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[2002] ZALCJHB 27
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Bloemcare v Morerela and Others (JR187/01) [2002] ZALCJHB 27 (6 March 2002)
[COMMENT1]
Sneller
Verbatim/ssl
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
BRAAMFONTEIN
CASE
NO: JR187/01
2002-03-06
In
the matter between
BLOEMCARE Applicant
and
COMMISSIONER M B
MORERELA
1
ST
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
2
ND
Respondent
JEANETTE
HARRINGTON
3
RD
Respondent
J
U D G M E N T
Delivered
on 6 March 2002
REVELAS
J
:
1.
This is an application for review in terms of Section 145 of the
Labour Relations Act 66 of 1995, (“the Act”).
There
is also a condonation application for the late filing of this
application for review. The applicant seeks to review
an award
made by the first respondent, the arbitrator, in favour of the third
respondent, the erstwhile employee of the applicant.
2.
In her award, the arbitrator found that the third respondent was
constructively dismissed when she tendered her resignation on
31 May
2000 in that the applicant had:
"
Made continued
employment intolerable for the employee
."
3.
The arbitrator awarded compensation in the amount of R46 637,50
to the third respondent.
4.
The third respondent was employed on 1 July 1999 by the applicant as
an administrative manager. She initially reported
to a Mrs Le
Roux, one of the respondent's directors, and later to Mr Du Plessis,
another director, and she also had several
interactions on a work
level with a Mrs Van Niekerk. During November 1999 she was no
longer required to perform certain bookkeeping
functions and other
duties. At some stage a reduction in her salary was also
proposed but was not effected.
5.
The arbitrator accepted that the employment relationship between the
parties gradually deteriorated. Here I wish to make
mention of
the fact that the arbitrator focussed somewhat extensively, compart
to the remaining issues in the matter, on the question
of the
deteriorating relationship and the diminishing of certain functions.
6.
It is common cause that the third respondent had a heavy workload and
I accept that the third respondent's workload was diminished
for
operational reasons rather than a form of victimisation as she
attempted to portray during the arbitration hearing.
7.
The arbitrator also made no finding, and should not have, that
reduction in responsibilities justified the applicant's resignation.
8.
It is further common cause that on 16 May 2000 the parties had a
meeting to discuss certain work related issues. It is
in
dispute whether most of the conversation was about overtime or not.
In any event, work related issues were discussed and
the third
respondent conceded that it was a productive meeting.
9.
On 30 May 2000 Mr Du Plessis uttered words to the effect that:
"
It is not
'fucking' acceptable that documentation is in this order.
"
10.
It is not in dispute that the words were uttered, but it is in
dispute that they were directed to the third respondent.
Mr Du
Plessis denied that he directed the same foul language - this time in
relation to a missing cheque - at the third respondent
over the
telephone the following day. The arbitrator accepted that Mr Du
Plessis addressed the applicant in this fashion
on both occasions.
11.
This factual finding, which is a credibility finding, I do not
criticise.
12.
The third respondent did not file a grievance about the swearing.
The arbitrator found that she was justified in electing
rather to
resign, than lodge a complaint. It is important that I should
quote directly from the arbitrator's award in this
regard:
"
The employer
could not adduce any evidence to justify the dismissal. Looking
at both the employer's and the employee's conduct
as whole I find
that the employer made continued employment intolerable for the
employee as the employee has:
1.
Shown that Du Plessis was the stronger director of the two.
2.
That she reported to Du Plessis, and
3.
That Le Roux's position was parallel to that of Du Plessis.
I find that the
employee was justified in not lodging a grievance about Du Plessis'
conduct to Le Roux. The employee's dismissal
was therefore
procedurally and substantially unfair."
13.
The applicant contends that the third respondent should have
exhausted other alternatives before considering resignation.
There could have been a range of alternatives. There was an
offer by the applicant to have a meeting to resolve the issue
right
after the resignation.
14.
The third respondent believed that such a meeting would be to
no avail. By this time she had instructed an attorney who
had advised
her. Of this important fact the arbitrator makes no mention.
15.
In
Carephone
(Pty) Ltd v Marcus N.O. & Others
1998
19 ILJ 1425 (LOC) the Labour Appeal Court applied the constitutional
directive that an arbitration award of the arbitrator
was required to
be:
"
Justifiable in
relation to the reason given for it.
"
(At
paragraph 31) The Labour Appeal Court also reasoned that:
"
In determining
whether administrative action is justifiable in terms of the reasons
given for it, value judgments will have to be
made which will almost
inevitably involve a consideration of 'the merits' of the matter in
some way or another. As long as
the Judge determining these
issues is aware he or she enters the merits not in order to
substitute his or her own opinion on the
correctness thereof but to
determine whether the outcome is rationally justifiable the process
would be in order.
"
16.
No employee should be expected to tolerate abusive language or any
other form of abuse. It is not acceptable for employers to
use the
word 'fuck' in front of employees. The word is still offensive
to some people, even though it is a word that has
lately become
integrated into the vocabularies of many. Whether an employee
is entitled to be compensated upon resignation
as a result of this
word being used by an employer, will depend on the facts.
17.
The third respondent is an elderly lady and she found it offensive.
There was corroborative evidence by her husband that
the word in
question was not used not in their home and that they both found it
offensive.
18.
In
Pretoria Society for the Care of the Retarded v Loots
1997
6 BLLR 71 (LAC) it was held:
"
When an employee
resigned or terminated contract as a result of constructive
dismissal, such an employee is in fact indicating that
the situation
has become so unbearable that the employee cannot fulfil what is the
employee's most important function, namely to
work. The
employee is in effect saying that he or she would have carried on
working indefinitely had the unbearable situation
not been created.
She does so on the basis that she does not believe that the employer
will ever reform or abandon the pattern
of creating an unbearable
work environment. If she is wrong in this assumption and the
employer proves that her fears were
unfounded then she has not been
constructively dismissed and her conduct proves that she has in fact
resigned.. Where
the employee seeks compensation the
Court looks at whether the employee was constructively dismissed.
A part of that inquiry
may well be whether the employee's evidence
should be believed or whether the employer's evidence which is to the
effect that she
actually resigned, should carry the day. The
inquiry then becomes, whether the appellant [the employer] without
reasonable
and proper cause, conducted itself in a manner calculated
or likely to destroy or seriously damage the relationship of
confidence
and trust between the employer and the employee. The
Court's function is to look at the employer's conduct as a whole and
determine whether it is such that its effect, judged reasonably and
sensibly, is such that the employee cannot be expected to put
up with
it."
19.
Whether the employer has behaved reasonably and the whether the
employee's perception of the employer's conduct was reasonable
is an
objective test. That is also clear from the aforesaid judgment.
20.
The third respondent was of the view that if she were to lodge a
grievance or lay a complaint with Mr Le Roux against Mr Du
Plessis,
she would be victimised because her four superiors simply brooked no
criticism.
21.
The third respondent would have been wiser to have lodged a
complaint. If matters did not improve after she had made her
position clear, she would be perfectly entitled to resign and that
could have constituted a constructive dismissal.
22.
It is also of great importance in this matter, that the employer
sought to rectify the situation. Having chosen to simply
resign, I do not believe the third respondent is able to show that
she was coerced involuntarily to resign. There was no
basis on
which she could have reasonably accepted that the situation would
continue. That may have been so with regard to
the working
problems which is more of a performance or operational requirements
issue, than the breaking down of the employment
relationship.
23.
Mr Du Plessis swore twice in two days. No other incidents of
swearing were referred to. It appeared that he had
done so when
he was somewhat angry. There was no indication that the third
respondent would be subjected to these swear words
for the rest of
her employment relationship with the respondent. The situation
could have been rectified by lodging a complaint.
The
applicant at least attempted to rectify the situation.
24.
In my view, the award was punitive and unfair towards the applicant.
This award creates a situation where an employee
who hears two swear
words, may claim 12 months’ compensation for constructive
dismissal, despite the employer’s attempt
to make good the
situation. Such a situation should not be permitted.
(See:
C.W.I.U. v Johnson and Johnson (Pty) Ltd (1999) 20 ILJ 89 (LAC)
).
24.
The arbitrator also accepted the applicant's contention that the
words had a sexual connotation. It is difficult for me
to
understand why, particularly in the context the words were used,
these words imported such a meaning.
25.
The arbitrator did not apply her mind to all the evidence before her
and consequently her award falls to be set aside.
I do not
believe that it would serve any purpose to remit the matter to the
CCMA and I can substitute the arbitrator's finding
with my own order.
26.
Consequently I make the following order:
1. The late filing of the
review application is condoned.
2. The award of the
second respondent dated 7 December 2000 is set aside.
3. The finding of the
first respondent is substituted with the following:
"The third
respondent voluntarily resigned from the applicant's employ and was
not dismissed."
4. The applicant is to
pay the respondent's costs wasted costs incurred for the postponement
on 8 February 2002.
27.
I make no order as to the costs of this application.
_______________
E.
Revelas
[COMMENT1]
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