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[2010] ZALCD 17
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Ternsportswear (Pty) Ltd v National Bargaining Council for the Clothing Manufacturing Industry and Others (D534/08) [2010] ZALCD 17 (27 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO. D534/08
NOT
REPORTABLE
IN
THE MATTER BETWEEN:
TERNSPORTSWEAR
(PTY) LTD
APPLICANT
AND
NATIONAL
BARGAINING COUNCIL FOR
THE
CLOTHING MANUFACTURING INDUSTRY:
1
ST
RESPONDENT
COMMISSIONER:
RICHARD LYSTER
2
ND
RESPONDENT
ROBERT
MICHAEL WEBBER-HARRIS
3
RD
RESPONDENT
JUDGMENT
GUSH,
AJ
1.
The Applicant in this matter applies to review and set aside or
correct an award made by the Second Respondent that the
Third
Respondent had been constructively dismissed by the Applicant and
awarding the Third Respondent compensation in the amount
of R54
000,00.
2.
The background to the matter was that the Third Respondent was
employed by the Applicant in May 2007 as the factory administration
manager. His immediate superior was a Mr Lu who was the Applicant's
production director. The offer of employment accepted by the
Third
Respondent required the Third Respondent to
inter
alia
deal with the "control of
labour matters".
3.
It is common cause that towards the end of 2007 the Applicant was in
the process of curtailing costs and was preparing to embark
on a
retrenchment exercise and that this had caused tension within the
workforce.
4.
The Third Respondent in his evidence at the Arbitration before the
Second Respondent indicated that his relationship with the
Applicant's Mr Lu, prior to the incidents which lead to his
resignation was somewhat strained and produced in evidence a number
of e-mails to support this. These e-mails were dated the 6th
November, 21st November, 23
rd
November and the 3
rd
December and deal with various labour relations issues and to some
extent record some differences of opinion between the Third
Respondent and Lu. They do not indicate anything untoward regarding
Lu’s treatment of Third respondent and the Third Respondent
does not in the e mails complain of his treatment. I will return to
these e-mails below.
5. The Third Respondent
in his evidence at the Arbitration suggested that his difficulties
had arisen as a result of the following;
"
the
way I saw it I was part of top management, that was the function that
needed to be filled in the management capacity, but the
steps taken
against me were directly affecting that position. I wasn't invited to
meetings. The Directors and Kevin would eat lunch
together and
discuss business on a daily basis".
What
is clear however from the organogram and the offer of employment is
that the Third Respondent was not a Director and was on
a lower level
of management from the directors (together with seven other
managers). The assumption by the Third Respondent that
he was part of
“top Management” was not justified given his letter of
appointment and the organogram which forms part
of the record.
6.
During February 2008 it appears as if the relationship between the
Third Respondent and the Applicant's Mr Lu deteriorated to
the point
where the Applicant addressed an email to Mr Lu on the 14
th
February 2008 recording his concerns at being shouted at by Lu. This
email he copied to the Chief Executive Director, Mr Jarvis,
the
Executive Chairman Mr Lin and two others.
7.
Whilst the gist of the e-mail of the 14
th
February was
that the Third Respondent was unhappy with the fact that Lu had
shouted at him in essence it records his concerns
regarding a number
of work related issues involving his responsibilities as the person
dealing with labour matters. The e-mail
ends with the Third
Respondent's stating;
"I
hope that we are able to move forward in a more amicable manner in
the future. I lost a very dear friend this week and will
be attending
his funeral this afternoon. Please feel free to call me to discuss
any problems that you have of my performance or
the effort that I am
putting in to the company".
The
email does not in any way suggest that if nothing is done about the
matter his employment relationship with the Applicant would
become
intolerable nor did he give the Applicant an ultimatum.
8.
It appears from the evidence of the Third Respondent at the
Arbitration hearing, that subsequent to his e-mail of the 14
th
February 2008 his wife was admitted to hospital and he was
accordingly absent from work for a number of days.
9.
The Third Respondent initially suggested during his evidence that he
had, while his wife was in hospital and he was looking after
her
before his return to work, received a notice to attend a disciplinary
enquiry from Lu regarding his absence. Third Respondent
later
conceded during his evidence that it was not in fact a notice to
attend a disciplinary enquiry but simply a letter "
stating
that
[he]
should
please report to
[Lu]
to
let him
know
what is going on
". This too is an
issue to which I will return.
10.
The Third Respondent indicated that having returned to work after his
wife's hospitalisation he met with the Applicant's Jarvis
to discuss
his concerns regarding Lu's behaviour. Jarvis had told him that he,
Jarvis, did not approve of Lu’s actions and
that the matter was
to be dealt with. Third Respondent further conceded during the
Arbitration that, between the his return to
work and his letter of
resignation, positive steps had been taken to arrange meetings
regarding the his concerns and that he was
aware of the interventions
and the proposed meetings.
11.
The Third Respondent's evidence was that after Jarvis had spoken to
him when he came back to work after his absence during his
wife’s
hospitalisation, that afternoon a certain Mr Fan who was a director
of an associated company had visited him. His
evidence surrounding
the Fan visit was that Fan had threatened him that as a result of
this threat he had decided to resign as
he felt the Applicant had
made a continued employment relationship intolerable. The e-mail
containing his resignation is dated
the 4
th
March 2008 and is addressed to Lu and copied to Jarvis and Lin,
directors of the Applicant.
12. In this e-mail of the
4
th
March the Third Respondent records;
"
I
can no longer continue to be treated in this manner. You have left me
little option by forcing me out of the company by making
my
employment unbearable. I have no choice but to file for constructive
dismissal.”
13.
Conspicuous by its absence in this e-mail is any reference whatsoever
to the incident concerning Mr Fan. This is significant
in the light
of the Third Respondent's evidence that it was the meeting with Fan
that lead him to conclude that he had to resign.
14.
The record of the Arbitration however reveals that on 3
rd
March 20088, the day before the letter of resignation was sent to Lu
and Jarvis et al the Third Respondent sent an e-mail to the
Applicant's Human Resources consultants attaching the letter of
resignation and copying to them the email of the 14
th
February 2008.
15. In this email Third
Respondent says;
"
here
is a letter I sent to Bob, Allan and Michael
[the
e-mail of the 14
th
February 2008].
"attached
is an e-mail I am waiting to send as soon as you give me the go ahead
to inform the company of my constructive dismissal.
Once you have
completed the case according to legislation I will send the other
e-mail and then file with the BC. Thanks for all
your help. I know
that it places you in an awkward position however it is god (sic) to
know that I have you on my side and that
Allan understands what is
going on."
The
following day the Third Respondent sent his letter of resignation to
the Applicants’ Lu and Jarvis. The reference to “
Allan
[Jarvis]
understands what is going on”
is not born out by the evidence adduced
at the arbitration.
16.
At the Arbitration the evidence was that towards the end of February
2009 and arising from the e-mail of the 14
th
February 2008 the Applicant’s Human Resource Consultants and
Jarvis had discussed the concerns of the Third Respondent with
him
and were in the process of dealing with the matter. The Third
Respondent conceded during his cross examination that he was
aware of
the fact that his concerns were to be considered by Jarvis; that
Jarvis was sympathetic to his concerns; and that a meeting
was to
take place on the 4
th
March 2008 to find a solution to his problem.
17.
It is abundantly clear from the evidence at the Arbitration and the
contents of his e-mails that the Third respondent had deliberately
set about orchestrating what he believed would be constructive
dismissal. That he maintained that the Human Resource consultants
were advising him does not alter the fact that his actions were
premeditated and planned.
18.
It is common cause that the Third Respondent did not invoke the
Applicant’s formal grievance procedure in dealing
with
the matter (save for his e-mail of the 14
th
February 2008 in so far as it constituted a grievance). In his
evidence during the Arbitration Third Respondent was insistent that
the threat by Fan was the final straw that had caused him to resign.
17.
This however does not appear to be borne out by the evidence adduced
at the Arbitration. In the letter of resignation there
is no
reference made to the visit by Fan and in fact on the day that the
visit by Fan took place the Third Respondent was already
apparently
planning his resignation and referral of the dispute regarding an
unfair dismissal. In fact the Third Respondent
had already prepared
his letter of resignation. Despite the above this incident appears to
have been persuasive in the mind of
the Second Respondent in coming
to the conclusion that the Third Respondent had been constructively
dismissed.
18.
The record of the Arbitration is replete with references by the Third
Respondent to the planning of his constructive dismissal
and the
procedures that he believed he required to follow in order to
establish a constructive dismissal.
19.
During his evidence at the Arbitration the Respondent repeatedly
referred to the treatment that he had received from Lu during
his
employment and in support thereof he referred to the e-mails which he
had sent during November and December 2007. A careful
reading of
these e-mails does not give the impression that the concerns the
Third Respondent was expressing therein were concerns
regarding his
treatment by Lu. These e-mails appear to be confined to work related
matters in a situation where there might have
been differences of
opinion as to the procedures to be followed in dealing with the cost
cutting measures and matters relating
to discipline and the like.
They do not in any way object to treatment metered out to the Third
Respondent by the Applicant's Lu
but simply record the Third
Respondent's point of view regarding procedures being followed by the
Applicant Company in dealing
with various Industrial Relations
issues.
20.
Prior to the e-mail of the 14
th
February 2008 there is nothing to suggest that the Third Respondent
had recorded his concerns regarding his treatment or that he
was
being excluded from what he believed to be his rightful top
management position to the extent that it was rendering his continued
employment relationship intolerable.
21.
An employee alleging that the employer has made a continued
employment relationship intolerable bears the onus of proving the
constructive dismissal. The evidence given by the Third Respondent at
the Arbitration that he had been constructively dismissed
is not
supported by the facts. For example his evidence that he had been
summoned to a disciplinary enquiry as a result of his
absence during
his wife's illness, appears to have been a disingenuous attempt to
gild the lily. His subsequent concession during
cross examination
that the letter had merely been a letter from Lu requesting him to
report to him regarding his absence seems
to have been a deliberate
misrepresentation of the circumstances and a somewhat misguided
attempt to justify his contention that
he had been constructively
dismissed in that Lu’s treatment of him had made a continued
employment relationship intolerable.
22.
Careful consideration of the evidence and in particular the e-mails
sent during 2007 and the Applicant's evidence regarding
his
perception of his seniority suggests that his unhappiness at work was
due to a number of reasons.
23.
The Second Respondent in finding that the Third Respondent had been
constructively dismissed placed considerable weight on the
incident
involving Mr Fan. This conclusion was not justified. It is
relevant that at the time that the Applicant resigned
the Fan
incident had already taken place but the Applicant made no reference
to it at all in his resignation. This suggests that
despite Third
Respondent’s reliance on this as one of the proximate causes of
his constructive dismissal during the arbitration
it was at the time
not. In addition the record of the Arbitration reveals that during
his cross examination the Third Respondent
conceded that his
interpretation of the Fan incident might well have been over- stated
in his evidence in chief. The Second Respondent
also seems to have
disregarded the absence of any indication that the Third Respondent
had raised his concerns prior to the 14
th
February 2008, two and a half weeks before he resigned and that at
the time of the resignation the Applicant was endeavouring to
deal
with the problem.
24.
A constructive dismissal is defined in the Labour Relations Act as
occurring when an employee terminates a contract of employment
with
or without notice because the employer made continued employment
intolerable for the employee –
Section 186
(1) (e) of the
Labour Relations Act No 66 of 1995
.
25. A constructive
dismissal has been said to have taken place where;
"
an
employer has behaved in a deliberately oppressive manner and left the
employee with no option but to resign in order to protect
his or
interest".
Workplace
Law – Grogan at page 115; and
"
mere
unhappiness at work is not enough. Managers, particularly, are
expected to put up with ambiguity, conflict in relationships,
power
struggles, office politics and the demand for performance if not
delivered and no payment is made"
"Workplace
Law – Grogan page 116; see also
Moyo
and Moyo and Standard Bank of South Africa Limited 2005 26ILJ563
(CCMA)
26.
In the matter of Albany Bakeries v Van Wyk and Others (2005)
26ILJ2142 (LAC) it was held that where the employee had at his
disposal a
"perfectly legitimate
avenue open to alleviate his stress and solve his problems the
circumstances suggest opportunism".
This
matter there is abundance evidence to suggest that the procedure
followed by the Third Respondent was designed to establish
a
constructive dismissal and that in so doing he did not avail himself
of the formal resolution procedures or processes set up
by the
Applicant immediately prior to his resignation.
27.
What is abundantly clear from the evidence and the evidence of the
Third Respondent of the Arbitration was that he had set about
a
carefully planned process of endeavouring to establish a
constructive dismissal on his resignation.
28. In the matter of Old
Mutual Group Schemes v Dreyer and Another 1999 20ILJ
203A (LAC) it was held by Conradie
J that;
"billikheid
sal normaal weg ook vereis dat 'n werknemer wat met sy werkgewer die
opdragte en prosedures ontevrede is, aan
die werkgewer 'n geleentheid
bied om sake waaroor daar onmin bestaan reg te stel. 'n werknemer
kan, afgesien van ekstreme situasies,
dus nie maar net uit die bloute
bedank en dan aanvoor dat die diensverhouding onuithoutbaar geword
het nie"…Dit is
dan ook een van die funksies van 'n
grieweprosedure wat die meeste vooruitstrewende
wergewers tot beskiking van hulle werknemers het. In casu, het die
respondente nie
daarvan gebruik gemaak nie. Die Appellant het
derhalwe geen gelentheid gehad om op 'n gestruktureerde wyse aan die
Respondente
se klagtes aandag te gee nie".
29.
In Murray vs Minister of Defence 2008 29ILJ 1369 (SCA) it was said by
Cameron AJ
"it
deserves emphasis that the mere fact that an employee resigned
because work has become intolerable does not by itself
make for a
constructive dismissal. For one thing an employer may not have
control over what makes conditions intolerable. So the
critical
circumstances "must have been of the employers” making".
But even if the employer is responsible it may
not be to blame. There
are many things that the employer may fairly and reasonably do that
may make an employee's position intolerable.
More is needed: They
must be culpably responsible for the intolerable conditions: The
conduct must (in the formulation the Courts
have adopted) have lacked
reasonable and proper cause. Culpability does not mean the employer
must have wanted or intended to
get rid of the employee although in
many cases of constructive dismissal that is the case".
30.
Taking the above into account and as the
record in this matter reveals that the first time the Third
Respondent raised his concern
regarding his treatment by Mr Lu in
writing with the Applicant was on the 4
th
February, in the face of clear evidence that the Third Respondent’s
issue was in the process of being dealt with; the
Third
Respondents resignation can only be described as deliberate and
premeditated and his resignation does not constitute a constructive
dismissal.
31.
It is common cause that the applicable test
on review is as set out in the matter of Sidumo and Another vs
Rustenburg Platinum Mines
Ltd and Others (2007) (28) ILJ2405, to
which both parties referred to extensively in their Heads of
Argument. I am of the view
that the decision reached by the Second
Respondent is reviewable and that the award made by the Second
Respondent should be set
aside.
32. I accordingly make
the following order:
1. The
Second Respondent's award that the Applicant was constructively
dismissed and that the company pay the Third Respondent an
amount of
R54 000 is reviewed and set aside and substituted with an award that
the Third Respondent was not constructively dismissed.
2. The
Third Respondent to pay the Applicant's costs.
_______________
GUSH
AJ
Date
of Hearing: 2 December 2009
Date
of Judgment: 27 January 2010
Appearances:
For
the Applicant: Adv PJ Wallis instructed by Deneys Reitz
For
the Respondent: J Forster-Forster Attorneys