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[2016] ZALCJHB 38
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Life Hotel Airport JHB (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR3041/12) [2016] ZALCJHB 38 (4 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no
JR
3041/12
In the matter
between
LIFE
HOTEL AIRPORT JHB (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
QUENNDY GUNGUBELE
N.O
Second Respondent
ELIZABETH
MOILOA
Third
Respondent
Heard:
25 November 2015
Delivered:
25 November 2015
Edited:
4 February 2016
EX-TEMPORE
JUDGMENT
CELE
J
[1]
The application before me is one brought in terms of
section 145(2)
of the
Labour Relations Act 66 of 1995
where the applicant seeks to
be granted an order carved in the following terms:
1.
Reviewing and/or setting aside the
arbitration award handed down by the second respondent on 27 October
2012 but received by the
applicant on 22 November 2012 under case
number GAEK5508/12.
2.
Staying the application proceedings pending
the finalisation of this review application.
3.
Directing that any party who opposes this
application be directed to pay the costs thereof.
4.
Granting further and/or alternative relief.
[2]
The application is opposed by the third respondent in whose favour
the award was granted. However after the applicant had complied
with
rule 7A(8)
and having filed the supplementary affidavit, it took the
third respondent more than a year to file an answering affidavit.
At the commencement of this proceedings court had to deal with the
condonation application.
[3]
The period of the delay was so long and in the absence of a plausible
explanation the court dismissed the condonation application
so the
opposition to this review application is based on the papers as
having been filed by the applicant, that will be founding
papers and
the supplementary affidavit.
[4]
It remains common cause between the parties that the third respondent
was in the employ of the applicant. She commenced her
employment as
sous chef and this was in May 2012. She then tendered her
written resignation on 16 August 2012. She thereafter
referred an
unfair dismissal dispute for conciliation. When the dispute remained
unresolved she referred that dispute to arbitration.
[5]
She was alleging that she had been constructively dismissed, she
tendered evidence during the arbitration hearing and after
that the
general manager of the applicant, Mr Griesel, also testified.
At the end of that arbitration hearing the second
respondent issued
an award by finding that indeed, the third respondent had been
constructively dismissed. The commissioner ordered
the applicant to
compensate her in an amount equivalent to 12 months of the salary she
was earning at the time. The applicant
has approached court
seeking to review and set aside this award and that it should be
found that the dismissal was substantively
fair.
[6]
During the arbitration hearing the evidence tendered by the third
respondent was essentially around the difficulties that she
encountered when she was employed. She indicated, as I have
already said, that she had been a sous chef and that she was
however
promoted, to her understanding, to a head chef by one Karin who was
still employed by the time the third respondent started.
She
was trained by Karin and when Karin suddenly resigned she was then
put into the position of the head chef.
[7]
Some amount of money was added to her salary as she was told by the
general manager that she was the head of the department.
She was to
sort out every problem in her section. She encountered a number
of difficulties as any employee would come across
challenges at work.
At one instance she found herself without any help from her
colleagues who frequently absented themselves from
work, two of them
reported to be ill.
[8]
She took this matter up with the general manager and Mr Griesel told
her to sort that out because it was her department.
She then
says that some of the staff members were even dragging their feet
here and there and she had to do what was expected to
be done by them
to try and cover up all gaps so that the customers at the hotel did
not feel that they were not properly being
looked after.
[9]
It remained common cause that to the extent that she did her work the
general manager had no complaints. He said that
he did
criticise her here and there which was normal in the cause of
employment but she suggested that what she did was not well
appreciated. What is confusing in the evidence of Mr Griesel
though, is that he seemed to say that he was training her to
be a
head chef. That is a bit confusing in the sense that she had already
been promoted to be head chef. I do not know what training
was
involved because he did not even talk about training, he said that he
was criticising her here and there.
[10]
There are a number of instances where she had difficulties, she
referred to instances where, for instance her house was broken
into.
She reported that incident to Mr Griesel. She asked to leave early to
attend to that incident but she had to make good for
that time.
She described that as a difficult side of the general manager.
She needed time to go to various shops to
get quotations in order to
file a claim for theft that was committed at her house. She referred
to instances where her child or
children had taken ill and she needed
to look after them. She was allowed to go home early but had to
compensate for that lost
time.
[11]
She referred to instances where she was injured at work. She had to
go for medical treatment and when she came back it was
insisted upon
that she produced a medical certificate. In usual circumstances she
would be expected to do so. But she did
paint a picture of
being confronted by a manager who, if told what difficulties she
encountered at work, her manager did not come
up with any solution.
It is clear from her evidence that if she had a shortage of staff she
had to get permission to have
a replacement or casual replacement for
the staff.
[12]
The evidence tendered by Mr Griesel suggested that every employee has
challenges but that the Third Respondent was complaining
unnecessarily and was crying repeatedly and unnecessarily. He said
that she had to be subjected to some kind of training.
On page
54 of the the transcript, I need to refer to a bit of the evidence
given by Mr Griesel, he says the following from line
9:
“
Elizabeth
was employed with the company from about, I think it was March.
My predecessor employed her as a sous chef and then
she was appointed
in the sous chef like I said, and then moved over. I took over
in May on the property and saw potential
in her and then employed
her, improved her position to head chef, responsible for the entire
kitchen operations at the hotel.
So then basically there were,
during this time, there were a number of times that we did the
discussions of her performance just
of a head chef, responsibilities
as such to develop her further because we saw a potential and ja it
then got to a point, I had
lots of... At one stage the last meeting
was lots of crying, whatever going on and she handed in her
resignation and left the property
immediately
.”
He
says that there were no formal grievances raised by herself. His
evidence then continues to say that there was a handbook that
contained the procedure if one had a grievance. The third respondent
had to sign that handbook. She should have known that as there
were
no human resources personnel she had to get a form with which to
lodge a grievance and she had to give that grievance to him.
[13]
The commissioner listened to all the evidence, issued an award and
basically the essential part of his award is contained in
paragraph
21 and 22. In 21 he says:
“
In
this case it is apparent that respondent had no clue on how employer
and employee relations got managed in this era, therein
he never
challenged applicant assertion that she was never taken through the
induction process when she started working there.
It is common
cause that the applicant joined the company when it was experiencing
serious rate of staff turnover at senior level
in that Karin, who
received her in the kitchen as a sauce chef, quickly made her head
chef as she soon resigned. When Darryl came
in at general manager
level he left applicant to swim or sink as he regarded her as
responsible enough to run her department as
head chef. Indeed
the word training was unheard of as the applicant was expected to
prove her potential by operating as she
explained above. She
had done her best as Darryl also conceded that when she was on duty,
there were no complaints from customers.
Darryl also conceded that
the applicant was expected to cope as she had a lot of
responsibilities and his negative words to her
were aimed to develop
her. I submit that if that is how people got developed at the
workplace then business would shut down
as no one would thrive under
the circumstances of the case.
Applicant
had no support whatsoever, but she soldiered on but when the negative
feedback amounted she became despondent and resigned
in the heat of
the moment, at that time she believed that Darryl would never warm up
to her as she was continuously under attack.
”
[14]
I have looked also at the rest of the award. What is happening
here is that according the commissioner, you have an employee
who
lodges a complaint in an informal manner without writing it down,
nothing is done about that, she finally breaks down, she
is in tears,
she resigns, and leaves. The commissioner says this was
constructive dismissal.
[15]
The applicant calls the finding a misdirection because every employee
has her own challenges. The commissioner is said to have
misdirected
herself in the way that she assessed the evidence. I must thank
Mr Hutchinson for drawing my attention to the
case of
County
Print CC v Commission for Conciliation Mediation and Arbitration
[1]
where the court had to deal with the question of constructive
dismissal. In the footnote the following appears:
“
The
court then confirmed the three requirements that must be established
for constructive dismissal as set down in Solid Doors.
The
employee must have terminated the contract of employment, employment
must have become intolerable for the employee and the
employers
conduct must have made continued employment intolerable. If all
three requirements are present constructive dismissal
has been
established
.”
[16]
A trend has developed, as employers would have it, that when an
employee has a grievance she must follow certain procedures.
It
is common cause that the third respondent never followed any formal
grievance procedure.
[17]
What is factually clear though is that the general manager became
aware that the third respondent was met with challenges and
they were
serious challenges, where some of the employees did not pitch for
work and she needed a solution to be given to her by
the general
manager. She did not have the general authority to employ what they
called “
skillers”
. One time she employed one
and apparently she was taken to task on that.
[18]
Clearly the third respondent showed in her evidence that a point had
been raised in the cause of the employer-employee relationship
where
she could no longer have any faith in the resolution of problem that
she encountered when such were given or articulated
to Mr Griesel.
Clearly, in this case, the third respondent did show to the
commissioner that she was confronted with a very
difficult situation
at work.
[19]
She did resign by a letter that she gave. Indeed, she had reached a
point where one can, even on objective facts, agree with
her that it
was difficult for her to continue working under this general
manager. He is the one who said she cried repeatedly.
Yet he
does not come forward to say what he did about that and about the
complaints that were lodged. In as much as there
was no formal
complaint in the form of a grievance, there was this crying which was
a clear indication that all was not well when
the Third Respondent
tried to convey the difficulties which she had, she was left indeed
to swim against a heavy tide.
[20]
In my view, the commissioner properly assessed this evidence and
therefore did not misdirect himself in the manner he went
about
assessing it. He came to a conclusion that the third respondent was
faced with a difficulty of a hard hearted employer who
did not want
to meet her at least half way. The intolerability that she was
confronting was indeed caused by the employer,
in the person of a
general manager.
[21]
This is a case where I am not able to find any defect as defined in
section 145(2)
of the Act. Nor am I persuaded that there is any
defect as explained in
Goldfields
Mining South Africa (Pty) Ltd, Kloof Gold Mining v CCMA &
Others
[2]
where the review test is articulated in paragraphs 13 to 21 of the
judgment. I cannot find any unreasonableness with this
award.
Accordingly the review application stands to be dismissed.
I
make the following order,
1.
Condonation for the late filing of the
answering affidavit is refused.
2.
The review application is dismissed.
3.
No costs order is made.
___________________
CELE
J
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. WJ Hutchinson,
instructed by Fluxmans Inc.
For
the Respondent: Mr. I M Shongwe, Shongwe Attorneys
[1]
(2015)
36 ILJ 2245 LAC
[2]
2014(35)
ILJ 943 LAC