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[2011] ZALCD 17
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Aquasoft Investments CC v Masango and Others (D 937/08) [2011] ZALCD 17 (30 September 2011)
REDDY AJ
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Reportable
CASE NO. D 937/08
In
the matter between:
AQUASOFT
INVESTMENTS CC
............................................................................
Applicant
and
NOMUSA
MASANGO
.................................................................................
First
Respondent
J
NGWANE N.O
....................................................................................
Second
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
..................................................................................
Third
Respondent
Date Heard: 1 September 2011
Date of Judgment: 30 September 2011
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an application in terms of
section 145 of the Labour Relations Act (the LRA)
1
:
1. to review and set aside an
arbitration award dated 19 October 2008 under case number KNDB
4462-08 handed down under the auspices
of the Commission for
Conciliation Mediation and Arbitration,
2. to substitute the award with an
award that the applicant (the “employer”) did not dismiss
the first respondent (the
“employee”) and
3. for costs.
[2] The application is opposed by the
employee.
Factual background
[3] The salient aspects of the matter
are that the employee was employed as a machinist around June 2005.
During the course of her
employment, the place of work changed and
she was placed at the second factory. At the second factory the
employee was required
to work on Saturdays whereas at the previous
workplace she worked from Mondays to Fridays.
[4] There are disputes about the
circumstances that led to the termination of the employment
relationship. The applicant testified
during the arbitration hearing
that there was no dismissal but that the employee had resigned. It
testified through its manager,
Rafik Goolam (Goolam) that the
employee initially worked on Saturdays and thereafter refused to do
so. On Monday 7 April 2008,
one of the drivers was absent and Goolam
had done the driving for half the day. He gave instructions to a
supervisor, Nicky, to
do a routine check of the work whilst he was
away from the factory.
[5] Nicky was checking the employees’
score cards, to see the number of items sewn by the employee, when
she noticed that
the employee’s score was low. Nicky asked the
employee why was her score so low to which the employee responded:
“
Why
are you asking me, do you have a problem with me only?”
Nicky
replied
“
No,
I do not have a problem with you only, the problem is I have noticed
you haven’t achieved your targets and I need to know
the exact
reason as to why you haven’t achieved your targets.”
The
employee then, whilst waking up from her seat, said
“
I
am tired of this shit company”
and left the factory.
[6] Goolam met the employee on his way
into the factory and assumed that she was on her way to the toilet.
Later when he asked Nicky
about the scores, she informed him that
“One machinist has left the company with no valid reason”.
He responded to
Nicky that perhaps the employee was “a bit
frustrated” and she would return the next day.
[7] The employee did not return to
work.
[8] Goolam, under cross-examination,
denied the employee’s version and specifically denied that he
swore at her.
[9] The employee testified at the
arbitration hearing that she was dismissed and had not resigned. She
was required to work on Saturdays
and that there was an increase in
the number of items she had to sew. She could not work on Saturdays
as she had to attend driving
lessons. Further she was often sworn at
and verbally abused by Goolam. On 7 April 2008, he had asked her why
she had not worked
the previous Saturday. He swore at her and told
her to pack her bags and leave.
[10] The employee denied under
cross-examination that Goolam did not verbally abuse her previously
and on the day in question. She
was also adamant that it was Goolam,
and not Nicky or Mr Farhaad who spoke to her on that day. She also
placed this version on
record when Goolam was under
cross-examination.
[11] The award makes reference to the
evidence of Nicolette Jensen (Nicky), the applicant’s second
witness. This evidence
was not transcribed, or if it was, it was not
placed before this Court.
[12] The award summarises Nicky’s
evidence as follows:
i. the employee was confronted by
Jensen about her scores at which point the employee left;
ii. confirmation that Goolam did swear
at employees.
[13] The second respondent (whom I
shall refer to as “the commissioner”) found that Goolam
raised his voice at employees
and did use vulgar language when
addressing them. The crux of his analysis of the evidence is recorded
hereunder in the following
paragraphs as numbered in the award:
“
6.9
Rafik’s attitude to give the applicant an ‘ultimatum’
to work Saturdays or [sic] failing which to work night
shift was
unreasonable.
6.10
It is therefore probable that the applicant reported to work on
Monday 7 April 2008 after her failure to work on Saturday and
that
Rafik is [sic] prone to screaming and using vulgar language abused
the applicant verbally causing her to leave the company.
6.11
It is my opinion that the cumulative effect of verbal abuse on an
employee may render the continuation of employment relationship
[sic]
intolerable.
6.12
Whether Rafik told the applicant to leave the workplace or not but
[sic] his conduct towards the applicant was sufficient to
cause the
continuation of the employment relationship intolerable [sic].
6.13
Taking all this evidence which included the contradictions between
Nicolette’s and Rafik’s evidence, and the corroborated
evidence of the applicant and Nicolette on Rafik’s use of
vulgar language in the workplace I find it probable that the
applicant
was constructively dismissed by the respondent on 7 April
2008.
6.14
I further find the applicant’s dismissal was both procedurally
and substantively unfair and that the applicant is entitled
to her
relief of compensation for unfair dismissal.”
Grounds of review
[14] The employer submitted that the
commissioner committed a gross irregularity in the conduct of the
proceedings, alternatively
misconducted himself in his duties as
arbitrator, in that the decision reached by him was not a decision
that a reasonable decision-maker
could have made. The commissioner
issued the following award:
“
7.1
The applicant Nomusa Monica Masango’s dismissal by the
respondent Aquasoft Investments cc was both procedurally and
substantively
unfair.
I
order the respondent to pay to the applicant an amount equivalent
to five (5) months salary a sum of R 419-00 x 4.333 = R
9 077-64.
7.3
This amount to be paid to the applicant within fourteen (14) days of
the date of receipt of this award.”
Evaluation
[15] The commissioner, in concluding
as he did, melded portions of each version (a resignation and a
dismissal) to arrive at a finding
that the employee was
constructively dismissed.
[16] The tests for each of these
terminations of employment are different. Simply put, a resignation
is an employee’s termination
of the employment relationship of
her own free will. A dismissal is a termination of the relationship
by the employer. A constructive
dismissal is a termination of the
contract of employment by the employee, with or without notice,
because the employer made continued
employment intolerable for the
employee. The usual procedural rights relating to a hearing prior to
a dismissal by an employer
are absent in a constructive dismissal.
[17] There were two irreconcilable
versions before the commissioner in how the termination came about.
According to the evidence,
the termination was either through a
resignation by the employee or a dismissal by the employer. There
were material disputes of
fact before the commissioner.
[18] To come to a conclusion on the
disputed facts, the commissioner had to make findings on (a) the
credibility of the various
witnesses; (b) their reliability; and (c)
the probabilities. The commissioner did not do so. See
Sasol
Mining (Pty) Ltd v Commissioner Nggeleni
2
and
SFW
Group Ltd and Another v Martell et Cie and Others
3
quoted therein.
[19] The test for constructive
dismissal is three fold:
i. The employee must have terminated
the relationship;
ii. The continued employment must be
intolerable;
iii. The employer must have made the
continued employment intolerable.
See
Solid
Doors (Pty) Ltd v Commissioner Theron and Others.
4
[20] Once a constructive dismissal is
proved, the onus shifts to the employer to prove that the dismissal
was fair. The central
question then is whether the conduct of the
employer that prompted the employee to resign was fair or unfair. In
other words, a
constructive dismissal is not inherently unfair; a
court will consider the circumstances with a view to establishing
whether the
employer's conduct was justified.
[21] The commissioner did not apply
his mind to the above principles. For the award to be rationally
connected to the evidence and
the law, it ought to have recorded an
analysis of the evidence that supports the conclusion that the
dispute is neither a summary
dismissal by the employer (by telling
the employee to leave) nor a voluntary resignation. The commissioner
ought to have found
that the employer had made the continued
employment intolerable by virtue of Goolam’s persistent verbal
abuse of the employee,
the new demands of an increase in the number
of items to be sewn and that she performs services on a Saturday.
Further that the
employee had no other option but to resign and that
the employer’s conduct in this regard was unjustifiable.
Further he should
have found that the employer did not tell the
employee to leave but that the employee had done so for the above
reasons. He ought
to have rejected Goolam’s evidence that he
did not verbally abuse the employee, that neither Nicky nor Mr
Farhaad spoke to
the employee on the day in question and that he,
Goolam, expected her to return to work.
[22] The commissioner does not
evaluate the evidence of the witnesses, their demeanour, their
reliability and the probabilities
of their versions. Rather at
paragraph 6.12 he arrives at the following confused conclusion
“Whether Rafik told the applicant
to leave the workplace or not
but [sic] his conduct towards the applicant was sufficient to cause
the continuation of the employment
relationship intolerable”
[sic]. He also does not explain how he makes the finding that the
constructive dismissal was procedurally
unfair.
[23] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
5
Ngcobo J stated:
“
Where
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot in principle be said to be fair
because the commissioner fails to perform his or her mandate. In so
doing, …, the commissioner’s action prevents the
aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct of the
proceedings, as contemplated in section 145 (2)(a)(ii) of the LRA.
And the ensuing award falls to be set aside not because the result
is
wrong but because the commissioner has committed a gross irregularity
in the conduct of the arbitration proceedings.”
[24] The same applies to a
commissioner who fails to properly resolve an irreconcilable dispute
of fact. See
Saso
l supra at paragraph 10.
[25] For these reasons the
commissioner’s award falls to be reviewed and set aside.
[26] The employer submitted that the
award should be replaced with an award that no dismissal occurred. As
recorded earlier, the
full transcript of the evidence is not before
me. The Court did not have regard to Nicky’s transcribed
evidence. It is not
clear from the award whether Nicky testified that
Goolam verbally abused the staff generally or the employee. This has
a bearing
on whether the employer’s conduct made the
relationship intolerable. It is also not clear whether Nicky
confirmed Goolam’s
evidence of her alleged sole interaction
with the employee on the day in question before the employee
allegedly left. I am therefore
not in a position to make any finding
based on demeanour or any other aspect of credibility. I will not be
in a position to determine
the reliability of each witness and the
probabilities of each version. The matter is best referred to the
CCMA for a rehearing
before another commissioner.
[27] In respect of costs, it is
neither of the parties’ fault that the award is of such a poor
standard. Further there is
no explanation by the employer why
Jensen’s evidence is not included in the record. This is no
fault of the employee. Had
that evidence been placed before this
Court, the award may have been substituted by another award. Although
the review is successful
fairness dictates that costs should not
follow the result. I accordingly make the following order:
1. The arbitration award made by the
second respondent and dated 19 October 2008 is reviewed and set
aside;
2. The matter is referred to the CCMA
for a hearing
de novo
before another commissioner;
3. There is no order in respect of
costs.
_______________
Reddy AJ
Appearances:
For the applicant: Mr J Forster of
Forster Attorneys
For the respondent: Mr P Jafta of
Jafta Incorporated
1
66
of 1995.
2
[2011]
4 BLLR 404
(LC).
3
2003
(1) SA 11
SCA.
4
(2004)
25 ILJ 2337 (LAC).
5
[2007]
12 BLLR 1097
(CC) at para 268..