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[2011] ZALCCT 10
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Value Logistics Ltd v Basson and Others (C1025/09) [2011] ZALCCT 10; (2011) 32 ILJ 2552 (LC) (26 May 2011)
STEENKAMP J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT CAPE TOWN
Reportable
Case No: C1025/09
In the matter between:
VALUE LOGISTICS LIMITED
….........................................................................
Applicant
and
PETRUS JOSEPHUS WILHELMUS
BASSON
…..................................
First
Respondent
NATIONAL BARGAINING
COUNCIL FOR
THE ROAD FREIGHT INDUSTRY
…...............................................
Second
Respondent
GAIL McEWAN N.O
.
….........................................................................
Third
Respondent
Date of hearing: 17 May
2011
Date of judgment: 26 May
2011
JUDGMENT
STEENKAMP J
Introduction
This
application for review raises the question when an employee can be
held to be constructively dismissed, and when an employer
can be
said to have made continued employed “intolerable” as
envisaged by section 186(1) (e) of the Labour Relations
Act
1
(“the
LRA”).
The
applicant, Value Logistics Ltd, seeks to have an arbitration award
(“the award”) handed down by the third respondent,
Commissioner Gail McEwan (“the Commissioner”) under the
auspices of the second respondent, the National Bargaining
Council
for the Road Freight Industry (“the Bargaining Council”)
on 7 November 2009 reviewed and set aside in terms
of the provisions
of section 145 of the LRA.
Synopsis
of material facts
The
Applicant conducts the business of
logistics and
warehousing for its customers.
The
First Respondent, Mr Pieter Basson (“Basson”) commenced
employment with the Applicant on 4 September 2006 as its
Regional
Human Resources Manager for the coastal regions of Western Cape,
Eastern Cape and Kwa-Zulu Natal. At the time of his
dismissal,
Basson reported directly to Ms Ruth Sibisi (“Sibisi”),
the Applicant’s Senior Human Resources Manager.
Before
Sibisi’s appointment, Basson reported to Ms Vanessa Morais
(“Morais”), the Applicant’s Divisional
Director:
Human Resources. Sibisi and Morais were based in Johannesburg and
Basson was based in Blackheath, Cape Town.
Basson
was not coping with his workload. For example, when he returned from
leave on 29 January 2009, he was told that 40 drivers
had to be
hired by 6 February 2009. He found this impossible to do.
On
14 April 2009, Morais removed the Kwa-Zulu Natal coastal region from
his responsibilities. The applicant submitted that the
intention
behind this was to enable Basson to focus on the Western and Eastern
Cape coastal regions, as he was not coping with
his workload.
Notwithstanding the reduction in his workload, Basson failed to meet
his required deliverables. Morais and Sibisi
addressed Basson’s
poor performance with him informally. It is common cause that no
formal performance counseling sessions
culminating in a written
record were held. Conflict ensued between Basson on the one hand and
Sibisi and Morais on the other
hand.
On
13 May 2009, an unprotected strike commenced at the Applicant’s
premises in Cape Town. Sibisi flew to Cape Town to assist
Basson
with the handling of the strike. Employees of the Applicant
(including Basson) were all called upon to work long and difficult
hours during the strike.
Following
the strike, Basson was booked off work for medical reasons for the
period 18 May 2009 to 29 May 2009. He faxed a medical
certificate to
the Applicant on Sunday 17 May 2009. The nature of his illness was
indicated as “uitputting, spanning”
[exhaustion,
stress].
Basson
did not contact either Morais or Sibisi to do a telephonic handover
of the urgent work he was responsible for. He denied
that there was
any obligation on him to do so and submitted that, due to his stress
and exhaustion, he was unable to do so.
Because
Basson had not contacted Morais or Sibisi, they did not know what
work needed to be attended to during his absence. On
Monday 18 May
2009, Morais made several attempts to contact Basson telephonically.
Morais finally managed to speak to Basson’s
wife who informed
her that Basson had gone to the family farm outside Robertson to
rest and that cellphone reception was patchy
and intermittent.
Morais then sent Basson a sms message requesting that he contact her
urgently.
Basson received Morais’s sms message at
approximately 15h30. He phoned her at approximately 17h00. At this
time Morais informed
him that she had already taken steps to oversee
his functions.
She explained that, as she was
unable to contact Basson during the course of the day on Monday 18
May 2009 to ascertain what work
needed to be attended to, she had
arranged for Basson’s office to be opened and all the
documentation therein to be couriered
to her in Johannesburg so that
she could attend to Basson’s unresolved work and oversee his
functions.
On
25 May 2009 (a week earlier than initially indicated), Basson
returned to work. He contacted Morais to inform her of his return
and that there was no paperwork in his office. Morais explained that
she had been overseeing his work in his absence and therefore
she
was in possession of his paperwork. As Basson had been booked off
work for two weeks, Morais requested that Basson consult
with his
doctor before returning to work to ensure that he was fit to resume
his duties. Basson agreed to do so. Thereafter Basson
remained off
work until 1 June 2009.
On
1 June 2009, Basson finally returned to work. On his return, Morais
gave him a letter setting out the implications and consequences
of
his failure to conduct a telephonic handover. Morais explained that,
while the company respected his entitlement to sick leave,
she was
concerned that he had not contacted her or Sibisi; and that matters
that were unresolved or unattended as a result, had
caused her as
divisional HR manager a great deal of stress and embarrassment.
One
of Basson’s duties was to provide Sibisi with monthly reports
pertaining to his duties. According to the applicant,
Basson was
consistently late with such reports and when reports were submitted
on time the reports were incorrect and/or incomplete.
However, it
appears from Basson’s answering affidavit that the report was
only late twice. Basson further alleged that
reports were in fact
handed in on time, but the format kept changing; however, the emails
he relied on to prove this allegation
which were attached to his
answering affidavit, were not submitted at arbitration and did not
form part of the evidence before
the Commissioner.
On
11 July 2009, Sibisi telephoned Basson. She says that she addressed
his poor performance with him on this occasion. He denies
it, and
says that she phoned him and made “certain cryptic remarks
about my family and my health”. At the arbitration,
he
testified that Sibisi told him that his family needed him and that
he was “more important alive than not being there
at all.”
He said that he did not know what to make of that at the time.
Sibisi testified at the arbitration that she telephoned
Basson on 11
July 2009 as she was getting very frustrated about the late
submission of monthly reports; that his work was deteriorating
to a
point that was becoming embarrassing for her; and that he had to
improve, especially since the pressure of the KwaZulu-Natal
region
had been taken away from him. Basson did not cross-examine her on
that evidence.
On
15 July 2009, while Basson was on his way from a meeting in
Killarney Gardens, Sibisi phoned him again. According to him, she
was shouting and screaming at him and called him a “stupid
idiot”. She complained about delays in an interviewing
process
and certain appointments. Sibisi confirmed the telephone call and
her complaints; she explained that she was getting
very frustrated
and that Basson was not managing the region properly. She denied
calling him a “stupid idiot” or
swearing at him.
Instead, she said that she informed him that she felt he was not
working with her and that she was concerned
that he was not giving
her any feedback. According to her, Basson failed to provide any
satisfactory explanation for his poor
performance, his failure to
meet deadlines or his failure to communicate with her.
On
the same day, 15 July 2009, Basson handed in a letter of
resignation, effective 31 August 2009. His resignation letter
stated,
inter alia
, that his resignation was “due to
continuous unfair and extreme pressure” which allegedly caused
his health to deteriorate
and also had a negative impact on his
personal and family life. He simultaneously applied for leave for
the period 17-31 August
2009. He submitted his leave form, pension
fund withdrawal notification and exit interview questionnaire with
the resignation
letter.
Later
on 15 July 2009, Sibisi contacted Basson telephonically to discuss
his progress on recruitment and the HR Monthly report
that was due
on 25 April 2009 but which Basson had failed to complete properly.
During this telephone conversation, Sibisi asked
Basson why he had
resigned and stated that she did not like having to constantly
“fight with him” due to his failure
to meet his
deliverables. Basson testified that she
apologised
for
the way she had spoken to him earlier in the day, adding that “we
are all under stress and under pressure.” Basson
was meant to
go to Johannesburg the next day, but Sibisi told him not to go, as
he had already handed in his resignation. Basson
also telephoned
Morais that evening. According to Basson, Morais said to him, “your
family needs you more now and that
is ultimately why I resigned”.
The
applicant formally accepted Basson’s resignation on 16 July
2009 and acceded to his request that he be granted leave
from 18 to
31 August 2009, despite the fact that it was part of his notice
period.
On
20 July 2009, Basson sent an e-mail to the applicant stating that he
wished to withdraw his resignation. The attached letter,
in the form
of a memorandum on a Value Logistics letterhead and addressed to
Morais and copied to three others, reads as follows:
“
Dear Vanessa,
My resignation dated 15
th
July 2009 refers and I would like to withdraw such resignation with
immediate effect and I would like to bring the following under
[
sic
]
your attention as support to such withdrawal, re:
During my employment period at
the Company, I have given my best and total commitment to my roles
and responsibilities and have
in several instances went [
sic
]
beyond the call of duty to put the Companies [
sic
] interest
first and as a priority.
I have been under tremendous
pressure lately due to the workload and I have realized that because
of the workload that I could
not get through everything on time as I
previously were [
sic
] able to do so, and this is the reason
my performance and service delivery to you and the Company has been
compromised.
On Wednesday 15
th
July 2009 I got a telephone call from Ruth Sibisi where again I was
humiliated, belittled and made to feel worthless which resulted
in
the irrational decision to rather resign.
After given [
sic
] a lot
of thought to the matter and discussing such resignation with some
of my colleagues, and coming across the following quote,
re: ‘The
spirited horse, which will try to win the race of its own accord,
will run even faster if encouraged.’
I realized that I am not
worthless and cannot just give up my responsibilities. I have
previously added Value to the Group and
I know I still can be of
further value to the team and the Group and therefore wish to
withdraw my resignation and possibly be
afforded the opportunity,
with some form of support and assistance, to again be able to make a
sustainable difference.
I will accept whatever decision
you make, however should it be appositive [
sic
] decision also
be afforded the opportunity to meet with you in person to discuss my
responsibilities and how I can/should reach
such goals.
I am looking forward to your
soonest response and should there be any further questions and or
uncertainties, please contact the
writer.
Thank you & kind regards,
Pieter JW Basson
Regional HR Manager
(Western Cape; Eastern Cape).”
During
the arbitration, Basson testified that he had said to his wife,
“Maybe I just reacted a little too quick as a last
resort,
maybe I must go back and maybe we must try and sit and talk around
the table about it” –hence his attempt
to withdraw the
resignation. However, Morais informed Basson that the Applicant was
not prepared to consider the withdrawal of
his resignation.
On
27 July 2009, Basson was booked off work on sick leave for the
duration of his notice period. The nature of illness on the
medical
certificate was indicated as “persoonlik” [“personal”].
On
28 July 2009, Morais requested that Basson specify the nature of his
illness. Basson refused to do so. Notwithstanding this,
his sick
leave was processed.
2
On
1 August 2009 Basson referred a dispute to the CCMA for
conciliation. Basson’s referral form stated that the nature of
the dispute was an unfair
labour
practice,
unilateral change to the terms and conditions of his employment,
unfair discrimination, and automatically unfair dismissal.
Basson
summarised the dispute as “[u]nfair working conditions that
lead to humiliation, belittlement and unfair victimisation
which led
to forced dismissal without any corrective measures taken by the
company”.
The
matter was unresolved at conciliation and a certificate of outcome
to this effect, dated 15 September 2009, was issued. Basson
abandoned his claim that he was victimised and confirmed that the
only dispute he was pursuing was in terms of section 186(e)
of the
LRA. Basson claimed that he was left with “no choice but to
resign.”
The
arbitration
The
arbitration was held on 3 November 2009.
Sibisi represented
the Applicant and Basson represented himself.
At
the conclusion of the arbitration, Basson handed a bundle of
documents to the Commissioner. She accepted such documents into
evidence without providing Sibisi with a copy thereof. No evidence
was led on the documents.
The
arbitration award
The
Commissioner found that Basson was constructively dismissed due to
the “oppressive and unreasonable work environment”
created by the Applicant which left Basson with “no
alternative” other than to resign. She awarded Basson
compensation
equivalent to five months’ remuneration,
amounting to R180 739, 45.
The
applicant submitted that the Commissioner’s finding that
Basson had “no alternative but to resign” in the
face
of:
Basson’s
attempt to withdraw his resignation;
Basson’s
evidence that he did not pursue a grievance because he felt it was
unnecessary; and
Basson’s
evidence that he felt that he and Morais could discuss his
employment if he were allowed to withdraw his resignation;
was
not a finding that a reasonable Commissioner could or would have
made.
Applicable
legal framework
The
Law on constructive dismissal
Section
186(1) (e) of the LRA defines a constructive dismissal. The section
states that:
“
Dismissal
means that –
an employee terminated a contract
of employment with or without notice because the employer made
continued employment intolerable
for the employee”.
The
test for determining whether or not an employee was constructively
dismissed was set out in
Pretoria
Society for the Care of the Retarded v Loots
3
.
Although
that case was decided under the 1956 LRA, the principles remain the
same.
In
Loots,
the
court held that:
“…
the
enquiry [is] whether the [employer], without reasonable and proper
cause, conducted itself in a manner calculated or likely
to destroy
or seriously damage the relationship of confidence and trust between
the employer and employee. It is not necessary
to show that the
employer intended any repudiation of a contract: the court’s
function is to look at the employer’s
conduct as a whole and
determine whether…its effect, judged reasonably and sensibly
is such that the employee cannot be
expected to put up with it”.
The
court held further that when an employee resigns or terminates the
contract of employment as a result of constructive dismissal,
such
employee is in fact indicating that the situation has become so
unbearable that the employee cannot fulfil his/her duties.
4
The
employee is in effect saying that he or she would have carried on
working indefinitely had the unbearable situation not been
created.
He does so on the basis that he does not believe that the employer
will ever reform or abandon the pattern of creating
an unbearable
work environment. If he is wrong in this assumption and the employer
proves that his/her fears were unfounded,
then he has not been
constructively dismissed and his/her conduct proves that he has in
fact resigned.
The
Constitutional Court recently remarked in
Strategic
Liquor Services v Mvumbi NO and Others
5
that
the test for constructive dismissal does not require that the
employee have no choice but to resign, but only that the employer
should have made continued employment intolerable.
In
Eagleton
and Others v You Asked Services (Pty) Ltd
6
this
Court considered the three requirements that an employee must prove
in order to claim constructive dismissal. These requirements
are
that:
the
employee terminated the contract of employment;
continued
employment had become intolerable for the employee; and
the
employer must have made continued employment intolerable.
In
Chabeli
v Commission for Conciliation, Mediation and Arbitration and Others
7
the
court held that in order to prove a constructive dismissal, the
employee has to show that the employer had made the continued
employment relationship intolerable and that, objectively assessed,
the conditions at the workplace has become so intolerable
that he
had no option but to terminate the employment relationship.
8
I
doubt that this strict test survives the formulation by the
Constitutional Court in
Strategic
Liquor Services (supra).
In
Murray
v Minister of Defence
9
cited
with approval by the Constitutional Court in
Strategic
Liquor
Services,
the Supreme Court of Appeal emphasised that
“
...the
mere fact that an employee resigns because work has become
intolerable does not by itself make for constructive dismissal.
For
one thing, the employer may not have control over what makes
conditions intolerable. So the critical circumstance must have
been
of the employer’s making. But even if the employer is
responsible, it may not be to blame. There are many things an
employer may fairly and reasonable do that make an employee’s
position intolerable. More is needed: the employer must be
culpably
responsible in some way for the intolerable conditions: the conduct
must have lacked ‘reasonable and proper cause’”.
The
Labour Court in
Eagleton
and Others v You Asked Services (Pty) Ltd,
noted
that in terms of section 192(1) of the LRA, the employee bears the
onus to prove a ‘dismissal’.
10
Only
once this is done does the employer bear the onus to prove that the
dismissal was fair.
11
In
particular, in a constructive dismissal, the court held that it was
essential that the employee should make a factual allegation
that he
had resigned.
12
Thus,
a constructive dismissal is a two stage enquiry.
In
the same case, the court considered whether an employee was
automatically entitled to the relief provided for in the LRA once
constructive dismissal had been proved. The court held that “proving
a constructive dismissal merely proves that there
has been a
‘dismissal’ as contemplated by s 186 of the LRA. Once a
dismissal has been proven the enquiry will proceed
to the second
stage which is a consideration of the ‘fairness’ of the
dismissal.”
13
As
such, the court found that an applicant is not entitled to claim
compensation once he has established the existence of a
‘dismissal’.
14
Rather,
an employee will only be entitled to compensation once it is found
that the constructive dismissal was also unfair.
15
Resignation
in the face of poor performance management does not give rise to a
constructive dismissal claim.
The
test for review of arbitration awards
Section
145 of the LRA provides that an arbitration award is reviewable if:
The
Commissioner committed misconduct in relation to his/her duties as
an arbitrator; or
The
Commissioner committed a gross irregularity in the conduct of the
arbitration proceedings; or
The
Commissioner exceeded his/her powers; or
The
award was improperly obtained.
The
Constitutional Court, in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
16
has
now held that
the
review grounds set out in section 145 have been suffused by the
standard of reasonableness, and that an award is reviewable
if the
decision reached by the commissioner was one that a reasonable
decision-maker could not have reached.
Unreasonableness
The
court in
Sidumo
confirmed
that an award which is being reviewed under section 145 of the LRA
would also have to meet the standard of reasonableness
as set out in
section 33 of the Constitution.
17
Section
33 of the Constitution
18
substituted
the formula of justifiability contained in the Interim Constitution
19
with
a right to reasonable administrative action. The Constitutional
Court, in
Minister
of Health v New Clicks South Africa (Pty) Ltd,
20
has
said that this
requires
a more thorough scrutiny than would have been competent under the
Interim Constitution. As such, the threshold of reasonableness
incorporates and expands upon rationality. In doing so, it sets on
the one hand a lower threshold for review and on the other
hand, a
higher standard for administrative action than was the case under
the Interim Constitution.
Cora
Hoexter,
Administrative
Law in South Africa
21
,
remarks that “in administrative law it is now uncontroversial
that the first element promised by ‘reasonable’
administrative action in s 33(1) is rationality”.
The
Constitutional Court, in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others,
22
uses
the formula of “reasonableness or rationality”, equating
the two in application. The Court nonetheless held that
while the
test of reasonableness incorporates a much wider range of possible
standards for review, it is, at the very least,
no less than a
rationality standard.
23
In
Foodcorp
(Pty) Ltd v Deputy Director-General, Department of Environmental
Affairs and Tourism and Others,
24
the
Supreme Court of Appeal set out the test for a review based on
reasonableness.
25
In
determining what decision a reasonable decision-maker could make the
Court held as follows:
26
“
One
does not need to understand the complex process, mathematical or
otherwise … to realise that at least some of the results
produced by the simple application of the formula were irrational and
inexplicable and consequently unreasonable.
A reasonable decision-maker
would, in my judgment, have used a formula to make a provisional
allocation but would have considered
the output as a result of the
application of the formula and then have considered whether the
output gives reasonable justifiable
results bearing in mind the
facts”.
Having
regard to the manner in which reasonableness has been interpreted
under the common law, the meanings given in certain instances
to the
justifiability test under the Interim Constitution, and the
decisions by the Appellate Division and the Constitutional
Court
under the present regime, it is clear that reasonableness, whilst
not limited thereto, incorporates the standard of rationality
applied under the Interim Constitution.
Failure
to apply one’s mind
Corbett
JA explained this concept of a failure to apply one’s mind in
Johannesburg
Stock Exchange v Witwatersrand Nigel Ltd
as
:
27
“Proof,
inter alia, that the decision was arrived at arbitrarily or
capriciously or mala fide or as a result of unwarranted
adherence to
a fixed principle or in order to further an ulterior or improper
purpose; or that the [commissioner] misconceived
the nature of the
discretion conferred upon him and took into account irrelevant
considerations or ignored relevant ones; or that
the decision of the
[commissioner] was so grossly unreasonable as to warrant the
inference that he had failed to apply his mind
to the matter in the
manner aforestated.”
The
concept of a failure to apply one’s mind includes the
following:
A
failure to consider,
alternatively
to
decide, an issue.
28
The
misconstruing of evidence, taking into account facts that are not
relevant to the issues to be considered and a failure
to take into
account relevant facts such that it renders the result of the
entire process inappropriate and unreasonable.
29
Arbitrary
and capricious decision making, i.e. an award which is senseless,
without foundation or apparent purpose.
30
In
the present case, the applicant submitted that the Commissioner:
took
into consideration irrelevant and inadmissible evidence;
failed
to consider relevant and admissible evidence;
failed
to act reasonably;
failed
to identify and appreciate the true issues which she was called
upon to determine; and
failed
to apply her mind to the applicable legal principles.
Consequently,
the applicant argued, the Commissioner failed to properly reason her
way to a conclusion that falls within the band
of conclusions which a
reasonable decision-maker could reach.
Grounds
of review
The
Applicant submitted that the award is reviewable by virtue of the
fact that the Commissioner committed a number of gross
irregularities in the conduct of the proceedings and/or misconducted
herself in relation to her duties as a commissioner, and
the award
was not one that a reasonable decision maker would have arrived at.
The
first ground of review is that the Commissioner admitted into
evidence undisclosed documentary evidence handed to her by Basson
without:
providing
the applicant with a copy of the documents; and
affording
the applicant an opportunity to lead evidence on the documents.
The
Applicant argued that the Commissioner, in reaching her decision,
took into consideration such improperly submitted documentary
evidence. It submitted that the Commissioner’s conduct in this
regard constituted a gross irregularity in the conduct of
the
arbitration and prevented the Applicant from having a fair trial on
the issues.
From
a perusal of the documents, though, it appears to me that they were
not contentious, Basson gave oral evidence on the substance
of the
documents and the contents were undisputed. The Commissioner’s
conduct in this regard, while irregular, did not
prevent a fair
trial of the issues.
The
most pertinent review ground is that the Commissioner failed to
consider the common cause evidence that Basson sought to withdraw
his resignation. Notwithstanding this evidence (which clearly
indicated that the employment relationship was not intolerable),
she
concluded that Basson was constructively dismissed as he “had
no option but to resign.” The Applicant submitted
that her
conclusion in the face of such evidence is not a conclusion that a
reasonable commissioner would have reached. I shall
return to this
aspect.
The
Commissioner further found that Morais stated that she would get rid
of Basson. There was no evidence to support this conclusion.
The
Commissioner based her finding on this statement in Basson’s
evidence: “I hear from my colleagues that they said
that she
doesn’t like me and she will do whatever in her power to get
rid of me. She’s made it public to several
colleagues in JHB
who has said this to me.” In taking into consideration
uncorroborated hearsay evidence (which refers
to unnamed
colleagues), the Commissioner committed a gross irregularity in the
conduct of the proceedings.
The
Commissioner found that Basson had been constructively dismissed and
from this concluded that his dismissal was unfair. The
Applicant
further submitted that the Commissioner failed to embark on the
second leg of the constructive dismissal enquiry, namely
whether or
not the dismissal was fair. I agree that, only once the second leg
of the enquiry had been determined – ie whether
the dismissal
was nevertheless fair -- could compensation be awarded. To this
extent, the Commissioner committed a gross irregularity
in the
conduct of the proceedings. However, in my view, the award falls to
be reviewed and set aside on the basis of the first
ground, and that
is that a reasonable commissioner could not have found that there
was a constructive dismissal at all.
The
Commissioner failed to deal with possibly the most important
consideration in deciding whether the employer had made continued
employment intolerable, and that is the common cause fact that
Basson wished to retract his resignation. From his evidence and
from
his letter of resignation, it is clear that, even subjectively,
Basson did not feel that it would be impossible for him
to continue
working at Value Logistics. But the test is an objective one; and I
cannot see how any reasonable commissioner could
have come to the
conclusion that, objectively speaking, the employer had made
continued employment intolerable when, on his own
admission, the
employee wished to reconsider his decision to resign.
In
his evidence, Basson said that he “maybe reacted just a little
bit too quickly” when he resigned. Even more significantly,
five days after his resignation, and once he had had time to
reflect, his considered sentiments were not those of an employee
who
found the conduct of the employer to have made a continued
employment intolerable.
Basson
was a senior human resources manager. The memorandum he addressed to
Morais, five days after his resignation, was evidently
well thought
through. It is written in a considered and measured tone. He
concedes that his resignation was “irrational”.
He also
concedes that his performance and service delivery had been
“compromised”. Nevertheless, he seeks to continue
his
employment and expresses the view that, “
with
some form of support and assistance”, he would be able to
fulfill his duties.
As
Nicholson JA put it in
Loots
:
31
“
When
an employee resigns or terminates the contract as a result of
constructive dismissal such employee is in fact indicating that
the
situation has become so unbearable that the employee cannot fulfil
what is the employee’s most important function, namely
to work.
The employee is in effect saying that he or she would have carried on
working indefinitely had the unbearable situation
not been created.
She does so on the basis that she does not believe that the employer
will ever reform or abandon the pattern
of creating an unbearable
work environment.”
In
the present case, Basson was clearly of the view that the employer
could or might improve the work environment. He was willing
to
continue working and, in his words, to “...
meet
with [Morais] in person to discuss my responsibilities and how I
can/should reach such goals”. Or, as he told his wife,
he was
willing to sit around a table and talk. `These are not the
sentiments of a person whose continued employment has been
made
intolerable.
When
does the relationship become intolerable? As the authors point out
in
South
African Labour Law:
32
“
The
word 'intolerable' indicates a significant level of breakdown in the
employment relationship.… It means that the employee
could not
continue to endure the employment relationship.”
The
facts in
Oelofse
v New Africa Publications Ltd
33
were
very similar to those before me. In that case, the employee also
resigned subsequently attempted to withdraw his resignation.
In
considering his claim for constructive dismissal, the arbitrator
found that the attempted withdrawal of his resignation was
inconsistent with a claim that the employment relationship had
become intolerable. In my view, the arbitrator was correct. The
same
principle applies in the case before me.
Furthermore,
once the Commissioner had found that Basson had been dismissed, she
failed to consider whether the dismissal was
nevertheless fair. As
this Court explained in
Mafomane
v Rustenburg Platinum Mines Ltd
34
:
“
A
claim of unfair dismissal, whether of the actual or constructive
kind, usually requires an enquiry in two stages. In the first,
the
question is whether there was a dismissal. In the second, the
question is whether the dismissal was unfair."
Basson
J put it succinctly in
You
Asked Services:
35
“
...I
am thus not in agreement with the submission that a claim of
constructive dismissal will as a matter of course entitle the
applicants to claim compensation. An applicant is not entitled to
claim compensation once he or she has established the existence
of a
‘dismissal’; an employee may only be entitled to
compensation once it is found that the constructive dismissal
was
also unfair.”
In
the present case, the Commissioner did exactly the opposite. She
awarded compensation once she had decided that there was a
constructive dismissal, without considering the fairness or
otherwise of the dismissal at all. Even if she had acted reasonably
in finding that there was a dismissal, the award stands to be
reviewed on the grounds that she exceeded her powers by awarding
compensation without embarking on the second leg of the test for
constructive dismissal, ie the fairness enquiry.
Conclusion
The
award is not one that a reasonable commissioner could have reached.
36
The
commissioner had no regard whatsoever to the crucial common cause
fact that Basson attempted to withdraw his resignation.
In doing so,
she failed to apply her mind to the evidence before her and
committed a gross irregularity in the conduct of the
proceedings. As
Van Niekerk J put it in
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
37
:
“
In
summary, section 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision)
must fall
within a range of reasonableness, but this does not preclude this
Court from scrutinising the process in terms of which
the decision
was made. If the commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner committed some other misconduct or a gross irregularity
during the proceedings under review 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."
Regarding
costs, I take into account that Basson is an individual who had to
incur legal costs of his own to defend an arbitration
award in his
favour. In law and fairness, I do not consider it appropriate to
order him to pay the applicant’s costs.
Order
The
arbitration award of the third respondent under case number WCRFBC
8722 is reviewed and set aside. It is replaced with an
award that
the employee (Basson, the first respondent) was not dismissed.
There
is no order as to costs.
________________________________
STEENKAMP
J
For
the applicant: Adv NL Badenhorst
Instructed
by: Mr E Abrahams, Bowman Gilfillan Inc
For
the first respondent: Adv R Abrahams
Instructed
by: Mr J Blignaut,
CK
Friedlander Shandling Volks
1
66
of 1995.
2
In
any event, as the Labour Appeal Court held in
Mgobhozi v Naidoo
NO and Others
(2006) 27
ILJ
786 (LAC);
[2006] 3 BLLR 242
(LAC), the mere submission of a 'medical certificate' is not
conclusive evidence regarding the absence. The certificate, in the
absence of an additional statement by the medical doctor, will be
regarded as a form of hearsay evidence within the context of
the
Law
of Evidence Amendment Act 45 of 1988
. The employer is legally
justified to scrutinize the 'wide and vague symptoms/reason'
contained in the medical certificate.
3
(1997)
18
ILJ
981 (LAC) at 985 A-B. See also
Woods v WM Car
Services (Peterborough)
(1981) ILR 347 at 350.
4
Id
at 984 D-E
5
(2009)
30
ILJ
1526
(CC);
[2009] 9 BLLR 847
(CC) at para 4.
6
(2009)
30 ILJ 320 (LC) at para 22.
7
(2010)
31 ILJ 1343 (LC).
8
Id
at para 17. See also
Sappi Kraft (Pty)
Ltd t/a Tugela Mill v Majake NO and Others
(1998)
19 ILJ 1240 (LC) and
Secunda
Supermarket CC t/a Secunda Spar and Another v Dreyer NO and Others
(1998) 19 ILJ 1584 (LC);
[1998] 10
BLLR 1062
(LC).
9
(2008)
29 ILJ 1369 (SCA) at para 13. The position of the SCA was confirmed
in the case of
Daymon Worldwide SA Inc
v Commission for Conciliation, Mediation and Arbitration and Others
(2009) 30 ILJ 575 (LC) at paras 27 and
40.
10
(2009)
30 ILJ 320 (LC) at para 25. See also
Pretoria Society for the
Care of the Retarded v Loots
(1997) 18 ILJ 981 (LAC) at page
983;
Halgreen v Natal Building Society
(1986) 7 ILJ 769 (IC)
at 775D-776I; Grogan
Riekert’s Basic Employment Law
2
ed (Juta, 1993) at 69; PAK le Roux & Andre van Niekerk
The SA
Law of Unfair Dismissal
(Juta & Co, 1994) at 84;
Khonjelwayo
and Nura Powering Opportunity
(2009) 30 ILJ 2186 (CCMA) at para
19.
11
Id
at para 25.
12
Id
at para 25.
13
Id
at para 34.
14
Id
at para 35.
15
Id
at para 35.
16
2008
(2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and
[2007]
12 BLLR 1097
(CC) at paras 106-110 and 119.
17
Id
at paras 111-2.
18
The
Constitution of the Republic of South Africa Act 108 of 1996 (the
Constitution).
19
The
Constitution of the Republic of South Africa Act 200 of 1993 (the
interim Constitution).
20
2006
(2) SA 311
(CC) at para 108.
21
1
st
ed (Juta & Co, Cape Town 2007) at 306-7.
22
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 43.
23
Id
at para 45.
24
2006
(2) SA 191
(SCA) at para 12.
25
“…
whether
the decision was one that a reasonable decision-maker could not have
reached or, put slightly differently, a decision-maker
could not
reasonably have reacted. (See the authorities quoted
by the Court below
in paras [60] – [64] to which must be added
Bato
Star Fishing (Pty) Ltd v Minister
of Environmental
Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490b
(CC) at paras [42] – [50],
Associate
Institutions Pension
Fund and Others
v Van Zyl
[2004] 4
All SA 133
(SCA) at para [36] and the unreported
Zondi
v
Member of the
Executive Council for Traditional and Local Government Affairs and
Others
(CC) (case
no CCT 73/03
delivered on 15 October 2004) at paras [99] – [103])”.
26
Id
at paras 18 and 19.
27
1988
(3) SA 132
(AD) at 152C-D.
28
Lynch
v Union Government (Minister of Justice)
1929 AD 281
at 285.
29
Hira
and Another v Booysen and Another
1992
(4) SA 61
(A);
Cash
Paymaster Services (Pty) Ltd v
Mogwe &
Others
(1999) 20 ILJ
610 (LC).
30
Above
n:30 at 152A-C.
31
Above
n:3at 724 F-G
32
Taylor,
Steenkamp & Kantor: “Unfair dismissal: misconduct,
incapacity and automatically unfair dismissals” in
Thompson &
Benjamin,
South African Labour Law
Vol
1 (Juta, 2010) at AA1-408.
33
[2001]
10 BALR 1098 (CCMA).
34
[2003]
10 BLLR 999
(LC) at para 52. See also
Eagleton
and Oothers v You Asked Services (Pty) Ltd
[2008]
10 BLLR 1040
(LC) at para 34.
35
Above
n:11 at para 35.
36
Above
n:18 at para 109;
above n:24
at para 44.
37
[2009]
11 BLLR 1128
(LC) at para14.
27