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[2009] ZALCJHB 48
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Strategic Communications Company (Pty) Ltd v Van Niekerk (JR581/06) [2009] ZALCJHB 48 (23 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(BRAAMFONTEIN)
CASE
NO: JR581/06
STRATEGIC
COMMUNICATIONS COMPANY (PTY)
LTD Applicant
v
DAIRIN
ASHLEY VAN
NIEKERK Respondent
JUDGEMENT
AC
BASSON, J
[1]
This was an application to review and set aside the award under case
number GAJB12937. The issue before the Commissioner was
whether the
resignation of the First Respondent (hereinafter referred to as “
the
Respondent
”) constituted a constructive dismissal.
[2]
Before I turn to the merits of this review application, a few
preliminary remarks should be made in respect of review applications
in a case where constructive dismissal is alleged: A Commissioner or
Arbitrator, when deciding whether or not an employee has been
dismissed in terms of section 187(1) – (f) of the Labour
Relations Act 66 of 1995 (hereinafter referred to as “the
LRA”)
rules on whether or not the CCMA or Bargaining Council has in fact
jurisdiction
to entertain the unfair dismissal dispute that
has been referred to it. It has been made clear in the decision of
the Labour Appeal
Court in
SA Rugby Players’ Association
(SARPA) & Others v SA Rugby (Pty) Ltd & Others; SA Rugby Pty
Ltd v SARPU & Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) that the
question before the court in reviewing such a ruling, is whether
objectively speaking the facts gave the CCMA jurisdiction
to
entertain the dispute. The review test as laid down in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ 2405 (CC) therefore does not find application in reviewing a
jurisdictional ruling:
“
[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 section 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 (Pty) Ltd v Jacobs NO & others
(1994) 15 ILJ 801 (LAC)2 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 at 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 jurisdiction. 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:
“
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 faint-hearted to abort
the proceedings because of
a jurisdictional challenge which is clearly without merit.” (At
804C–D.)
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. “
[3]
The parties before this Court argued the matter in light of the
decision in
Carephone (Pty) Ltd v Marcus NO and Others
(1998)
ILJ
1425 (LAC). Neither of the parties argued the review in
light of the decision referred to in the previous paragraph namely
whether
or not there were facts before the Commissioner to give the
CCMA jurisdiction to entertain the dispute. Once it has been
established
that the CCMA does indeed have jurisdiction, the
reviewing Court will evaluate the award in respect of the
fairness
of the dismissal in light of the review test as set out in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC):
“
[110] To
summarize, Carephone held that s 145 of the LRA was suffused by the
then constitutional standard that the outcome
of an administrative
decision should be justifiable in relation to the reasons given for
it. The better approach is that s 145
is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: Is the decision
reached by the commissioner
one that a reasonable decision maker could not reach? Applying it
will give effect not only to the
constitutional right to fair labour
practices, but also to the right to administrative action
which is lawful, reasonable
and procedurally fair”.
[4]
The Respondent was employed by the Applicant as a senior Designer and
Studio Manager. In addition to the contract of employment,
there was
also an agreement that the Respondent would receive 10% of the shares
in the Applicant. It is common cause that the Respondent
ultimately
decided not to take up the share offer. The Respondent resigned on 1
April 2005 and provided two weeks notice thereof.
[5]
It appears
that the Respondent had resigned for the following reasons
:
Firstly, she was misled by the Applicant when she had been employed
in that the Applicant never delivered on her promise to give
her a
10% share (award page 9). Secondly, the Respondent alleged that she
received warnings which she had viewed was a strategy
to get her to
leave the Applicant. It was her case that the Applicant had tried to
intimidate her with false accusations and that
she was not given a
chance to defend herself before she received the written warnings.
Thirdly, her office keys were taken away
from her without any
explanation and that this treatment was humiliating and demeaning.
[6]
In a
detailed and fairly comprehensive award, the Commissioner found that
the resignation of the Respondent constituted a constructive
dismissal. In respect of the complaint about the oppressive
treatment, the Commissioner found that, although she accepted that
the Respondent did not resign over the dispute about the shares, it
is a factor to be considered in assessing the impact of the
overall
conduct of the Applicant. Although there were attempts to settle the
matter, the Commissioner found that when the
A
pplicant
failed to co-operate with the negotiations, the Applicant had changed
her attitude towards the Respondent. In her award
– and in this
regard I specifically refer to paragraph 42 of the award - the
Commissioner refers to various examples which
all, in her view
,
substantiated the conclusion that the Respondent were subjected to
oppressive treatment by the Applicant. More in particular, the
Commissioner refers to the fact that the Respondent’s keys were
removed on 23 February 2005 and the fact that this was clearly
a
clear vote of no confidence. The Commissioner also concluded that it
was not necessary for the Respondent to have followed the
grievance
procedure in the circumstances. In this regard the Commissioner
accepted that, in light of the fact that the Respondent
did raise
some concerns previously through her attorney and that these
grievances were not dealt with, she (the Respondent) therefore
had
good reason to believe that the Applicant would turn a blin
d
eye to a formal grievance. The Commissioner concluded that the
resignation was a reasonable option in response to the conduct of
the
Applicant which had made her continued employment intolerable. I will
return to the test for a constructive dismissal hererinbelow.
[7]
The Applicant took issue with the fact that the Commissioner took
into account the fact that the Respondent was not given a
chance to
defend herself before she received written warnings. In this regard
the Commissioner held that the Respondent was denied
her right to
defend herself prior to having this sanction imposed on her. I am in
agreement with the view of the Commissioner that
an employee must be
afforded a chance to defend herself before a warning is imposed. This
does not, however, imply that there should
be a hearing in the sense
of a disciplinary hearing. Written warnings are a more formal act
than a mere verbal or oral warning.
By giving an employee a written
warning, the employer is entitled in subsequent disciplinary
proceedings to rely on those warnings
a proof that the employee had
been warned of similar conduct in the past. Grogan in his book
“Workplace Law” 9
th
edition clearly states at
paragraph 99 that:
“
The issuing of
a written warning should be preceded by a proper inquiry, during
which the employees concerned should be allowed
to state their cases
and produce witnesses, if necessary.”
I
agree with the sentiments expressed by Grogan. At the very least, an
employee should be afforded the right to be heard in the
sense that
she should be afforded an opportunity to be heard before a written
warning is imposed. The fact that the Respondent
was denied the right
to be heard before a written warning was imposed contributed to the
general oppressive treatment to which
she was subjected to especially
in light of the fact that the allegations leveled against her were
serious.
[8]
I am also in agreement that the Respondent had reason to believe that
her grievances would not be attended to particularly in
light of the
fact that the Respondent’s attorney did bring it to the
attention of the Applicant that the Respondent had grievances.
I am
further in agreement that the fact that the Respondent’s keys
were removed from her constituted a clear vote of no confidence
in
her and that this act only added to the general oppressive treatment
which she received from her employer. I am also in agreement
with the
assessment of the evidence in respect of the Respondent’s
alleged poor workperformance. I am further in agreement
with the
assessment that if the Respondent’s performance and conduct did
deteriorate to the extent Mcleod alleged that it
did, the Applicant
would have held a disciplinary hearing or a proper assessment
hearing.
[9]
I am therefore satisfied that sufficient evidence was presented to
the Commissioner that substantiated a claim of dismissal.
In
coming to a decision I also had regard to the recent decision of the
Constitutional Court in
Strategic Liquor Services v CCMA &
Others
(Case CCT 33/09
[2009] ZACC 17)
where the Court held as
follows in respect of what constitutes a constructive dismissal:
”
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.”
I
am satisfied that the Applicant made continued employment for the
Respondent intolerable.
[10]
I must briefly deal with the argument raised on behalf of the
Applicant that it was impossible in the context of a constructive
dismissal to find that a dismissal was substantively and procedurally
unfair. This submission is clearly unfounded: Although it
is true
that the issue of procedural fairness will not normally arise in the
context of a constructive dismissal, there is nonetheless
still an
onus on the employer to prove that the dismissal was fair. In terms
of the LRA a dismissal may be unfair where there was
no valid and
fair reason to dismiss and secondly where no fair procedure was
followed. The fact that the Commissioner stated that
the dismissal
was procedurally unfair, does not, in my view constitute an
irregularity to the extent that it renders the award
reviewable. The
fact of the matter is, the Commissioner understood his functions in
the sense that he understood that he had to
evaluated not only
whether or not there was a
dismissal
as contemplated by the
Act, but also, once a dismissal was established, whether or not that
dismissal
was
unfair
.
It is clear from
the provisions of Section 186(e) of LRA 1995 that it envisages a
two-stage approach - First, onus
on employee who resigns
or leaves to prove that continued employment made intolerable by
employer's conduct - Second,
onus on employer to show
that dismissal not unfair. Landman J in
Sappi Kraft (Pty) Ltd t/a
Tugela Mill v Majake NO & others
(1998) 19 ILJ 1240 (LC) and
in particular at 1250C-F:
'In my opinion, having
regard to the scheme of the new Act, the two-stage approach is to be
followed.
First of all an
employee who resigns or leaves her place of employment (or may be
said to have deserted) must prove that this was
not the case and that
the employer dismissed her by making the continued employment
intolerable. The onus on this leg is upon the
employee. If this is
established then the second stage is arrived at.
The second stage
concerns an evaluation of whether or not the dismissal was unfair.
This is certainly true of substance but clearly
the provisions
relating to procedure are not relevant.
The two stages that I
have set out above are however not independent stages. They are two
stages in the same journey and the
facts which are relevant in regard
to the first stage may also be relevant in regard to the second
stage. Moreover there may well
be cases where the facts relating to
the first stage are determinative of the outcome of the second stage.
Whether or not this
is so is however a matter of fact and no
general principle can or should be laid down.
'
I
am therefore of the view that this argument has no merit.
[11]
The Applicant also took issue with the fact that the Commissioner did
not set out on what basis he arrived at the order of
compensation. It
is not correct that the Commissioner did not justify the amount of
compensation arrived at. What is required is
that the Commissioner
exercises a discretion in a judicial manner taking into account
relevant factors. The Commissioner did exercise
a discretion and I am
of the view that the conclusion arrived at is reasonable. This is
evident from the award where the following
is stated: “
The
applicant is entitled to compensation and in considering what would
be just and equitable, I have taken all the circumstances
into
account including the fact that the applicant was employed by the
respondent for less than a year and that she found alternative
employment soon after resigning.”
Although mindful of the
fact that it is not for this Court to point out what it would have
awarded the Applicant, it certainly
cannot be said that the award of
5 month’s compensation is excessive taking into account the
circumstances as set out in
the award. In the event, the review on
this ground must fail.
[12]
In light of the aforegoing the review application is dismissed. In
respect of costs, I can find no reason in law and fairness
why costs
should not follow the result. In the event the following order is
made:
1. The
review application is dismissed.
2. The
Applicant is ordered to pay the costs.
AC
BASSON, J
DATE
OF JUDGEMENT: 23 JULY 2009