Pretoria - An article published in a Swedish magazine about the working conditions of labourers at a Western Cape wine farm, in which a picture appeared of a worker holding up her payslip, had dire consequences for the worker.
Claudine Van Wyk, who lost her job as a result of the article, turned to the CCMA to get her job back, with back pay. The arbitrator, however, found her dismissal to be both procedurally and substantively fair.
But the Labour Court sitting in Cape Town said this was a gross misdirection by the arbitrator. The court overturned his findings and referred the matter back to the CCMA so that another arbitrator could hear the matter afresh.
This ruling followed after the Commercial Stevedoring Agricultural & Allied Workers Union turned to the Labour Court on behalf of Van Wyk.
Her problems started about four years ago when the interview with the workers appeared in a Swedish Magazine called Arbetet. The heading to the article read “Farm Workers paying the price for Cheap South African Wine.”
This was accompanied by a photograph of Ms Van Wyk holding a payslip depicting that she earned only R684 a month.
She was employed by the wine farm W & E Dreyer Boerdery (DMS) BPK as a contract general farm worker on a fixed term contract for the 2019 harvesting period at a rate of R 18.00 per hour.
Van Wyk also resided on the farm premises where she worked on the wine farm, which exports its wines to Europe.
In February 2019, Van Wyk was visited by a Swedish journalist, who asked for an interview, to which Van Wyk agreed. The interview was in relation to the working and living conditions of farm workers. Pictures of the farm workers were taken by the journalist as part of the interview process.
The court was told that the interview was conducted openly and in the presence of numerous farm workers employed by the farm, who were also interviewed by the Swedish journalist.
The interview was published in August 2019 and was accompanied by a picture of Van Wyk holding a payslip depicting how much she earned.
The content of the article seemed to somewhat create the impression that Van Wyk was not being paid in accordance with the required statutory minimum wage applicable at that time.
The journalist did not afford Van Wyk an opportunity to proof read the contents of the article before publishing it in the Swedish magazine.
The owners of the wine farm were alerted to the content of the article by one of their Swedish clients, who demanded answers.
It is said that the publication of the article tarnished the farm’s reputation amongst its Swedish clientele and caused it to suffer a financial loss of 380 000 litres of wine.
Subsequently, Van Wyk was charged for misconduct. The charge read that she tarnished the reputation of the farm by making false statements regarding her remuneration. She was found guilty of misconduct and dismissed.
She referred an unfair dismissal dispute to the CCMA and sought retrospective reinstatement.
Acting Judge R Parker, in this latest turn of events in the Labour Court said the question is whether the journalist’s publication of the article was the main or dominant reason for the dismissal.
Van Wyk testified that she never gave any false information to the journalist.
The judge said if one looked at the Code of Good Practice on Dismissal, it cannot be said that the employee contravened a rule or standard, as she did not provide any false information to the journalist who interviewed her. She merely answered all the questions which the journalist posed to her during the interview.
The journalist, who had meanwhile corrected a paragraph in her story, said It was never intended to describe the legal specifics regarding Van Wyk’s employment contract but rather the “distressing situation wherein farm workers find themselves and the lack of other viable employment options they face when they are being replaced by day labourers.”
Judge Parker said the fact that the journalist misconstrued the information provided by Van Wyk and thereafter published these incorrect facts in an article contained in the magazine is conduct for which Van Wyk cannot be held accountable.
“When one looks at the causation test (“the but-for test”) in conjunction with the facts of the dispute, it can undoubtedly be stated that if it had not been for the publication of the article by the journalist in the Swedish magazine, Ms Van Wyk would not have been dismissed, and would still have been employed with the Third Respondent ( the farm) as a general farm worker,” the judge said.