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[2017] ZALCJHB 25
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Johnson v Rajah NO and Others (JR33/15) [2017] ZALCJHB 25 (26 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 33/15
In
the matter between:
ELTIA
JOHNSON Applicant
and
MAHAMED
RAJAH
N.O.
First
Respondent
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
Second
Respondent
MALESELA
TAIHAN ELECTRIC (PTY)
LTD Third
Respondent
Heard:
13 October and 29 November 2016
Delivered:
26 January 2017
Summary: Review of an
award finding that the applicant was unable to prove
constructive
dismissal. Test on review is correctness. Test is whether there was a
reasonable alternative to dismissal. Application
dismissed.
JUDGMENT
PRINSLOO J.
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
on 2 December 2014 wherein the First Respondent (the
arbitrator)
found that the Applicant was unable to prove that she was
constructively dismissed and found that she indeed resigned.
[2]
The
Third Respondent (Respondent or employer) opposed the application.
[3]
The
matter was initially enrolled for hearing on 13 October 2016 but
during argument it became evident that the entire record of
the
arbitration proceedings was not transcribed. The matter was postponed
to 29 November 2016 to allow the Applicant the opportunity
to
transcribe and file the complete record. The cost occasioned by this
postponement was reserved and I will deal with the issue
of costs
infra
.
The test on review
[4]
The
question in constructive dismissal cases is whether there was a
dismissal or not. This has to be determined before an enquiry
into
the fairness thereof could happen. The question whether a dismissal
had taken place, goes to jurisdiction and this Court as
well as the
Labour Appeal Court confirmed on numerous occasions that the
review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
does not find application in reviewing a jurisdictional ruling
[2]
.
[5]
I
have to decide whether the arbitrator was right or wrong and not
whether the conclusion reached by the arbitrator was one that
a
reasonable decision maker could not reach.
[6]
The
question this Court has to decide in view of the applicable test is
whether the arbitrator correctly found that the Applicant
indeed
resigned and that she was not dismissed.
[7]
Having
perused the Applicant’s affidavits filed in support of her
application for review and considering the test to be applied,
I had
certain concerns regarding this review application.
[8]
The
grounds for review raised by the Applicant in her founding affidavit
are not all that clear as the Applicant made a number of
allegations
regarding her constructive dismissal in general and not specifically
in respect of the grounds for review. The Applicant,
however, averred
that the arbitrator erroneously found that she should have filed a
formal grievance when the test for constructive
dismissal does not
require that she should have no choice but to resign. The Applicant’s
case is that she has discharged
the onus to prove the requirements
for constructive dismissal and the arbitrator should have found that
she was indeed dismissed.
[9]
In
concluding paragraphs, the Applicant stated that the arbitrator
failed to apply his mind to the matter, he acted arbitrary and
capriciously, misconstrued facts, took into account irrelevant facts
and failed to take into account relevant facts and exceeded
his
powers. These allegations are not substantiated.
[10]
The
Applicant also stated that the arbitration award falls to be set
aside for want of reasonableness and then she elaborated on
the
allegations relating to unreasonableness.
[11]
The
grounds for review raised by the Applicant in her supplementary
affidavit are, firstly, that the arbitrator accepted unreasonable
evidence and ignored crucial evidence and she could not see “
how
another reasonable decision maker in the commissioner’s shoes
could not have found that I was constructively dismissed”
.
[12]
Secondly,
that the arbitrator placed undue weight on the issue of a formal
grievance and thirdly, that the arbitrator misdirected
himself and
that—
“
in
adopting the reasonable decision maker test, I cannot conclude that
the commissioner’s findings are that which a reasonable
decision maker could have reached given the evidence before him, no
reasonable decision maker in his position could have found
that I was
not constructively dismissed.”
[13]
In
her heads of argument Ms Mutenga, on behalf of the Applicant,
submitted that the arbitrator reached a decision that is not
supported
by the facts and that falls short of reasonableness and
that the arbitration award should be set aside for the want of
reasonableness.
[14]
In
its opposing affidavit the Respondent did not take issue with the
fact that the Applicant seeks to review the arbitration award
because
it was unreasonable. In fact, the Respondent defended the award by
stating that the arbitrator’s decision to dismiss
the
Applicant’s claim is a decision that any reasonable decision
maker under the same circumstances, could have made.
[15]
‘
Reasonableness’
finds no application
in
casu
and I canvassed the issue with Ms Mutenga in Court. I have also
provided the parties with a copy of a recent judgment
[3]
where this Court has dismissed an application for review where the
applicant incorrectly relied on ‘reasonableness’
instead
of ‘correctness’ and held that:
“
In
other words, reasonableness ordinarily has no place in a review where
the enquiry is whether or not the CCMA had jurisdiction.
This is an
assessment that must be made objectively, having regard to the facts
placed before the commissioner. It amounts to a
determination of
whether the commissioner’s decision was correct.
It
follows that in a matter such as the present, where the proper right
of review is one based on correctness that is the case that
must
necessarily be pleaded. The applicant, mistakenly, has pleaded on the
basis of an attack on the reasonableness of the arbitrator’s
decision. Mr Niehaus, who appeared for the applicant, did not dispute
that the applicant had sought intervention on a basis that
was
incorrect. He requested the court to postpone the matter and to grant
the applicant leave to file amended papers in order to
address the
error.
There
are a number of considerations that compelled me to conclude that a
postponement and the concomitant further delay in the
resolution of
these proceedings was not appropriate in the circumstances. First, as
I have indicated, the fact of the matter is
that the applicant has
approached this court on the basis of pleadings that posit the
incorrect test. All of the submissions in
the founding papers, to the
extent that they suggest that the arbitrator failed to appreciate the
nature of the enquiry that she
was to conduct and that her decision
fell outside of the band of decisions to which reasonable people
could come on the available
material, are irrelevant. The applicant
would be obliged to make out an entirely new case for review. The
present situation is
not dissimilar to that where a plaintiff elects
the wrong cause of action to pursue his or her claim. It is not open
to a plaintiff,
generally speaking, in those circumstances simply to
seek to remove the matter from the trial roll and introduce a new
cause of
action.”
[16]
I am
inclined to follow the aforesaid judgment and raised my concerns with
Ms Mutenga. The Applicant’s application is
interspersed
with allegations relating to reasonableness and the grounds for
review are clearly seeking a review of the arbitration
award because
it falls short of reasonableness.
[17]
On
this ground alone the application should be dismissed. Ms
Mutenga
conceded that the test is correctness and argued that the Applicant
has made out a case wherein she challenged the correctness
of the
arbitrator’s findings. She argued that the Applicant’s
reference to reasonableness is simply to unpack the issue
of
correctness as correctness has different elements. This argument is
not convincing.
[18]
In my
view, the only ground for review where the Applicant challenged the
correctness of the arbitrator’s finding is where
she alleged
that the arbitrator erroneously found that she should have filed a
formal grievance.
[19]
I
re-iterate: reasonableness has no place in a review such as this one
and the grounds for review related to reasonableness cannot
be
considered. I will consider this application only on the basis
whether the arbitrator was correct to find that the Applicant
was not
constructively dismissed and whether he erroneously found that she
should have filed a formal grievance.
Background facts
[20]
The
Applicant was employed by the Respondent as a creditor’s clerk
for the period 4 January 2010 until 2 May 2013.
[21]
The
Applicant sustained a back injury at work when she slipped and fell
in October 2011. She subsequently underwent a number of
medical
procedures that caused her to be absent from work for extended
periods.
[22]
The
Applicant’s doctor confirmed that she was fit for work from 2
April 2013 with certain restrictions, including not sitting
or
standing for more than half an hour at a time, not climbing stairs,
not lifting heavy objects, not travelling extensive distances
and
that she be allowed to work half day shifts for the month of
April 2013.
[23]
A
letter was forwarded to the Respondent prior to the Applicant’s
return to work to ensure that she could be accommodated
as per her
doctor’s recommendations. The Applicant testified that her
doctor requested the employer to accommodate her by
giving her an
office downstairs, not climbing stairs, not travelling long distances
and working half day.
[24]
When
she reported for duty on 2 April 2013, the employer was not ready to
accommodate her and she was sent home whilst her office
was prepared.
The employer paid her for the days she had to wait for the office
downstairs to be prepared and she reported for
duty on 8 April 2013
when the office was prepared. The Applicant testified that she was
provided with a computer and telephone,
but she could only make
internal calls and was unable to liaise with suppliers.
[25]
On 5
April 2013 the Applicant had a meeting with the Respondent and she
prepared the minutes of the meeting. The Applicant recorded
that
during the meeting she was given two options to decide on namely,
whether she wanted to work half day at half her salary or
stay at
home without a salary for the month of April 2013. She further
recorded that she would think about the two options
and inform the
employer on Monday, 8 April 2013, what she decided. The Applicant
reported for duty on 8 April 2013 and she worked
half day or 4 hours
per day, which clearly indicated that she accepted the option to work
half day and by implication at half her
salary.
[26]
The
Applicant felt that her privacy was infringed when other employees
were able to access her electronic mails. The Respondent’s
version was that other employees had to have access to her electronic
mails in her absence as they needed documents or statements.
In
cross-examination the Applicant conceded that the employer only
accessed documents for business purposes and that the employer
was
entitled to do so in terms of its IT Policy.
[27]
The
Applicant conceded that the employer accommodated her in an office
downstairs, that it moved her computer, printer and telephone
to the
new office and that a messenger brought documents to her downstairs
and took it upstairs where the finance department was
located so that
she did not have to climb the stairs. She was not expected to carry
any heavy objects.
[28]
The
Applicant testified that her doctor subsequently recommended that she
be accommodated as aforesaid for another month (i.e. May
2013),
whereupon the employer informed her that they were unable to
accommodate her in that office for another month. The Respondent
informed the Applicant that the office she was accommodated in for
April 2013 belonged to the technical department and they required
the
use of the office urgently. Also, that the effective operations of
the finance department were affected by the fact that the
Applicant
was sitting in a separate office downstairs and away from the rest of
the finance department.
[29]
When
the Applicant received her salary advice for April 2013 she
discovered that the employer paid her for half a day because she
worked half day. She wrote an e-mail to the Respondent’s human
resources director, Mr
Mafereka
(Mafereka), wherein she stated that she was paid full day from 1–5
April
2013,
which is the period the Respondent took to prepare a downstairs
office for the Applicant and from 8–30 April she was
paid for 4
hours per day. The Applicant insisted that she should be paid a full
day’s salary as her doctor indicated that
she should be on a
half day, which is equivalent to light duty and therefore she should
get a full day’s salary. I fail to
see the logic or any
reasonableness in this expectation of the Applicant.
[30]
Mafereka
responded that the employer has accommodated the Applicant by giving
her an office downstairs so that she did not have
to use the stairs
and that her recovery is not adversely affected and she was allowed
to work half day to attend her physiotherapy
sessions. Mafereka
explained that when the Applicant only works half day, the employer
has no obligation to pay her a full salary
as she is paid for the
services she rendered. He further explained that the job of a
creditor’s clerk is of such a nature
that it cannot be made any
lighter and the Applicant’s insistence that being on light duty
qualifies her to a full salary
is incorrect and “
rejected
with the contempt it deserves”
.
[31]
The
Applicant conceded in her testimony that she did not file a complaint
or lodged a grievance with the employer in respect of
any of the
issues she felt aggrieved about. She did not take any steps for the
employer to investigate her complaints or to do
anything about it.
[32]
In
cross-examination it was put to the Applicant that the employer was
unable to accommodate her longer in the office as it was
needed by
the technical department and without lodging a grievance or affording
the employer a further opportunity to accommodate
her elsewhere, the
Applicant resigned on 2 May 2013. The employer was not afforded an
opportunity to accommodate the Applicant
as she chose to resign prior
to dealing with the matter internally. The Applicant testified that
everyone was aware of her circumstances
and for her to go to the CEO
would not have changed anything.
[33]
On 2
May 2013 the Applicant resigned because she was of the view that the
Respondent made it intolerable for her to continue her
employment.
Analysis of the
arbitrator’s findings and grounds for review
[34]
The
arbitrator found that the Applicant was unable to prove that she was
constructively dismissed.
[35]
Before
considering the merits of the Applicant’s case, I first
summarise the principles and the legal test to be considered
and
applied in constructive dismissal cases.
The test for
constructive dismissal
[36]
Section
186(1)(e) of the Labour Relations Act
[4]
(Act) defines a constructive dismissal to mean that an employee
terminated a contract of employment with or without notice because
the employer made continued employment intolerable.
[37]
Where
an employee claims constructive dismissal, the onus is on the
employee to prove that the resignation was not voluntary and
it was
not the intention to terminate the employment relationship. Once the
employee discharges the onus, the conduct of the employer
must be
assessed and the question is whether the employee could reasonably
have been expected to put up with the conduct of the
employer.
[38]
This
Court has previously considered what an employee must prove to claim
constructive dismissal. An employee must prove that—
[5]
1.
He or
she terminated the contract of employment;
2.
continued
employment became intolerable for the employee; and
3.
the
employer must have made continued employment intolerable.
[39]
I
will deal with these requirements separately.
The employee
terminated the contract of employment
[40]
The
Labour Appeal Court
[6]
made it
clear that employees claiming constructive dismissal must prove that
they, and not their employer, terminated the contract
of employment.
[41]
The
resignation must also not be for a voluntary reason such as to take
up alternative employment, to access pension benefits or
for some or
other reason motivated by personal circumstances.
[42]
In
Pretoria Society for the Care of the Retarded v Loots
[7]
(Pretoria
Society)
,
the Labour Appeal Court held that when an employee resigns as a
result of constructive dismissal, the employee is in fact indicating
that the situation has become so unbearable that the employee cannot
work. Effectively the employee is saying that he or she would
have
carried on working indefinitely had the unbearable situation not been
created. The employee resigns because he or she does
not believe that
the employer will ever reform or abandon the pattern of creating an
unbearable work environment. If this assumption
was wrong and the
employer proves that the employee’s fears were unfounded, there
was no constructive dismissal but in fact
a resignation.
[43]
In
Strategic
Liquor Services v Mvumbi N O and Others
[8]
the
Constitutional Court held that the test for constructive dismissal
does not require that the employee have no choice but to
resign, but
only that the employer should have made continued employment
intolerable.
[44]
This
moved away from the position that in a constructive dismissal case
the employee had no other choice or option but to resign.
[45]
In
Asara
Wine Estate and Hotel (Pty) v Van Rooyen and Others,
[9]
this
Court expressed the view that it was doubtful that the strict test
namely, that employment should be so intolerable that the
employee
had no option but to terminate the employment relationship would
survive the Constitutional Court formulation in
Strategic
Liquor Services.
[46]
In
Asara
the
Court considered the authorities and held that where a reasonable
alternative to resignation exists, it cannot be said that
the
employer has made continued employment intolerable for the employee.
[47]
In my
view the position is this: the employee needs not establish that he
or she had no choice but to resign. Where the employee
resigns and
claims that he or she was constructively dismissed, the test is
whether a reasonable alternative to resignation existed.
Continued employment
became intolerable for the employee
[48]
In
Pretoria
Society
the
Court further held that the employee must satisfy the Court that at
the time of the termination of the contract, he or she was
under the
genuine impression that the employer behaved in a manner that
rendered the relationship intolerable and would continue
to do so.
[49]
The
operative word is ‘intolerable’.
[50]
The
courts have confirmed that the use of the word ‘intolerable’
means that there is an onerous burden on the employee
and the
employee is required to show that continued employment would be
objectively unbearable. Intolerability is not established
by the
employee’s say-so, perception or state of mind. What is
relevant is the conduct of the employer viewed in an objective
sense
[10]
.
[51]
The
test remains that the conduct of the employer must be judged
objectively.
[11]
The
subjective apprehensions of an employee cannot be a final determinant
of the issue. In
Smithkline
Beecham (Pty) Ltd v CCMA & Others
[12]
the
Court held that—
“
it
would be unfair to an employer to allow the subjective perceptions of
an employee of its conduct, particularly when those perceptions
turn
out to be incorrect, to be the determining factor in penalizing the
employer with the penalties imposed by the Act.”
The employer must have
made continued employment intolerable
[52]
The
third requirement to prove a constructive dismissal is that the
circumstances that led to the employee’s resignation,
must have
been brought about by the employer. This means that the employer must
have performed actions which created the intolerable
circumstances.
[53]
In
Pretoria
Society
the
Labour Appeal Court held that
the
enquiry is whether the employer—
“
without
reasonable and proper cause, conducted itself in a manner calculated
or likely to destroy or seriously damage the relationship
of
confidence and trust between the employer and employee. It is not
necessary to show that the employer intended any repudiation
of a
contract; the court’s function is to look at the employer's
conduct as a whole and determine whether its effect, judged
reasonably and sensibly is such that the employee cannot be expected
to put up with it.”
[13]
[54]
In
Murray
v Minister of Defence
[14]
the
Supreme Court of Appeal (SCA)
accepted
that there are many things an employer may fairly and reasonably do
that make an employee’s position intolerable.
However, the SCA
confirmed that the employer must be culpably responsible in some way
for the intolerable conditions. It held that—
“
the
mere fact that an employee resigns because work has become
intolerable does not by itself make for constructive dismissal. For
one thing, the employer may not have control over what makes
conditions intolerable. So the critical circumstance must have been
of the employer's making. But even if the employer is responsible, it
may not be to blame. There are many things an employer may
fairly and
reasonably do that 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 . . . have lacked
‘reasonable and proper cause’.”
[15]
[55]
In
Jordaan
v Commission for Conciliation, Mediation and Arbitration and
Others
[16]
the
Labour Appeal Court approved a salutary caution that constructive
dismissal is not for the asking and held 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.”
[56]
In
Murray
it was accepted that the employer may not have control over what
makes conditions intolerable and even if the employer is responsible,
it may not be to blame.
[17]
[57]
The
employer therefore must be culpably responsible for the intolerable
conditions. There must also be a
nexus
or
causal link between the acts of the employer and the decision to
resign.
[58]
In my
view this touches on another important and relevant aspect namely
whether the employer was aware of the alleged intolerable
conditions
and afforded an opportunity to address and rectify it.
[59]
In
Smithkline
this
Court held that where an employee could reasonably have lodged a
grievance regarding the cause of the unhappiness but failed
to do so
before resigning, such employee may find it hard to persuade the
court or an arbitrator that he or she had to resign.
The Court
emphasized that if the employee is too impatient to await the outcome
of the employer’s attempts to find a solution,
to the perceived
intolerable situation, and resigns, constructive dismissal is almost
always out of the question.
[60]
In
Kruger
v Commission for Conciliation, Mediation and Arbitration and
Another
[18]
the employee did not follow a grievance procedure as she believed
that the grievance procedure was no longer an option.
[19]
The Court found that
employees
should not second guess the outcome of lodging a complaint in terms
of the employer’s grievance procedure, especially
not where the
employee is contemplating resignation coupled with an allegation of
constructive dismissal and such employee had
never raised the issue
with the employer before. The Court held that—
“
.
. . when there are remedies available to an employee which had not
been exhausted, as in this case, the employee has not discharged
the
onus of proving that she was constructively dismissed. . . . An
employee may not choose constructive dismissal while
other options
are available. The court’s function is to look at the
employer’s conduct as a whole and to determine
whether its
effect, judged reasonably and sensibly, is such that the employee
could not have been expected to put up with it.”
[20]
[61]
The
judgment in
Kruger
supports
the notion that an employee cannot resign and claim constructive
dismissal while other options are available. As I already
alluded to,
the test is whether a reasonable alternative existed.
[62]
In
Albany
Bakeries Ltd v Van Wyk and Others
[21]
the
Labour Appeal Court effectively took the view that an employee should
make use of alternative remedies. This would obviously
include an
internal grievance procedure. The Court held that:
“
How
will an employee ever prove that if he has not adopted other suitable
remedies available to him? It is, firstly, also desirable
that any
solution falling short of resignation be attempted as it preserves
the working relationship, which is clearly what both
parties
presumably desire. Secondly, from the very concept of intolerability
one must conclude that it does not exist if there
is a practical or
legal solution to the allegedly oppressive conduct. Finally, it might
well smack of opportunism for an employee
to leave when he alleges
that life is intolerable but there is a perfectly legitimate avenue
open to alleviate his distress and
solve his problem.
As is
clear from the remarks of Conradie JA an employee should make use of
a grievance procedure. Such a grievance procedure exists
and was
annexure B in bundle A of the documents in the arbitration. It
provides for a discussion of a problem with an immediate
superior
with the assistance of a representative. If the employee is not
satisfied with that, there is a further step that may
be taken to the
next level of management. The procedure even provides for an enquiry
to be held for the purpose of clarifying the
issues.”
[22]
[63]
It is
in this context that the arbitrator’s findings stand to be
determined.
The arbitrator’s
findings and grounds for review
[64]
In
her testimony the Applicant claimed that the conduct of the
Respondent made it intolerable and impossible for her to continue
working for the Respondent. The Applicant gave 16 reasons for her
resignation and stated that she exhausted all possibilities to
resolve the matter amicably, but she was left with no option but to
resign. The 16 reasons provided by the Applicant could be summarised
as: when she arrived at work on 2 April 2013, no arrangement was made
to accommodate her as per her doctor’s request; the
Respondent
investigated the legitimacy of her medical certificates and sickness;
line management instructed her colleagues not
to interact with her;
her privacy was infringed when management gave her colleagues
permission to access her electronic mail and
to enter her office to
remove work related documents without her consent; limitation of
resources to perform her work adequately;
management’s request
that she should consider taking unpaid leave; and the unilateral cut
of her salary which constituted
a unilateral change in conditions of
employment and breach of contract.
[65]
The
Applicant testified that her doctor requested the employer to
accommodate her by giving her an office down stairs, not climbing
stairs, not travelling long distances and working half day for April
2013. The testimony adduced at the arbitration showed that
the
Applicant’s doctor’s recommendations were implemented
until the Applicant’s resignation on 2 May 2013.
[66]
The
arbitrator found that the test for constructive dismissal is
objective and the complaints must be proved and the Applicant’s
feeling aggrieved was not sufficient.
[67]
He
further found that the Respondent accommodated the Applicant as
recommended by her doctor by moving her office downstairs and
allowing her to work only half day. The Applicant’s expectation
to work half day and be paid a full day is unreasonable and
the
employer cannot be expected to pay her full salary when she works
half day only.
[68]
The
arbitrator accepted that the employer’s Mafereka was
insensitive in the choice of words he used when he responded to the
Applicant’s electronic mail, but his response was not
sufficient to render the employment relationship intolerable.
[69]
The
arbitrator found that the Applicant was unable to explain why she did
not file a formal grievance or gave the employer an opportunity
to
address her issues. He held that the Applicant had a reasonable
alternative and she could have filed a grievance.
[70]
The
arbitrator further found that the Applicant did not show in any way
that she had a valid reason for believing that the employment
relationship was intolerable because of the behaviour of the
Respondent or that she genuinely believed that the employer would
continue with the intolerable behaviour.
[71]
The
Applicant’s grounds for review are limited to whether the
arbitrator erroneously found that she should have filed a formal
grievance and holistically whether he was correct to find that the
Applicant was not constructively dismissed.
Filing of a grievance
[72]
The
Applicant’s case on review is that the arbitrator erroneously
found that she should have filed a formal grievance.
[73]
The
arbitrator found that the employee had a reasonable alternative and
could have filed a grievance, which she did not do. Her
explanation
for not filing a grievance or raising her complaints with the CEO was
that it would not have made any difference.
[74]
The
Courts made it clear that an employer should be made aware of the
alleged intolerable conditions and be afforded an opportunity
to
address and rectify it. An employee cannot merely resign and claim
constructive dismissal while other options are available
and as I
already alluded to the test is whether a reasonable alternative
existed. An employee cannot resign without affording the
employer an
opportunity to rectify the causes of his or her complaints and
successfully claim constructive dismissal.
[75]
The
Applicant’s assumption that it would not have made any
difference had she filed a grievance, is not a reasonable assumption
and was not substantiated by any facts.
[76]
The
Labour Appeal Court made it clear that that an employee should make
use of alternative remedies which include an internal grievance
procedure. It was not open for the Applicant to
second
guess the outcome of lodging a complaint or formal grievance.
[77]
The
arbitrator correctly found that the Applicant should have filed a
grievance and that she had a reasonable alternative. There
is no
merit in this ground for review and no reason for this Court to
interfere with this finding on review.
Was the Applicant
constructively dismissed
[78]
In
Pretoria
Society
the
Labour Appeal Court held that
the
enquiry is whether the employer, without reasonable and proper cause,
conducted itself in a manner calculated or likely to destroy
or
seriously damage the relationship of confidence and trust between the
employer and employee. The court’s function is to
look at the
employer's conduct as a whole and determine whether its effect,
judged reasonably and sensibly is such that the employee
cannot be
expected to put up with it.
[23]
[79]
The
transcribed record placed before me shows that the Respondent
complied with the Applicant’s doctor’s recommendations
and that it made an effort to accommodate her and her physical
condition by preparing a downstairs office for her and by allowing
her to work half day for April 2013, as her doctor requested. When
the Applicant needed to be accommodated for a further month,
it
became difficult for the employer as the office was needed by another
division and the operations of the finance department
were affected.
The Applicant however remained in the downstairs office until her
resignation on 2 May 2013. At no point was
the Applicant removed
from the office and before affording the employer an opportunity to
accommodate her further, she resigned.
[80]
I am
not convinced that the employer conducted itself in a manner
calculated or likely to destroy or seriously damage the relationship
with the Applicant. The employer's conduct, judged as a whole, was
not such that the Applicant could not reasonably be expected
to put
up with it. In fact, the employer accommodated the Applicant and her
resignation, without lodging a grievance or raising
a complaint and
without affording the employer a further opportunity after April 2013
to accommodate her, was premature and
did not constitute a
constructive dismissal.
[81]
In
her evidence the Applicant testified that she consulted somebody and
that she was advised in resigning and claiming constructive
dismissal. In my view, the Applicant was ill-advised and she lost
sight of the
onerous
burden on an employee to show that continued employment would be
objectively unbearable. Intolerability is not established
by the
employee’s say-so, perception or state of mind. What is
relevant is the conduct of the employer viewed in an objective
sense.
[24]
[82]
In my
view and in applying the applicable principles I am not persuaded on
the objective facts that the Applicant in fact discharged
to onus of
proving a constructive dismissal and her claim has to fail.
[83]
The
arbitrator
correctly
found that the Applicant failed to establish a constructive dismissal
and that is not a finding this Court will interfere
with.
Costs
[84]
This
leaves the issue of costs.
[85]
In
Wallis
v
Thorpe and Another
[25]
the
Court held:
“
In
relation to costs, this court has a discretion in terms of s 162 to
make an order for costs according to the requirements of
the law and
fairness. The ordinary rule, i.e. that costs follow the result, is a
factor to be taken into account, but it is not
a determinative
factor. . .”
[26]
[86]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi N.O. and
Others
[27]
it was emphasized that—
“
.
. . unless there are sound reasons which dictate a different
approach, it is fair that the successful party should be awarded
her
costs. The successful party has been compelled to engage in
litigation and compelled to incur legal costs in doing so. An
appropriate award of costs is one method of ensuring that much
earnest thought and consideration goes into decisions to litigate
in
this court, whether as applicant, in launching proceedings or as
respondent opposing proceedings.”
[28]
[87]
Ms
Chenia for the Respondent argued that the costs should follow the
result. In respect of the postponement Ms Chenia argued that
the
matter was postponed in October 2016 because the Applicant failed to
file the complete record of proceedings and the Respondent
is
entitled to the wasted costs occasioned by the postponement.
[88]
Ms
Mutenga argued that both parties had the responsibility to ensure
that the bundles were in order and had the Respondent been
vigilant,
it would have discovered early that the record was incomplete and
there would have been no reason to postpone the matter
on 13 October
2016. I found this submission astonishing. How the Respondent is to
be blamed, where the Applicant is legally represented
and her
representatives had the duty to file the transcribed record, is
beyond my understanding. Had the Applicant’s representatives
been vigilant, they should have noted that the record they filed was
incomplete.
[89]
In my
view the Applicant is not to be blamed and should not be burdened
with the costs occasioned by the postponement on 13 October
2016.
The
Applicant’s attorneys had the duty to file the complete
transcribed record, which duty they neglected, and they are to
pay
the wasted costs occasioned by their failure to file the entire
transcribed record.
[90]
I can
see no reason to deviate from the ordinary rule that costs should
follow the result.
[91]
The
Respondent was compelled to engage in litigation and oppose an
application that had no merit from the onset. The Applicant came
to
Court without merit and with no consideration of the prospects of
success, causing the Respondent to incur legal costs and the
Respondent is entitled to costs.
[92]
A
cost order is a method of ensuring that decisions to litigate in this
Court are taken with due consideration of the law and the
prospects
of success. A review application is not the next automatic step after
arbitration and the practice to review arbitration
awards where there
are no grounds to do so, should be discouraged.
Order
[93]
In
the premises I make the following order:
1.
The
application for review is dismissed with cost;
2.
The
wasted costs occasioned by the postponement of the matter on
13 October 2016 are to be paid by Mothuloe Attorneys.
______________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the Applicant
: Advocate H Mutenga
Instructed
by :
Mothuloe Attorneys
For the Third
Respondent
: Ms Chenia of Cliffe Dekker Hofmeyr Inc. Attorneys
[1]
[2007]
28 ILJ 2405 (CC) at paras 78 and 79.
[2]
South
African Rugby Players Association (SAPRA) and Others v SA Rugby
(Pty) Limited and Others; SA Rugby Pty Limited v South African
Rugby
Players Union and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC); [2008] 29 ILJ 2218 (LAC) at
paras 39-41;
MEC,
Department of Health, Eastern Cape v Odendaal and Others
[2009] 30 ILJ 2093 (LC) at para 6;
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
[2012] 33 ILJ 363 (LC) at paras 21-3. (
Asara
);
Majatladi
v Metropolitan Health Risk Management and Others
[2013] 34 ILJ 3828 (LC) at para 22.
[3]
NUMSA
obo Zahela and 3 Others v Volkswagen SA (Pty) Ltd and Others
,
unreported case number PR 137/13, handed down on 16 November 2016.
[4]
Act
66 of 1995.
[5]
Eagleton
and others v You Asked Services (Pty) Ltd
(2009)
30 ILJ 320 (LC) at para 22.
[6]
Solid
Doors (Pty) Ltd v Theron
(2004)
25 ILJ 2337 (LAC).
[7]
(1997)
18 ILJ 981 (LAC) at page 984.
[8]
(2009)
30 ILJ 1526 (CC) at para 4.
[9]
Asara
above n 2.
[10]
Van
Niekerk et al, “Law @ Work” (Lexis Nexis, Durban, 2008)
at page 213.
[11]
Smithkline
Beecham (Pty) Ltd v CCMA and Others
(2000)
21 ILJ 988 (LC) at para 38.
[12]
Id.
[13]
Pretoria
Society
above n 7 at page 985.
[14]
2009
(3) SA 130 (SCA)
;
(2008)
29 ILJ 1369 (S
CA)
at para 13. (
Murray
)
[15]
Id.
[16]
[2010]
12 BLLR 1235
(LAC) at page 1239; (2010) 31 ILJ 2331 (LAC) at page
2336.
[17]
Murray
above n 14.
[18]
(2002)
23 ILJ 2069 (LC), (2002) 11 BLLR 1081 (LC).
[19]
Id
at para 14.
[20]
Id.
[21]
(2005)
26 ILJ 2142 (LAC).
[22]
Id
at paras 28-9.
[23]
Pretoria
Society
above
n 7 at page 985.
[24]
Van
Niekerk et al, “Law @ Work” (Lexis Nexis, Durban, 2008)
at page 213.
[25]
[2010]
31 ILJ 1254 (LC).
[26]
Id
at para 16.
[27]
2012
33 ILJ 2117 (LC).
[28]
Id
at pages 2119- 2120.