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[2013] ZALCJHB 270
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Conti Print CC v Commission for Conciliation Mediation and Arbitration and Others (JR 3304/09) [2013] ZALCJHB 270; (2013) 34 ILJ 3169 (LC); [2013] 9 BLLR 906 (LC) (24 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: JR 3304/09
In the matter between:
CONTI PRINT CC
................................................................................................
.Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
...........................................................
First
Respondent
COMMISSIONER MOHAMED RAFFEE N.O
....................................
Second
Respondent
GLADYS
MOLOKWANE
.......................................................................
Third
Respondent
Heard: 09 January 2013
Delivered: May 2013
Summary: Constructive dismissal is not an enquiry into
jurisdiction but rather whether or not the employee can prove their
claim
– test on review is therefore the ‘reasonable
decision maker’ test and not an objective test applicable to
jurisdictional
rulings. Arbitrator’s findings falls within the
band of reasonableness – review application dismissed.
judgment
NAIDOO; AJ
Introduction
This is an application to review and set aside an arbitration award
made by the second respondent (the Commissioner) under the
auspices
of the first respondent and under case number GAJP3142/09, in terms
of which the Commissioner found the third respondent
(the employee)
successful in her claim for constructive dismissal and awarded her
compensation.
Background facts
The employee commenced her employ, as a cutter and binder, with the
applicant (employer) on 04 April 1998. During the latter
part of
2008, the employer installed an air- conditioning unit in proximity
to the employee’s work station.
The employee complained that the cold air emitting from the
air-conditioning unit was adversely affecting her health, to the
extent she was booked off from work for a period during January 2009
and returned with a medical certificate confirming her complaints.
It was common cause that the area, in which the air-conditioner was
placed, was partitioned from the room where the employee
was
stationed. The wall partitioning the two rooms did not reach the
ceiling, leaving a gap of between 300 to 400 mm in which
the air
from the air-conditioner seeped through. It was further common cause
that to close the gap, would not have come at a
financial cost to
the employer and would have taken an hour to do. On 29 January 2009,
that being a Friday, the employee was
advised by her manager,
Viviers, that she should either choose between her work and her
health; the employee resigned the following
Monday, being the 02
February 2009 and referred her dispute to the first respondent,
claiming a constructive dismissal.
On 27 October 2009, the dispute was arbitrated by the Commissioner
who, in his award dated 18 November 2009, found the employee
was
successful in her claim and awarded her compensation in the amount
of R42000.00.
The employer sought to review the award and filed its application on
15 December 2009 and subsequently its supplementary affidavit,
in
terms of Rule 7(A) (8) (a), on 12 February 2010. The third
respondent filed her opposing papers on 9 January 2012.
In brief the employer’s grounds for reviewing the award are:
6.1. The commissioner unreasonably accepted the version of the
employee, more particularly that she, as early as October 2008
informed the employer that the air-conditioner was adversely
affecting her health, over the version of the employer’s
manager
who stated the first time he became aware of the employee’s
medical condition was on 29 January 2009 and he only had sight
of her
medical certificates after she resigned.
6.2. The commissioner failed to appreciate the fact that the
employee’s resignation without first lodging a grievance was
fatal to her claim for constructive dismissal.
6.3. The commissioner should have found that the employee was
unreasonable to give the employer only two days in which to attend
to
closing the gap in the wall, more especially since no one had advised
the employee that the gap would be closed within the time
frame she
subjectively assumed it would.
6.4. The commissioner, when making his findings, failed to appreciate
the fact that as a temporary alternative, the employee was
offered
the opportunity of moving her work station to another space within
the same room, but chose not to and opted rather to
resign.
Condonation
The employee is nearly two years late in filing her answering
affidavit. Mr Megerowitz, appearing on behalf of the employee,
argued at all material times the employee had the intention of
opposing this matter. In support of this she filed her Notice
of
Intention to Oppose on 6 January 2010. Subsequently she sought
assistance at the Legal Aid Board, but after numerous visits
to its
offices, did not receive the necessary assistance. Due to lack of
income, the employee could not repeatedly travel to
the Legal Aid
Board in search of this assistance. At a later stage a lay person
helped draft her answering affidavit.
Mr. Megerowitz argued that the employee has not been employed since
resigning, leaving her without income to this date. She has
moved in
with her son who assisted her financially whenever he could. Mr
Megerowitz relied on the Labour Appeal Court decisions
in
NEHAWU
obo Mofokeng & others v Charlotte Theron Children’s Home
1
and
South African Post Office Ltd v Commission for Conciliation,
Mediation and Arbitration & others
2
,
wherein the Labour Appeal Court condoned lengthy periods of delay if
it is in the interest of justice to do so or secondly,
if the party
seeking condonation has good prospects of success.
Mr. Mer, appearing for the employer argued condonation should not be
granted as the employee has failed to properly account for
her delay
and further to this, has weak prospects of success.
While the delay in which to file her answering affidavit is
excessive, I am of the view condonation should be granted. As will
become apparent, the employee has good prospects of success in
defending the review application and on the strength of
South
African Post Office (supra)
, I see it proper to condone her
delay despite her explanation being somewhat vague. I am also
convinced that this matter raises
an important question in law and
hence it would be in the interest of justice for it to be heard. My
reading of
NEHAWU
(supra) is that a flexible approach in
deciding on condonation is not only limited to circumstances wherein
the interest of justice
demand the merits be addressed, but extends
and includes circumstances where important legal arguments arising
from the merits,
be heard. As I will deal with below, the important
legal question this matter raises is the appropriate test on review
to be
adopted by this Court in matters concerning constructive
dismissals.
Test on Review
Mr Megerowitz argued that the test to be adopted in this matter, is
not whether the commissioner’s findings are one which
fall
within the band of reasonableness as set out in
Sidumo &
Another v Rustenburg Platinum Mines LTD & others
3
,
but rather the test is an objective one in which this Court must
decide whether the Commissioner was right or wrong in arriving
at
his findings. The basis for his argument is premised on the view
that a constructive dismissal is in fact a jurisdictional
enquiry
and hence the test on review must be consistent with reviewing
rulings of this nature. While the applicant’s representative
based his arguments in line with the test set out in Sidumo, Mr.
Megerowitz’s argument was met with little resistance.
Nevertheless, in approaching the merits of this case, it would be
critical to first determine the appropriate test in which to
address
the merits on review.
If a constructive dismissal is found to be an enquiry into
jurisdiction, then it will follow that the test to be adopted is an
objective one, if on the other hand a constructive dismissal is not
a jurisdictional enquiry, then the appropriate test would
be the
reasonable decision maker test.
In support of this contention, Mr Megerowitz referred to
SA Rugby
Players Association & Others v SA Rugby (PTY) LTD & others
4
.
In that decision the Labour Appeal Court, when faced with a dispute
referred to in terms of section186 (1)(b) of the Labour Relations
Act 66 of 1995 (the Act), said the following:
‘
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.
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 & others
(1994) 15 ILJ 801 (LAC) at 804C-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.
…
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.
’
(My
emphasis)
[14] While the facts of the
SA Rugby
matter dealt with the non
renewal of a fixed term contract, the Labour Court in
Members of
The Executive Council, Department Of Health, Eastern Cape v Odendaal
& others
5
,
relied on the same principle when hearing an application to review
and set aside an award concerning a constructive dismissal.
[15] More recently, the Court in
Asara Wine Estates & Hotel
(PTY) LTD v Van Rooyen & others
6
,
when faced with a review concerning a constructive dismissal, not
only relied on the above quote from the SA Rugby judgment but
also
confirmed the decision of
Members of the Executive Council supra
.
The Court said the following:
‘
....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 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. ‘
[16] Although not referred to by Mr. Megerowitz, his argument finds
favour in another decision of the Labour Appeal Court in
Yvonne De
Milander v The Members of the Executive Council for the Department of
Finance: Eastern Cape and others
7
delivered on 30 November 2012, which confirms the above principle.
[17] Thus in terms of the above authorities, the legal position is
that when faced with an unfair dismissal claim, relating to
a
constructive dismissal or non renewal of a fixed term contract, the
enquiry before the arbitrator is whether or not there was
a
dismissal, which goes to the heart of CCMA’s jurisdiction. It
follows from there that when hearing a review application
with regard
to these disputes, our courts have adopted an objective test, ie
whether the arbitrator was right or wrong in finding
there was or was
not a dismissal and with that whether or not the CCMA had
jurisdiction to hear the dispute – this as opposed
to the
reasonable decision maker test.
[18] The above principle is premised on the view that the CCMA’s
jurisdiction is founded upon the existence of a dismissal.
It is this
viewpoint I shall interrogate and in doing so, will arrive at the
conclusion that the establishment of a dismissal is
not a trigger
which confers jurisdiction on the CCMA to arbitrate such disputes. As
a consequence to these findings an award by
an arbitrator as to
whether or not the employee was successful in their claim for
constructive dismissal, should not attract an
objective test on
review for the simple reason that the arbitrator’s findings
does not concern an enquiry into jurisdiction.
[19] Before addressing this principle, it would be prudent at this
stage to set out the enquiry an arbitrator should embark on
when
dealing with a claim for constructive dismissal. This form of
dismissal is unique in that it is the employee who terminates
the
employment relationship. At the centre of the arbitration process the
arbitrator must determine whether or not the employee
was
constructively dismissed. In doing so the arbitrator embarks on a two
pronged enquiry, the first is whether the employee can
objectively
establish that the employer made working conditions intolerable, and
if so, the second stage is whether the employer
can justify its
actions, for example its actions were objectively and rationally
linked to its operational requirements. Thus to
hold an employee
successful in his or her claim for constructive, an arbitrator must
find the employee was able to discharge his
onus in the initial stage
while the employer failed in its onus in the second stage. Once the
arbitrator makes such findings, i.e.
that the employee was
constructively dismissed, he moves straight onto the issue of remedy,
which is unlike conventional dismissal
disputes where once a
dismissal is established the onus shifts to the employer to prove the
fairness thereof.
[20] Returning to the principle set out in
SA Rugby supra
, as
the CCMA is a creature of statute, the starting point from which to
properly analyse this principle would be to examine the
relevant
sections of the LRA.
[21] The first significant observation is that there is no section in
the LRA that states that the CCMA, in deciding an unfair
dismissal
dispute, has jurisdiction only when a dismissal is established. What
the LRA does however provide for, are circumstances
in which the CCMA
does acquire jurisdiction to arbitrate disputes. Both section 115 (1)
(b) (i) of the Act, titled ‘
Functions of Commission
’
and section 133 (2) (a), titled ‘
Resolutions of disputes
under the auspices of the Commission
’ state the following;
‘
The
Commission must- if a dispute that has been referred to it remains
unresolved
after conciliation, arbitrate
the dispute if-
this Act requires arbitration
and any party to the dispute has requested that the dispute be
resolved through arbitration.’
[22] Does the LRA provide for a claim of constructive dismissal to be
arbitrated at the CCMA? One has to look no further than Section
191
(5) (a) (ii), which expressly requires such disputes to be
arbitrated, and states the following:
‘
If a council or a commissioner has
certified that the dispute remains unresolved, or, if 30 days have
expired since the council
or the Commission received the referral and
the dispute remains unresolved -
(a) the council or the
Commission
must
arbitrate the dispute at the request of
the employee if -
(i) the employee has alleged
that the reason for dismissal is related to the employee's conduct or
capacity unless para (b) (iii)
applies;
(ii)
the employee has
alleged that the reason for dismissal is that the employer made
continued employment intolerable; or
(my emphasis added)
[23] It is thus in my view clear, the question of jurisdiction is
determined by the provisions of the LRA; the CCMA’s
jurisdiction
to conciliate the dispute is confirmed as soon as the
employee refers a constructive dismissal dispute to it within the
prescribed
time frame. If conciliation fails and the employee
requests the matter be arbitrated, then in terms of section 115 (1)
(b) (i)
and section 133 (2) (a), read together with section 191 (5)
(a) (ii), the CCMA’s jurisdiction to arbitrate the matter is
confirmed, barring no other jurisdictional challenge. The issue of
whether the employee can prove his or her case is independent
to the
question of jurisdiction.
[24] In
Fidelity Guards Holdings (PTY) LTD v Epstein NO &
others
8
Zondo JP, as he then was, said the following when interpreting
section 191 (5) (a);
‘
In
my view the language employed by the legislature in s 191 is such
that, where a dispute about the fairness of a dismissal has
been
referred to the CCMA or a council for conciliation, and the council
or commissioner has issued a certificate in terms of s
191(5) stating
that such dispute remains unresolved or where a period of 30 days has
lapsed since the council or the CCMA received
the referral for
conciliation and the dispute remains unresolved, the council or the
CCMA, as the case may be, has jurisdiction
to arbitrate the
dispute....’
[25] While I accept the fact that a respondent at arbitration, can
raise a jurisdictional point any time before or during the
arbitration process, such as the applicant was never an employee or
that the referral to arbitration was not made within the prescribed
time frame, in terms of the above sections read with the passage from
Fidelity Guard Holdings
quoted above, it is not open for the
respondent to raise a point
in limine
challenging the CCMA’s
jurisdictional on the basis of the dismissal being in dispute. If
this was the case then the question
begs as to why the legislature
gave the CCMA the mandate to arbitrate such a dispute knowing full
well that a critical feature
to a constructive dismissal claim is a
resignation rather than a conventional dismissal. Surely it could not
have been the intention
of the drafters of the LRA to not only
introduce a constructive dismissal claim but to further mandate the
CCMA to arbitrate such
claims, with the knowledge that every
employee’s referral will be met by a point in limine concerning
the establishment of
a dismissal. If it is not open for the employer
party to raise such a point, I fail to see on what basis our Courts
do so.
[26] This is not to suggest that the two pronged enquiries is altered
in any way; the employee will still bear the onus of establishing
intolerable working conditions and if successful the onus will shift
to the employer to justify its conduct. Where the difference
lies is
how one categorises the status of an arbitrator’s findings
concerning a constructive dismissal. In terms of the
SA Rugby
case, such findings by an arbitrator are akin to a jurisdictional
ruling where the establishment of a dismissal is linked with
the
CCMA’s jurisdiction. As stated earlier it is for this reason
that the objective test is adopted on review.
[27] In my view this approach conflates what can be regarded as the
merits of the claim i.e. whether or not the claim is good or
bad in
law, to that of jurisdiction. In
Chirwa v Transnet Ltd &
others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
9
Langa CJ stated the following:
‘
It
seems to me axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it. That
much was
recognized by this court in Fraser v ABSA Bank Ltd (National Director
of Public Prosecutions as Amicus Curiae. 180, Van
der Westhuizen J,
when deciding on what constitutes a constitutional issue, held as
follows:
'An issue does not become a
constitutional matter merely because an applicant calls it one. The
other side of the coin is, however,
that an applicant could raise a
constitutional matter, even though the argument advanced as to why an
issue is a constitutional
matter, or what the constitutional
implications of the issue are, may be flawed. The acknowledgment by
this Court that an issue
is a constitutional matter, furthermore,
does not have to result in a finding on the merits of the matter in
favour of the applicant
who raised it.' 181
The corollary of the last
sentence must be that the mere fact that an argument must eventually
fail cannot deprive a court of jurisdiction.’
(my emphasis)
[28] Similarly in
Makambi v MEC, Department of Education, Eastern
Cape Province
[2008] ZASCA 61
;
2008 (5) SA 449
(SCA)
10
the SCA held:
‘
Whether
a court has jurisdiction (in the sense that is now relevant) to
consider a particular claim depends upon the nature of the
rights
that the claimant seeks to enforce. (Whether the claim is good or bad
in law is immaterial to the jurisdictional enquiry).’
[29] The Supreme Court of Appeal confirmed this view in Makhanya v
University Of Zululand
11
where it held the following:
‘
The
submission that was advanced by counsel invites the question how a
court would be capable of upholding the defence (and thus
dismissing
the claim) if it had no power in the matter at all. Counsel could
provide no answer because there is none.
There is no answer because the
submission offends an immutable rule of logic, which is that the
power of a court to answer a question
(the question whether a claim
is good or bad) cannot be dependent upon the answer to the question.
To express it another way, its
power to consider a claim cannot be
dependent upon whether the claim is a good claim or a bad claim.
[30]
The view held in
SA
Rugby
contradicts this dictum in that it links jurisdiction to
whether or not the employee can prove his or her claim for
constructive
dismissal.
[31]
In my view the
question of whether or not the employee would succeed in his or her
constructive dismissal claim is independent to
the issue of
jurisdiction – the fact that the employee cannot prove a
constructive dismissal does not deprive the CCMA of
jurisdiction and
hence a court reviewing such findings is not dealing with a
jurisdictional finding.
[32] A further conundrum the principle in
SA Rugby
brings with
it, is the notion that the CCMA hears the merits of the matter and
then has to decide on whether there is jurisdiction
or not. As per
Makhanya supra
, such a stance is illogical. The merits of a
claim can only be heard once the forum at which it is referred to has
jurisdiction
to hear it.
[33] The above viewpoint focuses on circumstances where the
arbitrator finds the employee unable to establish a constructive
dismissal.
As will become apparent in the following paragraphs, the
same principle held in the
SA Rugby
matter must be extended to
circumstances where the arbitrator finds the employee was indeed
constructively dismissed. This leads
me to the second reason why I
differ with such an approach.
[34] If the view that the CCMA’s jurisdiction turns on the
establishment of a dismissal is correct, then it must equally
be
correct to hold a finding by an arbitrator that there was indeed a
constructive dismissal, also a finding on jurisdictional
(more
particularly a finding that the CCMA does have jurisdiction) and
therefore also subject to an objective test on review. Yet
in taking
such a view, certain sections in the LRA would be rendered
meaningless and ineffective.
[35] Before articulating my reasons by way of a scenario, it would be
useful at this point to reiterate the principle adopted in
SA
Rugby
. In the passage quoted from the said judgement, more
particularly the last sentence in the second paragraph, is the view
that any
finding by the CCMA on its own jurisdiction is not binding
on parties until confirmed by the Labour Court.
[36] Let us for example assume Employee ‘A’ resigns from
the employ of company ‘XYZ’ and refers a constructive
dismissal dispute to the CCMA. At conciliation the dispute remains
unresolved and ‘A’ completes the 7:13 form requesting
the
matter be arbitrated. The arbitrator, having heard all the relevant
evidence, finds ‘A’ was successful in discharging
her
onus while XYZ was unable to justify its conduct. For this reason,
the commissioner finds ‘A’ was constructively
dismissed
and awards her compensation.
Section 143 & 158 of the LRA
[37] As substantiated, the principle adopted in
SA Rugby
must
logically extend to the arbitrator’s findings in the above
scenario being termed a jurisdictional finding. Yet it is
this very
view which distorts the following sections in the LRA. Firstly to
take such a view would render section 143(1) of the
LRA, which
stipulates an arbitration award is final and binding on the parties,
ineffective. This would be because the commissioner’s
findings
on jurisdiction are neither final nor binding until confirmed by the
Labour Court, (as per the
SA Rugby
decision).
[38] Following this same trail of thought, section 143 (3) and
section 158 (1) (c), both providing recourse to an employee to
enforce an arbitration award, would likewise be ineffective.
Returning to the above scenario, unhappy with the award, ‘XYZ’
refuses to pay ‘A’ the compensation awarded. Should ‘A’
embark on either recourse as contained in section
143 (3) or section
158 (1) (c) to enforce compliance, all XYZ will have to argue is that
if the commissioner’s finding on
jurisdiction is not binding on
the parties, then it would logically stand to reason that any award
of compensation, which flows
directly from a finding that the CCMA
has jurisdiction, is equally not binding on the parties. This can
hardly be the convenience
spoken off in the said dictum.
[39] Let us take it a step further, if the matter is taken on review
and the Labour Court adopts the objective test when hearing
the
application, it would do so on a
de novo
basis. (See
Sanlam
Life Insurance LTD v Commission For Conciliation, Mediation &
Arbitration & others (2009) 30 ILJ 2903 (LAC) and Chabeli
v
Commission for Conciliation, Mediation & Arbitration &
others).
[40] This would entitle the court to not only hear the same evidence
that was before the arbitrator but to further hear new evidence
by
either party. This, together with the fact that at the centre of the
enquiries both at the Labour Court and the CCMA arbitration,
lies the
very same question, that is whether ‘A’ was
constructively dismissed; the court in hearing this application
would
be acting as a court of first instance and hence contrary to section
157(5) of the LRA which states that the Labour Court
does not have
jurisdiction to adjudicate a dispute which is required to be
adjudicated at arbitration. As stated earlier, section
191 (5)
expressly provides for a constructive dismissal dispute to be
arbitrated at the CCMA.
[41] In my view the CCMA is empowered by legislation to arbitrate
constructive dismissal disputes. In keeping with the two pronged
approach referred to above, the onus will firstly rest with the
employee and if he or she is unable to discharge such onus, the
enquiry ends there and their claim is dismissed, not for want of
jurisdiction but for the reason that the employee’s claim
is
bad in law, or put differently he or she is unable to prove his/her
claim. If however the employee is successful in their claim,
the
award is final and binding until set aside by the Labour Court.
[42] Before giving a brief recap I am satisfied that by following the
views of both the Constitutional Court and the Supreme Court
of
Appeal in the respective judgments cited above, I have not displaced
the
stare decisis
principle in arriving at a view which
differs from the Labour Appeal Court on this issue.
[43] To recap; the CCMA is a creature of statute and its jurisdiction
is derived from the Act. A CCMA arbitrator’s jurisdiction
to
arbitrate a constructive dismissal dispute is found in and confirmed
by the provision of section 191(yet can be challenged on
other
grounds at arbitration). The commissioner’s findings on whether
or not there was a constructive dismissal, is not a
jurisdictional
finding but a finding on whether or not the employee can establish
his or her claim, taking into account each parties
respective onus.
[44] On this basis I find that an arbitrator’s award concerning
a claim for constructive dismissal, irrespective of whether
the
arbitrator finds for or against the employee, is not one concerning
jurisdiction and hence the appropriate test when reviewing
such an
award, is that as set out in
Sidumo
case and not an objective
test applicable to jurisdictional rulings.
[45] With regard to the factual dispute as to when the employee
advised Viviers that the air-conditioner was adversely affecting
her
health, the employee testified that she did so in October 2008 as
well as handed in medical certificates to this effect. Viviers
on the
other hand testified that the first time he became aware of her
condition was on 29 January 2009 and only had sight of all
medical
certificates on 6 February 2009. It is worthwhile noting that the
employer does not dispute the medical certificates handed
in 2008 but
rather the contents of the certificates do not support the employee’s
assessment that her ill-health was caused
by the air- conditioner. In
accepting the employee’s version the commissioner noted that
one of the employer’s own
witnesses contradicted Viviers
testimony on this point when the witness stated he brought the
employee’s latest medical certificate
to the attention of
Viviers on 23 January 2009. From the record, when the commissioner
put the employee’s version to Viviers,
he was evasive; saying
he could not recall such a conversation with the employee, then
saying he would like to give her the benefit
of the doubt to say she
did so, then later saying he was certain the employee never raised
the issue with him prior to 29 January
2009.
[46] It can hardly be said the commissioner committed any misconduct
when choosing the employee’s version. The issue of whether
or
not the employee called her doctor to testify at arbitration becomes
irrelevant as the veracity of the medical certificates
were not of
issue, once the employee advised the employer of same and what she
thought was the cause, the employer became aware
of her complaint.
[47] Having accepted the employee did inform the employer as to her
medical conditions and the reasons for same, I cannot agree
with Mr.
Mer’s argument that there was a need to lay a formal grievance
before resigning. In the context of a constructive
dismissal, the
purpose of lodging a grievance is to inform one’s employer of a
particular problem so as to afford the employer
an opportunity to
address it. This very same purpose was achieved when the employee, as
from October 2008, advised the employer
of her medical problem caused
by the air conditioner.
[48] Turning to the third ground of review, it must not be forgotten
that Viviers did advise the employee on two occasions, both
on 29
January 2009, (that being two days before she resigned), that she
should choose between her health and work. It is further
noteworthy
that at arbitration Viviers denied giving the employee this choice,
yet on review, Mr. Mer confirmed this statement
by Viviers was common
cause.
[49] While it is correct that no one advised the employee that the
gap in the wall would be closed over the weekend, the inference
Mr
Mer seeks to draw is that the employee unreasonably subjectively
affixed the time frame of that weekend for the employer to
solve the
problem. I cannot agree that this is the only inference that can be
drawn. The employee seems to have allowed the weekend
to pass to
ascertain whether or not the threat from Viviers was indeed his view.
The fact that she came in on the Monday and saw
the gap not closed,
was confirmation to the employee that Viviers’ threat was in
fact the choice before her. This was further
confirmed by the
employer’s third witness Cynthia.
[50] On the fourth ground, the fact that an alternative was offered
to the employee before she resigned did not take the employer’s
case further. The employee acknowledged the offer but disputed its
suitability on the basis that she would still have been exposed
to
the air from the air-conditioner if she took up the alternative
station. Once the employee testified to this, it cannot be said
the
arbitrator committed any misconduct. He accepted the version of the
employee for reasons set out in his award.
[51] In adopting the reasonable decision-maker test, I cannot
conclude that the commissioner’s findings are that which a
reasonable decision maker could not have reached given the evidence
before him. The application stands to be dismissed.
Order
[52] In the premises the following order is made:
52.1 The applicant’s review application is dismissed.
52.2 There is no order as to costs.
____________________
Moksha Naidoo
Acting Judge of the Labour Court
Appearances:
For the Applicant: Mr Mer
Of Fluxmans Attorneys
For the Third Respondent: Mr. Megerowitz
Of Cliff Dekker Hoffman
1
[2004]
10 BLLR 979
(LAC)
2
[2012]
1 BLLR (LAC)
3
[2007]
28 ILJ 2405 (CC
)
4
[2008]
29 ILJ 2218 (LAC)
5
[2009]
30 ILJ 2093 (LC)
6
[2012]
33 ILJ 363 (LC)
7
(PA7/11)
8
[2000]
21 ILJ 2382 (LAC)
9
[2008]
29 ILJ 73 (CC)
10
[
2008]
29 ILJ 2129 (SCA)
11
[2009]
30 ILJ 1539 (SCA)