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[2012] ZALCJHB 50
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Regent Insurance Company Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR3240/10) [2012] ZALCJHB 50; (2013) 34 ILJ 410 (LC) (15 June 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR3240/10
REGENT INSURANCE
COMPANY LIMITED
…..............................................
Applicant
and
CCMA
…...............................................................................................
First
Respondent
Rebecca Q Gungubele,
N.O.
…....................................................
Second
Respondent
Boitumelo Elizabeth
Letsholo
…......................................................
Third
Respondent
Heard: 24 May 2012
Decided: 15 June 2012
Summary: Review –
constructive dismissal
JUDGMENT
GAIBIE AJ:
Introduction
This is an application
to review and set aside the arbitration award issued by the second
respondent (‘the commissioner’)
under case number
GAEK353-10 dated 26 October 2010. In terms of the award, the
commissioner found the resignation of the third
respondent (‘the
respondent’) to have amounted to a constructive dismissal
which was unfair.
Background facts
By and large the facts
in this matter were common cause. Such common cause facts included
the following:
(a) The respondent was,
prior to her resignation employed by the applicant for a period of
approximately ten years, initially as
a Payroll Administrator and
later as an Employee Benefits Consultant.
(b) During February 2010
the applicant outsourced its payroll department to an entity known as
‘Cedar’. In consequence
thereof, the applicant embarked
upon a consultation process with the respondent. The applicant was,
in this consultation process,
represented by its General Manager –
Human Resources: Dashnee Naidoo (‘Naidoo’) and the
Employee Relations Manager:
Iereshah Jacobs (‘Jacobs’).
The employee was given the option to retain her position as a Payroll
Administrator with
Cedar, or to remain with the applicant in a more
senior position of Employee Benefits Consultant. By agreement, the
respondent
was appointed by the applicant in the position of Employee
Benefits Consultant commencing on 1 March 2010. This position
involved
more responsibilities and a higher rate of pay. Her monthly
gross income increased from R21 000 as Payroll Administrator to
R24 000
as Employee Benefits Consultant.
(c) The respondent
reported to Jeremy Beukes (‘Beukes’), the applicant’s
HR Services Manager. Beukes was promoted
to this position on 1 March
2010.
(d) For the purposes of
outsourcing the payroll function to Cedar, the applicant also
employed Anke van der Broek (‘VD Broek’)
and Victoria
Nkomo on a temporary basis to assist with the handover of the
outsourcing function to Cedar. In this process, VD Broek
also
assisted the respondent in performing her functions. I will return to
the nature of this assistance later in this judgment.
It is
necessary, at this stage, to record that whilst the respondent
initially denied that she had not received any assistance
from the
applicant in her new position, she conceded under cross-examination
that VD Broek had assisted her in the performance
of her tasks as
Employee Benefits Consultant.
(e) On 5 May 2010 the
applicant issued a final written warning to the respondent for gross
negligence in that she had failed to
check and verify the April 2010
payroll schedules before they had been sent to Cedar. The respondent
refused to sign for receipt
of the final written warning.
(f) Approximately 6 days
later, on 11 May 2010, the respondent tendered her resignation with
effect from 11 June 2010.
Period between March
to April 2012
It is apparent from the
common cause facts that the respondent assumed her role as the
Employee Benefits Consultant on 1 March
2010 and that she had handed
in her resignation on 11 May 2010 with effect from 11 June 2010. The
events that occurred during
this period, from the beginning of March
2010 to the date on which the respondent handed in her resignation,
must therefore be
assessed carefully.
VD Broek testified that
she had joined the applicant on 10 February 2010 initially on a
temporary basis until the end of March
2010 and that her fixed term
employment contract had been renewed on two further occasions, and
was finally converted into a
permanent arrangement upon the
respondent’s resignation.
She also testified that
the respondent:
(a) was, in her post as
Employee Benefits Consultant, responsible for various tasks,
including two broad functions: to do the full
payroll function up to
and including the general ledger in respect of four payrolls and, to
attend to the administration of employee
benefits matters;
(b) was required, in
respect of her payroll functions to: insert or input relevant
information for the purposes of four payrolls
into specific templates
that had been designed by Cedar; validate the employee codes;
consolidate the payroll results after each
run into a spread sheet;
balance the general ledger and handle all payroll queries following
each run, from the staff;
(c) was required, in
respect of the administration of employee benefits, to collate and
complete application forms for medical aid
and pension fund
withdrawals and dispatch those to the respective third parties. This
aspect effectively involved the management
of employees’
applications, membership details with the schemes, as well as
assisting new employees to complete the relevant
documentation when
they commence employment with the applicant.
Given that the payroll
aspect of her functions had been outsourced to Cedar from 1 March
2010, the respondent’s obligations
involved in the main, the
input of relevant data and the dispatch thereof to Cedar. According
to VD Broek, after the March payroll
run, she found certain errors
which she referred to as ‘teething issues’ that occurred
on both sides that is on behalf
of the applicant and on behalf of
Cedar. Following the first month of the outsourcing of the payroll
function and the teething
problems experienced by both sides, a
meeting was held with Cedar and measures were put in place to ensure
that the information
dispatched to them would improve in the next
month.
In order to assist the
respondent, VD Broek: created a document for her which recorded the
process that she needed to follow from
the beginning to the end of
the month; separated the various phases of the process for her, in
chronological fashion, so as to
facilitate her input of the relevant
information; and created a payroll calendar so that she was able to
assess, on a daily basis,
precisely what needed to be done.
VD Broek testified that
she assisted the respondent with the aim of ensuring that she fell
into a rhythm with her daily tasks
and to teach her ‘as much
new things’ as she could pick up. She also indicated that she
attended to most of the difficult
tasks and that she gave the
respondent the easier tasks to attend to so that she could learn to
cope with the four payrolls and
the employee benefits
administration. According to VD Broek she attended to 70% of the
tasks that should ordinarily have been
done by the respondent. The
nature and extent of the assistance provided by VD Broek to the
respondent was uncontested.
Despite such assistance,
VD Broek indicated that there were a number of errors that emanated
from the April 2010 payroll run that
were caused by the respondent.
According to her, the respondent’s errors amounted to ‘things
that was either submitted
to her on emails that was not submitted on
the payroll vendor for input which basically meant then the person
was not paid. We
had to do manual payments to correct those, or
where employee code was not correct and the wrong employee was paid
overtime for
example’.
VD Broek stated that the
‘errors’ made by the respondent were caused by a lack of
attention to the detail required.
For instance, she explained that
the respondent did not process the issues that she was required to
attend to, she did not keep
track of what was submitted, what had
not been submitted, queries raised and information that had been
supplied.
On 3 May 2010, VD Broek
wrote to the respondent about the errors. She informed the
respondent that her errors included non-payment
of commissions that
were due to employees, the incorrect computation of leave owing to
certain employees, the payment of overtime
to the incorrect
employee, the non-submission of traffic fines and personal insurance
deductions. All of these errors had financial
implications for the
applicant.
Later that day the
respondent provided a written response to issues raised by VD Broek.
In the main, the respondent refused to
acknowledge any
responsibility for the errors except for her admission of one error
which concerned the non-payment of commission
to an employee.
Thereafter a meeting was held with the respondent to discuss the
errors.
On 5 May 2010, the
applicant met with the respondent again and issued a final written
warning to her for gross negligence in respect
of her failure to
check and verify the April 2010 payroll schedules in respect of four
matters.
The final written
warning records the following at the end thereof:
‘
This warning
will be retained on your personal file and will remain valid for a
period of nine months from the date of issue.
Do you wish to appeal against this
warning: Yes
o
No
o
Please be informed that should you
wish to appeal against this warning, such appeal must be submitted to
the Employee Relations
Manager within five days of receipt of this
warning. You are required to detail the reasons for your appeal in
writing.’
In a handwritten
inscription on the final written warning, the following is recorded:
‘
5h30 p.m. 5
May 2010
Lizzie refused to sign warning.
According to her warning is issued
after hours.
Risha explained that her concern is
irrelevant –
Warning still issued.’
The reasons for her
resignation
It is apparent from the
respondent’s evidence, although inarticulate, disjointed and
sometimes incomprehensible, that the
final written warning was the
trigger in respect of her decision to resign. In her evidence in
chief the respondent proffered
two reasons for her resignation. The
first reason was based on her evidence that she did not challenge
the final written warning
because Jacobs had informed her that if
she did so she would make the situation worse for herself given that
she had in any event
refused to sign for the receipt of the warning.
In further amplification of that reason, the respondent indicated
that her position
was based in the HR Department and that: ‘We
are HR and then we are under IR and GM and they are the one who are
running
the company. So it was difficult for me to proceed with the
matter further. That is why I did not challenge this’.
The second reason is
perhaps more clearly articulated in her own words and relates to her
perception of what might have happened
soon after her receipt of the
final written warning. In that regard she indicated as follows:
‘
I was afraid
that the situation will end up going to a disciplinary hearing and
after a disciplinary hearing it will be a dismissal
and I was scared
that my job as payroll assistant or employee benefit it would be
difficult for me to find another employment outside
I was protecting
myself’.
Under re-examination,
she proffered an additional reason for her resignation (‘the
third reason’) and provided further
amplification in respect
of the second reason. The third reason was that she was of the view
that the pressure in the department
was too high and that there was
no room for any accommodation of errors. In amplification of the
second reason, she contended
that there were many other employees
who were dismissed in circumstances similar to hers.
I turn now to deal with
each of the reasons indicated by the respondent as the basis for her
resignation and implicitly the reasons
why she contends that she had
been constructively dismissed.
Failure to challenge
the final written warning
The respondent testified
that she did not challenge the final written warning because Jacobs
had informed her that if she did
so she would make the situation
worse given that she had already refused to sign for receipt of the
warning (‘the threat’).
The respondent also indicated
that her position was based in the HR Department and that they were
under the IR Department and
the authority of the GM and it is they
who were running the company. By implication, she suggested that she
felt constrained
to challenge their authority.
Beukes, testifying for
the applicant, denied that Jacobs had threatened the respondent. He
explained that Jacobs was with him
at the time that he had issued
the warning to the respondent and he confirmed that Jacobs had
informed the respondent that the
validity of the final written
warning was not affected by her refusal to sign for it.
In order to resolve this
dispute of fact, it is necessary to look at the surrounding
circumstances and the evidence in its totality
to determine the
probabilities of the evidence in respect of this matter. The
following facts are relevant for this purpose:
(a) First, it was common
cause that soon after the respondent’s refusal to sign for
receipt of the final written warning,
Jacobs had sent the respondent
an email, in which she confirmed the following advice in relation to
the final written warning:
‘
You
indicated that you will not sign today due it being after hours but
that you will sign tomorrow. Jeremy Beukes is out of the
office for
the rest of the week. This aside, I explained that your refusal to
sign does not render the warning invalid. The reason
given for your
refusal to sign the warning when issued, is of no relevance to this
matter. You were already given an opportunity
to respond to the
issues both in writing and in discussion with your manager, prior to
the issuing of the warning.
The warning was therefore issued to
you after a witness signed thereto. You are reminded of your right to
appeal the decision within
five days of receipt of the warning’.
(b) Second, the
respondent was also informed in writing, on the final written
warning, that she would be entitled to appeal the
warning within five
days of receipt of that warning.
(c) Third, the respondent
had during the course of 2008 exercised her right of appeal in
relation to a warning issued to her during
that year. She exercised
that right notwithstanding the fact that her position fell within the
HR Department.
(d) Fourth, insofar as
she had any misgivings about lodging an internal appeal in respect of
the final written warning issued to
her, she could have but did not
refer the matter to the CCMA as an unfair labour practice dispute.
(e) Fifth and perhaps
most importantly, VD Broek testified that there was no plan at that
stage to take the respondent through a
disciplinary process and that
they wanted to help her to improve her performance. She explained
that even in May 2010, they had
continued to give her the same kind
of guidance on a daily basis, by assisting her with her daily
planning and ensuring that she
met her deadlines.
In the context of these
facts, it is improbable that Jacobs had threatened the respondent in
the manner suggested by her. Accordingly
and on a balance of
probabilities the applicant’s version was more probable than
that of the respondent in respect of this
issue.
Anticipated
disciplinary proceedings
The respondent testified
that she resigned because she was afraid that the situation would
have resulted in a disciplinary hearing
and thereafter a dismissal.
She considered her resignation as a response to anticipated
disciplinary proceedings and for the
purposes of “
protecting”
herself.
It is apparent from the
evidence that this was a bald and unsubstantiated assertion. Under
cross examination she confirmed that
nobody had informed her that a
disciplinary process was an automatic consequence once a final
written warning had been issued.
In any event, it was the undisputed
evidence of VD Broek that she continued to render full support and
assistance to the respondent
after the final written warning was
issued until the point at which she had submitted her resignation.
By implication, such support
and assistance would not have been
given to the respondent if the applicant intended to terminate her
services through disciplinary
proceedings.
The respondent attempted
under re-examination to suggest that her resignation was also
premised on the basis that there were numerous
other employees who
were dismissed in similar circumstances. In that regard she produced
the evidence of an ex-employee of the
applicant, Amanda Fromont
(‘Fromont’), in support of her contention. Fromont was
however unable to support the contention
or to give any evidence in
relation to the circumstances in which the respondent had resigned
given that she had already left
the employment of the applicant at
the relevant time.
Pressures of
employment
Under re-examination,
the respondent’s union representative suggested to her that
she should demonstrate how Beukes had
assisted VD Broek to take over
her position as Employee Benefits Consultant. Taking her cue from a
leading question, in sweeping
fashion and with a deliberate lack of
specificity, the respondent simply indicated that it was apparent to
her that VD Broek
did not accommodate or allow any room for error
and that the pressure in the department was too high. In the absence
of a reasonable
articulation and explanation for this assertion and
in light of VD Broek’s undisputed evidence that she continued
to assist
the respondent in April and in May beyond the date upon
which she was issued with a final written warning, the assertion
constitutes
at best an empty comment and is clearly improbable.
The resignation and
the events that followed
On 11 May 2010 the
respondent handed in her resignation and informed Beukes that:
‘
I hereby
wish to inform you of my resignation as an employee of Regent
Insurance, my resignation will be effective from 11/05/2010.
My last
working day will be 11/06/2010.
I appreciate the opportunities and
support I have been given at Regent for the past 10 years. I wish the
HR Team success in the
future.
Thank you.
Regards
.....’.
Upon receipt of the
respondent’s resignation, Naidoo testified that she and Beukes
had invited the respondent to discuss
the reason for her departure.
The respondent had informed them that she was passionate about
performing tasks associated with
payroll and that she wanted to look
for positions in other companies within the payroll department.
Naidoo also testified that
the respondent had informed her of
interviews that she had arranged at several companies for positions
within the payroll department,
and that she had provided her with
assistance in the form of time off to attend such interviews and
general advice about how
to prepare for and to conduct herself in
the interviews.
The applicant also
arranged a farewell party for the respondent and she received
numerous gifts. According to Naidoo the respondent
was complementary
about the HR Department, and she thanked her and Beukes for the
support. She also indicated that she would
miss everybody in the
Department and that she would miss the ‘team’ in
particular. According to Naidoo:
‘
We ate and
laughed and made jokes and had a great time at the farewell which is
why I am very taken aback right now at this referral’.
On 10 June 2010, one day
before her departure, the respondent sent an e-mail to employees,
thanking them for their support and
friendship. The last paragraph
of her e-mail read as follows:
‘
Are you
wondering where Lizzy is going, I will be waiting upon God’s
promises, put your trust in God. My time at Regent has
expired,
KENAKO. There is time for everything and it is time for me to leave
Regent. Things happen for a reason, it is not easy
but it is worth
it.’
Accordingly and in the
period between her resignation and her final day of departure, a
period constituting a month, the respondent
did not indicate either
in her communications referred to above or in her discussions with
Naidoo or Beukes about the ‘intolerable
conditions’, if
any, under which she had submitted her resignation. The reasons for
her resignation emerged for the first
time during the arbitration
proceedings.
Grounds for review
The applicant contends
that the commissioner in arriving at the conclusion that the
resignation of the respondent amounted to
constructive dismissal,
relied on broad, sweeping and unsubstantiated findings and in so
doing committed a gross irregularity,
exceeded her powers as an
arbitrator and failed to act as a reasonable decision maker.
In this regard, the
commissioner is criticised, in general, for not considering the
facts in their totality, for relying on irrelevant
instead of
relevant evidence, and for not properly considering the evidence
before her on a balance of probabilities. In this
respect, the
commissioner is criticised for making various findings, all of which
are premised on the assumption that the review
test established by
the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
,
1
[‘
Sidumo
’
]
is applicable to this matter. For reasons that are referred to later
in this judgment, that test is not applicable in the circumstances
of this matter.
The legal framework
Section 186(1)(e) of the
LRA defines a constructive dismissal in the following terms:
‘
An employee
terminated a contract of employment with or without notice because
the employer made continued employment intolerable
for the employee.’
What section 186(1)(e)
provides for is that there would be a dismissal in circumstances
where an employee terminated the employment
relationship in
circumstances were the employer had made continued employment
intolerable. The operative terms in section 186
are that the
employer had made continued employment intolerable, and that the
employee had terminated the contract of employment
in such
circumstances. The termination of employment is deemed to be
involuntary and it is treated as if the termination had
been
precipitated, compelled or caused by an act of the employer.
The primary enquiry
before the commissioner was therefore whether there had been a
dismissal or not. It is accordingly an issue
that goes to the
jurisdiction of the CCMA. In other words the importance of
establishing whether there was a dismissal or not
is to determine
whether the CCMA had jurisdiction to entertain this dispute. In
Hickman
v Tsatsimpe NO
,
2
the Court held that the
standard of review established by
Sidumo
which poses the enquiry
as to whether the decision reached by a commissioner is one that a
reasonable decision maker could not
reach, is not applicable in the
context of an enquiry into the CCMA’s jurisdiction, and in
particular whether a dismissal
in terms of section 186(1)(e) has
happened or not.
The test was in fact
formulated in
S.A. Rugby Players’ Association (SARPA) and
Others v S.A. Rugby (Pty) Limited and Others; S.A. Rugby (Pty)
Limited v SARPU
and Another (2008) 29 ILJ 2218 (LAC)
[‘
SARPA
’].
The LAC encapsulated the enquiry in the following terms:
‘
[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....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...
[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 facts 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 anomaly of the
Labour Appeal Court’s decision is that in the event of an
alleged constructive dismissal in terms of
section 186(1)(e), the
commissioner has to investigate the merits of the dispute referred.
Only after an analysis of the facts
placed before it can the
commissioner determine whether a dismissal has occurred. After
having undertaken this enquiry, only
at that stage, is the CCMA in a
position to establish whether it has jurisdiction to determine the
dispute.
In
Asara
Wine Estate and Hotel (Pty) Limited v J.C. Van Rooyen and Others
,
3
the Labour Court had
regard to the SARPA case and concluded that :
‘
[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.’
In the circumstances of
this case, it is accordingly necessary for me to determine whether
the respondent had been dismissed within
the meaning of section
186(1)(b).
In order to determine
whether a constructive dismissal has been established, the LAC in
Solid
Doors (Pty) Limited v Commissioner Veron and Others
,
4
[‘
Solid
Doors
’
]
held as follows:
‘
[28] ...
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 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.’
In this decision, the
first requirement is an explicit requirement of section 186(1)(e),
and the second and third requirements
are conflated into one
requirement in that section. Accordingly, what is stated by the LAC
as three requirements in fact amounts
to one requirement without any
factoring in of the ‘fairness’ requirement.
Although the decision in
Solid
Doors
was
not referred to by the LAC in its recent decision in
Jordaan
v Commissioner for Conciliation, Mediation and Arbitration and
Others
,
5
[‘Jordaan’],
it implicitly recognised the fallacy of that approach and instead
reformulated the test. Relying on the
dictum in
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and Others
,
6
the LAC in
Jordaan
set out a two stage
approach for the purposes of determining constructive dismissal
disputes:
‘
In the first
place, an employee who leaves a place of employment bears the onus of
showing that the employer effectively dismissed
the employee by
making her continued employment intolerable. Once this is
established, a second stage must be applied and this
concerns an
evaluation of whether the dismissal was unfair.’
As indicated in
Jordaan
,
the two stages are not necessarily independent stages, and depending
on the circumstances, the facts relevant to the first stage
may also
be relevant to the second stage.
In respect of the first
stage, the onus is accordingly on the employee to demonstrate ‘that
the employer has rendered the
employment relationship so intolerable
that no other option is reasonably available to an employee, save
for termination of their
relationship’.
7
The onus is an onerous
one and clearly constitutes a cautious reminder that the test may be
satisfied in only the rarest of cases.
This test sits comfortably
with the test established by the Constitutional Court in
Strategic
Liquor Services v Mvumbi NO and Others
,
8
in which it was held
that the test for constructive dismissal does not require that the
employee should have no choice but to
resign, but only that the
employer should have made continued employment intolerable.
The dicta explicit in
Strategic
Liquor Services
and
Jordaan
,
and implicit in
Murray
v Minister of Defence
,
9
represent a fundamental
shift of the test from one in which the employee had no option but
to resign, to one in which no other
option is reasonably available
to an employee save for resignation. The shift is from a strict test
to one that is slightly less
strict.
It is in the
determination of the second stage (of the two stage approach) that
John Grogan
10
indicates that it is not
all circumstances of intolerability that can be relied on for the
purposes of establishing a constructive
dismissal. In this regard he
states that:
‘
In making
out a case of constructive of 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.’
The LAC in
Jordaan
also indicated that ‘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’.
The Supreme Court of
Appeal in
Murray
held that even if the employer is
responsible for the intolerable conditions, this will not be
sufficient to constitute a constructive
dismissal. Something more is
required. In that regard the SCA held that:
‘
[13]
...there are many things an employer may fairly and reasonably do
that may 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 (in the formulation
the
Courts have adopted) have lacked ‘reasonable and proper cause’.
Culpability does not mean that the employer must
have wanted to or
intended to get rid of the employee though in many instances of
constructive dismissal that is the case.’
In
Old
Mutual Group Schemes v Dreyer and Another
,
11
the Court held that the
mere holding of a disciplinary enquiry does not amount to duress
entitling the employees to bypass the
internal appeal processes. The
Court found that the employees’ contention that the internal
processes would have been futile
to appeal was without foundation.
The LAC went on to hold that the appeal processes would have been an
ideal opportunity to air
their grievances, especially because there
was no suggestion that the company wished to discipline the
employees but wanted them
to improve their performance. The Court
held as follows:
‘
[9] As die
respondent met die sanksie of die vereiste vir voldoening aan hulle
mikpunte ontevrede was, kon hulle appelleer en op
appèl ‘n
verdere debat oor die redelikheid van die appellant se vereistes
voer. Dit was myns insien hulle enigste
uitweg. Hulle kon nie die
beslissing met betrekking tot wat redelikerwys van hulle verwag kon
word indirek aanveg deur te beweer
dat die appellant se onredelike
vereistes hulle genoop het om te bedank en dat hulle derhalwe
konstruktief ontslaan is nie. Hulle
was ingevolge die
personeelreglement aan ‘n betrokke prosedure gebonde en moes
daarby hou. Normaalweg moet ‘n werknemer
die voorgeskrewe
interne procedures ten volle benut voordat die hof se hulp ingeroep
word. (Sien
Reckitt
and Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union and
Others (1991) 12 ILJ 806 (LAC) te 813B-D
;
asook
Baxter
‘Curing Defects of Natural Justice by Appeal’
(1980) 97
SALJ 113
te 119
).
’
12
In
L.M.
Wulfsohn Motors (Pty) Limited T/A Lionel Motors v Dispute Resolution
Centre and Others
,
13
[‘
Wulfsohn
Motors
’
]
the Court found that there had been no constructive dismissal on the
basis that a grievance procedure had not been exhausted.
Whilst the
Court in this decision purports to apply the strict test, it does so
by invoking the requirement of reasonableness.
It is cited in this
matter purely in the context of its factual relevance, particularly
the relevance of internal processes in
the context of constructive
dismissal disputes. The Court made the following useful comment in
that regard:
‘
[12] ...
Where an employee could reasonably be expected to invoke a grievance
procedure, the resignation will not be regarded as
a constructive
dismissal. See in this regard
Lubbe
v ABSA Bank BPK
[1998] 12 BLLR 1224
(LAC) where it was held that, because the
employee had the opportunity to take up the dispute with other levels
of management,
the resignation was therefore not an action of ‘the
last resort’. I agree with the sentiments expressed by Grogan
that
this test should not be applied too stringently but that it does
protect employers from unscrupulous employees resigning from their
employment without informing the employer about their grievance in
order to claim compensation from them. Where it appears from
the
circumstances of a particular case that an employee could or should
have reasonably channelled the dispute or cause of unhappiness
through the grievance channels available in the workplace, one would
generally expect an employee to do so. Where, however, it
appears
that objectively speaking such channels are ineffective or that the
employer is so prejudged against the employee that
it would be futile
to use these channels, then it may well be concluded that it was not
a reasonable option in these circumstances.’
In the context of the
above jurisprudence, 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:
Marsland
v New Way Motor and Diesel Engineering
.
14
I turn now to the facts
on which I conclude that the respondent was not constructively
dismissed. Consequentially, the CCMA had
no jurisdiction to
entertain this dispute.
Evaluation
In the context of this
matter, it is my contention that the facts relevant to the first
stage are in fact relevant to the second
stage of the two stage
approach established by the LAC in
Jordaan
.
The respondent contended
that she had taken a decision to resign from her employment because
she feared being subjected to disciplinary
proceedings in
circumstances where she had been issued with a final written
warning.
This fear it appears,
emanated from her contention that Jacobs had threatened her. In
re-examination, she contended that this
fear emanated from a bald
allegation that numerous other employees’ services had been
terminated in similar circumstances.
As indicated in the
background facts, the respondent was unable to establish in light of
the probabilities that Jacobs had threatened
her in relation to a
challenge if any to the final written warning, and secondly, that
insofar as she relied on the evidence
of termination of other
employees, she had not provided the relevant evidence in that
regard. In the circumstances, and in the
absence of her failure to
challenge the final written warning in terms of the applicant’s
internal appeal procedure, or
in terms of the unfair labour practice
provisions of the LRA, it is clear that she did not resign in
circumstances that were
“intolerable” and she is not
entitled to seek the assistance of the CCMA or the Court in the
absence of her exhaustion
of reasonable alternative remedies or
procedures.
It is clear that the
respondent had, by her resignation, intended to terminate her
employment with the applicant permanently based
on the totality of
the facts, and more specifically in light of the following common
cause facts:
In her discussions with
Naidoo, she indicated that she had a passion for performing payroll
tasks and that she had arranged for
several interviews with other
entities in that regard. Naidoo had provided her with assistance in
the form of time off for such
interviews and advice in relation to
the preparation for such interviews;
She gave notice and
worked a further thirty days until the date of her departure, and
shortly before that she attended a farewell
party where she thanked
staff and management for the support given to her, and a day before
her departure she repeated those
sentiments;
At no stage prior to her
resignation, nor for a period of thirty days thereafter did she
indicate any unhappiness or displeasure
with the circumstances in
which she had resigned.
I interpose at this
stage to record that the imposition of a final written warning on
the respondent was probably unfair in the
circumstances given that
the employer had relied on a previous written warning that it had
issued to the respondent in 2008.
The reliance on that warning was
probably misconceived and irrational. However, the respondent still
had the option of invoking
the grievance procedure or the internal
appeal process as she had done in respect of the warning issued in
2008 and of referring
an unfair labour practice dispute to the CCMA.
Her resignation in the circumstances, insofar as she wished to claim
that she
had been constructively dismissed, was voluntary, premature
and unreasonable.
In these circumstances,
there can be no talk of constructive dismissal. The employee had
reasonable alternative options and did
not make use of them.
The conclusions that the
commissioner reached were based on the respondent’s version
alone. On the consideration of the
evidence as a whole, the
commissioner, would have reached a different conclusion and one in
which she would have found that the
respondent had failed to
discharge the onus in respect of both enquiries applicable in
constructive dismissal cases. It was apparent
that the commissioner
had slavishly followed the respondent’s version without any
assessment of the totality of the evidence
placed before her.
In the circumstances, I
find that the respondent was not dismissed, but resigned
voluntarily.
I do not, however,
believe that the law and fairness would support the view that costs
should follow the result. Armed with an
award in her favour, she was
faced with an application to review the award, and had little choice
but to try and oppose it. In
walking this path, she had to incur
legal costs in circumstances where she had no security of income. In
fairness, she should
not be saddled with the applicant’s
costs.
Ruling
In the premises, I make
the following order:
(1) The arbitration award
issued by the second respondent under case GAEK353-10 dated 26
October 2010 is reviewed and set aside;
(2) There is no order as
to costs.
_______________
Gaibie, AJ
Acting Judge of the
Labour Court
Appearances:
For the Applicant: P
Maserumule of Maserumule Inc Attorneys
For the Respondent: No
appearance (although she had been previously represented by attorneys
who withdrew prior to the hearing of
the matter)
1
(2007)
28 ILJ 2405 (CC).
2
[2012]
5 BLLR 493
(LC) at para [6].
3
(2012)
33 ILJ 363 (LC).
4
(2004)
25 ILJ 2337 (LAC) at para 28.
5
(2010)
31 ILJ 2331 (LAC) at 2335.
6
(1998)
19 ILJ 1240 (LC) at 1250.
7
Above
n4 at 2336.
8
(2009)
30 ILJ 1526 (CC) at para 4
9
[2008] ZASCA 44
;
[2008]
6 BLLR 513
(SCA).
10
John
Grogan
Workplace Law (9ed) (2007) JUTA at 116.
11
(1999)
20 ILJ 2030 (LAC).
12
Id
ata para 9.
13
(2008)
29 ILJ 356 (LC).
14
(2009)
30 ILJ 169 (LC) at 188G.