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[2017] ZALCJHB 508
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Nampak Products Limited t/a Nampak Glass v National Bargaining Council for the Chemical Industry and Others (JR2126/2016) [2017] ZALCJHB 508 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2126/2016
In
the matter between
NAMPAK
PRODUCTS LIMITED t/a NAMPAK GLASS
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE
First Respondent
CHEMICAL
INDUSTRY
NOMUSA
MBHELE
N.O
Second Respondent
ANDRIES
MYBURGH
Third
Respondent
Date heard: 19
July 2017
Date delivered: 25
October 2017
Summary: Review
Application: The employee resigning and claiming constructive
dismissal after the employer had initiated a programme
to assist him
to cope with his working conditions.
The employee alleged
that the programme was not implemented but never lodged a grievance
against the alleged non-implementation
of the programme.
The employee resigning
in the face of incapacity process.
The award reviewed and
set aside.
JUDGMENT
MOLEBALOA
AJ.
Introduction
[1]
This is a
review application launched by the Applicant, Nampak Products Limited
t/a Nampak Glass, in terms of Section 145 of the
Labour Relations
Act
[1]
, (the LRA) to have the
arbitration award issued under case: GPCHEM332-15/16 dated 24 August
2016 reviewed and set aside. The award
was issued by the Second
Respondent, N Mbhele, the Panellist, who acted under the auspices of
the First Respondent. The application
is opposed by the Third
Respondent.
Background
facts
[2]
The Third
Respondent was employed by the Applicant on 06 January 1997 as a
Machine Operator until 10 March 2016 when the Third Respondent
resigned from his employment.
[3]
During his
long tenure as the employee of the Applicant, the Third Respondent
suffered several medical problems. However, some of
the accidents he
was involved in that affected his health condition took place outside
his workplace. His medical and accident
records can be summarised as
follows:
3.1
In 1989 the Third Respondent fell from the motorbike and suffered
back injuries.
3.2
On 14 May 2014, while on duty, the Third Respondent was injured as he
slipped and fell on
the floor wearing damaged safety boots. In the
same year he had lungs problems due to fluid in his lungs.
3.3
On 14 May 2015, the Third Respondent was reported suffering from
chronic bronchitis.
3.4
On or about 21 August 2015 the Third Respondent underwent heart
operations as a result of
blocked arteries.
3.5
On 28 November 2015, he had a heart attack and was booked off sick
until 04 January 2016.
3.6
On 05 March 2016 he nearly injured his hand while operating a
machine.
[4]
As a result of the Third Respondent’s medical condition, the
Applicant informed him on 04 February 2016 that it was in
a process
of placing him on temporary or permanent disability. However, the
Applicant’s doctor did not sign the temporary/
permanent
disability forms as he believed he could still perform his duties.
[5]
On 24 February 2016
[2]
the
Applicant and the Third Respondent had a consultation meeting in
terms of which the Third Respondent was placed to work as
MNR / Hot
set checker light duty after it was reported that the Third
Respondent would be undergoing an operation on 13 April 2016.
[6]
On 10 March 2016 the Third Respondent tendered resignation as
according to him the Applicant’s management did not support
him
in his medical condition. This was after an incident that nearly
injured his hand on 05 March 2016.
[7]
He then lodged a dispute of constructive dismissal with the First
Respondent and the Second Respondent was appointed to arbitrate
the
said dispute.
The arbitration award
[8]
The Second Respondent found that the Third Respondent discharged the
onus that he was constructively dismissed and ordered the
Applicant
to compensate the Third Respondent in the amount of R265 576.10
which was equivalent to the Third Respondent’s
ten months’
remuneration.
The review application
[9]
Aggrieved by the Second Respondent’s award, the Applicant
launched a review application citing numerous grounds. Having
carefully scrutinised these grounds, I could safely conclude that the
gravamen that runs like a golden thread through all cited
grounds of
review is that the Second Respondent arrived at a decision no
reasonable decision-maker could have reached on the same
set of facts
in finding that the Applicant had constructively dismissed the Third
Respondent.
Evaluation
[10]
Constructive dismissal is defined in section 186(1)(e) of the LRA as
a dismissal where an employee terminated the employment
relationship
with or without notice because the employer made continued employment
intolerable for the employee.
[11]
Since the Third Respondent alleged to have been constructively
dismissed, the onus of proof was on him to proof that he resigned
and
that such resignation
constituted
a dismissal in terms of Section 186(1)(e) of the LRA.
[12]
The requirements of constructive dismissal are trite. In
Solid
Doors (Pty) Ltd v Theron N.O and Others
[3]
the court held as follows:
“
It should be
clear from the above that there are three requirements for
constructive dismissal to be established. The first is that
the
employee must have terminated the contract of employment. The second
is that the reason for termination of the contract must
be that
continued employment has become intolerable for the employee. The
third is that it must have been the employee's employer
who had made
continued employment intolerable. All these three requirements must
be present for it to be said that a constructive
dismissal has been
established. If one of them is absent, constructive dismissal is not
established. Thus, there is no constructive
dismissal if an employee
terminates the contract of employment without the two other
requirements present. There is also no constructive
dismissal if the
employee terminates the contract of employment because he cannot
stand working in a particular workplace or for
a certain company and
that is not due to any conduct on the part of the employer.”
[13]
The court had to say the following in the matter of
Pretoria
Society for the Care of the Retarded v Loots
[4]
:
“
When
an employee resigns or terminates the contract as a result of
constructive dismissal such employee is in fact indicating that
the
situation has become so unbearable that the employee cannot fulfil
what is the employee's most important function, namely,
to work. The
employee is in effect saying that he or she would have carried on
working indefinitely had the unbearable situation
not been created.
She does so on the basis that she does not believe that the employer
will ever reform or abandon the pattern
of creating an unbearable
work environment. If she is wrong in this assumption and the employer
proves that her fears were unfounded
then she has not been
constructively dismissed and her conduct proves that she in fact
resigned.”
[14]
In the matter
in
casu
the Third Respondent resigned and thereby terminating the employment
contract he had with the Applicant. The question however is
not just
whether the Third Respondent brought the employment contract to an
end, which he clearly did, but whether or not he
voluntarily
brought the same to an end. In
Jooste
v Transnet Ltd t/a SA Airways
[5]
the
court said the following:
“
it
follows from what I have said that in a matter in the Industrial
Court in which the applicant resigned, but avers that he was
constructively dismissed, the first actual inquiry is whether in
resigning, the applicant did not intend to terminate the employment
relationship. The onus is on the applicant. If the court finds that
the applicant did have that intention, the inquiry is at an
end”.
[15]
In determining whether the employee voluntarily resigned,
circumstances surrounding his dismissal must be looked into. Did
he
resign because of the employer or did he resign for unrelated or
unfounded reasons. The test is objective as the employee’s
case
must fail if it is found that the reasons he relies on are unrelated
to work or related but unfounded. About the objectivity
of the test
the court said in
Smithkline
Beecham (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[6]
:
“
What
is clear is that the test for determining whether or not the
termination of employment constituted a constructive dismissal
is an
objective one. The subjective apprehensions of an employee can
therefore not be a final determinant of this issue. The conduct
of
the employer must therefore be judged objectively. It would be unfair
to an employer to allow the subjective perceptions of
an employee of
its conduct, particularly when these perceptions turn out to be
incorrect, to be the determining factor in penalizing
the employer
with the penalties imposed by the Act.”
“
Quite
plainly, from all the findings made by the second respondent, it is
apparent that she found the dismissal to be a constructive
dismissal
because the third respondent subjectively regarded the situation as
intolerable. She approached the matter from the third
respondent's
point of view and not from an objective point of view. Even though
the second respondent was entitled to take into
consideration the
third respondent's subjective perceptions, she failed to have regard
to the decisive question of whether or not,
objectively regarded, the
conduct of the applicant was unfair.”
[16]
In the matter in
casu
,
the Third Respondent alleged that his resignation was an act of last
resort. He did not have confidence in the Applicant anymore.
He
lodged a grievance on 19 May 2014 for being belittled by the shit
manager after he was injured on duty.
[7]
On 09 February 2015 he lodged a grievance alleging that he was
attacked and pushed
[8]
. However,
the Third Respondent continued working and the issues raised in the
two separate grievances would therefore not constitute
the last straw
that broke the camel’s back. Subsequent to these two grievances
there was no other grievance lodged with the
Applicant. At least as
at this stage, resignation would not have been an act of last resort
as the Third Respondent continued working.
This factor does not
appear to have been taken into account by the Second Respondent in
the determination of the issue that was
before him.
[17]
On 04 February 2016 the Applicant and the Third Respondent had an
incapacity meeting
[9]
where an
agreement was reached indicating how the Applicant would assist the
Third Respondent going forward. The company’s
nursing sister
was to arrange with company doctor to look at what can be done to
assist the Third Respondent. It was further agreed
[10]
that follow-up meetings will be called to address other issues that
may be identified in the future.
[18]
Another meeting was held on 24 February 2016 where the Third
Respondent committed to work as MNR/ hot set checker light duty.
This
was a positive act on the part of the Applicant to assist the Third
Respondent. Mr Diemieniet, the Third Respondent’s
legal
representative at arbitration, also seemed to have accepted that the
agreement of 24 February 2016 was a positive act. He
indicated as
follows during cross-examination of the Applicant’s witness:
“
the
first time you initiated anything was on 24 February 2016…”
[11]
.
There
is however a contention whether the agreement was subsequently
implemented. As indicated in the preceding paragraph there
was no
other grievance the Third Respondent lodged with the Applicant after
09 February 2015.
[19]
The Third Respondent preferred to do light duty at cold end. However,
as Mr Van As argued, there was no finding by the Second
Respondent
that the Third Respondent could not do light duty at the hot end as
per the agreement of 24 February 2016. The Second
Respondent also did
not find that placing the Third Respondent at hot end to do light
duty would make his continued employment
intolerable. Furthermore, no
record exist that the Third Respondent went back to the Applicant to
have the agreement changed because
it did not suit him anymore and
that the Applicant unreasonably refused to relook into it. Even if he
did and the Applicant refused,
the Third Respondent was by then aware
of the grievance processes as he already followed them previously on
two different occasions.
He, however, did not lodge a grievance this
time around when the arrangement was not implemented, as according to
him it was not.
The Second Respondent, without a grievance lodged and
without having found that light duty at hot end would create
intolerable
conditions for the Third Respondent, continued to find
that the Third Respondent was constructively dismissed. This decision
is
not consistent with the material evidence that was properly before
her.
[20]
About the incident on 05 March 2016 where the Third Respondent’s
hand was nearly injured, he testified that he did not
inform Joe
Peterson about the incident
[12]
,
instead he went to Mayela the HR Director and asked him about
incapacity process. It can thus be safely concluded that the alleged
non-implementation of the agreement on 24 February 2016 and the
incident of 05 March 2016 were never raised to managers with relevant
authority. There was no grievance laid in respect of either of them.
[21]
There was no other meeting as the Third Respondent resigned on 10
March 2016. The Third Respondent did not clearly indicate
the last
straw that pushed him to resign. At some point he was uncomfortable
with the incapacity process the Applicant had started.
Such cannot
constitute a valid ground for resignation. Resigning in the face of a
process sanctioned by the LRA cannot constitute
a valid ground. In
any event, he had a remedy in terms of the unfair labour practice
processes to challenge the dismissal based
on incapacity. This also
does not appear to have been taken into account by the Second
Respondent.
[22]
Whatever the reasons for his resignation, the Third Respondent did
not file a grievance with the Applicant to deal with such
reasons
that broke the camel’s back. It cannot be sustainable that he
did not lodge the grievance the last time around because
he did not
have confidence anymore with the Applicant.
[23]
The test to determine whether the Second Respondent’s award is
reviewable or not is as enunciated in the case of
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
[13]
and expounded in
subsequent cases i.e
Andre
Herholdt v Nedbank Limited and Gold Fields Mining South Africa (PTY)
Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and
Arbitration and other
[14]
.
[24]
As demonstrated above, the Second Respondent misapplied the principle
of constructive dismissal. She also did not properly
apply herself to
the facts of this case. It is axiomatic that the Third Respondent
resigned just after reaching an agreement with
the Applicant
regarding light duty at hot end. Though the Third Respondent’s
referred to several medical certificates, none
eliminated light duty
at hot end. The incident of 05 March 2016 was not reported. There was
therefore no incident after 24 February
2016 which amounted to a
breach of employment contract by the Applicant to justify the Third
Respondent’s resignation. The
Second Respondent therefore
issued an award a reasonable trier of fact could not have issued. She
committed material errors.
[25]
In
Head
of the Department of Education v Mofokeng and others
[15]
, the Court stated the following at paragraph 33:
“
Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the enquiry. In the final analysis, it will
depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determine with reference to the distorting
effect it may or may not have had upon the arbitrator’s
conception of the inquiry,
the delimitation of the issue to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will ex
hypothesis be material to the determination of the dispute. A
material error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision, the nature of competing interest
impacted upon by the decision,
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on the grounds alone.
The arbitrator however must
be shown to have diverted from correct
path in the conduct of the arbitration and as a result failed to
address the question raised
for determination.
[26]
In conclusion, the Second Respondent produced an unreasonable award
and stand to be reviewed and set aside.
Costs
[27]
I am of the view that this is not a case warranting a costs order
against any of the parties.
[28]
Accordingly, I issue the following order:
Order
1.
The Second
Respondent’s arbitration award made under the auspices of the
First Respondent under case: GPCHEM332-15/16 dated
24 August 2016 in
which it was found that the Third Respondent discharged the onus that
he was constructively dismissed and ordered
the Applicant to
compensate the Third Respondent in the amount of R265 576.10 is
hereby reviewed and set aside.
2.
The Second
Respondent’s award is substituted with the order that the
Applicant did not constructively dismiss the Third Respondent.
3.
There is no
order as to costs.
___________________________________
M
S Molebaloa
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate. Van As
Instructed
by Cliffe Dekker Attorneys.
For
the Respondent:
Advocate R Pottas.
Instructed
by J Diemieniet Attorneys.
[1]
Act 66 of 1995 as amended.
[2]
Page 73 of the record.
[3]
(2004) 25 ILJ 2337
(LAC) at para 28.
[4]
(1997) 18 ILJ 981
(LAC) at 984 E-F.
[5]
(1995) 16
ILJ 629 (LAC) at 638A 639B).
[6]
(2000) 21
ILJ 988 (LC) at paras 38 and 42.
[7]
Page 103 of the record.
[8]
Page 106 of the record.
[9]
Page 94 of the record.
[10]
Page 95 of the record.
[11]
Page291 lines 11-12 of the
record.
[12]
Page 162 lines 10-15 of the
record.
[13]
2008 (2) SA 24 (CC).
[14]
[2014] 1 BLLR 20 (LAC).
[15]
[2015] 1 BLLR 50
(LAC).