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[2010] ZALCCT 6
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Lithotech Manufacturing Cape, A Division of Bidpaper Plus (Pty) Limited v Statutory Council Printing, Newspaper & Packaging Industries and Others (C104/2009) [2010] ZALCCT 6 (8 February 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO: C104/2009
In
the matter between:
LITHOTECH
MANUFACTURING
CAPE
Applicant
A
DIVISION OF BIDPAPER PLUS (PTY) LIMITED
and
STATUTORY
COUNCIL PRINTING,
NEWSPAPER
& PACKAGING INDUSTRIES
1
st
Respondent
GUY
BLOCH
N.O
2
nd
Respondent
SATU
obo MOGAMAT YUSUF LACKAY
3
rd
Respondent
REASONS
FOR ORDER
AC
BASSON, J
[1]
On 3 September
2009 I dismissed the application for review with costs. Herewith
brief reasons for the order.
[2]
The Applicant
made an application in terms of sections 145 and 158(1)(g) of the
Labour Relations Act, 1995 (hereinafter referred
to as "
the
LRA
")
for the review and setting aside of the arbitration award made by
Second Respondent (hereinafter referred to as “
the
arbitrator
”)
on 31 January 2009 in respect of the unfair dismissal dispute between
the Third Respondent (SATU on behalf of Mr. Mogamat
Lackay -
hereinafter referred to as “
the
respondent
”).
Relevant
background facts
[3]
The respondent
was employed by the applicant as a waste controller in its production
department. The respondent was also a shop
steward and had 19 ½
years’ of service with the applicant. At the time of his
dismissal he was […] years old
and 2 ½ years from
taking his pension.
[4]
On 13 October
2008 the respondent was in the applicant's despatch department at the
strapping machines. Mr. Arthur Jansen (hereinafter
referred to as
“
Jansen
”)
was the supervisor in the despatch department at that time. Jansen
was also the alleged victim of the respondent’s
abusive
language.
[5]
According to
the applicant, the respondent was standing around and talking to
fellow employees and was still standing around after
approximately
three quarters of an hour. Jansen then contacted the respondent's
supervisor Mr. Alex Theunissen (hereinafter referred
to as
"Theunissen
")
to inform him that the respondent was keeping the employees in
despatch from performing their work.
[6]
The respondent
admitted that he was talking to co-workers and that his supervisor
came to him to tell him that Jansen had complained
that he (the
respondent) kept his workers out of work. He testified that he went
to Jansen and told him - “
hou
jou bek ook van my af en moet nie weer met my jokes maak nie”.
He testified that he only said “
hou
jou bek van my af. As daai die case is, dan hou jy bek van my ook af
en moet nie weer met my jokes maak nie, want ons is mos
gewoond
grappe met mekaar maak, daai is mos maar ‘n klomp mans
bymekaar”
.
He denied that he swore at Jansen. The respondent conceded that he
had a final written warning at the time of the arbitration.
The
warning was for abusive language, assault and finger pointing at
Theunissen.
[7]
According
to Jansen, the respondent swore at him and aggressively said to him
(Jansen):
"Jy
hou jou fokken bek van my
af”
and “
jy
hou jou fokken bek van my af en jy fok nie met my nie.”
According to the evidence of Jansen the respondent uttered these
words to him as a superior. He testified at the arbitration hearing
that he saw the behaviour as abusive as it was not about him but
rather about his position as a supervisor. According to Jansen
it
happened in the presence or within hearing distance of other
employees who also reported to him. During the arbitration, Jansen,
however, testified that only one other employee (a certain Daniels)
was present. Despite the fact that Jansen alleged that the
respondent
swore at him he made the following concessions: (i) Firstly, he
conceded that he did not lay a grievance against the
respondent for
swearing. (ii) Secondly, he conceded that the respondent was charged
with
swearing
and not for his aggressive behaviour.
[1]
(iii)
Thirdly, he conceded that he has never taken discipline against any
of the people on the shop floor for using the word
“
fok”
.
He, however, testified that it is different when someone tells you
“
fok
jou
”
because it is directed to him as a person. (iv) Fourthly, he conceded
that he was shocked that the outcome of the hearing
was that the
respondent was dismissed. He stated that he believed that the outcome
would have been a final written warning. In
cross-examination he also
stated that he has been a supervisor for two years and that it was
the first time that he has been involved
in something of this nature
and that he thought the respondent would have received a final
written warning.
[8]
Mr. Manuels
(one of the co-workers of the respondent) gave different versions of
what was said. The one version was that the respondent
told Jansen:
“
wat
fok jy met my”.
Then
he said the respondent said: “
hou
jou bek van my af en moenie fok met my nie
”
and then he said the respondent said: “
dan
hou jy jou mond van my af, jy fok nie met my nie
”.
He testified that the respondent “
was
woedend
”.
He testified that it was not acceptable conduct in the workplace.
[9]
Manuels
testified that Jansen was in his office when the respondent swore at
Jansen and that the door was closed. According to him
the respondent
was outside of the door and he was speaking whilst Jansen was inside
of the office. He testified that there was
a glass and that he could
see Jansen inside the office through the door. Manuels then testified
that he could see that the respondent
was angry (“
kwaad
”)
but testified that the respondent was not aggressive.
[10]
From
the aforegoing it is clear that the two witnesses on behalf of the
applicant gave different evidence about what was said to
Jansen. They
also gave different versions about the circumstances under which the
words were uttered. Jansen testified that the
respondent had stormed
up to him and that he looked like he might attack him and that the
whole incident had been observed by Manuels.
Manuels, however, gave a
different version not only in respect of what was said but also about
the circumstances under which the
alleged words were uttered. He
testified that he heard the abusive language after the respondent had
left Jansen’s office
and at a time when the door had been
closed. Contrary to the applicant’s version was the
respondent’s version that
he did not swear at Jansen. It must,
however, be pointed out that the respondent was not charged with
aggressive behaviour nor
did Jansen lodge a grievance against the
respondent.
[2]
Disciplinary
hearing
[11]
On
24 October 2008 the respondent was issued with a notice to attend a
disciplinary hearing and was charged with
"abusive
language".
The
hearing commenced on 30 October 2008 and was concluded on 04 November
2008. The chairperson of the disciplinary hearing found
him guilty
and ordered his dismissal on four weeks' notice. On 4 November 2008
the chairperson gave a brief oral summary of the
reasons for her
finding. Although she found him guilty as charged, the chairperson
was clearly uncomfortable with the fact that
swearing seemed to be
the norm in the workplace. (I will return to what the chairperson
stated during the disciplinary hearing
hereinbelow).
[3]
The
award
[12]
The dispute
was referred to the First Respondent (hereinafter referred to as “
the
council
”).
The arbitration took place on 23 January 2009 and the arbitrator
found the dismissal procedurally fair but substantively
unfair.
[13]
The arbitrator noted that there were
contrasting versions about what the respondent had said to Jansen as
well as in respect of
the circumstances under which the alleged words
were uttered. The arbitrator, however, did not make a definite
factual finding
about what was actually said by the respondent to
Jansen. The furthest the arbitrator was prepared to commit himself
was to say
that that the sentence construction of what was said was
similar: “
[a]nd apart from the
difference over the closed door, the testimony of these 3 witnesses
is very similar in terms of what was said
with regards to the
sentence construction and the length of the sentence. However, Jansen
has an extra ‘vokken’ [sic]
in what he testified to which
is not corroborated by Daniels”.
The arbitrator concluded that whether or not the word “
vok
”
(sic) or “
jokes
”
“
or even if the word was ‘vok’
”
was used, it did not constitute abusive language
per
se
. The arbitrator, however,
concluded that the respondent’s behavior was not acceptable but
that it was not as serious as the
applicant had made out it to be.
The arbitrator was also not persuaded that the respondent was
aggressive. The arbitrator in particular
found that dismissal was not
an appropriate sanction.
[14]
The conclusion eventually arrived at by
the arbitrator was (without making a finding as to what was actually
said by the respondent)
that the respondent was not guilty of “
use
of abusive language
”. The
arbitrator then proceeded to evaluate whether or not it was fair to
dismiss the respondent in the circumstances. He
concluded that the
respondent was disrespectful towards Jansen and the fact that it was
in front of other subordinates made it
worse. He, however, concluded
that he was not convinced that the trust relationship has been
irretrievably destroyed or that the
continued employment relationship
was intolerable. In coming to this conclusion the arbitrator also
took into account the length
of service of the respondent and his
age. He lastly took into account that the words were not directed at
Jansen directly but that
“
they
had more to do with the situation that the applicant [the respondent
in the present proceedings] believed he was in”
.
[15]
The
commissioner ordered the reinstatement of the respondent. The
arbitrator, however, limited the retrospective reinstatement of
the
respondent to one month only and extended the final written warning
for being disrespectful towards his superior for another
12 months.
Is
the award reviewable?
[16]
I
am in agreement with the applicant that the award, particularly the
reasoning of the arbitrator in respect of the substantive
fairness of
the dismissal, is difficult to follow. Firstly, the arbitrator does
not make a factual finding about what the contents
of the statement
by the respondent to Jansen was. However, the arbitrator clearly was
of the view that it does not really matter
what was said because the
context within which it was said was relevant. Secondly, despite not
making a factual finding, the arbitrator
concludes that the
respondent was not guilty of “
use
of abusive language
under the
circumstances”. He, however, concluded that the respondent was
guilty of “
tough behaviour that
is not acceptable and needs to be corrected”
(a
lesser form of misconduct)
.
The arbitrator further stated that even if the respondent was guilty
of abusive language, he might have found that dismissal was
appropriated but that he still then had to assess the fairness of the
dismissal in light of
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
(2007) 28 ILJ 2405 (CC).
[17]
Is
the award unreasonable? Although it is somewhat difficult to follow
the arbitrator’s reasoning, this does not render the
award
unreasonable
per se
.
See
in this regard the
Sidumo (supra)
case where the
Constitutional Court held as follows in respect of the standard of
reasoning expected of commissioners:
“
[118]
CCMA figures reveal that each year between 70 000-80 000 cases are
referred to the CCMA for conciliation in respect
of dismissals. Given
the pressures under which commissioners operate and the relatively
informal manner in which proceedings are
conducted, and the further
fact that employees are usually not legally represented, it is to be
expected that awards will not be
impeccable.
[119] To my mind,
having regard to the reasoning of the commissioner, based on the
material before him, it cannot be said that his
conclusion was one
that a reasonable decision maker could not reach. This is one of
those cases where the decision makers acting
reasonably may reach
different conclusions. The LRA has given that decision-making power
to a commissioner”.
See also: See also
Shoprite Checkers (Pty) Ltd v Ramdaw NO &
Others
, (2001) 22
ILJ
1603 (LAC) 1636H-I, (per Zondo JP)
:
“””
In
my view, it is within the contemplation of the dispute resolution
system prescribed by the Act that there will be arbitration
awards
which are unsatisfactory in many respects, but nevertheless must be
allowed to stand because they are not so unsatisfactory
as to fall
foul to the applicable grounds of review. Without such
contemplation, the Act’s objective of the expeditious
resolution disputes would have no hope of being achieved. In my
view, the first respondent’s award cannot be said to
be
unjustifiable when regard is had to all the circumstances in this
case and the material that was before him”.
[18]
Even
where the reasoning of the arbitrator may be criticized, this in
itself does not render the award reviewable particularly where
the
ultimate result arrived at by the arbitrator is sustainable in light
of the record. I must, however, qualify this statement
by pointing
out that there may be cases where, although the ultimate conclusion
reached by the commissioner or arbitrator is reasonable,
the
reasoning adopted by the arbitrator or commissioner is so flawed
(even if the ultimate result is reasonable), that it cannot
be
concluded that the arbitrator duly exercised his or her functions as
an arbitrator by taking due consideration of matters that
are vital
to the dispute. In such circumstances the reviewing court may
well be inclined to review and set aside the award.
I find some
authority for this statement in
Stocks Civil Engineering
(Pty) Ltd v Rip NO & Another
(2002) 23 ILJ 358 (LAC)
(although these comments were made in the context of a review of a
private arbitration award):
“
[52]
In my view the following principles emerge: A court is entitled on
review to determine whether an arbitrator
in fact functioned as
arbitrator in the way that he upon his appointment impliedly
undertook to do, namely by acting honestly,
duly considering all the
evidence before him and having due regard to the applicable legal
principles. If he does this, but reaches
the wrong conclusion, so be
it. But if he does not and shirks his task, he does not function as
an arbitrator and reneges on the
agreement under which he was
appointed. His award will then be tainted and reviewable. It is
equally explicit in the agreement
under which an arbitrator is
appointed that he is fully cognizant with the extent of a limit to
any discretion or powers he may
have. If he is not and such ignorance
impacts upon his award, he has not functioned properly and his award
will be reviewable.
An error of law or fact may be evidence of the
above in given circumstances, but may in others merely be part of the
incorrect
reasoning leading to an incorrect result. In short,
material malfunctioning is reviewable, a wrong result per se not
(unless it
evidences malfunctioning). If the malfunctioning is in
relation to his duties, that would be misconduct by the arbitrator as
it
would be a breach of the implied terms of his appointment.”
[19] A similar view, in
the proper context of review in terms of section 145 of the LRA is
followed by the Constitutional Court
in
Sidumo
where Ngcobo J
pointed out that it is the intention of the LRA that “
as far
as is possible arbitration awards would be final and would only be
interfered with in very limited circumstances.”
The
reviewing court will therefore, in the words of the Constitutional
Court in
Sidumo
only interfere with a decision if the decision
reached by the commissioner or arbitrator is one which no reasonable
commissioner
could have arrived at. In the present case I cannot
conclude that, despite the fact that I have some difficulties with
the reasoning
adopted by the arbitrator, that this is a conclusion
that no reasonable decision maker could have arrived at.
I
will in paragraph [26] hereunder point out that even if I was
persuaded that the award should be reviewed and set aside, dismissal
was, in any event, not an appropriate sanction. I refer to my reasons
for arriving at this conclusion hereinbelow.
[20]
In respect of an arbitrator’s
discretion as to what would be an appropriate sanction, the review
court must consider whether
or not the commissioner took all relevant
factors into account in arriving at a decision. See in this regard
Fidelity Cash Management Service &
Others v CCMA & Others
where
the Labour Appeal Court observed as follows in respect of the test of
review in light of the
Sidumo
–case
(particularly in the context of exercising a discretion in respect of
sanction):
“
[93]
I have already said above that, in line with the decision of this
Court in Engen and Algorax, the Constitutional Court decided
in
Sidumo that the reasonable employer test must not be applied and
there should be no deference to the employer’s choice
of a
sanction when a CCMA commissioner decides whether dismissal as a
sanction is fair in a particular case. Indeed, both in Engen
and in
Sidumo this Court and the Constitutional Court, respectively, said
that the commissioner must decide that issue in accordance
with his
or her own sense of fairness. (see Engen at par 117 at 1559 A, - par
119 at 1559 H-I; par 126 at 1562 C-D, par 147; Sidumo’s
case at
paras 75 and 76.) In par 75 in the Sidumo case the
Constitutional Court, inter alia, said: “Ultimately, the
commissioner’s sense of fairness is what must prevail and not
the employer’s view.” At par 76 the Constitutional
Court
quoted a passage from Engen which inter alia contained a statement to
the effect that unions “can ventilate all issues
about their
grievances in regard to such dismissals in that forum before a third
party, who can listen to all sides of the dispute
and, using his own
sense of what is fair or unfair, decide whether the dismissal is fair
or unfair.”
[94]
In terms of the Sidumo judgment, the commissioner must:
(a)
“take into account the totality of circumstances” (par
78);
(b)
“consider the importance of the rule that had been breached”
(par 78);
(c)
“consider the reason the employer imposed the sanction of
dismissal, as he or
she must take into account the basis of the
employee’s challenge to the dismissal” (par 78);
(d)
consider “the harm caused by the employee’s conduct”
(par 78);
(e)
consider “whether additional training and instruction may
result in the employee not
repeating the misconduct”
(f)
consider “the effect of dismissal on the employee” (par
78);
(g)
consider the employee’s service record.
Tthe
Constitutional Court
emphasised that
this is not an exhaustive list. The commissioner would also have to
consider the Code of Good Practice: Dismissal
and the relevant
provisions of any applicable statute including the Act. In this
regard sec 188 and 192(2) of the Act will usually
be of relevance..”
[95]
Once the commissioner has considered all the above factors and others
not mentioned herein, he
or she would then have to answer the
question whether dismissal was in all of the circumstances a fair
sanction in such a case.
In answering that question he or she would
have to use this or her own sense of fairness. That the commissioner
is required to
use his or her own sense of justice or fairness to
decide the fairness or otherwise of dismissal does not mean that he
or she is
at liberty to act arbitrarily or capriciously or to be mala
fide. He or she is required to make a decision or finding that is
reasonable….”
[21]
Turning to the
present matter, in arriving at a decision as to whether or not
dismissal was an appropriate sanction, the arbitrator
took into
account that the respondent was disrespectful and the fact that his
unacceptable behaviour was towards a superior. He
also took into
account that the trust relationship has not been irretrievably
destroyed. He was also not convinced that continued
employment was
intolerable. He also took into account the respondent’s 19
years’ of service and that he was on the
brink of retirement.
The conclusion reached by the arbitrator, despite some defects in his
reasoning in arriving at a conclusion,
and particularly in respect of
the finding that dismissal was not appropriate is, in my view
reasonable, and should stand.
Guilty
finding on a lesser charge
[22]
The arbitrator
found the respondent guilty of disrespectful behaviour. I am in
agreement with the submission that an arbitrator
may not find an
employee guilty of a lesser charge. On behalf of the respondent it
was submitted that the arbitrator’s award
should be corrected
to provide for retrospective reinstatement with no warning. It was
also submitted that dismissal should not
have been imposed in the
context of a shop floor culture where the use of such a word was
common practice.
[23]
In order to
succeed with the review application, the applicant must show that the
arbitrator made a decision that a reasonable decision-maker
could not
reach and in so doing, acted unreasonably. See
Sidumo
(supra); Fidelity Cash Management Service v CCMA
&
Others
[2008] 3
BLLR 197
(LAC) and in particular at page 224-5 para 97;
Edcon
Ltd v Pillemer NO
&
Others
(2008)
29
ILJ 614 (LAC). In the
Edcon
case, with
reference to the
Sidumo-
case and
Engen
Petroleum Ltd v CCMA
&
Others
(2007) 28
I LJ 1507 (LAC) at para 111, the Labour Appeal Court pointed out that
fairness requires that regard must be had to the
interests of both
the employee and those of the employer.
[24]
The applicant
sought to review the award on the basis that it is defective and
unreasonable in that the arbitrator’s findings
that the
respondent was not guilty of the charge of the use of abusive
language and that dismissal was not the appropriate sanction.
The
applicant argued that these are not findings that a reasonable
decision-maker could come to. The applicant argued that the
arbitrator disregarded relevant evidence that was properly before him
and failed to properly apply his mind to the evidence before
him. It
was also argued that the arbitrator committed a gross irregularity in
finding that the actual words used by the respondent
were irrelevant
to the charge of
"the
use
of
abusive
language".
In respect of the sanction the applicant argued that had the
arbitrator acted unreasonable especially in light of the arbitrator’s
own finding that:
"If
I had agreed with the respondent that the applicant was guilty of the
use abusive language, I might well have found that
dismissal could
well have been appropriate ...".
The
applicant argued that had the arbitrator properly considered the
evidence before him, he ought to have found that the respondent
was
guilty of the charge of
"the
use of abusive language"
and,
according to his own acknowledgement in the award, that dismissal
would have been an appropriate sanction. The fact that the
arbitrator
found him guilty of a lesser charge is unreasonable.
[25]
Although, as
already pointed out I agree that an arbitrator cannot find an
employee guilty on a lesser charge, I am, despite of
this defect in
the award not persuaded that the award cannot stand.
[26]
In the event that I
am wrong in deciding not to review and set aside the award, I
conclude as follows: The respondent is guilty
as charged. I am on the
probabilities persuaded that the respondent had used the word “
fok
”
and that it was directed at Jansen. I am particularly persuaded that
he had used this word in light of the fact that this
was how the
employees talked on the shop floor. Although the two witnesses on
behalf of the applicant differed to some extent as
to what was
precisely said, it is clear from their evidence that the respondent
used swear words.
[27]
The
question which remains is whether or not dismissal is the appropriate
sanction? Taking into account the totality of the circumstances
as
advocated in the
Sidumo
case,
the length of service of the respondent (more than 19 years); the
fact that the respondent was on the brink of retirement;
the fact
that employees apparently used swear words liberally on the shop
floor; and the fact that even his superior admitted using
swear
words, I am of the view that dismissal is inappropriate. I must also
point out that even the chairperson of the disciplinary
hearing was
perturbed by the fact that even the supervisor swore and that it was
apparently the norm in the factory. In this regard
she stated “
[that]
it bothered her that swearing and cursing was a norm in the factory
and that a Supervisor like Arthur can sit and admit that
he has
cursed before and mentioned that that should be looked into. She also
mentioned that it was important that people are treated
the same and
if one is to be punished for verbal abuse then so should everyone
else. This is why she recommends that Paul take
the verbal abuse
received from Arthur and raises it with his manager. However, due to
the evidence presented to her and the witnesses
brought forward she
had to find Mr. Lackay guilty.”
[4]
Lastly,
there is no evidence that the employment relationship was rendered
intolerable.
[5]
Even
Jansen, the victim of the swearing, did not expect the respondent to
be dismissed. It should also be pointed out that
the mere
fact
that abusive or strong language is used by an employee in the
workplace does not,
per
se
justify dismissing an employee. All the circumstances must be
considered.
I
therefore conclude that dismissal is inappropriate in the present
circumstances. I am, however, of the view that the respondent
should
take some responsibility for his behaviour. I therefore reinstate him
on a final written warning valid for 12 months for
the use of abusive
language. I am further of the view that his conduct does not warrant
full reinstatement, I therefore limit his
reinstatement to one month
only. I can find no reason why the applicant should not be ordered to
pay the costs.
AC
BASSON, J
DATE
OF REASONS 8 FEBRUARY 2010
FOR
THE APPLICANT:
Edward
Nathan Sonnenbergs
FOR
THE 3
RD
RESPONDENT:
Chennels Albertyn
Attorneys
[1]
See paragraph [10]
infra
.
[2]
See paragraph [7]
supra.
[3]
See paragraph [27]
infra
.
[4]
See
L M
Wulfsohn Motors (Pty) Ltd t/a Lionel Motors v Dispute Resolution
Centre & Others
(2008) 29 ILJ 356 (LC) where the Court held as follows in respect of
foul language (albeit in this case in the context of
a
constructive dismissal
:
“[13] Turning to the facts of this case. It is common cause
that De Waal used a swear word when Nel approached him with
her
request. It is indeed so that swearing in the workplace may result
in a constructive dismissal. The obvious example that
springs to
mind is where an employer swears 'at' an employee. It is, however,
equally true, that although foul language in the
workplace should
not be condoned, not all cases of foul language will necessarily
result in the workplace being rendered intolerable
to such an extent
that an employee will have no option but to resign. As pointed out,
whilst swearing at an employee can never
be condoned, it is still
incumbent upon the commissioner carefully to analyse the
circumstances in which it took place in order
to decide whether it
rendered the employment relationship intolerable to such an extent
that continued employment was no longer
possible.”
The court referred to the following in footnote 9: “
Although
the circumstances in the case of Miladys (A Division of Mr Price
Group Ltd) v Naidoo &; others (2002) 23 ILJ 1234
(LAC) differed
from the present case in that it was held by the court that the
employee in that matter was a mature woman and
that she ought to
have been able to handle the situation properly, the principles set
out in this case are, in my view, relevant
to the present case. The
court held as follows. '[26] The second respondent found that Roy
spoke to first respondent in a "rude
and disrespectful manner
and that she gained the impression that he wanted her to leave''. If
he had spoken "nicely'' to
her she would never have wanted to
resign. That abuse of a serious nature can result in constructive
dismissal is evidenced by
the English case of Palmanor Ltd v Cedron
[1978] IRLR 303.
In that case the applicant, who was employed at a
night club and had previously arranged to attend later than usual,
was wrongly
accused by the night club manager of being late. The
manager then became abusive saying ``You are a big bastard, a big
cunt,
you are pig-headed, you think you are always right.'' When
Cedron (the employee) objected the manager responded, "I can
talk to you any way I like, you big cunt'' and ``if you leave me
now, don't bother to collect your money, papers and anything else.
I'll make sure you don't get a job anywhere in London''. Not
surprisingly Cedron resigned and his claim, that he had been
constructively
dismissed, by reason of the behaviour in question,
including the abuse, was upheld by the Employment Appeal
Tribunal.[27] In
giving judgment in that matter Slynn J acknowledged
that many cases involving foul and abusive language did not
constitute constructive
dismissal. That particular case was
exacerbated by the threats relevant to the employee (Cedron)
leaving, ie "don't bother
to collect your money, papers and
anything else'' and to prohibit him finding other work, ie "I'll
make sure you don't get
a job anywhere in London''.' (Emphasis
added.)”
[5]
See
Edcon
v Pillemer
(191/2008)
[2009] ZASCA 135
(5 October 2009) where the Supreme Court
of Appeals held that there must be evidence presented to the
commissioner that the employment
relationship was rendered
intolerable by the conduct of the employee: “
[22]
Pillemer was entitled and in fact expected, in the scheme of things,
to explore if there was evidence by Edcon and/or on
record before
her showing that dismissal was the appropriate sanction under the
circumstances. This was because Edcon’s
decision was
underpinned by its view that the trust relationship had been
destroyed. She could find no evidence suggestive of
the alleged
breakdown and specifically mentioned this as one of her reasons for
concluding that Reddy’s dismissal was inappropriate.
A reading
of the award further reveals that in addition to this finding
Pillemer also found that in the context of that matter
Reddy’s
long and unblemished track record was also an important
consideration in determining the appropriateness of her
dismissal
[23]
It is inevitable that courts, in determining the reasonableness of
an award, have to make a value judgment as to whether
a
commissioner’s conclusion is rationally connected to his/her
reasons taking account of the material before him/her. That
this is
the correct approach has been stated on a number of
occasions
by the LAC, this court in the Sidumo matter as well as the
Constitutional Court in the same matter1. In my view, Pillemer’s
finding that Edcon had led no evidence showing the alleged breakdown
in the trus relationship is beyond reproach. In the absence
of
evidence showing the damage Edcon asserts in its trust relationship
with Reddy, the decision to dismiss her was correctly
found to be
unfair. She cannot be faulted on any basis and her conclusion is
clearly rationally connected to the reasons she
gave, based on the
material available to her. She did not stray from what was expected
of her in the execution of her duties
as a CCMA arbitrator. The
challenge, therefore, to Pillemer’s award on this basis is
without merit. I have no hesitation
in concluding that the award
issued by her is properly compliant with the constitutional standard
of reasonableness propounded
in Sidumo. This conclusion on its own
is, in my view, dispositive of the appeal. I find it unnecessary
therefore, in view of
this conclusion, to consider the other
interesting point regarding the admissibility of hearsay evidence,
raised on behalf of
Edcon
.”