4 October 2022
Suzuki Westrand paid damages and compensation of R156 070-00 to former Sales Executive Wilna Ooteman after the Commission for Conciliation, Mediation and Arbitration (CCMA) found it unfairly dismissed and discriminated against her.
Adv Mark Hawyes, the Senior Commissioner who also acted as Judge in the High Court and Labour Court, found that Ooteman was not opposed to being vaccinated, but was reluctant to do so due to her medical co-morbities at the time.
“The Applicant’s medical condition was swept away in a hail of insults with further insinuations that the Applicant could potentially be held responsible for the death of other staff members and customers if she was not vaccinated immediately whilst facing the probable loss of leads and income as a consequence. I find that the Applicant has proved a differentiation in treatment and that the differentiation is linked to her unvaccinated status (an alleged arbitrary ground of discrimination).
“The way in which the differentiation was executed was in a harsh and disparaging manner which directly impacted her basic human dignity as a person,” Hawyes found in the arbitration award.
According to him a further requirement is that the behaviour of Ooteman’s former employers was meant to ostracize, belittle, alienate, demean, degrade and to oppress the bearer of the characteristic.
“The Respondent’s Chief Executive Officer (Meyer Benjamin) set the tone for how the Applicant was treated and subordinate staff followed suit. I find that the conduct of the CEO and (Fred) Van der Westhuizen (dealer principal) was directly intended to ostracize, to belittle, demean, degrade, and alienate the Applicant because of her unvaccinated status and difficult temperament. I find that the Applicant has proven on a balance of probabilities that Benjamin and Van der Westhuizen discriminated against the Applicant because of her unvaccinated status,” Haywes found.
Ooteman was represented by Michael Buitendag, Labour Expert of the Motor Industry Staff Association (MISA). She confirmed to MISA that she received her payment according to the award.
For Ooteman no amount of money will bring vindication for the injustice she suffered. She is traumatised by the spree of humiliating events. “It feels as if the Employer got away with a slap on the wrist.”
She was dismissed on 20 January 2022 following a disciplinary enquiry.
According to Hawyes it was submitted that the world of work in the Motor Industry and even beyond finds itself with predominantly male employees in senior positions, wherein harassment and abusive language is deemed to be the new norm, and everyone should just accept it the way it is.
“Employers such as the Respondent must be held responsible for their lack of intervention and application of our Constitution, mployment Equity Act and the Labour Relations Act. It was submitted that the Respondent harassed, discriminated, abused, and eventually dismissed the Applicant for refusing to delete crucial evidence to be used in her alleged unfair discrimination case.
“The Applicant had lodged two grievances against Van der Westhuizen within the space of approximately six months. It was argued on behalf of the Applicant that these grievances were disregarded by the Respondent and downplayed to such a point that they even forgot to take the necessary action against their dealer principal.”
Hawyes found that the Responded only issued Van der Westhuizen with a warning after Oosteman referred her discrimination dispute to the CCMA.
Issued on behalf of MISA by Sonja Carstens, Media, Liaison and Communication Specialist. Please find the judgement attached.
For MISA Press Releases, phone Carstens on 082 463 6806 or email Sonja.Carstens@ms.org.za.