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[2002] ZALCJHB 32
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Salstaff and Another v Swiss Port South Africa (Pty) Ltd and Others (JR57/01) [2002] ZALCJHB 32 (12 December 2002)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR57/01
In the
matter between:
SALSTAFF First
Applicant
ANA
STOMAN Second
Applicant
and
SWISS
PORT SOUTH AFRICA (PTY)
LTD First
Respondent
EBRAHIM
PATELIA Second
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
made by the second respondent (“the commissioner”)
on 23
November 2000, acting under the auspices of the third respondent, the
Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”) under case number GA80874.
2.
This was after the commissioner had found that the second applicant
was not constructively dismissed.
3.
The first respondent is opposing the review application.
The
second applicant’s version
4.
The second applicant was employed by the first respondent as a Duty
Controller. On 26 October 1999 the second applicant’s
manager, a Mr Coetzee, informed her that a Mr Untemachier (“the
CEO”) of the first respondent wished to meet with them
the
following day, as he wanted her to resign.
5.
The meeting took place on 27 October 1999 with the CEO at around
14h00. The CEO spoke to her harshly indicating that he
had
received several complaints about her from the clients of the first
respondent. The CEO told her that he had received
her verbal
resignation from Coetzee already. The second applicant told him
that she did not wish to resign. The CEO
presented her with a
letter of agreement of termination. The termination agreement
made provision for payment of a salary
for a further six-week.
However, the second applicant had to leave the premises immediately.
The CEO began forcing her to
sign the letter. The second
applicant insisted that she first wanted to consult with her
husband. After much haggling
and forcing on the part of the CEO
he agreed to grant the second applicant until 16h30 to come back with
an answer.
6.
The second applicant then consulted with her union representative who
advised her to accept the offer should the first respondent
agree to
pay her until the end of her fixed term contract which was 1 February
2000. The second applicant returned to the
CEO’s office
at 16h30 where she presented her proposal of payment on termination.
The CEO acted arrogantly and refused
her counter offer. He told
her that she should take the money he was offering or else he would
ensure that her life at the
first respondent would be unbearable to
the point that she would have to resign sooner then at the end of her
contract.
7.
The second applicant was pregnant at that stage and felt
pressurised. Her union representative, in the context of her
pregnant condition, then advised her that she should sign the
agreement of termination. She then went back to the CEO at
18h00 and signed the agreement of termination.
8.
The second applicant testified that up to the meeting of 27 October
1999 her employment with the first respondent was very pleasant.
The relationship with her supervisors and other staff was normal.
On her previous interaction with the CEO, he had behaved
normally.
She could therefore not understand his behaviour on the day in
question.
9.
The second applicant testified that she had no intention to resign
prior to or on the day of the termination. The pressure
exerted
by the CEO on that day forced her to resign. He had
placed her in such an intolerable situation that she had
no option
but to resign. She signed the agreement out of her own accord
because she feared the threats made by the CEO.
Had she wanted
to resign, she would have done so in the normal procedure. The
CEO had told her not to approach human resources
in this matter.
10.
The second applicant considers her dismissal to be unfair as its
effects are that of a constructive dismissal and is seeking
compensation.
11.
The second applicant’s version was corroborated by Coetzee in
material respects. He said that whilst the second
applicant was
away on sick leave, approximately a month before the meeting in
question, she had indicated to him that she was going
to come in and
resign. He had disclosed this to the management meeting at the
time. Since then, the CEO constantly
asked him for her
resignation. The CEO indicated to him that in Switzerland it
was normal for a person to resign by stating
it verbally. He
told the CEO that in South Africa it was different.
The
respondent’s version
12.
The CEO testified that he met with the second applicant and Coetzee
on 27 October 1999. He raised the issue of her performance
due
to having received personal complaints from clients. He tackled
the issue with her at the meeting. The clients
were extremely
important to the company’s business. The complaints were
treated with seriousness. He said that
the names of the clients
were not disclosed to avoid personal grudges.
13.
The CEO testified that Coetzee had told him that the second applicant
had verbally resigned about a month before the meeting.
As he
was not sure to whether this was sufficient he wanted the second
applicant to sign a written termination agreement.
He had
prepared the letter to confirm the resignation already given.
He was persuading her to sign for the same reason.
As the
second applicant’s position was critical, he needed to finalise
her resignation immediately. He believed that
since the second
applicant had decided to resign she had mentally not been involved
with the business. This was of major
concern to him as the
position was critical.
14.
The CEO denied that he had threatened the second applicant or had
spoken to her in an arrogant and forceful manner. When
she came
back with a counter offer at the 16h30 meeting, he told her that the
contract would then continue as normal till 1 February
2000. He was
surprised when she came back at 18h00 to sign the agreement, as he
was under the assumption that the matter was finalised.
He
denied having threatened her not to take the matter to human
resources.
15.
The CEO testified that beside the day in question, he had met the
second applicant only once before. He had taken up the
complaints against her with Coetzee. However, Coetzee had
failed to do anything about it. He had told Coetzee the day
before the meeting that he wished to meet with her to finalise her
verbal resignation.
16.
The CEO testified that the meeting was centred into confirming her
verbal resignation. The resignation, albeit verbal was a
“done
deal.” He had prepared the letter to confirm the
resignation. As she had no resignation letter prepared
he had
prepared one and wished it to be done in the form of an agreement.
Also he did not ask her whether she wished to resign
since he
considered it to be a done deal. When she rejected his offer,
he agreed that the contract would continue.
Her failure to sign
the agreement and then return with a counter offer showed that she
was comfortable with the idea of resignation.
He said that he
did not contact human resources in this instance, since he was sure
that she had resigned and that all that was
needed to be done was to
confirm it in writing. Since a month had passed since her oral
resignation, he wanted to expedite
the process. Payments are
usually made to staff resigning, to ensure that there is no delay in
replacing staff. The
sum of money is usually negotiated.
He became involved due to Coetzee, who is now an ex-employee of the
first respondent
failing to take action. Coetzee was confronted
with this and it is part of the reason that he is no longer with the
first
respondent.
The
referral
17.
The second applicant thereafter referred an alleged unfair dispute
under section 186(e) of the Labour Relations Act 66 of 1995
(“the
Act”) to the CCMA. The dispute could not be resolved at
conciliation and the matter was referred for arbitration.
The
arbitration proceedings were conducted on 16 October and 9 November
2000. The commissioner was required to determine
whether the
dismissal amounted to a constructive dismissal and if so to make an
appropriate award.
18.
The second applicant’s claim was dismissed. The
commissioner found that the second applicant had failed to prove
that
the first respondent’s actions amounted to a constructive
dismissal in that the first respondent did not cause such
an
intolerable situation leaving the second applicant with any option
but to resign.
19.
It is against this finding that the second applicant has brought her
review application.
The
commissioner’s award
20.
The commissioner found that for a constructive dismissal to exist the
employer must have created a situation so intolerable
that the
employee had no option but to resign. The employer’s
actions must be viewed as a whole and then it must be
determined
whether the effect of the employer’s actions, judged reasonably
and sensible, creates a situation that the employee
cannot be
expected to put up with it.
21.
The commissioner found that it was clear from the evidence that the
aim of the CEO on that day was to get the second applicant
to sign
the agreement of termination. The CEO at no stage denied that
he was pressurising the second applicant to sign the
resignation
agreement. He argued that he was justified to do so since she
had already resigned orally. The CEO could
not corroborate this
point. The commissioner also found that it was undisputed that
he had the termination agreement prepared
before he met with her.
He found that the CEO acting on behalf of the employer was forcing
the second applicant to resign.
22.
The commissioner found however that this was not sufficient to find
the first respondent guilty of constructive dismissal.
He
dismissed the second applicant’s claim on the basis that she
had failed to prove that the first respondent’s actions
caused
such an intolerable situation that she had no option but to resign.
The
grounds of review
23.
The applicants contend that the award is not legally justifiable and
is reviewable in terms of section 145 of the Act.
The
legal position
24.
Under the Act, constructive dismissal is governed by section
186(e). Section 186(e) makes provision for a situation
where an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable
for
the employee.
25.
The leading case that deals with constructive dismissal is that of
Jooste vs Transnet t/a South African Airways
[1995] 5 BLLR 1
(LAC). In
Pretoria Society for the Care of the Retarded vs
Loots
1997 (18) ILJ 981 (LAC) the test was formulated at 985 A -
C as follows:
“
The enquiry is whether the
appellant 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. It is not
necessary to show that the employer
intended any repudiation of the contract: - the court’s
function is to look at the employer’s
conduct as a whole and
determine whether ... its effect, judged reasonably and sensibly is
such that the employee cannot be expected
to put up with it.”
and at 984 E - F:
“
When an employee resigns or
terminates the contract as a result of constructive dismissal such
employee is in fact indicating that
the situation has become
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 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.”
26.
It is trite that arbitration awards issued by the CCMA may be
reviewed on any of the grounds set out in section 145 of the Act
more
especially where the commissioner has committed a gross irregularity
in the conduct of the arbitration proceedings.
The decision of
the arbitrator can also be set aside if it was not rationally related
to the purpose for which the power was given
from an objective view
or if it was not justifiable as to the reasons given. Such a
conclusion must be justifiable as to
the reasons given in the sense
that the material reasons given must lead logically to his order.
27.
The following was said in
Carephone (Pty) Ltd v Marcus NO &
Others
(1998) 19 ILJ 1425 (LAC) at paragraphs 32 - 34:
“
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 the consideration of the ‘merits’ of
the matter in some way or another.
As long as the judge
determining this issue is aware that 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 will be in order.”
28.
A commissioner must have applied his mind seriously to the issues at
hand and reasoned his way to the conclusion. Such
conclusion
must be justifiable as to the reasons given in the sense that the
material reasons given must be lead logically to his
order. In
this regard see
Milady’s (A Division of Mr Price Group Ltd)
v Naidoo & others
(2002) 23 ILJ 1234 (LAC).
Analysis
of the facts and arguments raised
29.
The second applicant bears the onus to prove that she terminated her
contract of employment with or without notice because the
first
respondent made continued employment intolerable for her. The
onus must be discharged on a balance of probabilities
by leading
credible evidence.
30.
The second applicant testified at the hearing of the matter about the
circumstances of her resignation. She was supported
by her
manager, Coetzee. Prior to the meeting that took place, there
was no problem with the second applicant’s performance
and she
had a good relationship with everybody. The parties met on 27 October
1999 at approximately14h00. The second applicant
testified that
after she had sat down, the CEO told her that he wanted them to be
open with each other. He told her that
when she started working
for them he had great expectations from her but because of her big
mouth, he had received many complaints
from various airlines about
her attitude, her performance and her dress code. The
second applicant told him that due
to being pregnant she did not wear
a uniform. The CEO refused to give her more information about
the alleged complaints that
he had received regarding her behaviour.
The CEO wanted her to sign a written resignation but she insisted
that she needed
to consult with her husband and legal advisor.
The CEO challenged her by asking her if she could not take any
decision by
herself.
31.
The second applicant was given until 16h30 to make up her mind.
She consulted with her union official who
advised her that because
she was on a fixed term contract which was going to expire on 1
February 2000 she should inform the CEO
that if she was paid for the
unexpired portion of the fixed term contract she would resign.
She went back to the CEO who
asked her if she had decided. She
told him that she wanted to be paid out for the duration of her
contract and then she would
resign. He laughed at her and told
her that she was a joke. He asked her if she thought that he
was stupid to lose
a lot of money. He told her that he would
contact his lawyers and she hers and that it would be a lengthy
process.
He then told her that he was going to be hard on her,
he would make her life hell for her and that he would be watching her
every
day and would get reports on her every hour. He would
check on her doctor. He knew that she would not work for a full
contract till January 2000 because of her health.
32.
The second applicant testified that she left to call her union
representative. She was angry and hurt. She was advised
that as she was angry, upset and pregnant, and because of the fear
that any emotional stress would cause damage to her pregnancy
that
she should resign. She did so. The second applicant
during cross examination said when she was presented with
her letter
of resignation by the CEO, she understood what was in the letter.
She signed it but not because she agreed or
whatever but that she
wanted out. She was threatened and she was told what would
happen if she did but not resign.
She was not prepared to put
herself or her baby at risk and to be humiliated more and even to
look at the CEO again.
33.
When the CEO testified, although he denied that he was being
arrogant, he did not deny that he had uttered the words that the
second applicant said he did. He was asked this on two
occasions and he said that he did not have any comments. He
avoided saying that the second applicant has fabricated the
allegations that he had threatened her in the manner she had
testified
to.
34.
The commissioner found that the aim of the CEO on that day was to get
the second applicant to sign the agreement of termination.
The
CEO at no stage denied that he was pressuring the second applicant to
sign the resignation agreement. The commissioner
found that the
CEO could not corroborate the fact that the second applicant had
tendered her resignation orally on an earlier occasion.
He did
not dispute that he had prepared the termination agreement.
35.
The commissioner however then went to hold despite these findings
that the second applicant was not constructively dismissed.
He
found that although at the first meeting the CEO was forcing her to
sign the agreement, the pressure was alleviated by the fact
that he
gave her until 16h30 to come back to him. He found that she
probably resigned because of her union’s advice
and that she
probably had other reasonable options including the lodging of the
grievance against the CEO.
36.
I am of the view that in coming to his decision, the commissioner
ignored the issues pertaining to performance and pregnancy
of the
second applicant as he said that they were not directly linked to the
issue in dispute. The commissioner ignored the
fact that the
CEO had made unsubstantiated allegations against the second applicant
regarding her performance which was not supported
by the manager and
her motivation for resigning namely that she feared that if she
were to stay and that the CEO was to carry
out his threats of
regularly checking on her including her doctors and making her life
hell, it would affect her pregnancy.
37.
The commissioner’s decision more particularly to ignore these
factors and the circumstances is not rationally justifiable.
The fact of the matter is that the CEO threatened the second
applicant. He demeaned her by calling her a joke, accused her
unjustifiably of poor performance and made no bones about the fact
that if she did not resign he would make her life hell.
The CEO
did not challenge that he said this and indeed no evidence was led
that his threat was not serious. The second applicant
was in
the circumstances justified in believing that the threats of the CEO
were serious. This was the only reasonable inference
in the
circumstances to draw.
38.
The second applicant had no alternative but to resign having regard
to the unequivocal threats of the CEO. No evidence
was led
about a possible grievance procedure that could have been lodged by
the second applicant against the CEO and nor was evidence
led by the
CEO that his threats were not serious. It was clear from the
evidence that was led that the CEO wanted the second
applicant out.
39.
The second applicant had given clear evidence that she was forced to
sign the letter as is evident from the commissioner’s
own
findings and of abuse, rudeness and conduct of an overbearing
nature. The CEO’s conduct was unjustified and improper.
He told the second applicant in unequivocal terms what he would do is
she did not resign. She was faced with a stark choice:
either
resign or stay in employment and face the threats of her CEO.
In her situation and the fact that she previously had
been
recommended by her doctor to take light duties for fear of a
miscarriage, she had no other reasonable option but to resign.
Any reasonable person would have resigned in the face of the threats
of the CEO and the CEO’s conduct could not justify it.
40.
The CEO’s conduct demonstrates that the first respondent had
embarked on a cause of action calculated to render the employment
relationship intolerable. If one examines the CEO’s
conduct as a whole, it cannot be said that it was conduct which
the
second applicant could be expected to tolerate.
41.
The commissioner’s award is therefore irrational. The
commissioner ignored material evidence, namely of the second
applicant’s pregnancy and furthermore ignored the direct
evidence of the second applicant which was unchallenged that the
threats of the CEO were serious. The commissioner had also
ignored the objective state of affairs. Had he applied his
mind
to the objective unfairness of the first respondent’s conduct,
he would have found that the second applicant had no
alternative but
to resign.
42.
The commissioner’s finding that there was no constructive
dismissal is not rationally justifiable in relation to
the
reasons given for it. His award was so flawed that I am left
with no alternative but to conclude that there was no fair
trial of
the issues. The award must be reviewed and set aside.
43.
Section 145(3)(a) empowers this Court when it sets aside an award to
‘determine the dispute in the manner it considers
appropriate’. This is an appropriate case to deal with
the matter on review as all the facts are before me.
44.
It is common cause that second applicant, if it is found that she was
constructively dismissed, would be entitled to six weeks
compensation
which is for the balance of her fixed term contract. I agree.
45.
There is no reason why costs should not follow the result.
46.
In the circumstances I make the following order:
1.
The commissioner’s arbitration award dated 23 November 2000
made under
case number GA 80874 is reviewed and set aside and
substituted with the following:
“
The second applicant was
constructively dismissed.
The second applicant is awarded 6
weeks compensation”.
2.
The first respondent to pay the costs of the application.
______________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE
APPLICANTS
: F A
BODA INSTRUCTED BY GEO ISSEROW & T L FRIEDMAN INC
FOR THE
FIRST RESPONDENT
:
W
HUTCHINSON INSTRUCTED BY FLUXMANS INC
DATE OF
HEARING
:
13
NOVEMBER 2002
DATE OF
JUDGMENT
: 12
DECEMBER 2002