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[2011] ZALCJHB 87
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Hickman v Tsatsimpe NO (in her capacity as Commissioner CCMA Johannesburg) and Others (JR2354/2010) [2011] ZALCJHB 87; [2012] 5 BLLR 493 (LC); (2012) 33 ILJ 1179 (LC) (20 October 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: JR2354/2010
In the matter between:
MARC
HAROLD HICKMAN
Applicant
and
MAPATO
TSATSIMPE N.O.(in her capacity as COMMISSIONER CCMA JOHANNESBURG)
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
OBAN
CONSULTING (PTY) LTD
Third
Respondent
Heard: 13 October 2011
Delivered: 20 October 2011
JUDGMENT
MALINDI, AJ
The Applicant has brought an application for review
seeking an order:
’
1.
Setting aside the First Respondent’s ruling dated 16 July 2010.
2. Replacing the First
Respondent’s ruling dated 16 July 2010 with the following:
2.1 The Third Respondent on or
about January 2008 constructively dismissed Marc Harold Hickman (the
Applicant).
2.2 The Third Respondent is
ordered to pay compensation of R774 000,00 to the Applicant.
3.
In
the alternative
to
paragraph 2 supra, replacing the First Respondent’s ruling
dated 16 July 2010 with an order, which the Court deems appropriate,
given the evidence led before the First Respondent.
4.
In
the alternative to paragraphs 2 and 3
supra
that the dispute between the Applicant and the Third Respondent be
heard de novo by a commissioner of the Second Respondent
other than
the First Respondent.
5. Costs of the application to
be paid by the Third Respondent.
6. Further and/or
alternative relief.’
1
In her award dated 16 July 2010, the Commissioner made
the following award:
’
6.
AWARD
In the light of my analysis
above I have determined that the Applicant has not demonstrated
that he was constructively dismissed.
The Applicant’s case is
dismissed with costs on party and party scale.’
The grounds of review as set out in the founding
affidavit
2
are that:
“
10.
The First Respondent’s ruling dated 16 July 2010 (Annexure “A”
hereto) is reviewable in that:
she failed to apply her mind
to all the evidence presented to her;
she failed to apply her mind
to the written submissions submitted on the Applicant’s
behalf and the authorities referred
to therein;
she ignored the minutes of the
strategy meeting dated 25 January 2008, a copy of which is annexed
hereto marked “B”;
she failed to:
attempt to locate the bundle
of heads filed with the Second Respondent; and
advise the Applicant’s
representatives that (despite the undertaking given by them) she
did not receive the Applicant’s
heads of argument and heads
of argument in reply;
her decision was arbitrary and
irrational; and
she failed to objectively
apply her mind to the facts, evidence and legal submissions.”
Section 145(2) (a)(ii) of the Labour Relations Act 66
of 1995 (“the LRA”) provides for the review of
arbitration proceedings
under the auspices of the Commission for
Conciliation, Mediation and Arbitration (“the
commission/Second Respondent”)
on the grounds that a
commissioner “committed a gross irregularity in the conduct of
the arbitration proceedings”.
The grounds of review as set out above can easily be
compacted into the ground that the commissioner committed a gross
irregularity
in the conduct of the arbitration proceedings.
6. However, the standard of review as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
3
which poses the question: ‘
Is the decision reached by the
commissioner one that a reasonable decision-maker could not reach?’
is not applicable in the context of an enquiry into whether
constructive dismissal happened or not.
7. In
SA Rugby Players Association and Others v SA
Rugby (Pty) Ltd and Others
4
Tlaletsi AJA stated the enquiry as follows:
‘
[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 s 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 (Edms) Bpk v Jacobs NO and others
(1994) 15 ILJ 801 (LAC) at 804 C-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 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. 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 at 804C-D:
‘
In
practice, however, an Industrial Court would e 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 fainthearted to abort the
proceedings
because of a jurisdictional challenge which is clearly without
merit.’
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 fats 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.’
The SARPA matter had been dealt with as a constructive
dismissal case under Section 186(1)(b) of the LRA
5
.
The
Sidumo
standard would apply if dismissal had
been established and the enquiry into the fairness of such dismissal
was entered into.
Steenkamp J in
Asara Wine Estate & Hotel
(Pty) Limited v JC van Rooyen & Others
6
had regard to the SARPA case and stated the following:
‘
[20]
In most unfair dismissal cases, the existence of the dismissal is
common cause and the enquiry at arbitration – or on
review by
the Labour Court – is whether the dismissal was fair; and
whether the finding of the arbitrator in this regard
was reasonable.
[21] In the case of an alleged
constructive dismissal in terms of section 186(1)(e), though, the
prior question is whether there
was a dismissal. The onus is on the
employee to prove that his resignation amounted to a dismissal. In
order to decide whether
there was a dismissal, the commissioner has
to investigate the full merits of the case. Only then can the
commissioner decide if
there was a dismissal as defined. If so, the
commissioner must still decide whether it was fair. If not, though,
the CCMA did not
have jurisdiction in the first place, even though
the Commissioner can only make that finding ex post facto.
[22] Anomalous as this may seem,
I am bound by the authority in
SA Rugby
. This court also
applied
SA Rugby
in
Member of the Executive Council,
Department of Health, Eastern Cape v Odendaal & Others
. In
that case, dealing with a constructive dismissal, Basson J explicitly
held that the question of whether a dismissal had taken
place goes to
jurisdiction and that the review test as laid down in
Sidumo
does not find application in reviewing a jurisdictional ruling.
[23] The test I have to apply,
therefore, is not whether the conclusion reached by the Commissioner
was so unreasonable that no
commissioner could have come to the same
conclusion, as set out in
Sidumo,
but whether the Commissioner
correctly found that Van Rooyen had been dismissed.’
I proceed therefore to enquire whether the commissioner
correctly found that the Applicant had not been constructively
dismissed.
The brief background facts leading to this case as set
out by the commissioner and as appears in the record of proceedings
are
that:
The Applicant was a 24,5% shareholder in the Third
Respondent, a director of the company and employed as sales
director.
The Applicant had had a long business relationship
with one of the shareholders and director, David Rocke (“Rocke”),
in companies that conducted the same type of business as the Third
Respondent. The Applicant regarded Rocke as his mentor and
friend.
It was he that the Applicant spoke to whenever there were things
that concerned or troubled him in the management and
business
affairs of the Third Respondent.
Between August and December 2007 there were a number
of issues that caused the Applicant unhappiness within the company.
These
essentially related to his view that there were financial
irregularities that were taking place in the company and that the
company was guilty of failure to comply with certain regulatory
requirements and illegal conduct. The Applicant had called for
a
strategy meeting to be held on 25 January 2008 where he hoped his
concerns and unhappiness would be addressed and resolved.
The strategy meeting for 25 January 2008 was convened.
Stepping out of the prepared agenda the other three directors, led
by
Rocke, commenced the meeting by placing on the agenda their
unhappiness with the Applicant as a shareholder and director and
his performance within the company. The events that took place at
the meeting of 25 January 2008 led to the Applicant eventually
tendering his resignation from the company on 1 February 2008. The
Applicant alleges that he was constructively dismissed.
The commissioner states that:
‘
5.3 It
is common cause that the Applicant had raised a lot of issues under
his evidence in chief and conceded during cross-examinations
that
most of these other than warranties; the installation of fibre optic
line and the meeting that took place on 25 January 2008
were not the
issues that led to him resigning and consequently claiming
constructive dismissal. I would therefore not waste time
on those
issues. The focus would be on the issues that the Applicant said led
to him resigning and consequently claiming constructive
dismissal.’
7
An examination of the record reveals that the
commissioner is correct in isolating these three issues as relevant
for examining
whether the Applicant was constructively dismissed.
The question is whether the Third Respondent made continued
employment intolerable
for the Applicant by its conduct when:
It failed to regularise or to comply with the legal
requirements when it installed a certain fibre optic line in order
to carry
voice traffic for clients and needed to secure
connectivity to various other companies in the form of Telkom lines
to provide
a bandwidth to be able to do this, which the Applicant
alleges was illegally installed and the situation existed from
August/September
2007.
It failed to resolve problems of outsourced contracts
under Gregory Wilson’s (“Wilson”) management and
that
warranties on equipment sold by the Third Respondent had not
been secured by back to back agreements with Three Dot Com.
It recorded in the strategy meeting minutes of 25
January 2008 that the Applicant no longer has a role in the company
as a director
and shareholder and that he has not been performing
his role in this regard, and that the other directors do not
believe that
he would ever fulfil a meaningful role in the company.
The narrowing of issues was agreed between the parties
and put on record after the Applicant’s legal representative
had
consulted with the Applicant. The following was placed on
record:
‘
Mr
Du Randt
:
Thank you, Madam Commissioner, thanks for the time. We came to an
agreement, I was going to be [inaudible] by my learned friend,
is
that and if I can summarise this correctly, is that the commissioner
will for purposes of this case, only have to consider all
issues
raised regarding the fibre optic line and the warranty issue.
Therefore all evidence submitted in regard to the rest of
the issues
prior to now the 25
th
,
all those incidents were referred to, can be disregarded.’
8
Before considering the facts surrounding the issues as
set out above, it is convenient to briefly set out the law on the
question
of constructive dismissal.
Section 186(1)(e) of the LRA provides that when ‘an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable for the
employee’, such employee must be considered to have been
dismissed by the employer. The requirement that the prospect of
continued employment be “intolerable” suggests that
this
form of dismissal should be confined to situations in which the
employer behaved in a deliberately oppressive manner and
left the
employee with no option but to resign in order to protect his or her
interests.
9
The requirements for constructive dismissal to be
established have been set out in
Solid Doors (Pty) Limited v
Commissioner Theron and Others
10
as follows:
’
[28]
It should be clear from the above that there are three requirements
for constructive dismissal to be established. The first
is that the
employee must have terminated the contract of employment. The second
is that the reason for termination of the contract
must be that
continued employment has become intolerable for the employee. The
third is that it must have been the employee’s
employer who had
made continued employment intolerable. All these three requirements
must be present for it to be said that a constructive
dismissal has
been established. If one of them is absent, constructive dismissal is
not established.’
Grogan
11
states further that:
’
In
making out a case of constructive dismissal, employees who have
resigned must generally show that they were subject to coercion,
duress or undue influence. Mere unhappiness at work is not enough
.”
As Grogan says, it is not possible to draw up a closed
list of examples of employer conduct that render the situation
intolerable
for employees.
12
The Court’s function is to look at the employer’s
conduct as a whole and determine whether its effect, judged
reasonably
and sensibly, was such that the employee could not be
expected to put up with it. The conduct of the parties has to be
looked
at as a whole and its cumulative impact assessed.
13
Regarding the issue of the illegal installation of the
fibre optic lines, the Applicant alleges that this was an example of
how,
since Wilson joined the company, unethical and unprofessional
conduct entrenched itself. The Applicant testified that he made
other partners aware that the fibre optic lines were installed
illegally and that nobody took him seriously or heeded his warnings.
Wilson had suggested to the other directors that he
could put up a fibre optic line illegally to provide the
connectivity required
at no charge to the company. The Applicant had
raised his concerns and objections when the suggestion was made
between June and
August 2007 but Wilson went ahead to hire the
installation equipment and proceeded with the installation of the
fibre optic lines
during August/September 2007.
The Applicant has contended that the commissioner ought
to have taken into account that he had been compelled to work under
circumstances
where an illegal act was being committed by the
employer. Whilst in general, South African law does not condone
illegality and
that the courts will not enforce the terms or
obligations which flow from an illegal contract, the rule may be
relaxed to prevent
injustice.
14
The rule will not strictly apply in this particular case because the
Applicant is not being coerced to enforce any illegal activity.
He
is the one alleging that the employer is involved in an illegal
activity which he cannot condone and finds intolerable.
Regarding the issue of warranties, it had been a matter
of concern to the Applicant from about March 2007 when they embarked
on
a campaign to clear what the Applicant called a minefield of
financial irregularities. He was given an assurance by both Rocke
and Wilson that the warranties had been put in place by the end of
November 2007 only to be contacted by Three Dot Com later
in January
2008 saying that the Third Respondent had still to secure these
warranties.
The relationship between the Applicant and Rocke had
deteriorated over the past year because Rocke had failed to reign in
Wilson.
The Applicant had been ’so dissatisfied with things’
that he asked for the strategy meeting of 25 January 2008.
The examination of the minutes of the strategy meeting
reflect that after the Applicant had left the meeting, the meeting
proceeded
to discuss company related issues such as the need to
start a black economic empowerment (BEE) arm, the loss of the IBM
contract,
finances of the company, operations of the company, the
budget for 2008, and an analysis of the company’s strengths,
weaknesses,
opportunities and threats (SWOT).
The following was recorded regarding the Applicant:
’
It was
brought up by DR (David Rocke) that MH (Marc Hickman) no longer has a
role in the company as a director and shareholder as
he has not been
performing his role in this regard and there is disbelief between all
the shareholders that he would ever fulfil
a meaningful role.
MH stated that he disagreed with
us however he realised that he was outvoted and said that with the
sentiment around the table he
would rather not be a director and a
shareholder and that we should make him an offer for his shares.
Marc excused himself from the
meeting and it was agreed that he would meet again on Saturday
morning 08:00 to discuss offers.’
After the Applicant had left the meeting, his situation
was discussed further and the following is recorded:
’
The
question was asked
if
Marc exits should we request a hand-over period or
should
he leave immediately. It was unanimously agreed that
it
would be better
if he leaved immediately. (Emphasis added)
A list of customers that MH had
involvement in was made and a plan for each customer put in place on
MH exit from the company.
...
MARC’S BUY OUT
Should sufficient documentation
be in existence and made available from Marc an offer to be made of
Marc of R500 000 non negotiable
made up of R106 000 loan
account and R394 000.
Should this information not be
sufficient an offer to clear Marc’s loan account is to be
made.’
Various handwritten annotations are made on the face of
the minutes. One that is relevant is in relation to the paragraph
about
the Applicant’s buy-out. It reads ’In discussion –
MH would like to stay’. The Applicant testified that
this
annotation was brought about after he had had a meeting with Rocke
on Saturday, 26 January 2008.
At the meeting of 26 January 2008, the Applicant met
Rocke who presented him with two notices to attend a board meeting
of the
Third Respondent and Oban Services on 8 February 2008, the
purpose of which was:
’
(1)
(To)
decide on whether to proceed with disciplinary action against Marc
Hickman for gross misconduct;
To determine whether Marc
Hickman should be suspended from work on full pay, without loss of
benefits, pending the outcome of
the disciplinary enquiry;
To agree on whether Marc
Hickman should be removed as a director from Oban Consulting (Pty)
Ltd/Oban Services (Pty) Limited.’
The two notices are identical save for the fact that
the one refers to the Third Respondent and the other to its
subsidiary.
On Monday, 28 January 2008, the Applicant went to work
as usual and requested a meeting with Rocke. He tabled an offer to
him
that the remaining directors purchase his shares at a fair price
and that he would like to continue working for the Third Respondent,
albeit in a different role such as in a commission only basis. The
mechanics of the commission basis arrangement would be that
he would
split the profit ’on those potential clients and the potential
business, for some of them were existing business,
but there was new
business within those clients on a 50/50 basis with the Third
Respondent’.
At the meeting of 28 January 2008 with Rocke, the
Applicant asked Rocke about the envisaged disciplinary hearing and
he told Rocke
that in his view the disciplinary hearing was a rouse.
Rocke had responded ’Marc, you have been there before, it is
just
simply a process and you know, it must just take its course.’
While he was discussing with Rocke on 28 January 2008,
the Applicant noticed a copy of the minutes of the meeting of 25
January
2008. He returned to Rocke’s office about an hour
later in his absence and made himself a copy of the minutes.
The Applicant continued doing his work until Wednesday,
30 January 2008, when he confronted Rocke in his office where he
asked
him whether they have had any discussions regarding his offer.
He also suggested to Rocke that it would be the right thing to do
to
cancel or withdraw the disciplinary hearing while they were involved
in negotiations. Rocke’s response had been ’Marc,
it is
simply a process, do not concern yourself with it and no, will not
withdraw’.
On the same day, Wednesday, 30 January 2008, the
Applicant approached his attorney for legal advice. He told his
attorney that
on the reading of the minutes it is clear that his
dismissal is a
fait accompli
and therefore that fighting the
disciplinary action would be a futile exercise. In his view, it was
clear from the minutes that
the other three directors wanted an
immediate break and were not interested even in a hand-over period
or continuing employment
in any capacity. His attorney advised him
that he has a case for constructive dismissal. He decided to resign.
The resignation
occurred on 1 February 2008 before the Board meeting
scheduled for 8 February 2008. The letter reads as follows:
’
1. In
light of recent events, of which you are aware, and which events will
be more fully set out at the appropriate time and in
the appropriate
forum, my continued employment with Oban Services (Pty) Limited and
Oban Consulting (Pty) Limited has been rendered
intolerable.
2. Furthermore, certain
irregularities, which I do not wish to be a party to and cannot
condone, have occurred in regard to the
business practises of Oban
Services (Pty) Limited and Oban Consulting (Pty) Limited. I will
expand upon these irregularities at
the appropriate time and in the
appropriate forum.
3. In the circumstances, I have
been left with no choice but to resign as an employee and as a
director of Oban Services (Pty) Limited
and Oban Consulting (Pty)
Limited with immediate effect, which I hereby do.
4. Kindly forward to me the
necessary documentation for me to sign in order to formally resign as
a director of Oban Services (Pty)
Limited and Oban Consulting (Pty)
Limited.
5. All my rights are reserved,
including my right to refer a dispute to the CCMA in respect of
constructive dismissal.’
After setting out the Applicant’s and
Respondent’s evidence, the commissioner correctly set out the
requirements for
constructive dismissal and relied on the case of
Smithkline Beecham (Pty) Ltd v CCMA and Others
15
that an employee who claims to have been constructively dismissed
should prove that the employer’s conduct was so
intolerable/unbearable
to a point where he/she had no choice but to
resign. The
Smithkline
dictum has to be qualified by the
dictum in
Jordaan v CCMA
16
where Davis JA says that the continuing work relationship needs to
have become ’so intolerable that no reasonable option,
save
for termination is available.’
The commissioner concluded that the Applicant had
failed to discharge the onus on him to prove that he resigned
because of the
intolerable conduct by the Respondent. She concluded
that the Applicant was unhappy as a shareholder and he decided to
leave
and be paid his shares.
17
The commissioner also rejected the Applicant’s
contention that the issues relating to the fibre optic lines and
outstanding
warranties on equipment sold to clients constitute
conduct that rendered continuing employment intolerable and that the
Applicant
had not lodged any formal grievance or complaint regarding
these matters. She found that the Applicant resigned because he was
not happy as a shareholder about how the business was run. In her
view, the fact that the Applicant had suggested that his shares
be
purchased and that he be allowed to work as an employee, albeit on a
commission basis, shows that the Applicant did not find
it
intolerable to work for the Third Respondent.
18
The commissioner also came to the conclusion that since
she had found that the Applicant had failed to discharge the onus
that
he was constructively dismissed there would be no point
therefore in her assessing whether his dismissal was fair because
this
enquiry is only permissible if it is held that constructive
dismissal has been established.
I cannot come to the conclusion that the decision
reached by the commissioner is wrong. The commissioner is correct
about the
issues that she had to decide and demonstrated a full
appreciation of the whole conspectus of the evidence before her.
Based
on the evidence as a whole as set out in her award, she
correctly reached the decisions that she came to. I will elaborate
and
add to her reasoning below.
It requires emphasising that the Applicant accepted
that he would be ’exited’ as a shareholder and director
and that
negotiations would start on how he could be retained as an
employee in the same or other position including on a commission
basis.
He therefore did not find it intolerable working for the
Third Respondent even at the time that he was told that he no longer
has a role in the company as a director and shareholder. He also did
not find the situation as it existed on 25 January 2008 likely
to
endure for a period that justified termination of the relationship.
He in fact testified that the fibre optic line and warranties
issues
were not the cause for his resignation and that he would not have
resigned if he had not seen the minutes of the strategy
meeting of
25 January 2008 on 28 January 2008.
If the illegal fibre optic line and warranties issues
were not the cause for the Applicant’s resignation then his
resignation
has to be considered as from 25 to 30 January 2008. The
only thing that happened in this period that would have prompted the
Applicant’s resignation is what happened at the strategy
meeting, receipt of the special board meeting notices, Rocke’s
refusal to cancel or withdraw the notice for a special board meeting
where potential disciplinary action was to be discussed
and the
Third Respondent’s ‘delay’ to make the Applicant
an acceptable offer when he confronted Rocke on Wednesday,
30
January 2008.
It is clear from the above that the Applicant was
advised by his attorney to resign in order to avert the risk of a
dismissal
if the disciplinary action was proceeded with. His
voluntary conduct was to resign. It was not the employer’s
conduct that
coerced the resignation.
The same result will apply even if this period were
taken together with the other two issues. Neither, on their own or
taken together,
created an intolerable environment for the
Applicant.
What is more probable is that the Applicant resigned in
order to avoid the disciplinary action for gross misconduct which
Rocke
had indicated will not be withdrawn when the Applicant met him
on Wednesday, 30 January 2008.
Furthermore, the Applicant’s contention that his
dismissal was a
fait accompli
is not as clear cut as he
suggests. Although the minutes of 25 January 2008 state that the
three other directors do not believe
that the Applicant ’would
ever fulfil a meaningful role’ in the Third Respondent, the
directors asked themselves
whether
if
[emphasis added] the
Applicant exited the Third Respondent as a shareholder and director
he should serve a hand-over period or
whether he should leave
immediately. This is not a conclusive statement that there was
rigidity about when he could leave and
that it would all be
dependant on whether he does exit or not. However, it was the
directors’ view that if he exited as
a shareholder/director
and employee ‘it would be better if he leaved (sic)
immediately’. The Applicant could, and
should, have fought
these allegations at the Board meeting or at the disciplinary
hearing if it ever materialised.
The arrangements that were made regarding how to manage
the Applicant’s customers were based on the contingency plan
in
the event that he would have left immediately or even if he left
after serving notice but before another director sales or person
in
a similar position was employed.
It was also decided at the strategy meeting to convene
a special board meeting to consider and decide on the issues set out
in
the notices. In other words, the drawing of the notices for the
Board meeting on 8 February 2008 was not an after-thought. It had
been decided at the meeting of 25 January 2008.
It is clear from these notices that it was still open
to the Applicant to challenge the other directors’ view of 25
January
2008 that he no longer had a role as shareholder/director in
the Third Respondent. It is also clear that had the directors
concluded
that there were grounds to institute disciplinary action,
it would have had to be decided whether he should be suspended or
not
pending the hearing. Furthermore, whether the Applicant should
be dismissed for a dismissible offence or not would have been the
decision of the enquiry, not that of the Board.
The Applicant decided to resign in order not to subject
himself to this process. The probabilities are that he chose the
constructive
dismissal route over the risk of being dismissed for
poor performance. An employee who resigns rather than face a
disciplinary
enquiry will not generally be held to have been
constructively dismissed.
19
Steenkamp J in
Asara Wine Estate & Hotel (Pty)
Ltd v J C van Rooyen and Others
20
considered the recent dictum of the LAC in
Jordaan v CCMA
21
where the Court cited with approval its earlier decision in
Old
Mutual Group Schemes v Dreyer
22
where Conradie JA said:
’
Buitendien
sou so ’n werknemer wat uit die bloute bedank dit gewoonlik
moeilik vind om ’n hof te oortuig dat hy werklik
konstruktief
ontslaan is. Die bewyslas rus op die werknemer ... Die bewyslas is
nie ’n ligte een nie ... Dit is nie vir ’n
werknemer
maklik om aan te toon dat ’n werkgewer die voorsetting van sy
diens onuithoudbaar gemaak het nie. Hy kan hom nie
maar net op
frustrasies en irritasies verlaat en hom bekla oor reëls wat vir
alle werknemers geld, maar hom nie aanstaan nie.
Net soos ontslag is
’n gedwonge bedanking ’n allerlaaste opsie. Dit is ’n
uitweg wat ’n werknemer nie mag
volg terwyl daar nog ander
uitweë is nie.
’
and Davis JA, concurring with
the dictum in
Dreyer
said:
‘
This
dictum represents a salutary caution that constructive dismissal is
not for the asking. With an employment relationship, considerable
levels of irritation, frustration and tension inevitably occur over a
long period. None of these problems suffice to justify constructive
dismissal. An employee, such as appellant, must provide evidence to
justify that the relationship has indeed become so intolerable
that
no reasonable option, save for termination is available to her.’
Steenkamp J found it to be a correct statement of the
law that where the employee has the option of facing a disciplinary
hearing
but resigns, there can be no talk of constructive
dismissal.
23
He found that facing a disciplinary hearing is an alternative to
resigning.
24
The conclusions that the commissioner reached were
based on the version of the Applicant and the admissions or
concessions made
by the Respondent’s witnesses. On the
consideration of the evidence as a whole, the commissioner, based on
the evidence
before her, correctly came to the conclusion that the
Applicant has failed to discharge the onus that he bears of
establishing
constructive dismissal. The commissioner therefore did
not commit a gross irregularity in the conduct of the arbitration
proceedings
as envisaged in Section 145 of the LRA.
It was argued on behalf of the Applicant that I should
find that by not referring to the illegality of the fibre optic line
the
commissioner had committed an error of law which amounts to a
gross irregularity.
Similarly, I was urged to find that the commissioner’s
failure to deal with the dispute of facts whether the Applicant’s
performance was poor or not constitutes a gross irregularity
entitling the Applicant to have the award reviewed and set aside.
Lastly it was argued on behalf of the Applicant that
because the commissioner had had no regard to the Applicant’s
heads
of argument when deciding the matter, the Applicant was denied
a fair hearing because the Applicant’s submissions on factual
and legal points were lost to the commissioner who slavishly
followed the Respondent’s submissions.
In
Southern Sun Hotel Interests (Pty) Limited v CCMA
and Others,
25
Van Niekerk J held that:
’
If a
commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant ... and a party is
likely to be
prejudiced as a consequence, the commissioner’s decision is
liable to be set aside regardless of the result
of the proceedings or
whether on the basis of the record of the proceedings, that result is
nonetheless capable of justification.’
and in
SA Airways (Pty) Limited v Blackburn &
Others
26
that:
’
Here,
in order to succeed on review, the applicant does not have to prove
that the result of the award was unreasonable (i.e. incapable
of
justification), but rather that the result may have been different if
the commissioner had acquitted himself or herself properly.’
(original emphasis
)
and in Sasol Mining (Pty) Limited v Ngeleni and
Others
27
’
... if
the act of process-related unreasonableness equates to a latent gross
irregularity, then, in order to succeed on review,
the applicant
would have to establish no more than that the result of the award may
(and not would) have been different if the
commissioner had properly
acquitted him or herself’ (original emphasis)
It is trite law that the mere fact that a commissioner
does not refer to certain facts in his/her award does not
necessarily imply
that he/she did not apply his/her mind to them.
28
An inference may be drawn that a commissioner failed to apply the
mind to the issues if “a matter of great significance
or
relevance to one or more of such issues” is not referred to in
the award. Such matter of great significance or relevance
must be
critical to the issue of relief sought.
29
The question whether the Respondent changed tactic in
respect of the reasons why it believed that the Applicant could play
no
further meaningful role in the Third Respondent would be relevant
only if the second enquiry – i.e. whether the dismissal
was
fair if the Applicant establishes constructive dismissal –
were to be entered into. Since the Applicant has failed
to establish
constructive dismissal, this factor is irrelevant to the first
enquiry. It will be remembered that the minutes of
the strategy
meeting stated that the Applicant was a poor performer whereas in
these arbitration proceedings the Respondent argued
that it was
prepared to negotiate a new role in sales for the Applicant because
he is a good salesperson.
Regarding the question of the illegal fibre optic line,
the commissioner found that this issue, which was common cause as
far
as its illegality was concerned, was not the cause of any
intolerable employment environment. She correctly found that as
illegal
as this might have been, the Respondent did not engage in
this conduct in order to coerce or exert undue influence on the
Applicant
in order to force him to resign. In other words, it was
not a conduct deliberately directed at the Applicant in order to
create
an intolerable environment for him. I find that this factor,
though significant and relevant, does not go to the core of the
first enquiry – i.e. whether it was conduct by the employer
aimed at forcing the Applicant out.
Regarding whether the Applicant was not afforded a fair
procedure in the form of
audi alterem partem
by virtue of the
commissioner not having had his heads of argument when considering
her decision, I find that it is clear from
the award that the
commissioner had captured the evidence fully and that she answered
the essential factors for the enquiry on
constructive dismissal
despite not having had the benefit of the assistance of the
Applicant’s heads of argument. The Applicant
was not
prejudiced thereby.
Even if I am wrong in finding that the commissioner had
taken these material and relevant factors into account, I have taken
them
into account in this ruling which will amount to a correction
of the award. It is common cause between the parties that this Court
may correct a commissioner’s award instead of referring it
back to the Second Respondent.
The commissioner agreed with the Respondent that the
Applicant’s case is frivolous and vexatious. There is no
reason to
have come to this conclusion. In his subjective mind, the
Applicant believed he had a case for constructive dismissal. This
perception
was based on some facts such as the two irregularities
that prevailed and the fact that instead of being assured at the
strategy
meeting that these would be attended to, he was confronted
with an allegation that he was a poor performer and subsequently
advised
of an intention to suspend him and institute disciplinary
proceedings against him. Although the application was ill-founded,
it was not outlandish. I do not agree that it was frivolous and
vexatious. However, this finding will have no effect on the costs
order to be made and the costs will follow the result.
After the award was delivered on 16 July 2010, the
Applicant served this review application on 16 September 2010. After
the Applicant
had failed to file the record of the arbitration
proceedings in terms of Rule 7(A)(b) by 21 January 2011, the Third
Respondent
gave notice of its intention to bring an application in
terms of Rule 11, seeking an order to dismiss the review application
on account of the excessive delay in proceeding with the review.
The Rule 11 application was abandoned after the
Applicant complied with Rule 7A (6) on 25 February 2011. The costs
of the Rule
11 proceedings shall be costs in this application.
In the circumstances, the following order is made:
The review application is dismissed.
The Applicant is ordered to pay the costs of the
application on a party and party scale.
The costs of the Rule 11 application are costs in
this application to be paid on a party and party scale.
_____________________
MALINDI, AJ
APPEARANCES:
APPLICANT Adv Booysen
THIRD RESPONDENT Mr Du Randt
1
Notice
of motion, pages 1-2.
2
page
11, paragraph 10 to page 12, paragraph 10.6.
3
2008
(2) SA 24
(CC) at paras 39-41.
4
(2008)
29 ILJ 2218 (LAC)
5
at
paragraph [2].
6
Case
No. C272/2010: delivered on 24 August 2011 at paras 20-23.
7
Award,
page 55, paragraph 5.3; see also page 53, paragraph 4.1.11.
8
Record,
page 1763, lines 10-17.
9
John
Grogan
Workplace Law,
9
th
ed, (2007) Juta , at
115.
10
(2004)
25 ILJ 2337 (LAC) at paragraph [28].
11
Workplace
Law
at 116.
12
Workplace
law
at 115.
13
Marsland
v New Way Motor and Diesel Engineering
(2009) 30 ILJ 169 (LC) at
188 G.
14
“
Kylie”
v CCMA and Others
(2010) 31 ILJ 1500 (LAC).
15
(2000)
9 ILJ (LC).
16
[2010]
12 BLLR 1235
(LAC) 1239 B-E.
17
Award,
page 56, paragraph 5.4.1.
18
Record,
page 56, paragraphs 5.4.2 and 5.4.3.
19
Workplace
law
at 117
20
Case
No. C272/2010, delivered 24 August 2011.
21
[2010]
12 BLLR 1235
(LAC) at 1239 B-E.
22
(1999)
20 ILJ 2030 (LAC) at 2036.
23
See
also
Smithkline
at 45.
24
at
[39] [42].
25
[2009]
11 BLLR 1128
(LC).
26
[2010]
3 BLLR 305
(LC) at 313 D-E.
27
[2011]
4 BLLR 404
(LC) at para [10].
28
Country
Fair Foods (Pty) Limited v CCMA and Others
(1999) 20 ILJ 1701
(LAC) at 1717 C/E.
29
Maepa
v CCMA and Another
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC) at paragraph 8.