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[2015] ZALAC 25
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Conti Print CC v CCMA and Others (JA53/2014) [2015] ZALAC 25; [2015] 9 BLLR 865 (LAC); (2015) 36 ILJ 2245 (LAC) (24 June 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 53/2014
In the matter between:
CONTI PRINT
CC
Appellant
and
CCMA
First Respondent
COMMISSIONER M RAFFEE
NO
Second
Respondent
GLADYS
MOLOKWANE
Third Respondent
Heard:
15 May 2015
Delivered:
24 June 2015
Summary: Constructive
dismissal – whether the issue of constructive dismissal is a
jurisdictional question – inappropriate
for Labour court to
purport to overrule decisions of Labour Appeal Court – employee
complaining about air conditioning, located
in adjacent workspace
partially partitioned from her workstation, impairing her
health – employer offering to
move employee and promising
to closing gap in the partition – employee refusing to move –
employee abruptly leaving
employment and claiming constructive
dismissal - evidence showing employer reacting reasonably to
ameliorate the adversity to her–
employee’s reaction
grossly unreasonable – arbitrator ignoring evidence
contradicting employee’s version
of facts – arbitrator
failing to weigh up the evidence –
Labour court
misconstruing evidence – Labour court incorrectly relying on a
statement by counsel from the bar that a fact
was common cause when
such statement plainly wrong as the fact was, on the record, not
common cause -. On the facts, employee not
constructively dismissed –
CCMA lacking jurisdiction to adjudicate the termination of employment
– Award and Labour
Court’s judgment set aside –
appeal upheld.
Coram: Tlaletsi DJP,
Sutherland JA
et
Mngqibisa-Thusi
JUDGMENT
SUTHERLAND JA
Introduction
[1]
The
third respondent (Molokwane) was employed by the appellant, a
bindery. She succeeded in obtaining an award that she had been
constructively dismissed. On review, the Labour Court (Naidoo AJ)
upheld the result. This appeal challenges that finding.
[2]
The
versions of the parties adduced in evidence contained several
material conflicts. To decide the matter, an evaluation of the
credibility of the witnesses and of the probabilities was essential.
Insofar as one version was preferred over another, a rational
basis
has to exist. The basis, if any, for preferring Molokwane’s
version over that of the appellant’s witnesses is
at the heart
of the factual controversy. In addition, on either version, the
question as to whether a proper case for a constructive
dismissal was
made out is the subject matter of the legal controversy.
[3]
It
needs to be said that the manner in which the evidence was adduced
was poorly conducted. The interpreter randomly used first
and third
person to convey the witnesses’ words, there were constant
interruptions by the arbitrator to try to get clarity,
often in vain.
There was poor presentation of the parties’ respective cases,
leaving critical aspects of the narrative incomplete
or cryptic. The
cross-examination was frequently perfunctory and equally frequently
pointless, whilst critical issues were unexplored,
important
questions not asked and the contradictions between one witness and
another not put. From out of this melee, it was expected
of an
arbitrator to make sense.
[4]
In
addition, the Labour Court, in reviewing the award, embarked upon a
treatise about whether an enquiry by an arbitrator into the
existence
of a constructive dismissal was an issue going to the merits of a
matter or was an issue about the jurisdiction of the
CCMA. The Labour
Court then held that it was not a jurisdictional issue, thereby
purportedly overruling the decision by the LAC
in
Solid
Doors (Pty) Ltd Commissioner Theron and Others
[1]
where
it was held:
‘
[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.’
[2]
[5]
Subsequently,
in
SA
Rugby Players Association v SA Rugby (Pty) Ltd and Others,
[3]
the
position as to the need to establish jurisdiction by determining, as
a fact, that a dismissal occurred was reiterated. There
Tlaletsi AJA
(as he then was) stated:
‘
[39] The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then the CCMA
had no jurisdiction to entertain the dispute
in terms of s 191 of the
Act.
[40] The CCMA is a
creature of statute and is not a court of law. As a general rule, it
cannot decide its own jurisdiction. It can
only make a ruling for
convenience. Whether it has jurisdiction or not in a particular
matter is a matter to be decided by the
Labour Court. In
Benicon
Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others
(1994)
15 ILJ 801 (LAC)
at
804C-D, the old Labour Appeal Court considered the position in
relation to the Industrial Court established in terms of
the
predecessor to the current Act. The court held that the validity of
the proceedings before the Industrial Court is not dependent
upon any
finding which the Industrial Court may make with regard to
jurisdictional facts but upon their objective existence. The
court
further held that any conclusion to which the Industrial Court
arrived on the issue has no legal significance. This means
that, in
the context of this case, the CCMA may not grant itself jurisdiction
which it does not have. Nor may it deprive itself
of jurisdiction by
making a wrong finding that it lacks jurisdiction which it actually
has. There is, however, nothing wrong with
the CCMA enquiring whether
it has jurisdiction in a particular matter provided it is understood
that it does so for purposes of
convenience and not because its
decision on such an issue is binding in law on the parties. In
Benicon's case the court said at
804C-D:
'In practice, however, an Industrial
Court would be short-sighted if it made no such enquiry before
embarking upon its task. Just
as it would be foolhardy to embark upon
proceedings which are bound to be fruitless, so too would it be
fainthearted to abort the
proceedings because of a jurisdictional
challenge which is clearly without merit.'
In my view the same approach is
applicable to the CCMA.
[41]
The question before the court
a quo was whether on the facts of the case a dismissal had taken
place. The question was not whether
the finding of the commissioner
that there had been a dismissal of the three players was
justifiable, rational or reasonable
.
The issue was simply
whether objectively speaking, the facts which would give the CCMA
jurisdiction to entertain the dispute existed.
If such facts did not
exist the CCMA had no jurisdiction irrespective of its finding to the
contrary.’ (emphasis supplied)
This
stance has been followed as recently as
Western v Cape Education
Department v General Public Service Sectoral Bargaining Council and
Others
(2013) 34 ILJ 2960 at [17] – [18].
[6]
Accordingly,
the decision by the Labour Court about whether an allegation about a
constructive dismissal triggers a jurisdictional
issue or an issue
about the merits of a termination of employment, was not competent
for the Labour Court to make. Therefore, the
views expressed,
regardless of whether they have intrinsic merit, are not to be taken
as an accurate statement of the law. Moreover,
a decision on the
jurisdictional point was unnecessary to decide the case, and was
therefore wholly obiter. As a result, it is
unnecessary for this
Court to address the issue. The decision in
Solid
Doors
and
in
Rugby Players
governs the approach of the courts until an appropriate occasion
arises in the LAC to revisit the jurisprudence, at which time
the
views articulated by the judge
a
quo
may receive the appropriate attention.
The test for a
constructive dismissal
[7]
According
to the decision of the LAC in
Solid
Doors:
‘
[28] ….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.’
[4]
[8]
The
Constitutional Court in
Strategic
Liquor Services v Mvumbi NO and Others
[5]
held
thus:
‘
[3] Section
185(a) of the Labour Relations Act confers 'the right not to be
unfairly dismissed'. Section 186(e) defines 'dismissal'
as including
a situation where 'an employee terminated a contract of employment
with or without notice because the employer made
continued employment
intolerable for the employee'. This definition gives statutory
embodiment to the jurisprudence of constructive
dismissal that
preceded it. The CCMA concluded that Mr Redgard had been
constructively dismissed. In its application to this court,
the
employer contends that the CCMA - and the Labour Courts in refusing
to review its determination - misconceived the jurisdictional
prerequisites for constructive dismissal, since on Mr Redgard's own
version he had a choice whether to resign or be subjected to
poor
performance procedures. It asks this court to step in.
[4] There are two
reasons why the invitation cannot be accepted. The first is that the
employer's submission overlooks Mr Redgard's
uncontested evidence to
the effect that his work situation had become intolerable and that
the alternative to resignation was a
sham since the employer would
find a reason to dismiss him anyhow. This means there was no
'choice'.
The
second is that it misconceives the test for constructive dismissal,
which does not require that the employee have no choice
but to
resign, but only that the employer should have made continued
employment intolerable. (Emphasis supplied)’
[6]
[9]
The
assessment required of the arbitrator was therefore to adhere to
these precepts, ie: determine if there was evidence to establish
that
there was:
(1)
a termination of employment by the employee,
(2)
intolerability of continued employment, and
(3)
the intolerability was the fault of the employer.
The facts
[10]
Molokwane
was an operator in a bindery. She had worked for the appellant for
about 10 years. In or about October 2008, the appellant
fitted an air
conditioning system to cool the machines in use. The workspace where
the machines which required cooling were located
and the workspace
where Molokwane, and where others had their work-stations, was
separated by a partition. The partition was not
fitted hard up
against the ceiling and a gap of some 400 mm existed.
[11]
Molokwane
alleged that she was adversely affected by the cold draught from the
cooled air pumped into the adjoining workspace. The
question of
whether she was exposed to a draught
per
se
or
simply the environment was cooled down to an extent that she was
aware of the lower temperature and was discomforted by it is
unimportant. It was accepted by everyone that her complaint of
discomfort was genuine.
[12]
The
date of Thursday 29 January 2009 is a pivotal date. It is common
cause that on that day, she returned from sick leave and Rob
Viviers,
the Production Manager, and she conversed about how to address her
complaint about the ill-effects of the air-conditioning
on her. A
decision by the Arbitrator was necessary about what happened (1)
before that day, (2) on that day and (3) on Monday 2
February 2009.
[13]
The
version of Molokwane is thus:
13.1.
In
October 2008, she says that she complained to Viviers about the air
conditioning. He promised to seal the gap in the partition.
She
waited vainly until November before complaining to Viviers again.
Viviers on this occasion promised to deal with the partition.
Her
third complaint was on 23 January 2009 when, whilst away ill, she
faxed to the appellant a certain medical note. (The substance
of this
and other medical notes sent on 2 February 2009, shall be addressed
discretely) She never lodged a grievance or put in
a written
complaint at any time.
13.2.
On
29 October 2008, she saw Viviers in his office. Her immediate
supervisor, Cynthia Mathebula was called in. Viviers undertook
to
close off the gap in the partition, and as an interim measure to move
her to another spot to evade the effects of the air conditioning.
According to Molokwane, Mathebula said to Viviers there was no place
free from the effects because the partitioning was “open
at the
top” everywhere. (This was not put to Mathebula when she
testified). The impression left by Molokwane’s evidence
is that
she was not offered a different work station that could make a
difference.
13.3.
The
next day, Friday, 30 January, when she arrived at work, the
partitioning had still not been closed up at the top. The further
account in the evidence is incoherent, but what seems to have been
said is that the air conditioning had been switched off and
in the
course of the day it was switched back on. Apparently the machines
overheated and to run them the environment had to be
cooled again.
She asked that the air conditioner be switched off. Viviers then
angrily told her that the machines were expensive
and she must choose
between her health and her work. Presumably this exchange took place
before the lunch break because she says
at lunch time she went to
Viviers office and “humbly” said that he did not have to
shout at her. Viviers repeated that
she must choose between her
health and her work. She worked the rest of the day.
13.4.
The
evidence is incoherent about when she next came to work. It seemed
initially as if it was implied she said she came to work
on Saturday,
but later evidence indicates that she meant it was the following
Monday, 2 February 2009. She said that she arrived
and saw nothing
had been done about the partition. She said she went to Mathebula.
She asked why nothing had been done. Molokwane’s
evidence was
variously, that Mathebula said that she thinks Viviers really meant
that she had to choose between work and health
and that she,
Molokwane, herself said these words to Mathebula.
13.5.
At
this juncture, she left and went to the CCMA. In cross-examination,
she said she told Mathebula she was resigning. The resignation
was
oral. (Some point was made about her contract of employment requiring
a written resignation and thus an oral resignation was
ineffective.
It is unnecessary to unravel this aspect to decide the case, and it
is common cause that she had a fixed intention
to resign.)
13.6.
It
is established that the CCMA referral was faxed to the appellant by
11h30 that same day.
[14]
The
evidence of Mathebula, the supervisor, which contradicts Molokwane in
several important respects, was thus:
14.1.
She
had never received a complaint from Molokwane about her health
problems. The first she knew of the air conditioner issue was
on 29
January when Viviers called her into a meeting he was having with
Molokwane. Mathebula corroborates Viviers undertaking to
address the
partitioning, but says no deadline was stipulated by him.
14.2.
In
that meeting, she was told to move Molokwane. In Viviers’
presence Molokwane made no demur. However, at the workplace she
flatly refused to relocate, intimating she would do so at another
time.
14.3.
Mathebula
recalls Viviers approaching Molokwane at her work station on Friday
and having a conversation. There was no argument apparent
to her. She
did not testify about any shouting. What was said she did not
overhear.
14.4.
On
Friday, the air conditioner was on and off at various times.
14.5.
On
Monday 2 February, Molokwane did not report for work. To the single
question put in cross-examination that it was her word against
Molokwane that she was there, she denied Molokwane arrived. The
conversation that allegedly occurred, a critical part of Molokwane’s
case was not put. Of some considerable importance, it was never put
that Mathebula was a witness to Viviers telling Molokwane to
choose
between her health and her work or that she had taken up that theme
when on Monday the partitions remained untouched. Further,
Molokwane’s refusal to move was unchallenged.
14.6.
Significantly,
the Arbitrator ignored Mathebula’s evidence entirely, a serious
error, given the obvious materiality of this
evidence to both
credibility and the assessment of the probabilities and uncritically
accepted Molokwane’s evidence that
Mathebula had made the
remarks to her about Viviers really meaning she had to choose between
her job and her health.
[15]
Human,
an executive of the appellant testified thus:
15.1.
On
23 January 2009, a Friday, a faxed document was brought to his
attention. It was an undated medical note from a doctor. It reads:
‘
This is to
certify that Gladys Molokwane is under medical treatment for
recurrent episodes of upper respiratory infections. These
seem to be
attributed to the air conditioner above her at work. Kindly arrange
to have her moved away from the air-con for her
to be a more
productive worker.’
15.2.
Human
went to Viviers and reported this communication. Human says that
Viviers told him he had no prior knowledge of these circumstances;
self-evidently, of the circumstances as described in the note.
15.3.
Human
then, with reference to the clocking record and other routine reports
made to him referred to three other matters of importance.
First, he
said that after she returned to work on 29 January, the air
conditioner was off for the whole of that day and on 30 January
it
was on and off at times owing to a machine overheating and breaking
down. Second, Molokwane had been expected to turn up for
a voluntary
overtime shift on Saturday and when she did not the supervisor called
her and she cried off as being unwell. Third,
she did not clock in on
Monday.
15.4.
A
Further episode of note occurred on Monday 2 February. At 11h30, the
CCMA referral that had been faxed on behalf of Molokwane
to the
appellant was brought to him. The referral alleges that her employer
refused to comply with a medical certificate. This
could only be the
certificate cited, which advised the appellant to move her away from
the air conditioning. He at once phoned
Molokwane to enquire about
the problem. She refused to talk to Human, citing advice. From whom
she had procured advice in the couple
of hours available to her, on
her version, was not disclosed.
15.5.
Human
called Viviers to report to him on what was going on. Viviers claimed
he had said that she be moved in the interim and that
the partition
would be closed during the coming week. At that time the bindery was
very busy, hence by implication, remedial action
was not possible
immediately.
15.6.
The
exchange between Human and Molokwane was unchallenged. Of importance
is the time the referral was received, which has a bearing
on the
probabilities of Molokwane having initially come to work at the
appellant’s premises in Village Main and having thereupon
decided to go to the CCMA in the central city and achieving a
completed referral and the faxing of it before 11h30. None of these
considerations were addressed by the arbitrator.
[16]
Viviers,
the Production Manager, testified thus:
16.1.
On
29 January when Molokwane returned to work, he and she met in his
office. She had brought a medical document. The conversation
initially seemed to be about an osteo-arthritic condition, but it
emerged the issue was respiratory. This occasion was the first
time
Molokwane had made him aware that she had difficulties with the air
conditioner. [R162/7-10]
16.2.
He
called Mathebula into the meeting and instructed her to move
Molokwane “somewhere where she could feel comfortable”.
There were other workstations not close to the air conditioner.
16.3.
Viviers
said that in this meeting, he undertook to deal with the partition.
He did not recall if Mathebula was present when that
was mentioned.
16.4.
Later
when he went to the workplace, he saw that Molokwane had not moved
and Mathebula reported that she refused to do so.
16.5.
On
Friday, the technicians reported to him that while the air
conditioners were off (ie since 29 January) the machines were
overheating.
He then told Molokwane that there was a need to switch
the air conditioner back on, explaining the problem. In the
afternoon, she
approached him. She said that “there is
something wrong”. In cross-examination, he expressed the
exchange as Molokwane
asking
if
there was a problem. He said there was not. His intention in speaking
to her was to allay any suspicion that management were indifferent
towards her problem because of the need to turn on the air
conditioner back on again. He explained to her that it was essential
to do so as it was a busy time and production was being adversely
affected.
16.6.
A
critical aspect of Viviers account was, of course, his awareness, in
any, before 29 January 2009, of the problem Molokwane claimed
to have
about air conditioning. Whilst giving evidence in chief, the
Arbitrator tackled Viviers about this issue. A lengthy exchange
took
place triggered by this remark in evidence in chief:
Q; Did she ever speak to you prior to
that [ie 29 January] about the air conditioner?
A: I cannot recall her speaking about
it.
[R162/11-13]
16.7.
The
exchange that followed addressed the distinction between the absence
of recollection, and by implication an inability to conclusively
dispute a contrary assertion, and an outright denial. As I read the
whole of the passage, Viviers denied being told. In motivating
his
denial, he invoked the absence of a recollection, and was emphatic
that it did not occur. He alluded, also, to a consideration
relevant
to the probabilities of such a complaint being made; ie he said if it
had been made aware, she would have been moved earlier,
a response
consistent with his reaction when alerted to the issue in January
2009, at which time, as soon as she returned to work
he met with her
and immediately ordered her to be moved.
16.8.
This
theme of the semantic distinction was later taken up again by the
Arbitrator, after the cross-examiner had ignored it. It was
then put
to Viviers that in October 2008, Molokwane said she had complained.
His answer was that he did not recall it and said
“as far as I
am concerned it did not happen.” [R179/1-14] This denial, he
stated twice. Viviers was then asked about
the complaint in December
2008 and the allegation that he undertook to address the air
conditioning problem. He flatly denied such
a complaint being made.
[R180/1-5]
16.9.
He
denied remarking that Molokwane had to choose between work and
health. He said that he had indeed made remarks about “all
of
us” having to take care of our health. He denied shouting at
Molokwane.
16.10.
As
regards, medical certificates, Viviers said all he saw on 29 January
was a badly photocopied flier alluding to osteo-arthritris.
He saw
several other certificates on 6 February at a disciplinary enquiry
convened into Molokwane’s desertion and conducted
in her
absence.
16.11.
The
episode, to which Human had referred, of the report received
initially by Human on 23 January, was addressed in cross-examination.
Viviers said he did not see the certificate faxed to Human on 23
January. He said Human mentioned getting a certificate but he
did not
look at it then. The Arbitrator took up the theme about when Viviers
saw the certificate cited above. He said he did not
recall this
document being brought to his attention, meaning he did not see it
before 6 February. When referred to Human’s
evidence, he
accepted that Human had discussed the doctor’s report, but said
that he had not read it at that time. When asked
by the Arbitrator if
29 January was “the very first time you got to know of her
condition” he answered “well,
like I said, that is when I
saw from her when she came , returned back, and showed me the flier
…” [R174/18-21]
16.12.
Lastly,
it was mentioned that the physical task of closing off the gap was a
low cost quick half-hour job.
[17]
The
medical condition of Molokwane as revealed by the documents she
submitted is an aspect of interest but of dubious value to decide
any
issue of note. In chronological order, the documents which she faxed
with the referral form on 2 February are set out; (it
may logically
be assumed the employer had received the original certificates of the
earlier occurrences at the dates of the notes
referred to as the
notes are plainly prepared to deal with a legitimate absence from
work):
17.1.
Dr
Ganda on 8 April 2008 booked her off for that day owing to a dental
procedure.
17.2.
Dr
Makenete on 27 October 2008, booked her off until 20 October 2008
because of a urinary tract infection.
17.3.
Dr
Mokgatle on 4 November 2008 booked her off until 5 November for
cystepyelist (sic) and pleurisy.
17.4.
On
21January 2009, Dr Mokgatle noted atopic eczema and booked her off
from 19 – 23 January.
17.5.
The
undated certificate given on 23 January 2009, dealing with
respiratory infections, has already been addressed.
17.6.
On
24 January, Dr Makumu booked her off until 29 January for “medical
condition”. In addition, her evidence was that
on 24 January
she went for X-rays which revealed rheumatism.
Evaluation of the
arbitrator’s evaluation
[18]
The
Arbitrator found that it was clear that Vivers knew from October 2008
of the air-conditioning problem, reneged on a promise
made in
December 2008 to address it and told Molokwane to choose between
health and work. He held that Viviers must have shouted
at Molokwane
because no other reason could exist for her to go to see him later
that day. Further, he made an adverse finding against
Viviers in
relation to Human’s act of alerting him to the medical problem
on 23 February, thus, so it was concluded, Vivier’s
evidence
that he saw the medical documents only on 6 February was not
explained and his veracity was impaired. He held that because
the
repair job was said to be a half hour task there was no need to turn
the air conditioner off. Molokwane was at the workplace
on Monday and
had the conversation with Mathebula as described by her. Hence says
the arbitrator, the probabilities favour the
version of Molokwane.
[19]
In
my view, this appreciation of the evidence on record is a travesty.
No genuine analysis was undertaken. As alluded to earlier,
Mathebula’s testimony is ignored. There is no rational basis to
reject Mathebula’s version. Moreover, the probabilities
are
against Molokwane being at the bindery on Monday morning. Human said
she did not clock in. This was unchallenged. Moreover,
the 11h30
production of a completed CCMA referral when the idea of a dispute
only occurred that very morning calls for an explanation
how a
decision to resign, visit to the CCMA and despatch of a referral
could take place, not to mention the solicitation and receipt
of
advice could occur so rapidly. On Molokwane’s version, all of
this was unthought-of until Monday morning, for it was her
intention
to resume work but the idea to resign was triggered by the sight of
the unclosed gap in the partition. Importantly, no
reason exists why
Molokwane’s version on this aspect is preferable to that of
Mathebula.
[20]
The
Arbitrator’s reasons for rejecting Viviers’ version are
either unexpressed or facile. No rationale is offered why
it is less
probable that no complaint was made in October or December. Contrary
to the Arbitrator’s remark that such knowledge
was “abundantly”
clear, the version of Molokwane is uncorroborated and improbable. In
support of Viviers’ flat
denials of a reported complaint is the
improbability of Molokwane not raising the alleged tardiness of
Viviers with, at least,
Mathebula, or with higher Management. It is
also unlikely that she would not have shared her problem with the
cold with co –workers
if she had been uncomfortable for nearly
three months. The alacrity with which the decision to move her was
made could, as Viviers
himself said, have been made earlier, and on
the probabilities it would have occurred then.
[21]
The
criticism of Viviers in relation to Human’s evidence is
incoherent. He was held to have given contradictory evidence to
that
of Human about sight of the medical certificates on 23 January. Human
did not say he gave or showed the medical certificate
to Viviers on
23 January; he reported the problem. Moreover, Viviers did, Contrary
to the Arbitrator’s findings, indeed explain
how he came to see
the document only on 6 February and not earlier.
[22]
The
finding that the probabilities favour Viviers making hostile remarks
about Molokwane having a choice between health and work
and shouting
at Molokwane is wholly unfounded. Molokwane’s evidence about
shouting is uncorroborated by Mathebula who witnessed,
but did not
hear, the conversation between them. Raised voices would have been
heard. To suggest Viviers did shout as the only
explanation for her
to visit him later is unsustainable. Moreover, the “choice”
remark is, on Molokwane’s evidence,
an occurrence of which
Mathebula had to have knowledge. However, Mathebula denies that
happened. Viviers’ denials have not
been displaced and no
reason to favour Molokwane’s version exists, especially where
she is contradicted by Mathebula.
[23]
The
invocation of the idea of a “half-hour” task is
incoherently invoked by the Arbitrator but, nevertheless, it can
be
inferred that what was in mind was that the idea that if the job was
that quick and easy to do, it can be argued that the failure
to do it
at once tells against a willingness by Viviers to do so at all. That
imputation ignores the decision by Viviers to move
Molokwane at once,
the busyness of the time and the concomitant distractions that
busyness implies. In addition, it is Viviers’
evidence that the
task of sealing the partition would be addressed during the “coming
week’. Moreover, common sense
informs one that even a half-hour
job needs to be organised; ie instruct the handyman, procure the
material and schedule a time
to do the work when it would not disturb
the production schedule. If Viviers was intending to do the job
personally, these obvious
considerations apply equally.
[24]
In
my view, the factual findings in the award are fatally flawed on the
grounds of ignoring evidence, not properly weighing it up,
and
illogical and irrational reasoning. A reasonable arbitrator could not
have reached such a conclusion on the body of evidence
adduced.
[25]
The
Labour Court also misconstrued the evidence in its assessment. It
held that Viviers contradicted Human over knowledge of the
certificates. This finding is incorrect, as is evident from the
analysis above. Further, a finding was made that Viviers was evasive,
not a finding articulated by the Arbitrator, but rather a glib and
superficial reading by the Labour Court of the evidence of Viviers
about his lack of knowledge of Molokwane’s condition prior to
January 2009. This perspective is unfounded, as is evident
from the
analysis above.
[26]
An
important aspect of the labour Court’s finding was its reliance
on what it says was said during the argument on review
by counsel for
the appellant (applicant on review), ie that it was “common
cause” that Viviers made the remark that
Molokwane had to
choose between work and health. [R 267 – J para [46]] No record
of that statement exists. Taking the statement
to have been made, it
was plainly wrong, as no reading of the evidence could justify the
idea that it was common cause. Counsel
cannot change the evidence by
a statement from the bar, nor offer an admission of facts that
contradicts what is on the record.
If Counsel indeed said this in the
face of a clear record contradicting it, the court should not have
latched onto the statement.
The court noted the contradiction yet
wholly inappropriately relied on a patently wrong submission.
[27]
The
findings of the Labour Court in this regard cannot stand.
Do the proven facts
establish a constructive dismissal?
[28]
In
my view, no case for a constructive dismissal exists. The enquiry
upon the proven facts, ie the appellant’s version establishes
no foundation.
[29]
The
employer reacted immediately to ameliorate the adversity alleged to
exist. It offered to move her and block off the partition
in due
course. That response establishes an empathy and a reasonable set of
steps to cure a problem not of its making but arising
from a personal
vulnerability of the employee.
[30]
Molokwane’s
response was grossly unreasonable. She refused to move. Moreover, she
wanted instant or near instant closing of
the gap. If the working
conditions were such that she could not move to another work-station
(for which no case exists) she could
have stayed at home for a week
until the gap was closed or said she could not carry on until the gap
was closed. The rush to resign,
fortuitously, at the end of the month
was an inappropriate response. Moreover, as was contended on behalf
of the appellant, the
nature of the problem was such that the lodging
of a grievance was an obvious appropriate response.
[31]
Assessing
the employer’s conduct, it cannot be said to have been
responsible for creating an intolerability of continuation
of the
employment relationship.
Conclusions
[32]
Accordingly,
there was no constructive dismissal. The CCMA had no jurisdiction.
The labour Court Judgment and the arbitration award
must be set
aside.
[33]
As
to the question of costs, despite a prayer for costs by the
appellant, a not unreasonable stance in the circumstances, it is
evident that Molokwane is indigent. She has been represented
pro
bono
in the matter. No point is served by a costs order.
[34]
The
court thanks Adv Meyerowitz who appeared
pro
bono
,
and his instructing attorneys Cliffe Dekker Hofmeyr for their
assistance in the conduct of the appeal.
The Order
[35]
In
the result the following order is made
:
(i)
The
appeal is upheld;
(ii)
the
judgment of the Labour Court is set aside and replaced with the order
that:
“
the
award is reviewed and set-aside and replaced with a finding that the
employee was not dismissed”.
_________________
Sutherland JA
Tlaletsi DJP and
Mngqibisa -Thusi AJA concurred.
APPEARANCES:
FOR THE APPELLANT:
Adv W J Hutchinson
Instructed by Fluxmans
Inc
FOR THE RESPONDENT:
Adv M
Meyerowitz
Instructed
by Cliffe Dekker Hofmeyr
[1]
(2004) 25 2337
(LAC) (
Solid
Doors
).
[2]
At para 29.)
[3]
(2008) 29 ILJ 2218
(LAC) (
Rugby
Players
).
[4]
At para 28.
[5]
(2008) 29 ILJ 2218
(LAC).
[6]
At paras 3 and 4.