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[2009] ZALCJHB 11
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Workers Party Union obo Germishuys v Commission for Conciliation Mediation And Arbitration and Others (JR1410/08) [2009] ZALCJHB 11 (21 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 1410/08
In
the matter between:
WORKERS
PARTY UNION obo ESTHER
PRISCILLA
GERMISHUYS Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
1
ST
Respondent
COMMISSIONER
BERNARD VAN ECK, N.O. 2
ND
Respondent
E
R FABER t/a MILAGROS
SPA 3
RD
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside the arbitration award
of the second respondent (“the commissioner”)
issued
under the auspices of the first respondent (“the CCMA”)
on the 29 June 2008 under case number NC786-08. In his
award, the
commissioner held that the applicant had failed to establish the
existence of a constructive dismissal, and dismissed
the referral of
an unfair dismissal claim on that basis.
[2]
The facts giving rise to this application are briefly the following.
The third respondent (Faber) employed the applicant on
the 1 February
2006 as a beautician. On 18 March 2008, the applicant applied for
leave on 1 April 2008; 4 and 5 April 2008 and
17 to 26
April 2008. The first period of leave
sought was family responsibility leave (for the applicant to take her
husband to the doctor),
the second was for unpaid leave (to allow the
applicant to attend the birthday party of her niece and nephew) and
the third was
unpaid leave to allow the applicant to attend her best
friend’s wedding. The applicant requested unpaid leave because
she
had exhausted her annual leave entitlement. On 19 March 2008,
Faber declined all three applications for leave. The letter conveying
this decision to the applicant suggested that the applicant had no
loyalty to her work, and attached an unsolicited application
for
unpaid leave for the period 31 March 2008 to 4 May 2008, already
signed by Faber. The applicant did not sign the leave
form,
stating that she wished to discus the matter with her husband. The
applicant’s husband contacted Faber the same afternoon
and,
after discussion, the husband proposed that if Faber did not wish the
applicant to work any longer, he should “discharge”
her
and pay her the equivalent of three months’ remuneration. Faber
did not reject the proposal - on the contrary, he regarded
it as a
reasonable way to terminate the relationship.
[3]
On 20 March 2008, the applicant was presented with a document headed
“resignation by employee”. Faber had signed
the document,
and it was suggested that the applicant could leave her employment
the same afternoon. The applicant signed the form,
in the belief that
her husband and Faber had concluded an agreement based on the
proposal made to Faber the previous day. The applicant
testified that
Faber had not made her continued employment intolerable, and that she
had a good relationship with Faber and his
wife. The applicant’s
husband testified
inter alia
that on 19 March 2008, the applicant stated that she was unhappy
about the fact that Faber intended to place her on unpaid leave.
He
confirmed that he spoke to Faber about the matter, and that a
suggestion was made that the applicant’s employment terminate
on payment of three months’ salary. Faber suggested that he
discuss the proposal with his wife and revert to him. The applicant
agreed to the proposal, but before he could communicate their
agreement to Faber, the applicant informed him that she had signed
the resignation form presented to her. The respondent closed its case
without leading evidence.
[4]
In his award, the arbitrator found that it was common cause that the
applicant had not resigned because she was dissatisfied
with the fact
that she had been refused leave, or placed on unpaid leave. The
applicant had signed the resignation form only because
she was under
the impression that her husband had communicated to Faber her
agreement to the proposal made the previous afternoon
i.e. that she
be paid three months’ salary. The commissioner held that this
was not an instance where it could be said that
the applicant had
been compelled to resign. She had resigned voluntarily, and had not
sought to withdraw her resignation once she
discovered her error. In
these circumstances, the respondent could not be held liable for the
applicant’s actions. With these
considerations in mind and
after setting out the relevant legal principles, the commissioner
concluded that the applicant had failed
to establish the existence of
a constructive dismissal and ruled that there was no dismissal for
the purposes of s 187 of the Act.
[5]
The commissioner applied the well-known test for constructive
dismissal, which he suggested “requires that the Applicant
should have resigned because of the intolerable conditions that
existed at the time. In other words, there must be a casual
connection
between the intolerable conditions that had been created
by the Respondent and the Applicant’s decision to resign.”
Applying this test, the commissioner concluded that the applicant had
resigned for the sole purpose of bringing into effect the
supposed
agreement reached between her husband and Faber. She had not been
forced or in any other way compelled to sign the resignation
form.
The respondent had not misrepresented the situation to her i.e. Faber
never held out that she would receive compensation
if she were to
sign the form. Further, nothing prevented the applicant from
withdrawing her resignation once she discovered that
it had not been
accepted in terms of the agreement. The commissioner concluded:
“
In
my opinion the Respondent should thus not be held liable for the
Applicant’s misdirected actions as a result of her having
lived
under this misconception. She should have confirmed with her husband
that he had indeed secured an agreement with Faber before
she signed
the resignation form. Alternatively, she should have notified the
Respondent of her wish to withdraw the resignation
as soon as the
misdirection became clear.”
For
these reasons, the commissioner held that the applicant had not been
dismissed.
[6]
The first ground for review is that in finding that the applicant had
resigned voluntarily, the commissioner failed to have
regard to the
circumstances which led up to the applicant’s signature of the
agreement. In support of this submission, the
applicant attacks
Faber’s version, as articulated in the answering affidavit, and
to the effect that the applicant’s
signature of the resignation
letter simply amounted to the implementation of the settlement
reached the previous evening, as disingenuous.
This may well be so,
given that the agreement made no provision for the payment of three
months’ salary, which had been discussed
as part of the
settlement. But the court is confined in these proceedings to the
record of the arbitration, in which, it will be
recalled, Faber
elected not to testify. The function of this court is not to reflect
on the veracity of versions not articulated
during the arbitration
proceedings under review - rather, this court, bound by the record of
the arbitration proceedings, is required
to determine whether the
result of those proceedings, in the form of the commissioner's award,
represents a decision to which no
reasonable decision maker could
come. To the extent that the applicant avers that the
commissioner committed a reviewable
irregularity by failing to
enquire into the circumstances surrounding the applicant’s
resignation and to bring into account
what Faber should have done in
the same circumstances, this misconstrues the function of the
commissioner. The commissioner is
required under the Act to reach a
decision on the evidence presented at the arbitration hearing. In the
present instance, that
is precisely what the commissioner did, guided
as he was by the provisions of the Act relevant to the onus to
establish the existence
of a dismissal.
[7]
Secondly, the applicant submits that the commissioner misconstrued
the evidence and misinterpreted the law in finding as he
did and that
instead, the commissioner should have concluded that despite a
relatively good relationship between the applicant
and her employers
initially, what transpired on the 18 March 2008 going forward changed
that relationship to one of hostility,
harshness and antagonism
between the parties which cumulatively rendered continued employment
intolerable for the applicant. Both
these grounds assume that
the commissioner was required to go behind the evidence led (and in
particular, the evidence of the applicant
who, despite the best
efforts by her representative at the arbitration hearing gave no
evidence to the effect that the working
relationship between her and
her employer was acrimonious) and to discern the deception for which
the applicant contends. In essence,
the applicant’s case is
that Faber snatched at a bargain that deprived her of three months’
remuneration. Her evidence
was that she was “baie onkundig met
sulke goed” and signed the letter of resignation in ignorance.
But it is a big
jump from a conclusion that the applicant acted in
ignorance to a conclusion that continued employment was intolerable.
The applicant
recognised as much in her evidence - she was
pertinently asked by the representative whether it had been made
impossible for her
to work for her employer, and replied in the
negative. In short, an objective assessment of the relevant factual
circumstances
aside, the commissioner cannot be faulted for finding
that the applicant failed to establish the necessary subjective
element of
the test for constructive dismissal.
[8]
Further, the applicant’s submissions overlook the policy
underlying the Act, which is to afford an aggrieved party a limited
right of review, the nature of which poses a significant hurdle to
any applicant in review proceedings. This court has often drawn
attention to the difference between a review and an appeal, and
emphasised the limited nature of the right to review a commissioner’s
award. In the matter of
Bafokeng
Rasimone Platinum Mine v CCMA and others
[2006]
7 BLLR 647
(LC) the court observed as follows in respect of how an
arbitrator’s award ought to be judged:
“
At
the end of the day the cardinal question is whether the merits of the
dispute have been adequately dealt with and fairly so in
compliance
with the provisions of section 138 of the Labour Relations Act. That
question can best be answered by considering the
conduct of the
arbitration proceedings as a whole rather than knit-picking through
every shrapnel of evidence that was considered
or not considered as
stated in Coin Security Group (Pty) Ltd v Machago
[2000] 5 BLLR 283
(LC).”
[9]
The limitations to the right to review of an arbitrator’s
decision have been further explained by the Labour Appeal Court
as
follows:
“
A
critical element of fair administrative action is that the person
performing the task applied his mind to the matter before him
and
took account of relevant considerations and evidence placed before
him. Whilst it might be possible that based on the
same facts,
someone else would come to a different conclusion, that however, is
not the test.”
See:
Softex Mattress (Pty) Ltd v PPWAWU and
others
[2000] 12 BLLR 1402
(LAC)
[10]
More recently, in
Sidumo v Rustenburg
Platinum
Mines
[2007] 12 BLLR
1097
(CC)
the hurdle set for an applicant in
review proceedings was ratcheted up a notch or two. In that matter,
the Constitutional Court
held that this court is entitled to
interfere with arbitration awards only if the commissioner, in
reaching the decision under
review, came to a conclusion to which no
reasonable decision maker could come. When conducting an assessment
of the facts in a
particular case, commissioners are required to use
their own judgement. So long as the conclusion reached is a
reasonable one in
light of the facts and circumstances of the case,
the commissioner may not be faulted. In this instance, the
commissioner found
that on the facts before him, the employer’s
conduct had not rendered continued employment intolerable. In the
commissioner’s
opinion therefore, the applicant was not
entitled to any relief. While a more reasonable employer may well
have acted differently
in the circumstances, that was not the
standard by which the commissioner was obliged to measure Faber’s
conduct for the
purposes of determining whether objectively, Faber
had made the applicant’s continued employment intolerable. In
short, the
commissioner’s decision is not one that falls
outside of the band of reasonableness established by the
Sidumo
judgment, and there is therefore no basis for this court to review
and set aside the commissioner’s award. Finally, there
is no
reason why costs should not follow the result.
I
accordingly make the following order
1.
The application is dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 30 January 2009
Date
of judgment: 21 May 2009
Appearances:
For
the applicant: Adv A P Landman
Instructed
by: Jose Nascimento Attorneys
For
the Respondent: Mr D J Coetzee from Dirk Coetzee Attorneys