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[2011] ZALCJHB 141
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Plastic Sign Manufacturing (Pty) Ltd v Phetha NO and Others (JR 831/08) [2011] ZALCJHB 141 (5 May 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD ATJOHANNESBURG
Case
No: JR 831/08
Not
reportable
In
the matter between:
PLASTIC
SIGN MANUFACTURING (PTY) LTD
..........................................
Applicant
And
COMMISSIONER MPHO
PHETLA N.O
...........................................
First
Respondent
CENTRE
FOR DISPUTE RESOLUTION:
A
DIVISION OF THE METAL AND
ENGINEERING
INDUSTRIES BARGAINING
COUNCIL
.....................................................................................
Second
Respondent
MARY
STARK
.................................................................................
Third
Respondent
JUDGMENT
Bhoola J
Introduction
[1] This is an application to review and
set aside an award of the first respondent (the arbitrator) issued
under the auspices of
the second respondent dated 23 April 2008, in
which the third respondent (the employee) was found to have been
constructively dismissed
and awarded compensation equivalent to ten
months’ remuneration, namely R79 300.00.
Factual background
[2] The facts are largely common cause and
relate to events following an altercation at the workplace between
the employee and Kathleen
Poultney, the Financial Manager of the
applicant who was the employee’s supervisor and who is also her
sister.
[3] The altercation took place on 30
November 2007 when Poultney returned from leave and the employee had
commenced working mornings
only. The arbitrator described the
evidence of the employee in this regard as follows:
4.4…The only
instruction she had received from Pourtney (sic) related to the doing
of VAT work. She stated that during the
ensuing argument with
Pourtney they had both screamed at each other. When Wilson
intervened, she took the view that she knows that
it cannot go on
like this between her and Pourtney. When it was put to her that she
had said she is fed up, in answer she said
that “wouldn’t
you if somebody sat next to you and screamed”. She further said
that she had then taken her bag
and left. She further stated that she
phoned her husband to tell him that she (sic) had been told to leave
and had just lost her
job. She further stated that on that moment the
word (sic) “you are fired” was never used and further
that she was
so upset and had never told the employer that she does
not agree with him. During the ensuing argument she was frustrated
and the
employer knew that she wanted to go
.
Grounds of review
[4] The arbitrator committed gross
irregularities in that he misconstrued the nature of the dispute
referred by the employee as
well as the evidence. In amplification of
this submission the applicant submitted the following:
(a) The 7.11 referral form describes the
dispute as an “unfair dismissal”. The employee did not
tick the block to select
“constructive” as the reason for
her dismissal and instead selected “unknown”.
(b) In the form 7.13 request the employee
stated that she was :”told to leave 14/11/2007 because of
personal disagreement
with financial manager”.
[5] Based on the aforesaid, the applicant
submitted that there could have been no doubt in the arbitrator’s
mind that the
employee was alleging an unfair dismissal and had not
been constructively dismissed. Even if this were opened to some doubt
however,
the applicant submitted, the evidence of the employee
herself established as much during the arbitration. Her testimony was
replete
with references to the effect that she did not resign. She
stated: “No I did not resign”; “It cannot be a
constructive
dismissal, I was not fired”; “...would you
not be fed up if somebody told you, you have just been fired..”;
“I
have just been told to leave, I have just lost my job”;
and “I mean I was fired, so I was told to leave anyway”.
Under cross-examination she responded to a question about whether she
was sure that she was not fed up and decided to leave with
the reply
that she was “100% sure”. In her closing argument she
unequivocally stated “I did not resign my job,
that is a lie”
and that “I was fired”.
[6] Thus it could not
have been opened to any doubt that her dispute related to an unfair
dismissal not a constructive dismissal.
This is further confirmed by
the evidence of the three witnesses who testified on the applicant’s
behalf. Therefore, the
only issue before the arbitrator was the
dispute of fact concerning the dismissal or resignation of the
employee. In his conclusion
however, the arbitrator stated:”This
scenario resembles the so-called constructive dismissal cases where
the employer’s
conduct makes continued employment intolerable
for a worker with the result that a worker terminates employment
involuntarily”.
The
applicant submits that there was no evidence to substantiate such a
finding and accordingly no
nexus
exists between the
evidence and the conclusion reached by the arbitrator. This finding
is even more incongruous given the correct
definition by the
arbitrator of the issue to be determined as “whether the
employee was dismissed and, if so, whether such
was procedurally and
substantively unfair?”
Analysis and evaluation
[7] In evaluating the
grounds of review, it would appear from the evidence that none of the
prerequisites for a constructive dismissal
are established or even
emerged during the arbitration.
In
fact the first leg of the test for constructive dismissal as
established in
Pretoria
Society for the Care of the Retarded v Loots
(1997)
18 ILJ 981 (LAC) (at page 983),i.e. that the employee must have
resigned, has not been met. The court in
Loots
(supra) referred to
Jooste v Transnet Ltd t/a
SA Airways
(1995) 16 ILJ
629 (LAC) at 638A–639B when Myburgh J set out the principles
applicable to determining whether a constructive
dismissal had
occurred as follows :
“
...the
applicant resigned, but avers that he was constructively dismissed,
the first factual enquiry is whether, in resigning, the
applicant did
not intend to terminate the employment relationship. The onus is on
the applicant. If the court finds that the applicant
did have that
intention, the enquiry is at an end. Similarly, where the resignation
forms part of an agreement between the applicant
and his former
employer to terminate their relationship, once the agreement is
proved (by the employer) or admitted, the enquiry
is at an end,
unless the applicant contends and proves that that agreement is not
binding. If the applicant is unable to discharge
the onus on a
balance of probabilities, the Industrial Court has no jurisdiction to
determine the dispute concerning the alleged
unfair labour practice.
If the applicant does discharge the onus,
the next enquiry, in a case in which the applicant contends that he
was constructively
dismissed, is whether the employer did
constructively dismiss him.
The onus is on the employee to establish
that there was a constructive dismissal:
Halgreen
v Natal Building Society
(1986)
7 ILJ 769 (IC) at 775D–776I; Grogan
Riekert’s
Basic Employment Law
(2 ed) at
69; PAK le Roux & André van Niekerk
The
SA Law of Unfair Dismissal
at
84.”
[8] In my view, the
approach taken by the arbitrator reflects a manifest failure to apply
his mind to the legal test for constructive
dismissal as well as to
the evidence led, and would render his award unreasonable under the
test pronounced in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405 (CC).
However,
the applicant advances various additional grounds of review,
including the failure to provide reasons for the relief awarded
and
the failure by the arbitrator to apply his mind to the fact that the
employee had not discharged the onus of proving the fact
of her
dismissal. In regard to the latter submission the following is
apposite:
(a) The employee conceded in
cross-examination that “the word fired was not used”;
(b) The employee did not dispute the
evidence of Roy Wilson that the applicant did not dismiss her;
(c) The cumulative evidence of Poultney,
Wilson, Joyce and Russell, who corroborated each other’s
versions was that the employee
said that she was taking her bags and
leaving;
The
evidence of Russell is uncontested as the employee elected not to
cross-examine her;
The
arbitrator made no credibility findings against any of the
applicant’s witnesses.
[9] Mr Jackson
submitted, for the employee, that had the arbitrator applied his mind
to the above evidence he would have determined
that the fact of the
dismissal was not proven. In rejecting Wilson’s evidence that
the employee had resigned he concludes:”[T]his
cannot be the
case for it is trite law that the termination of the employment
during a ‘heated argument’ cannot be
considered as
legally binding”
.
There is no foundation
in law for this illogical conclusion.
[10] It was submitted in opposition that
the arbitrator was required to determine whether there had been a
dismissal in the conventional
sense and it is clear that he
understood this task. However, a number of common cause facts emerged
from which the conclusion was
inescapable that there had been a
constructive dismissal. These include that :
(a) the employee
left
her employment;
(b) she was extremely upset because of a
work-related altercation
with her superior who is also her sister.
[11] Mr Campanella submitted on the
employee’s behalf that her evidence therefore, on the basis of
which the arbitrator justifiably
reached his conclusion that she had
been constructively dismissed, was that she understood that she was
not welcome. The arbitrator
was required to deal with the dispute
fairly and expeditiously and he did so by finding on the evidence
that the employee was intolerably
treated and that any person in
those circumstances would have left. Once the legal niceties are
excluded, it is clear that the
employee left and whether her belief
that she was dismissed can be objectively justified is not the test.
It is sufficient that
her termination was at the instance of the
employer and that constitutes a dismissal. Thus although the award
can be criticised,
there is on the whole clearly an application by
the arbitrator of his mind to the issues and evidence and an
objective assessment
of the evidence.
[12] In essence this amounts to a
submission that because the employee left she can reasonably be
considered to have resigned. This
is however not a conclusion that
can justifiably be reached by a decision-maker applying his mind to
the evidence before him. In
fact, the employee conceded that the
conflict emanated from a personal family dispute and this is what the
arbitrator should have
found. The evidence establishes that there
were personal dynamics that led to the incident in question and the
sense of grievance
felt by the employee, hence her conduct. There was
moreover no evidence to show that the employer had created an
intolerable situation,
another requirement of the legal test for
constructive dismissal. On the contrary, the evidence was that Wilson
had moved his wife
to reduce the conflict at work. To justify the
conclusion of constructive dismissal the evidence had to show that
she had resigned
as a result of an intolerable situation created by
the employer and this was clearly not established. Given that the
full circumstances
of the dispute appear from the record, Mr Jackson
argues for granting of the review as well as substitution with an
appropriate
order to the effect that the referral is dismissed. I
agree with Mr Campanella that it is not in the interests of the
expeditious
resolution of dispute to remit the matter for
reconsideration by another arbitrator.
[13] Also, given my view on the veracity of
the primary ground for review, I do not consider it necessary to deal
with the further
grounds of review based on procedural
irregularities, except to state that they reflect a manifest lack of
understanding of the
process of eliciting evidence for the purposes
of the arbitration and could not have been endorsed by a reasonable
decision-maker
as promoting the resolution of the dispute.
[14] In the premises, I make the following
order:
The award is reviewed and set aside, and
is substituted with an order that the referral is dismissed. The
third respondent is to
pay the applicant’s costs.
_______________
Bhoola
J
Date
of Hearing : 20 April 2011
Date
of Judgment : 5 May 2011
Appearances
For
the Applicant: Adv BM Jackson instructed by Jurgens Bekker Attorney
For
the Third Respondent: Adv J Campanella instructed by L. Cirone
Attorney At Law
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