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[2015] ZALCPE 60
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Africology Spa (Pty) Ltd v Malgas NO and Others (PR65/14) [2015] ZALCPE 60 (13 November 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR65/14
In the matter between
AFRICOLOGY SPA (PTY)
LTD
Applicant
and
THERESA MALGAS N.O
(cited in her capacity as
Commissioner of the
Second Respondent)
First Respondent
THE NATIONAL
BARGAINING COUNCIL FOR THE
HAIRDRESSING,
COSMOTOLOGY, BEAUTY
AND SKINCARE
INDUSTRY
Second Respondent
UASA OBO TAMARYN
BAILEY
Third Respondent
Heard:
05 November 2015
Delivered:
13 November 2015
Summary:
The first step of the test to determine whether an arbitration award
that
an employee was constructively dismissed should be reviewed and
set aside is objective. It is whether the employee proved the
existence
of the dismissal. Absent the proof of constructive
dismissal, the bargaining council lacks jurisdiction to arbitrate the
dispute.
JUDGMENT
LALLIE, J
Introduction
[1] The applicant brought
this application to review and set aside an arbitration award of the
first respondent (“the arbitrator”)
in which she found
that the individual third respondent, Ms Bailey (“Bailey”)
had proved that she had been constructively
dismissed by the
applicant. She awarded her an amount of R12 000.00 which is
equivalent to her two months’ salary. The application
is
opposed by the third respondent.
Material facts
[2] The applicant
employed Bailey as a therapist on 1 December 2012. It allowed her not
to work on Saturdays because of her religious
beliefs. On 26 August
2013, she filed a grievance against the applicant for requiring her
to work on Saturdays. The applicant resolved
the grievance on 29
August 2013 by restoring Bailey’s privilege not to work on
Saturdays. The following day Bailey confirmed
that the grievance had
been resolved. On 19 September 2013, Bailey lodged a second grievance
in which she complained about a number
of issues which included
victimisation for testifying for one of the applicant’s acting
managers in a disciplinary enquiry.
She again raised the issue of
being required to work on Saturdays but acknowledged that the problem
had been solved. She complained
about being forced to work overtime
which she was not paid for. She expressed the view that cameras which
were ostensibly installed
for security reasons were used to monitor
employees including herself, putting them under unnecessary stress.
She stated that the
manner in which the new manager worked caused
them to lose commission. Her further complaint against the new
manager was that she
had unlawfully reduced their lunchtime, she
lacked human resources skills, was extremely rude and caused
unhappiness. Amongst the
complaints was the applicant’s failure
to provide a facility for employees to enjoy their lunch and the
unacceptable manner
in which the applicant kept their cellular
telephones during working hours. Her desired solution to the
complaints was that they
should come to an immediate stop or she
would declare a dispute of constructive dismissal against the
applicant. She informed the
applicant that she would not meet with it
alone as in terms of the Labour Relations Act, she was allowed to
have her union official
present during any discussion. Lastly, she
stated that if her grievance was not resolved within seven days she
would continue with
the next process.
[3] The applicant
scheduled a grievance meeting for 27 September 2013 to which Bailey
responded by demanding an external representative
which was refused
by the applicant based on its policy. On 26 September 2013, she
submitted a medical certificate which declared
her unfit for duty
until 7 October 2013. The applicant reacted to the medical
certificate by offering Bailey the assistance of
a psychologist or a
life coach. The offer was not accepted. On 7 October 2013, Bailey
resigned and referred a constructive dismissal
dispute to the second
respondent where the arbitrator issued the award which forms the
subject matter of this review application.
The award
[4] In her award, the
arbitrator found that Bailey’s witness, Ms Joseph (“Joseph”)
drew attention to the strenuous
or intolerable working relationship
between Bailey and managers at the applicant. She noted the existence
of management issues
and problems at the applicant and that Bailey
resigned after consulting a medical practitioner and after a number
of grievances
were lodged against the respondent. She expressed the
view that in light of the above, Bailey resigned after the working
relationship
became intolerable. Her willingness to lodge many
grievances proved her unhappiness at the applicant. The arbitrator
found a
nexus
between the applicant’s conduct and the
circumstances which induced Bailey to resign. She concluded that
Bailey had proved
that she had been constructively dismissed and that
the applicant had committed an unfair labour practice. She awarded
her an amount
of R12 000. 00 which is equivalent to her two months’
salary.
Grounds for review
[5] The applicant
submitted that the arbitrator’s award is unreasonable and
irregular as she failed to apply her mind to evidence
tendered on
behalf of the applicant. The omission led her to reach a wrong
decision on whether Bailey had been constructively dismissed.
She
failed to evaluate the evidence. The evidence the arbitrator failed
to take into account was that the applicant had a grievance
procedure
which Bailey was aware of. Bailey had filed a grievance which was
resolved promptly. A hearing for the second grievance
was scheduled
immediately after it had been received. Bailey’s failure to
attend the grievance meeting was unreasonable and
fatal to her claim.
The complaints in the second grievance related to normal operational
requirements and issues at the applicant
which could not objectively
have led Bailey to believe that her employment relationship was being
made intolerable. The applicant
also sought to rely on the
arbitrator’s failure to apply her mind to certain issues which
was proved by her failure to apply
the authority she referred to in
reaching the conclusion that the applicant committed an unfair labour
practice when the issue
before her was constructive dismissal. A
further attack on the award was that Bailey tendered no evidence to
prove that the applicant
had made employment so intolerable that no
other option was reasonably available to her except for the
termination of the employment
relationship. In addition, the
arbitrator failed to determine the fairness of the constructive
dismissal.
Analysis
[6]
Section 192
of the
Labour Relations Act 66 of 1995
as amended (“the
LRA”) places the onus of establishing the existence of a
dismissal on employees. In
Pretoria
Society for the Care of the
Retarded
v
Loots
[1]
it
was held that the determination whether an employee was
constructively dismissed starts with the employee proving that in
resigning,
the employee did not intend to terminate the employment
relationship. If the employee did have the intention, the enquiry
comes
to an end. However, absent that intention, the onus is on the
employee to establish that there was a constructive dismissal. The
appropriate test for review therefore is the one laid down in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others
[2]
.
It is that the issue whether an employee has been dismissed goes to
the jurisdiction of the CCMA. If there is no dismissal, the
CCMA has
no jurisdiction to entertain the dispute in terms of
section 191
of
the LRA. In
Strategic
Liquor Services v Mvumbi NO and Others
[3]
,
the court confirmed that the test for constructive dismissal is the
one stated in
section 186
(e) of the LRA, does not require an
employee to be left with no choice but resign. It only requires that
the employer should have
made continued employment intolerable.
[7] When arguing Bailey’s
case, the third respondent’s representative sought to advance
arguments which detracted from
the third respondent’s pleaded
case. One of such arguments was the denial that Bailey raised only
two grievances with the
applicant. The approach is impermissible as
the third respondent’s case had to be foreshadowed in its
pleadings. The third
respondent denied that Bailey intended to
terminate the employment relationship when she resigned and submitted
that she resigned
because the applicant made continued employment
intolerable. The applicant denied having made employment intolerable.
I will firstly
determine whether the third respondent discharged the
onus of proving that Bailey was dismissed.
[8] The evidence which
had a bearing on the applicant and Bailey’s employment
relationship reflects that when Bailey raised
the first grievance
against the applicant for taking away her privilege of not working on
Saturdays for religious reasons, the
applicant restored Bailey’s
privilege promptly. The grievance was raised on 26 August 2013. It
wasn’t resolved on 29
August 2013 and Bailey confirmed its
resolution on 30 August 2013. Bailey raised a second grievance with a
long list of complaints
on 19 September 2013. The list included the
complaint which formed the subject matter of the first grievance.
Bailey however, acknowledged
that when the second grievance was
raised the complaint which formed the basis of the first grievance
had been resolved. The first
grievance was resolved within three days
which is a fair reaction time considering the nature of the
grievance. It therefore could
not have made the employment
relationship intolerable.
[9] Bailey raised the
second grievance on 19 September 2013 in which she threatened to
continue with the next process if it was
not resolved within seven
days. By the following day, the applicant had responded to the
grievance by seeking more and specific
information from Bailey and
advising her that the grievance enquiry would be held on 27 September
2013. A day before the enquiry
set Bailey consulted a doctor who
recommended that she be on sick leave and resume duties on 7 October
2013. Upon receipt of the
medical certificate, the applicant offered
Bailey the support of a professional psychologist or a life coach
which she declined.
Instead of reporting for duty in terms of the
medical certificate on 7 October 2013, Bailey tendered her letter of
resignation.
The reason for her resignation, in a nutshell, was that
the applicant had made the employment relationship intolerable,
conduct
which started after she had testified in a hearing of a
former acting manager of the applicant.
[10] The evidence before
the arbitrator was that the applicant gave Bailey’s second
grievance immediate attention. She elected
not to attend the
grievance enquiry, a decision which was partially influenced by her
fellow employee’s unreasonable advice
that it was a sham. By
telling the applicant that she would take the next step should her
grievance not be resolved within seven
days, Bailey implied that the
working relationship was tolerable and would become intolerable if
the applicant rejected her ultimatum.
Bailey denied the applicant of
the opportunity of dealing with her second grievance partly on the
unreasonable advice of a fellow
employee. The arbitrator based her
decision that Bailey had been constructively dismissed on her
incorrect conclusion that Bailey
resigned after a number of
grievances were lodged against the respondent. Only two were lodged.
One was resolved within reasonable
time and she avoided attending the
grievance enquiry for the other. The arbitrator’s error on the
number of grievances Bailey
filled cannot be overlooked as it had an
effect on her decision that Bailey was constructively dismissed.
[11] The arbitrator made
a finding that Bailey’s willingness to lodge so many grievances
showed that she was unhappy. Unhappiness
is insufficient to render a
resignation a constructive dismissal. A further reason that the
arbitrator relied on was that it was
clear that management issues and
problems existed within the applicant. Management issues and problems
are inherent at the workplace.
It was therefore necessary for the
arbitrator to assess the problems and determine whether they fall in
the category of problems
which render continued employment
intolerable. The arbitrator’s decision that Bailey was
dismissed is incorrect. The
third respondent failed to
establish, on a balance of probabilities, that the applicant
constructively dismissed Bailey. The second
respondent therefore
lacked jurisdiction to arbitrate the dispute the third respondent had
referred.
[12] The applicant sought
an order substituting the arbitration award. For the reasons given
above, the third respondent failed
to discharge the onus of proving
Bailey’s constructive dismissal. As Bailey was not dismissed
the second respondent lacked
jurisdiction to arbitrate the dispute
referred by the third respondent.
[13] In the premises, the
following order is made:
13.1 The
arbitration award issued by the first respondent under case number
DIS/128/13 and dated 14 February 2014 is reviewed
and set aside and
substituted with the following:
13.2
The second respondent lacked jurisdiction to arbitrate the dispute
referred by the third respondent.
__________________________________
Lallie, J
Judge of the Labour Court
of South Africa
APPEARANCE
For the
Applicant:
Mr Posthuma
of Snyman Attorneys
For
the Respondent:
Mr Manganyi of UASA
[1]
(1997) 18
ILJ
981 (LAC)
[2]
(2008) 29
ILJ
2218
[3]
[2009] 9 BLLR 847
(CC)