
out of the laboratory and into an office adjacent to his own. It was common cause
between the parties that no work functions were assigned to her in the time she
remained in that office until May 2023, despite it having been agreed between her
and Mr Powell that she would be provided with a computer to enable her to carry out
such limited functions as she was able to whilst she was away from the laboratory.
[6] Pursuant to the applicant having informed Mr Powell that she would be
attending an ante-natal appointment on 5 April 2023, he provided her with a
respirator and a letter which he requested she give her gynaecologist. The letter
read,
‘We are a paint company that manufactures and formulates various solvent
based coatings. A variety of raw materials are used in the chemical makeup of
our products. All safety data sheets are available but the literature does not
specify pregnant persons.
Daisy is locates in our lab office and her duties include lab work and
development. Please can you confirm if the following breathing apparatus is
sufficient for her to use or is there any recommendation that will allow her to
continue to perform her duties without affecting her health or the health of her
baby during this period.
The lab does have extractors, air circulation and a minimal amount of product
is used or tested in the lab thus reducing the exposer [sic] levels to a minimal
amount.
A formal response is required please.’
[7] She did as she had been requested. Her doctor’s response, however, was
that the respondent’s request was outside the scope of his expertise, and suggested
that it ought to enlist the assistance of a Health and Safety official to assess safety of
its laboratory. The applicant conveyed this response to Mr Powell the following day.
Later that month he requested her to take the same letter and respirator to her
general practitioner, whose response, like that of her gynaecologist, was that the
question was outside the scope of her expertise, and the assistance of a Health and
Assignment 1
Semester 2
DUE August 2025
, IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D581/2023
Not Reportable
In the matter between:
TIISETSO KEFILWE DAISY MOLEME Applicant
and
INDURADEC COATINGS (PTY) LTD Respondent
Heard: 15 and 16 August, and 4 September 2024
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-
down is deemed 11h00 on 7 May 2025
JUDGMENT
ALLEN-YAMAN J
Introduction
[1] The applicant instituted action against the respondent in terms of s10 of the
Employment Equity Act, 1998 (‘the EEA’) in which she claimed the following relief,
, 2
‘1. A finding that the Respondent had failed to comply with the provisions
of s26 of the BCEA, in removing the Applicant from the Laboratory without
any duties and / or functions and placing the applicant on extended unpaid
maternity leave.
2. A finding that the Respondent had unfairly discriminated against the
Applicant due to her pregnancy and / or any other ground of discrimination
referred to in section 6(1) of the EEA.
3. The Respondent to make payment of 24 months’ compensation to the
Applicant.
4. Costs of suit.’
[2] The respondent disputed that it had acted as alleged, and so defended the
applicant’s claim.
Background
[3] The applicant was employed by the respondent on 18 October 2021. Albeit
that her contract of employment defined her Job Title as that of a ‘Chemist’, the
evidence introduced by both parties demonstrated that in such position her functions
included aspects of both research relating to, as well as the development of,
products for the respondent, a chemical coating company.
[4] Having fallen pregnant some twelve weeks earlier, the applicant notified the
respondent of her pregnancy in March 2023 by the transmission of an email to
another of the respondent’s employees, Ms Denise Foster, whom she was aware
dealt with the respondent’s Human Resources matters. The applicant was
concerned about continuing to work in the respondent’s laboratory which would
expose her to certain chemicals, including Bisphenol A, and requested to be moved
out of that environment. Ms Foster called her into her office and informed her that
she had never had occasion to deal with such an issue and was unsure of what to
do, but that she would notify the applicant’s immediate superior, Mr Geoff Powell (the
respondent’s Technical and Commercial Manager) who would be in contact with her.
, 3
[5] Mr Powell approached the applicant later that day and instructed her to move
out of the laboratory and into an office adjacent to his own. It was common cause
between the parties that no work functions were assigned to her in the time she
remained in that office until May 2023, despite it having been agreed between her
and Mr Powell that she would be provided with a computer to enable her to carry out
such limited functions as she was able to whilst she was away from the laboratory.
[6] Pursuant to the applicant having informed Mr Powell that she would be
attending an ante-natal appointment on 5 April 2023, he provided her with a
respirator and a letter which he requested she give her gynaecologist. The letter
read,
‘We are a paint company that manufactures and formulates various solvent
based coatings. A variety of raw materials are used in the chemical makeup of
our products. All safety data sheets are available but the literature does not
specify pregnant persons.
Daisy is locates in our lab office and her duties include lab work and
development. Please can you confirm if the following breathing apparatus is
sufficient for her to use or is there any recommendation that will allow her to
continue to perform her duties without affecting her health or the health of her
baby during this period.
The lab does have extractors, air circulation and a minimal amount of product
is used or tested in the lab thus reducing the exposer [sic] levels to a minimal
amount.
A formal response is required please.’
[7] She did as she had been requested. Her doctor’s response, however, was
that the respondent’s request was outside the scope of his expertise, and suggested
that it ought to enlist the assistance of a Health and Safety official to assess safety of
its laboratory. The applicant conveyed this response to Mr Powell the following day.
Later that month he requested her to take the same letter and respirator to her
general practitioner, whose response, like that of her gynaecologist, was that the
question was outside the scope of her expertise, and the assistance of a Health and
