Le Monde Luggage CC t/a Pakwells Petje v Dunn and Others (JA65/05) [2007] ZALAC 9; [2007] 10 BLLR 909 (LAC); (2007) 28 ILJ 2238 (LAC) (29 June 2007)

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[2007] ZALAC 9
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Le Monde Luggage CC t/a Pakwells Petje v Dunn and Others (JA65/05) [2007] ZALAC 9; [2007] 10 BLLR 909 (LAC); (2007) 28 ILJ 2238 (LAC) (29 June 2007)

IN THE LA BOUR APPEAL COURT
OF SOUTH
AFRICA.
Appeal
Court Case No. JA65/05
In
the matter between
LE MONDE LUGGAGE CC T/A
PAKWELLS
PETJE
Appellant
and
COMMISSIONER G DUNN
First Respondent
COMMISSI
ON FOR CONCILIATION,
MEDIATION AND
ARBITRATION Second
Respondent
SANDRA
GAIL SMITH
Third Respondent
JUDGMENT:
DAVIS AJA
Introduction.
[1] Appellant conducts a business of selling travel luggage and
leather-ware. On 1 April 2002 Ms Nonzamo Petje and her husband
acquired ownership of appellant, having purchased it as a going
concern from its previous owners.
[2] Third Respondent, who had initially been hired by the previous
owners, continued to be employed by appellant. At the time
of her
resignation, she was in charge of a team of employees and earned
R7,000 per month. On 14 February 2003 third respondent resigned
on
the basis of an allegation that her employment relationship had
become intolerable. In particular, she alleged that she had been
assaulted by Mrs Petje on 13 February 2003. Appellant denied this
allegation and contended that third respondent had resigned when
she
had been charged with disciplinary offences and then notified to
attend a disciplinary hearing.
[3] Third respondent referred the dispute to second respondent for
conciliation. After conciliation failed, the matter proceeded
to
arbitration. The main issue for determination at the arbitration
hearing was whether third respondent had been constructively
dismissed on 13 February 2003. First respondent found in favour of
third respondent and ordered appellant to pay twelve months
compensation
in the amount of eighty four thousand rand (R84,000).
[4] Appellant then brought an application to review the arbitration
award before Francis J who dismissed the application with
costs on
13 September 2005. The matter now comes to this Court with leave of
the court a quo.
The Essential Dispute .
[5] In his judgment, Francis J determined that the crucial issue
for resolution was whether the third respondent had been assaulted
by
Mrs Petje. As he stated: ‘If she were assaulted in the manner that
she says she was it cannot be expected of her or any other
employee
as such to endure an assault and continue to work’ (at para 14)
In this assessment he was clearly correct. S185(e) of
the Labour
Relations Act 66 of 1995 (‘the Act’) provides that an unfair
dismissal exists where an employee terminated a contract
of
employment with or without notice because the employer made continued
employment intolerable for the employee. If the evidence
justified
the finding of an assault, on the probabilities, then it follows that
respondent would have been unfairly dismissed.
[6] Ms Anderson, who appeared on behalf of appellant, contended
that, in addition to the issue as to whether an assault had taken
place, there was a further question as to whether third respondent
had resigned on 14 February 2003. I shall deal with these two
disputes in turn.
The Alleged Assault.
[7] Third respondent testified that on the morning of 13 February
she had an acrimonious telephone conversation with Mrs Petje.
It
appeared that third respondent had telephoned the Department of
Labour and, as a result of a long conversation, Mrs Petje, who
was
en route to a funeral, was unable to contact third respondent. An
acrimonious telephone conversation then ensued once Mrs Petje
was
able to locate third respondent. It then appears that there was a
similar exchange between Mr Petje and third respondent.
[8] Later that day Mrs Petje returned to the store and informed
third respondent that she was no longer the manager. Mrs Petje
called
a meeting of staff to apologise for the rowdy arguments between
herself and third respondent. According to third respondent,
Mrs
Peje told the meeting: ‘I would just like you all to understand
that you will not be referring to Mrs Smith anymore. She does
not
belong to the shop. What ever she is going to do is up to her but
she is not the manager in the store anymore.’ Notwithstanding
this
announcement , third respondent returned to her work station. A
further angry exchange took place between the two women which
according to third respondent culminated in Mrs Petje slapping her
on the left side of her face while she was sitting on a chair.
She
claimed that she fell off the chair, felt dizzy and immediately left
without her bag. She went to consult a medical doctor
who referred
her to a specialist so that he could conduct a hearing test.
[9] Third respondent testified that she then spoke with her
mother-in-law who, on the former’s instructions, compiled a letter
of resignation which was faxed to respondent on 14 February 2003. It
was shortly thereafter that third respondent received a notice
to
attend a disciplinary hearing.
[10 ] Third respondent’s version was supported by the evidence of
Mr John Malati, a self employed signwriter who was present at
the
store on 13 February 2003 where he was hired to complete a sign
writing assignment. . He heard an argument between third respondent
and Mrs Petje and ‘when the voices raised up I just turned to look
what was going on then I just see Mrs Petje just clapping Sandy,
on
the face on the left hand side’. Notwithstanding a lengthy cross
examination, Mr Malati insisted that he had personally witnessed
the
assault.
[11] Third respondent’s version was also supported by medical
documentation. A medical certificate from Dr Ben Viljoen of 13
February 2003 confirmed that he had examined third respondent. There
was apparent damage to the left ear as a result of which he
had
referred her to an ear, nose and throat specialist. A further
certificate from Dr Mike McDonogh dated 14 February 2003 was
produced. Dr McDonogh described the nature of the illness thus:
‘Injury left ear severe deafness and dizziness’.
[12] On 25 February 2003 an audiologist, Petro Groenewald, prepared a
certificate in which the following appears: ‘Pure tone audiometry
indicates peripheral bilateral normal hearing abilities. In the left
ear is a mild condutive component. These results might indicate
a
possible hit on the left ear.’
[13] By contrast, Mrs Petje, supported by two other witnesses, Mr
Boy Mandla Silundi and Mr Nceba Beauchamp, denied that any assault
had taken place as alleged by third respondent. According to Mrs
Petje an argument had indeed taken place and at some point ,on
13
February 2003, respondent had simply left the store without her bag.
The following passage captures Mrs Petje’s version:
‘Well I
said Sandra I am asking you to work. She said “ag your game is
over” you know and she was shouting “your game
is over” and
then I must say Madam Commissioner I was very upset and in that anger
I just went past he quickly. I ran into the
office and just sort of
to cool down you know because I was extremely, extremely annoyed and
thee were people in the shop you know…
I think it was early
afternoon or so you know. Yah around there. Okay fine. Some few
minutes later I came down again after I
had cooled down and she was
not there in the shop. When I asked where she had been to they told
me that she took her purse and she
said “I will be back” you
know.
[14] After evaluating this evidence, first respondent concluded: ‘The
assault on the applicant is the event which set this day
apart from
other incidents with the respondent. This is supported by the
extensive medical evidence which forms part of this case.
The
applicant left the store to consult a medical doctor where she had
received treatment on more than one visit. It is my view
that the
applicant had no intention to resign and wanted to work for the
respondent.’
[15] Ms Anderson submitted that first respondent had erred in using
the medical certificates as justification for her finding in
that no
doctor had been called to give evidence at the arbitration hearing.
Absent the medical evidence, Ms Anderson submitted that
the two
versions were effectively in equipoise. There was no basis to prefer
the version of third respondent over that of Mrs Petje.
Evaluation
[16] This submission overlooks the evidence provided by Mr Malati
who was consistent in his contention that Mrs Petje had slapped
third
respondent. By contrast the balance of the evidence tendered on
behalf of appellant was of a very poor quality. Mrs Petje
testified
that third respondent left in the early afternoon; Mr Beauchalp said
that third respondent left at approximately 11.00
a.m. where Mr
Silundi estimated the time between 16h00 – 17h00.
[17] While it may have been preferable for first respondent to have
heard medical evidence, in the very nature of the process undertaken
by a member of second respondent, some measure of informality is
surely indicated. The arbitration process before a member of second
respondent should not be reduced to the evidentiary formalism which
applies in an ordinary court of law.
In this connection the instructive judgment of Wallis AJ in
Naraindath v The Commission for Conciliation, Mediation and
Arbitration
and others (2000) 21 ILJ 1151 (LC) illuminates the role
of second respondent. After a careful analysis of the role of
arbitration
in labour disputes Wallis AJ said: ‘It would stultify
the entire purpose of the legislation if this Court were, in the face
of
such clearly stated intentions, to insist on arbitrators appointed
by CCMA to resolve unfair dismissal disputes conducting those
disputes in slavish imitation of the procedures which are adopted in
a court of law and subject to the technical rules of evidence
which
apply in those courts’. (para 26)
[18] In my view, Wallis AJ was correct to point arbitrators,
seeking to conduct an arbitration in a manner which is fair to both
parties and which expeditiously resolves a dispute, in the direction
of section 26(1) of the Small Claims Court Act 61 of 1984 which
provides inter alia, ‘subject to the provisions of this Chapter
the rules of the law of evidence should not apply in respect
of the
proceedings in a court and a court may ascertain any relevant fact in
such a manner that it may deem fit. See also Paul Benjamin.
‘The
impact of judicial decisions on the operation of the CCMA’ 2007(28)
ILJ 1 who cautions that a nuanced approach to arbitration,
that is
one that moves beyond a traditional adversarial legal culture, may
be a bridge too far for second respondent as ‘it will
call for
expertise that we do not possess at present’ (at 19). In the
present case, first respondent revealed an appropriate degree
of
legal flexibility of the kind required to enhance the mandated
performance of second respondent.
[19] I accept that the present dispute is one of those rare cases
where the true issue concerns the resolution of the clear dispute
of
fact which is best determined by listening to evidence and
ascertaining the credibility of the witnesses. However, even within
this context, the demands upon an arbitrator for accuracy, expedition
and fairness should counsel against an adherence to the
nature of
the technical legal form which predominates in a court of law.
[20] Viewed accordingly, first respondent was manifestly justified
in testing the accuracy of the competing narratives presented
by the
disputing parties against the objective evidence which might have
been available to her. The medical certificates supported
third
respondent’s version that she consulted medical advice on the 13
th
of February 2003 about an injury to her left ear. The medical
evidence therefore supports the version that she sustained an injury
as a result of an assault, in this case from Mrs Petje. The medical
evidence, coupled with the independent testimony of Mr Malati,
therefore provides a far more objectively verifiable account of the
events of 13 February 2002 than the bare denials from appellant’s
witnesses.
[21] Bearing in mind that the arbitrator had only to find on the
probabilities that an assault had occurred, I can find no fault
with
her reasoning or the conclusion to which she arrived in this regard.
Resignation by Third Respondent.
[22] Ms Anderson sought to make much of the fact that the letter of
resignation had been prepared by third respondent’s mother-in-law
and that the mother-in-law had no locus standi to resign on her
behalf. Furthermore, Ms Anderson submitted that the notification
to
attend the disciplinary enquiry was sent to third respondent by
appellant before appellant received third respondent’s resignation
letter. Furthermore Ms Anderson also referred to passages from the
evidence of third respondent that she was willing to return to
work
at the time that she received the notice to attend the disciplinary
hearing.
[23] Whatever the ambiguity in parts of third respondent’s
testimony both her explanation of the production of the resignation
letter and its contents are clear.
The background to the resignation letter was set out by third
respondent in her evidence as follows :
‘My
mother-in-law, I told her that I am going through to the doctor. I
explained to her everything that had happened. She had contacted
her
lawyer.
Are you saying she resigned on your behalf? – Yes. She faxed the
letter for me. I was told, I told her what to say and what
was
happening. That morning had she said to me she was going to fax it.
That is on page 6. I had then resigned. Mrs Petje then
came and…So
in between when my mom-in-law was faxing this for me Mrs Petje’s
driver, probably at the same time, had come to give
me the discipline
hearing. I did not have money in my phone at home. About ten minutes
later my mother-in-law phoned me. I said
to her look I do not know
if I have done this right or if I have done it wrong but I have
signed now for a discipline hearing form
that has come through She
said to me do not worry about that because you have already resigned,
so ignore that, you have already
resigned, whether you signed for it
or not it does not matter anymore.’
[24] First respondent found that third respondent had asked her
mother-in-law to fax her letter of resignation on 14 February
2003.
That she was given notice to appear at a disciplinary enquiry on the
same day does not alter the fact that third respondent
had given her
mother-in-law clear instructions to draft and then dispatch a
resignation letter to appellant, the contents of which
make her
resignation perfectly clear:
‘Following your irrational and unruly behaviour yesterday afternoon
in which you assaulted me, in consequence of which I have sustained
certain injuries, I find that a continued working relationship is
intolerable.
As
you are aware I have, since you acquired this operation, applied
myself diligently to my duties under very difficult circumstances,
where you have repeatedly sought to undermine me, belittle me and, to
put it bluntly, sought any excuse to terminate my employment.
Under
these circumstances I hereby tender my resignation without notice and
reserve my rights in their entirety.’
[25] In my view, first respondent was correct in her finding that
third respondent had resigned on the basis of a working relationship
which she found to be ‘intolerable’. For these reasons, the
third respondent had discharged the onus of proving that she had
been
constructively dismissed in terms of section 186(1)(e) of the Act.
Damages.
[26] Ms A nderson submitted that first respondent had given no
reasons as to why she ordered appellant to pay third respondent
in
the amount of twelve months compensation. In his judgment Francis J
found that this omission did not necessarily render the award
reviewable. He concluded that it was just and equitable under the
circumstances of the case that compensation of twelve salary should
be awarded.
[27] Ms A nderson sought to argue that it was not just and equitable
to make an award of twelve months compensation, in that the
circumstances leading up to the assault revealed that both parties
had been to blame and that third respondent, in particular, had
been
provocative in the manner in which she sought to engage with Mrs
Petje.
[28] It appears from the evidence that there is some merit in this
submission. The relationship between the two women had clearly
deteriorated over a period of time. On 13 February 2003 Mrs Petje who
was en route to a funeral was unable to make contact with her
manageress, owing to the latter’s lengthy telephone conversation to
the Department of Labour. Mrs Petje was clearly in a tense
and
distraught frame of mind when she returned to work. The conduct of
third respondent may well have exacerbated her mood and given
rise to
the anger which ultimately resulted in the assault.
[29 ] This court, however. cannot be sympathetic to employers
assaulting employees. The history of South African labour relations
reveals all too often the contempt with which employers treated
employees whose dignity was all too often sacrificed upon the alter
of an avaricious desire to extract the maximum profit from the
workforce and powered by a racist disregard for the interests of
employees.
Employers must not only treat employees with respect but
must comport themselves with the knowledge that there exists an
obligation
upon them to exercise power in the most responsible
possible manner, provocation from an employee notwithstanding.
[30 ] The compensation which must be made to the wronged party is a
payment to offset the financial loss which has resulted from
a
wrongful act. The primary enquiry for a court is to determine the
extent of that loss, taking into account the nature of the unfair
dismissal and hence the scope of the wrongful act on the part of the
employer. This court has been careful to ensure that the purpose
of
the compensation is to make good the employees loss and not to punish
the employer. See MSM Brassey Commentary on the Labour
Relations Act
A8-155; also Ferodo (Pty) Ltd. v De Ruiter (1993) 14 ILJ 974 (LAC).
[31 ] In my view, an award of compensation of twelve months is not
punitive but is clearly justifiable on the basis of the nature
of the
wrongful act committed by Mrs Petje which was the key event which
gave rise to the unfair dismissal. As noted, an assault
upon an
employee is an egregiously wrongful act.
For these reasons, the appeal is dismissed with costs.
_____________
DAVIS AJA
Jappie & Leeuw AJJA
concurred
Date of Judgment: 29
June 2007
For the Appellant: Ms
Riki Anderson
instructed by Riki Anderson
Attorneys
For the Respondent:
Adv. W. Hutchinson
instructed by Fluxmans inc.