Solid Doors (Pty) Ltd v Theron NO and Others (CA4/03) [2004] ZALAC 14; (2004) 25 ILJ 2337 (LAC) (22 September 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2004
>>
[2004] ZALAC 14
|

|

Solid Doors (Pty) Ltd v Theron NO and Others (CA4/03) [2004] ZALAC 14; (2004) 25 ILJ 2337 (LAC) (22 September 2004)

25
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NO: CA 4/03
In the matter between
SOLID DOORS (PTY) LTD APPELLANT
And
COMMISSIONER J.P. THERON 1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION AND ARBITRATION
2
ND
RESPONDENT
GRANT CLAPTON 3
RD
RESPONDENT
JUDGMENT
JAFTA
AJA
[1] The appellant is Solid Doors (Pty) Ltd which is a
registered company engaged in the wood industry and has its
principal place
of business at Rivonia, Johannesburg. The first
respondent is a commissioner of the Commission for Conciliation,
Mediation and
Arbitration
(“the CCMA”)
,
the second respondent in the present case. He arbitrated the dispute
which led to the current proceedings. The third respondent
was
employed by the appellant in 1997. He is the employee party to the
alleged dismissal dispute which has given rise to this
litigation.
[2] The third respondent was employed by the appellant
in 1997 as a sales representative. As a result of certain events that
will
emerge later in this judgment, the third respondent referred to
the CCMA for, initially conciliation, and, later, arbitration a
dispute
of an alleged unfair dismissal by the appellant. The first
respondent issued an arbitration award in favour of the third
respondent
and awarded him compensation. The appellant was aggrieved
by such award and brought an application in the Labour Court to have
it
reviewed and set aside. The Labour Court dismissed that
application with costs. With the leave of that Court, the appellant
now
appeals to this Court against the order of the Labour Court.
Before dealing with the appeal, it is necessary to set out the
circumstances
surrounding the dispute. I propose to do this with
reference to the evidence that was led in the arbitration proceedings
before the
first respondent.
Factual background and
arbitration.
[3] The first witness called to testify was the employee
who was the only witness called in support of his claim. The
appellant then
led the evidence of Mr Stanley Schenker
(“Schenker”)
who had been the chairman of the disciplinary hearing. Thereafter the
hearing was adjourned. It resumed on 29 August 2001 before
the first
respondent. On that date the appellant was also represented by an
attorney. Two more witnesses were called on its behalf.
They were
Messrs David Robertson and Bradley Morris who were present at the
disciplinary hearing.
[4] In his testimony the employee stated that after he
had joined the appellant its sales figures for the Cape Town branch
were increased
by more than 100% through his own effort. However,
the relations between him and Schenker who was his supervisor were
not good.
The employee suggested that Schenker was threatened by his
experience in the wood trade. As a result Schenker continued to
change
sales targets by setting new and unrealistic targets so that
the employee could fail to meet them. The employee further testified
that he would also be threatened with dismissal when he failed to
carry out instructions given by Schenker. Some of those instructions
made it difficult for him to perform his duties. He was also
subjected to disciplinary actions which he regarded as unwarranted.
Restrictions such as being denied access to a warehouse and to
certain files were placed on him. The cellular phone which had been
allocated to him for use in the performance of his duties was
withdrawn by the appellant. The above actions prompted the employee
to write a letter of complaint to Schenker. Meanwhile the latter
served him with a notice informing him of the charge preferred
against
him and inviting him to attend a disciplinary hearing
scheduled for 22 March 2000.
[5] The employee regarded the latter hearing as an act
of victimisation and a farce but he attended the hearing. Schenker
chaired
the disciplinary hearing. The employee said that at the
hearing he asked Schenker to place on record that he (i.e. the
employee)
was not entitled to take tea and lunch breaks, after he
had been informed by Schenker that sales representatives were not
entitled
to tea and lunch breaks. There was an acrimonious exchange
between him and Schenker. During that exchange of words Schenker
told
the employee to
“f….off”
and the employee left the hearing. He proceeded to his office where
he wrote a letter to Schenker. In the letter, which was dated
22
March he stated that Schenker had dismissed him. The letter read
as follows:
“
Stan,
Furthermore the disciplinary hearing held at 8 am
this morning, which I strongly feel is another victimisation of
myself. I find
it totally unacceptable that you refused to take down
some statements you made, that reps do not get tea and lunch
breaks. I take
it that I am dismissed when you said ‘f…off” so
I am now vacating the premises. I also feel that I did not have
sufficient
time to prepare for the meeting.
Yours
sincerely
Grant
Clapton.”
[6] In contrast to the employee’s version Schenker
testified that there had never been any ill- feeling between him
and the employee.
He said that they enjoyed a cordial relationship
to the extent that they would have lunch together when they had gone
out to see
clients and at times he would allow the employee to drive
his vehicle. When the employee experienced financial problems, he
was
the one who recommended that the employee be given a loan by
the appellant. He said that, if he had wanted to dismiss the
employee,
he would have done so in 1998 when the opportunity for
dismissing him presented itself. He said that during that period the
employee’s
work performance was poor and as a result he had to
speak to him on a number of occasions about his poor performance. He
said that
the employee performed satisfactorily in 1999 after he,
i.e. Schenker, had given the employee an opportunity to improve his
performance.
[7] Schenker went on to say that from January 2000 the
employee’s performance decreased dramatically after he had
received a bonus
pay about which he was unhappy. Schenker testified
that the employee complained that for two years in a row he had
received a bonus
amounting to only 75% of his monthly salary.
Schenker said the employee told him then that he had just come from
an overseas
trip and had hoped that the bonus pay would cover his
travelling costs.
[8] Schenker testified that shortly thereafter he was
informed that the employee had asked for a copy of the restraint of
trade agreement
between himself and the appellant. Schenker also saw
a legal opinion addressed to the employee on the status of the
restraint of
trade agreement. Schenker telefaxed a copy of the legal
opinion to the chairman of the appellant in Johannesburg. After
receiving
the legal opinion the appellant’s chairman suspected that
the employee was contemplating leaving the appellant and ordered that
certain measures be put in place including that the employee be
restricted from gaining access to certain areas of the appellant’s
premises because the appellant feared that the employee would take
its trade secrets to its competitors.
[9] Insofar as the withdrawal of the company cellular
phone was concerned, Schenker said that the employee had the habit
of switching
it off when he was out of office or when he had not
come to work and he could not be contacted. As a result the
appellant’s chairman
directed that it be withdrawn because it did
not serve the purpose for which it had been given to him. Schenker
further said that
just before the restrictions were imposed on the
employee, his work performance had deteriorated and he had been
absent from work
for days during which he claimed to have been sick.
However, continued Schenker, on the employee’s return to work, it
had been
noticed that the company vehicle used by the employee had
covered an extra mileage of 1000 km on its odometer clock. It was
also
observed that a number of private calls had been made from the
company cellular phone allocated to him despite the fact that during
that time the employee did not contact the appellant and the
appellant had been unable to get hold of him on the cellular phone.
[10] The discovery of the legal opinion addressed to the
employee occurred shortly after the employee had been out to see a
client
in Vredendal which is about 300 km from the appellant’s
office. On that occasion the employee failed to visit other clients
in
the same area although he had spent the entire day out of the
office. The employee’s failure to visit other clients appears to
have angered Schenker and the appellant’s chairman. The
appellant’s chairman directed that a disciplinary action in
respect
of the trip to Vredendal be taken against the employee. On
17 March 2000 Schenker gave the employee notice that required him to
attend a disciplinary hearing on the 22
nd
March 2000.
[11] On the 22
nd
March 2000 a disciplinary enquiry against the third respondent was
held. Mr Schenker chaired the inquiry. Apparently Schenker made
a
statement in the course of the inquiry to the effect that the sales
representatives were not entitled to tea or lunch breaks whereupon
the third respondent asked or demanded him to put that down in the
record of the proceedings. It would seem that at that stage Schenker
told the third respondent to
“f….off”
and this prompted the third respondent to immediately leave the
inquiry.
[12] Schenker said that before the hearing commenced, he
had acknowledged having received a certain letter of complaint from
the employee
and promised that he would respond to it after the
hearing. Schenker also said that at the hearing the employee was
uncooperative
and that he disrupted the proceedings. Consequently,
said Schenker, it was difficult for him to keep order during the
hearing. He
said that the employee shouted at him while he was
recording the proceedings and out of desperation he responded by
telling the
employee to
“f…..off for a
minute”
. Schenker said that the employee
had thereupon left the hearing and later returned with the letter of
22 March, which has been quoted
above already, in which he said that
he had been dismissed. Later on the same day the employee wrote
another note addressed to Schenker
that read thus in part:
“In
the light of my dismissal, kindly advise when I must return the
company vehicle.”
[13] After receiving the employee’s letter, Schenker
sought to set the record straight and clear the misunderstanding that
the employee
seemed to have had that he had been dismissed. Schenker
responded by a letter on the same date he received the employee’s
letter.
In his letter Schenker said:
“
Kindly
return to our offices to complete our meeting. Please note that the
allegations that you have been fired are not correct.
Please advise
me so that we can arrange a convenient time.”
[14] Schenker said that the issue was further clarified
to the employee’s trade union by him in a telephone conversation
and in
letters that he subsequently sent to the union on 22 and 23
March 2000. In the letter dated 23 March Schenker said to the union:
“
Further
to our fax of 22 March 2000 and our brief telephone conversation of
the same date, we wish to once again reiterate that the
allegations
that Mr Clapton has been fired or dismissed are not correct. Our
disciplinary hearing of 8 am yesterday morning was not
concluded and
in any event the nature of the hearing in no way would have resulted
in dismissal. The unfortunate choice of words
used by the undersigned
is regrettable and only meant as an appeal for restraint from Grant’s
unreasonable behaviour during the
course of the meeting. May we
request that Grant return to the office so that we may bring our
meeting to a conclusion and then resolve
any outstanding issues.”
[15] On 24 March the union responded to Schenker’s
letter of the previous day. The first three paragraphs of that
letter are important.
They read thus:
“
We
refer to your letter of 22 March 2000 and that of our member of the
same date and your further letter of 23 March 2000. We are
advised by
our member that your attitude and terminology in instructing our
member to ‘f….off’ are indicative of the whole
nature of the
employment relationship, wherein our member has been bullied,
discriminated against and unfairly treated by the company.
Our member
denies any ‘unreasonable’ behaviour. Per contrary, he has always
conducted himself in good faith and in keeping with
the employment
contract. The employment relationship is now irretrievably broken
down by you as our member cannot trust you to apply
fair labour
practices. You have breached the employment contract. Our member has,
consequently elected to abide by his dismissal,
albeit unfair, and
to pursue a claim of unfair dismissal via the CCMA.”
[16] It will be noted from the letter referred to above
that the union stated that the employee had been bullied,
discriminated against
and unfairly treated by the appellant and that
the appellant had caused an irretrievable breakdown in the
employment relationship.
It will also be noted that the union further
said that the employee had elected to abide by his dismissal which
it regarded as a
breach of the employment contract. Apparently the
appellant sent another letter to the union on 30 March. That letter
prompted a
reply from the union on the same date. The second
paragraph of that letter reads:
“You cannot
overlook the
dismissal, the
victimisation / grievance and
irretrievable breakdown of the
relationship.
[Emphasis supplied]
The employee’s union proceeded to say in the next paragraph:
“You
have breached the contract of employment”.
[17] Furthermore, it was common cause between the
parties that the employee did not return to work despite the
appellant’s pleas
for him to do so. Eventually the appellant
dismissed him in April 2000 on the ground that he had deserted. It is
notable that this
dismissal was not challenged anywhere and it does
not form the subject- matter of the present proceedings. The employee
referred
the dispute to the CCMA. There is a dispute between the
parties whether that dispute was one concerning an ordinary dismissal
or
constructive dismissal. The appellant says it was a dispute about
an ordinary dismissal whereas the employee says that it was a
constructive
dismissal. It is not necessary at this stage to say
anything about this.
[18] After hearing evidence from both sides the
commissioner found that the restrictions, which were imposed by the
appellant on
the employee, were not only unjustified but that they
also caused an irretrievable breakdown in the employment
relationship between
the parties. The commissioner held that instead
of imposing the measures that the appellant imposed, it should have
charged the
employee with misconduct relating to the allegations
that he abused the cellular phone, the motor vehicle and
“his
sick leave entitlement”
.
[19] The commissioner also found that the appellant was
not entitled to institute a disciplinary enquiry on 22 March because
the charge
did not warrant a formal hearing and that the hearing
“had
the hallmark of being trumped up”
. The
commissioner concluded by making a finding to the effect that, when
the obscene remark by Schenker was made at the disciplinary
hearing,
the relationship between the parties had already reached a breaking
point and consequently the employee terminated the
employment.
However, the latter finding by the commissioner appears to contradict
another finding by him in which he stated:
“Mr
Clapton has in my opinion discharged the onus on him, to establish
that the company made his continued employment intolerable,
and that
he was dismissed.”
The review application
[20] In the Labour Court the appellant challenged the
commissioner’s award on two bases, namely, that because the
dispute relating
to constructive dismissal was not referred to
conciliation before arbitration, the commissioner had no
jurisdiction to arbitrate
it. The other ground was that before the
commissioner the employee had failed to prove that a constructive
dismissal as envisaged
in s 186 (1) (e) had occurred because he did
not show that he is the one who terminated the employment. As a
result the appellant
contended that the award was unjustifiable and
irrational.
[21] Regarding the jurisdiction point, the Court a quo
found that the Commissioner had the necessary jurisdiction to
arbitrate
the dispute. The Court’s finding was based on the
following reasons:
“
Insofar
as the argument of the nature of the dispute is concerned and what
exactly was conciliated and referred to arbitration,
the arbitrator
dealt with the question properly and intelligently and should not be
criticised for the approach that he adopted.
It was difficult to
properly characterise this dispute from the outset. There was a
dismissal for absenteeism. There was also
a ‘walk- out’ at a
disciplinary hearing after the unfortunate words referred to had
been uttered. It was quite conceivable
that there could have been
some confusion as to the nature of the dispute. From the record and
from the arbitrator’s reasoned
award it is quite apparent that
all issues were properly aired and that the correct dispute was
ultimately arbitrated.”
[22] What the Labour Court said in the passage quoted
above does not answer the question which was posed by the appellant’s
objection
to that Court’s jurisdiction to adjudicate the
constructive dismissal case. That there had been a dismissal for
absenteeism or
that there had been
“a
walk-out at a disciplinary hearing”
do not
in any way indicate what the dispute was that had been referred to
the CCMA. What the Labour Court was required to do in
order to deal
with the appellant’s objection was to first and foremost examine
the referral document which it did not do. I do
not say that the
referral document would be the only source of information but it
certainly is the primary source of information
to determine what the
dispute was that was referred to the CCMA.
[23] Regarding whether the employee sufficiently proved
that he was constructively dismissed, the Labour Court accepted the
reasons
given by the commissioner for the finding that the employee
had been constructively dismissed. In this regard the Court a quo
reasoned
as follows:
“
The
next question to be asked is whether objectively, the third
respondent [appellant] was entitled to leave the meeting and not
return.
The arbitrator found that he was entitled to do so in the
circumstances and that he was constructively dismissed. He made a
factual
finding and reasoned very carefully with reference to all
evidence, that the third respondent could not be blamed for leaving
the
meeting and his dismissal was therefore unfair. I am unable to
fault the reasoning in a review application.”
[24] For the above reasons the Labour Court dismissed
the application with costs. As it appears below the Court a quo
adopted an
incorrect approach and erred in accepting the
commissioner’s reasons as justifying the findings and the award
made by him.
The appeal
[25] The appellant sought to have the commissioner’s
award reviewed and set aside on a number of grounds. One of these-
which
was also pursued on appeal – was the commissioner’s
finding that the third respondent had been constructively dismissed
was
unjustifiable and irrational. The appellant’s case in the
review application was that the employee had failed to show that he
had been constructively dismissed and the commissioner’s finding
in this regard fell to be reviewed and set aside.
[26] In our law a constructive dismissal occurs when an
employee is the one who terminates the contract of employment and
he does
so owing to the continued employment having been intolerable
for him due to the conduct of the employer. The concept of
constructive
dismissal is defined in s 186 (1) (e) which in part
reads as follows:
“
Dismissal’ means that –
(a)…..
(b) an employee terminated a contract of employment
with or without notice because the employer made continued
employment intolerable
for the employee.”
[27] In
CEPPAWU & Another v
Aluminium 2000 CC
[2002] 5 BLLR 399
(LAC)
this Court had occasion to consider and define the meaning of the
section. Writing for the Court
Nicholson JA
said at para [30]:
“
Constructive
dismissal involves a resignation because the work environment has
become intolerable for the employee as a result
of conduct on the
part of the employer. (see section 186 (1) (e).”
[28] It should be clear from the above that there are
three requirements for constructive dismissal to be established.
The first
is that the employee must have terminated the contract of
employment. The second is that the reason for termination of the
contract
must be that continued employment has become intolerable
for the employee. The third is that it must have been the employee’s
employer who had made continued employment intolerable. All these
three requirements must be present for it to be said that a
constructive dismissal has been established. If one of them is
absent, constructive dismissal is not established. Thus, there is
no
constructive dismissal if an employee terminates the contract of
employment without the two other requirements present. There
is
also no constructive dismissal if the employee terminates the
contract of employment because he cannot stand working in a
particular
workplace or for a certain company and that is not due to
any conduct on the part of the employer.
[29] Having established what the requirements are for a
constructive dismissal, it is necessary to make the observation at
this
stage of the judgment that the question whether the employee
was constructively dismissed or not is a jurisdictional fact that
–
even on review- must be established objectively. That is so because
if there was no constructive dismissal- the CCMA would
not have the
jurisdiction to arbitrate. A tribunal such as the CCMA cannot give
itself jurisdiction by wrongly finding that a
state of affairs
necessary to give it jurisdiction exists when such state of affairs
does not exist. Accordingly, the enquiry is
not really whether the
commissioner’s finding that the employee was constructively
dismissed was unjustifiable. The question
in a case such as this one
– even on review- is simply whether or not the employee was
constructively dismissed. If I find that
he was constructively
dismissed, it will be necessary to consider other issues. However,
if I find that he was not constructively
dismissed, that will be the
end of the matter and the commissioner’s award will stand to be
reviewed and set aside.
[30] In this case I have no hesitation in finding that
the first requirement for a constructive dismissal, namely, that the
employee
terminated the contract of employment, is absent. The
employee’s case was that he had been dismissed by Schenker when he
told him
to
“f…off!”
It was never his case that he was the one who terminated the contract
of employment. In his letter of the 22
nd
March, which he seems to have written soon after he had walked out of
the disciplinary hearing, the employee himself said in part:
“I take it that I am dismissed.”
In
another note of the same day that he addressed to Schenker, he opened
the first sentence thus:
“In the light of my
dismissal….”
Even in its letter of the
11
th
April 2000
the union wrote in part:
“This is a
dismissal whichever way you look at it.”
Also
the union said:
“Our member has accepted the
dismissal”
but will seek financial
compensation
“for the unfairness thereof.”
[31] It may well be that Schenker had created a less
than comfortable situation for the employee’s continued employment
but the
employee did not terminate the contract of employment. The
employee may have misunderstood what Schenker said in desperation
during
the inquiry and stuck to his wrong understanding even when he
and his union were repeatedly told not only that the statement had
not been intended to say he was dismissed but also when they were
told that the charges he was facing in the disciplinary inquiry
when
he stormed out would not have been sufficient to warrant a dismissal.
The employee and his union only have themselves to blame.
[32] Mr de Klerk, who appeared for the employee, sought
to argue that the employee left the appellant’s employment due to
an intolerable
working environment that had been created by the
appellant and on that basis constructive dismissal had been
established. The answer
to this submission is simply the one that
has been emphasized above, namely, that there is absolutely no
evidence that it was
the employee who terminated the contract of
employment and that means that the first element of constructive
dismissal is absent.
Therefore, the existence of such dismissal was
not established.
[33] The commissioner found that the employee terminated
the employment relationship. However, this is contrary to clear
evidence
and is inconsistent with the employee’s own case.
[34] The key finding made by the commissioner to the
effect that the employee was constructively dismissed has no factual
basis whatsoever.
Not a shred of evidence indicating that the
employee resigned was placed before the commissioner. It seems that
the commissioner
completely misconstrued what is required for
constructive dismissal to occur. In setting out in paragraph 7 of the
award what the
employee would have to prove, the commissioner left
out the requirement that the employee had to establish that he had
terminated
the contract of employment. He just referred to the
requirement that continued employment must have been intolerable. His
finding
that there was no realistic prospect of mending the
relationship between the parties is contradicted by the content of
the employee’s
letter of complaint wherein the latter asked for the
resolution of the matter so that the parties’ relationship could
return to
normality.
[35] It appears that once the commissioner had found the
conduct of the employer to have created an intolerable situation for
the
employee to continue working, he came to the conclusion that
there was a termination of employment as contemplated in s 186 (1)
(e).
Support for this can be found in the last three sentences of
paragraph 7 of his award where he sought to define what the issues
were
and what the employee needed to show in order to succeed. The
last three sentences read:
“Since the
employer denies Mr Clapton was dismissed on 22 March 2000, Mr Clapton
bears the onus of proving the employer indeed made
his continued
employment intolerable. If he is able to discharge this onus, he was
dismissed. It is then for the employer to prove
his dismissal was
fair.”
In these sentences the commissioner
says, among other things, that, if the employee showed that the
employer made continued employment
intolerable for him, then
dismissal will have been proved. This is blatantly wrong when one is
referring to constructive dismissal
as the commissioner was because
the employee must prove that he terminated the contract. In this case
it was never the employee’s
case that he terminated the contract
but his case was that the employer terminated it. There was no basis
for the commissioner to
find that there was constructive dismissal.
[36]
Another ground upon which the appellant sought to have the award
reviewed and set aside was that the commissioner had no jurisdiction
to arbitrate a constructive dismissal dispute because such a dispute
had not been referred to conciliation. The appellant contended
that
the dispute that had been referred to conciliation concerned an
ordinary dismissal as opposed to constructive dismissal. The
employee
disputed this and contended that the dispute that he had referred to
conciliation concerned constructive dismissal.
[37] In the referral form, the employee had this to say
in response to a question as to why he thought that his dismissal was
procedurally
unfair: “
No proper procedures
convened to effect the dismissal. The employer instructed the
applicant to “f…off” during the disciplinary
hearing, hence the
hearing was incomplete and should not, in any event, have resulted in
such a dismissal.”
To a question in the
referral form as to why he thought that the dismissal was
substantively unfair, he answered in part:
“No
grounds for dismissal. Applicant had been following the employer’s
instructions in leaving Vredendal in time to return to
the office by
16:00.”
In the light of the conclusion that
I have reached on the other ground upon which the appellant attacked
the award, it is not necessary
to decide this point. It should
suffice to say that the decision of this Court in
NUMSA
& others v Driveline Technologies (Pty) Ltd & Another (2000)
21 ILJ 142 (LAC)
may well have stood in the
way of Counsel for the appellant’s submission in this regard.
[38] In all of the circumstances I conclude that there
was no constructive dismissal established in this matter and there
was absolutely
no basis for the finding to the contrary by the
commissioner. It follows that the appeal must succeed. I can see no
reason why costs
should not follow the result in this matter.
[39] Accordingly the following order is made:
The appeal is upheld with costs.
The order of the Court a quo is set aside and replaced
with the following order:
“(a) The arbitrator’s award
dated 12 September 2001 under case number WE31706 is hereby
set aside.
The third respondent is ordered to pay the costs of
this application.”
JAFTA
AJA
I
agree.
ZONDO
JP
I
agree.
MOGOENG
JA
Appearances:
For the appellants : Mr M. J. Van As
Instructed
by : Berkowitz Attorneys
For the third respondent : Mr M.P. de Klerk
Instructed
by : De Klerk Attorneys
Date of judgment : 22 September 2004