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[2017] ZALCJHB 396
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Kambuku Safari Lodge v Commission for Conciliation, Mediation and Arbitration and Others (JR1832/16) [2017] ZALCJHB 396 (27 October 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR
1832/16
In
the matter between:
KAMBUKU
SAFARI LODGE
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Respondent
MR
M N NONYANI (
NO
)
Respondent
SIBONGILE
INNOCENTIA KHOZA
Respondent
Heard
:
25 October 2017
Delivered
:
27 October 2017
Summary:
(Review – jurisdiction – constructive dismissal)
JUDGMENT
LAGRANGE
J
Background
[1]
On the previous occasion when this matter
was enrolled on the unopposed role, the third respondent appeared and
indicated her intention
to oppose the application despite not filing
an answering affidavit or a notice of opposition. She was given an
opportunity to
remedy her failure to oppose the review application
earlier, but has not made use of the opportunity to do so. She did
not appear
at the postponed proceedings.
[2]
The arbitrator in this matter had found
amongst other things that the third respondent had been
constructively dismissed and had
not resigned but had been coerced to
sign a resignation letter after being threatened with a disciplinary
enquiry which could result
in her having a bad employment record.
[3]
The arbitrator awarded her eight months’
salary as compensation amounting to R32,000-00 taking into account:
the uncontested
evidence that she had been a good performer; that she
was told without warning that performance was suddenly sub-standard;
that
she was still unemployed, and the employer had used
unsubstantiated performance issues as a pretext to get rid of her.
[4]
In essence, the applicant has raised two
grounds of review. Firstly, it contends that the arbitrator was wrong
in finding that the
third respondent was constructively dismissed
instead of finding that she had resigned. Secondly, the applicant
contends that the
award of eight months’ salary was not just
and equitable in the circumstances.
Evaluation
[5]
The principle factual error the applicant
contends the arbitrator made was to assume that the mere threat of a
disciplinary enquiry
was sufficient justification for the third
respondent to conclude that she had been constructively dismissed. It
also claims that
the arbitrator failed to consider that the complaint
about her performance must have been a serious one given that she had
previously
impressed the employer with her good performance. It
further contends that the arbitrator failed to consider the
possibility that
the third respondent had simply resigned to avoid
the embarrassment and possible humiliation of a disciplinary enquiry
and not
that she had no alternative but to resign, when she could
have decided to defend herself in any ensuing enquiry. In addition,
the
applicant submits that there was no basis for concluding that
merely because the resignation letter had been typed on the
employer’s
letterhead that constituted an act of coercion.
Lastly, it contends that the arbitrator failed to appreciate that the
third respondent
had been given an opportunity to consider the
alternative of resignation before she accepted.
[6]
When the owner of the lodge gave his
evidence, none of which had been put to the third respondent under
cross-examination, he claimed
that he put to her the two routes that
could be taken, viz: “[either] she goes the disciplinary route
where the likelihood of dismissal is
very good
, or she resigns and I assist
you in finding future employment” (emphasis added). He
claimed that he gave her time to
think about her options. Shortly
after he left her to think about it, she approached him while he was
in discussion with her line
manager and asked to see her line
manager. His evidence of the alleged serious and sudden decline in
the third respondent’s
performance was very vague.
[7]
The owner could not testify about the
discussion held between the third respondent and her line manager
when she signed the resignation
letter, but he denied giving any
instructions to the line manager whatsoever concerning the two
‘options he had raised with
third respondent, which seems
highly improbable. The applicant testified that the line manager had
presented her with a resignation
letter to sign and would not allow
her to type her own resignation letter. She also testified that the
incident began when the
owner had come to office and told her that
she did not want her to work with him anymore and she must resign
because she was not
doing a great job, because somebody else was
doing her job for the past two years. She also testified that he told
her that they
would pay a one month’s salary and give her one
month to find another job. Her line manager then typed the letter and
told
her that he was instructed she must sign the letter, that there
was a car waiting outside her room to take her from the premises
and
she must go and pack her stuff. He also told her that someone was
coming to replace. Under cross-examination, the employer’s
version, namely that she had been offered the alternative of facing a
disciplinary enquiry was never put to her.
[8]
Considering her own evidence, which was not
properly disputed through cross-examination, there was sufficient
reason to believe
that she was in effect told to resign because
somebody else was in fact doing her job and she was superfluous that
the employer
intended to replace her with somebody else. This is so
even if one disregards the hearsay component of the evidence relating
to
whether not her line manager was in fact instructed by the owner
to tell her to sign the resignation letter, or whether he was told
by
the owner that she was being replaced. As her evidence stood, it
remains the case that her line manager told her to sign the
letter
and told her she was being replaced, irrespective of whether or not
that is something he was instructed to say by the owner.
The employer
could not contradict the third respondent’s evidence that she
was told that a vehicle was ready to take her
off the premises and
that she should pack her belongings. In the circumstances, I am
satisfied that the third respondent established
that her resignation
was coerced and that in fact it was tantamount to a dismissal which.
[9]
Even if I entertained the alternative
version of events which was never tested with the third respondent
under cross-examination,
I would not be persuaded that this was
simply a case where there was a neutral discussion of options which
that the employer was
considering and she was given an opportunity to
reflect and consider her response to those options. Even on the
owner’s evidence,
the third respondent, who had an undisputed
good work record up to that point was unexpectedly confronted with
the threat of a
disciplinary enquiry, he told her it was very likely
to lead to her dismissal and that the alternative was for her to
resign.
[10]
I am not
satisfied, even on the employer’s own version, that the options
presented to the third respondent were as open-ended
as those in the
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
.
[1]
Rather, it was made clear to her that the disciplinary enquiry would
most likely lead to her dismissal. It is difficult to avoid
the
inference that the third respondent was effectively being told that
dismissal was a near certainty in circumstances where it
was not even
obvious what she had done allegedly that was so serious to justify
such an outcome. In other circumstances, such as
where an employee
has been confronted with an unauthorised possession of company
property, which they are unable to explain, such
a prediction about
the outcome of a disciplinary enquiry might not be sufficient reason
for an employee to rely on that as a basis
for claiming constructive
dismissal, because there is obviously an equally plausible
explanation that the employee wishes to avoid
an outcome which they
know is likely because they have no defence to the charge of serious
misconduct. In this case, the employer
claims that it was her
performance which was a problem but was threatening her with a
disciplinary enquiry. Under such circumstances,
it is perfectly
understandable if she had interpreted the employer’s prediction
about the outcome of an enquiry as simply
a threat of dismissal if
she did not resign, because there was no explanation why her
performance or conduct was such that it would
most probably result in
her dismissal. The coercive character of the owner’s statement
on his version is difficult to ignore.
Unlike the
Asara
case, there was simply no plausible evidence, even on his own version
to show that there was a
prima
facie
case of misconduct or were performance for her to answer.
[11]
The second ground of review concerns the quantum of the compensation
awarded. In view of the high handed way in which the third
respondent
was dealt with and the absence of any meaningful evidence to suggest
that she might have committed conduct warranting
her dismissal, as
well as the fact the primary remedy of reinstatement is almost never
possible because of the nature of a constructive
dismissal, I cannot
say that the award of eight months’ remuneration was beyond the
bounds of what a reasonable arbitrator
might have awarded.
Order
[1]
The review application is dismissed and no order is made as to
costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D
W de Villiers
RESPONDENT:
No
appearance
[1]
(2012) 33 ILJ 363 (LC)