FUNNY the corners where discrimination against women still lurks, even in places where you’d never thought to look.
For example, you wouldn’t expect to find it at the spring-water bottling factory of aQuelle natural and flavoured water, would you? – especially given the company’s generous sponsorship of some well-known sporting events in South Africa including major swimming and mountainbiking competitions.
But doubters can always read all the details for themselves in a decision delivered earlier this week by the Labour Appeal Court.
Turns out that aQuelle (the company’s website says we should pronounce the name “a Qua-ley with emphasis on ‘Qua’”) operates on the 340 ha farm of the church mission, KwaSizabantu, near Mapumulo. To access the bottling factory its 150 employees must first enter the mission lands and pass security guards.
These guards however have instructions to implement the mission’s code of conduct, and unless you adhere to it you can’t get in. The code includes among others a prohibition of ‘amorous relationships between any two persons outside of marriage’. Hard to pin on a man, but what more obvious proof would a security guard need of such a forbidden relationship than pregnancy?
And so it happened that two unmarried, pregnant women who worked for aQuelle were refused access to the mission land – and thus to their work place – during April 2008.
They said barring them access to the mission amounted to dismissal, particularly since their manager at aQuelle, Nico Bosman, was called by the security guard to the scene of the dispute but refused to take any action to ensure they could get to work. Both women launched legal action against their ‘dismissal’ but while Mandi Mnomiya fought the issue to the end the other woman never arrived at court on the due day and thus ceased to play any part in the legal dispute.
Officially both women worked for Ekhamanzi Springs, the company producing aQuelle, and it was against this company that Mnomiya complained. After she won the initial case against the company in the labour court during 2012, aQuelle decided to appeal.
But the company hasn’t fared any better before the three labour appeal judges who heard the case. When the company pointed out that in terms of the mission code ‘unmarried women staying and working on the premises are not allowed to fall pregnant’, the judges said the law specifically banned dismissals based on discrimination. ‘Employees are entitled to a workplace that is free from discrimination. The protection granted … to female employees against dismissal on grounds of their pregnancy applies to all female employees irrespective of marital status.’ The appeal judges also found the trial court was correct that protection from dismissal for reasons related to pregnancy ‘is not a preserve of married women’.
They said aQuelle had a duty to ensure that its employees could present themselves for work and should have exercised its rights as tenants against the landlord (the mission) by coming to the aid of its pregnant employees. Instead the company did nothing and associated itself with the mission’s denial of access. By acquiescing in the refusal of access the company violated an employer’s constitutional obligation to act fairly in making decisions affecting its employees.
The company’s ‘inertia’ in relation to the mission’s code of conduct constituted unfair treatment of its employees and also amounted to a breach of its common law duty to ‘accept its employees’ service’.
The court said it did not need to deal with the ‘lawfulness’ of the code of conduct: since Mnomiya had not signed it she was not bound by it. The judges also noted that Bosman, her manager, was the son-in-law of the mission’s head, Erlo Stegen, and it was thus not surprising that he failed to intervene when the mission refused to allow her onto the property.
aQuelle must now pay Mnomiya back wages of just under R8 000 – and bear the legal costs of the case.
Interestingly the mission’s website quotes Stegen listing the aQuelle company as ‘being run to generate funds’ for the mission, as are vegetables raised on the mission farm ‘for Woolworths, Spar’ and others. These growers of ‘peppers and avocados’ for discerning consumers are presumably, like workers in the water factory, also subject to the mission’s code of conduct, with unmarried women ‘not allowed to fall pregnant’.
On a different note however is it possible that aQuelle is itself contributing to illicit ‘amorous’ relationships?
Happy customer feedback on its website includes the view by one woman that aQuelle’s new bottle is ‘very sexy’. Another female customer said the ‘still apple’ drink is ‘sexy’, ‘passionate’ and ‘naughty’.
Perhaps the problem is that its branding is just too successful: aQuelle calls its bottles ‘funky’ with a ‘classy feel’, while its new bottles have a ‘trendy, distinctive shape with a wave design which creates a watery feel’.
Far more troubling however is the fact that they come with a ‘slim, easy-grip waist’.