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[2017] ZALCJHB 457
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Van Eeden v Hyprop Investments Limited and Others (JR2519/15) [2017] ZALCJHB 457 (22 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR2519/15
In
the matter between
NATASJA
VAN
EEDEN
Applicant
and
HYPROP
INVESTMENTS
LIMITED
First Respondent
WW
FERREIRA
N.O.
Second Respondent
CCMA
Third Respondent
Heard:
19 July 2017
Delivered:
22 November 2017
JUDGMENT
MONI.
AJ
[1]
This is a
review application of an arbitration award against the applicant. It
is defended by the respondent, Hyprop Investments
Ltd (Hyprop). The
applicant resigned with notice on 3 April 2014. On 10 April 2014 she
declared a constructive dismissal dispute
in terms of s 186(1)(e) of
the Labour Relations Act
[1]
(LRA) to the third respondent Commission for Conciliation, Mediation
and Arbitration (CCMA). The arbitration was heard by the second
respondent (Commissioner) on 31 July 2014, 8, 12 September 2014, 11
December 2014, 5, 11 June 2015, 7 and 8 September 2015. This
matter
took an inordinate amount of time to be heard. This was purportedly
due to postponement requests by both parties’
representatives
and the commissioner’s availability. This extended period to
arbitrate a matter should have been avoided.
It is both the
representatives’ and the commissioner’s duty to ensure
that ventilation is not delayed. It is in the
best interests of the
parties that their dispute is expedited. Resolution of issues avoids
delays. This is a matter where had both
parties properly attempted
conciliation, the matter could have been resolved at the CCMA.
[2]
The
applicant’s review application is on the following grounds:
firstly, that the commissioner applied the test for constructive
dismissal incorrectly (even though he was aware of the test)
therefore he did not apply his mind to the evidence before him.
Secondly,
the commissioner finds that there are mutually destructive
versions and yet fails to explain why he believes Hyprop over the
applicant,
essentially, Hyprop’s explanation for its conduct is
deemed reasonable which the applicant believes is incorrect. Thirdly,
the commissioner finds that because the applicant did not seek the
assistance from the respondent’s Human Resources (HR)
department it disqualified her from proving that she was
constructively dismissed. Fourthly, that the
decision
reached by the commissioner is one that a reasonable decision-maker
could not reach.
[2]
Condonation
Application
[3]
Before this
Court considers the review application, I must consider the
applicant’s condonation application. The principles
laid down
in
Melane
v
Santam
Insurance
Company Limited
[3]
by Holmes JA are well known. In the matter of
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[4]
,
the
Labour Appeal Court (LAC) elaborated upon those principles as
follows:
“
Firstly, that there must be
good cause for condonation in the sense that the reasons tendered for
the delay had to be convincing.
In other words, the excuse for
non-compliance with the six-week time period had to be compelling.
Secondly, the court held that
the prospects of success of the
appellant in the proceedings would need to be strong. The court
qualified this by stipulating that
the exclusion of the appellant's
case had to be very serious, i.e. of the kind that resulted in a
miscarriage of justice.”
[4]
The
applicant’s review application is late by 26 court days, not 43
days. This delay is not excessive when considering the
reasons for
the delay, which are,
inter
alia
, a
breakdown in the applicant’s marriage, separation in September
2015, dealing with the emotional effects that this had
on her child
and sitting for final LLB exams in November 2015. This Court accepts
that the period before the applicant launched
her review application
was enormously stressful for her. Despite the respondent naming the
delay as mere excuse, pathetic and void
of merit; to know that the
applicant was late because she ensured that her child’s health,
welfare, security and safety was
placed above her own case, satisfies
this Court and is compelling
[5]
.
Furthermore, once a decision was taken to review the matter, the
applicant acted swiftly. The respondent has not shown that it
has
suffered any prejudice because of the applicant’s delay.
[5]
As the
above is insufficient to condone the applicant’s lateness
alone, I turn to consider the prospects of success; as such,
the
Labour Court in
Academic
and Professional Staff Association v Pretorius No and Others
[6]
reiterated the applicable factors to be decided upon when late filing
of a review application is necessary, and said:
“…
a good explanation for
the lateness may assist the applicant in compensating for weak
prospects of success. Similarly, strong prospects
of success may
compensate the inadequate explanation and long delay.”
[6]
In
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
[7]
the Court said:
“
In review condonation
applications, the explanation that needs to be submitted must be
compelling and the prospects of success need
to be strong. Where it
comes to the issue of prejudice, the applicant in fact has to show
that a miscarriage of justice will occur
if the applicant's case is
not heard. The reason for these more stringent requirements is that
review applications occur after
the parties have already been heard,
presented their respective cases and a finding has been made. Under
such circumstances, considerations
of justice, fairness and
expedition require that challenges of such findings must not be
delayed and must be completed as soon
as possible.”
[7]
Should I find in favour of the applicant, the
prejudice is automatic as is the miscarriage of justice.
[8]
For this Court to find whether the applicant’s
prospects of success are strong, the facts and the reasons for review
are considered
below. I have alluded to this matter being lengthy.
What is expounded below is a short concise summary of the facts on
record.
[9]
The first respondent owns and manages properties.
The applicant commenced her employment in February 2009. She worked
in the Commercial
Division as the Financial Manager. The Commercial
Division consists of 3 properties, namely: Glenfield, Glenwood and
Lakefield.
The applicant had previously put her hand up to assist
Malize Jacobs (Jacobs), the General Manager for the Retail Division,
the
applicant worked well with Jacobs. Jacobs mitigated for a higher
bonus for the applicant because of her willingness to assist her
and
the way she did so. The applicant assisted Jacobs only in the
financial space.
[10]
The applicant’s Commercial Division’s
General Manager was Robin Merrington (Merrington). Merrington and the
applicant
worked well together too. Merrington took maternity leave
mid-March 2013. She was to return in August 2013 (6 months’
later).
[11]
The Commercial Division consisted of 4 personnel;
namely, Merrington, the applicant and two handymen. When Merrington
went on maternity
leave, she was to hand over her duties to Jacobs.
The handover was not comprehensive or thorough as such Jacobs did not
know what
Merrington’s job entailed. In the purported
‘handover’ meeting Merrington agreed for Jacobs to change
working
systems to assist her as such, Jacobs was inundated with her
own work. This was not mooted with the applicant prior to the
agreement.
Jacobs believed that the applicant would be able to do
Merrington’s work. Jacobs testified that the applicant had once
told
her that she did all Merrington’s work. The applicant had
never done Merrington’s work. Further, there was no handover
by
Merrington to the applicant.
[12]
The applicant’s working environment was,
inter alia
, as
follows:
12.1
She worked flexi-time;
12.2
She could take her lunch hour at the end of the day;
12.3
She spoke daily with her daughter, telephonically;
12.4
She could study during her free time;
12.5
Merrington managed the applicant,
inter alia
, as follows:
i.
What and whom to bill;
ii.
What to pay including but not limited to
creditors, expenses, rates and taxes;
iii.
What provisions to make, journals and general
ledgers;
iv.
Letting commission calculations; and
v.
Updated leasing information.
12.6
The applicant dealt only with tenants’ financial queries and
not operational queries;
12.7
Merrington took minutes of meetings;
12.8
Merrington undertook all the operations of the commercial division
(according to Jacobs this was not a lot
of work);
12.9
Merrington prepared management packs, the applicant sent the
financials to Merrington to be included; and
12.10 Merrington
provided checks and balances, timeously.
[13]
In or during February 2013, when Merrington
mooted Jacob’s supervision with the applicant, the applicant
thought it was a
good idea. As mentioned previously, the applicant
and Jacobs worked well together. However, neither Jacobs nor
Merrington explained
to the applicant exactly what was required of
her. Jacobs assumed that the applicant would fulfil Merrington’s
role. Further,
Jacobs assumed that the applicant would embrace her
way of doing things. As with all assumptions, Jacobs was incorrect.
[14]
On 8 March 2013, Yvette Van Der Merwe (Van Der
Merwe), a Hyprop Director, held a meeting regarding the fact that
Jacobs would fulfil
Merrington’s position temporarily whilst on
maternity leave. She indicated that there would be more work to do
and that all
employees would need to ‘chip in’.
[15]
Jacobs implemented a new tracking system and an
excel spreadsheet that essentially duplicated the applicant’s
work. In one
of the initial meetings, on 22 April 2013, the applicant
attempted to explain this to Jacobs, there was a debate, wherein
Jacobs
relented with the retort: “Is jy gelukkig in jou hart?”;
thereafter the applicant left the room. In cross-examination
Jacobs
testified that the fact that the applicant did not want to do ‘it’
was not a ‘big deal’, not deemed
as a ‘failure/refusal
to carry out direct instructions’. In any event the task was
merely delegated to Kobus de Beer
(De Beer), the Operations Manager
of the Retail division. However, it does not end there.
[16]
The applicant believed that Jacobs should
shoulder Merrington’s tasks. This was discussed in a Friday
night meeting after
the quarterly report in May 2013. Jacobs told the
applicant that she could not do Merrington’s work. The
applicant thus slowly
adjusted towards doing Merrington’s tasks
until she was able to comfortably meet deadlines. The applicant did
so believing
that Merrington would return in August 2013 and things
would revert to what they were previously. But it did not, Merrington
did
not return, instead she resigned at the end of her maternity
leave. A temporary situation became permanent.
[17]
In or during August 2013, Van Der Merwe held
another meeting wherein she explained that Merrington was not going
to return. Further,
Merrington was not going to be replaced as the
buildings were on the market to be sold. She reiterated that everyone
would have
to work a little harder. The short-term misgivings now
became long term for the applicant. Considering the above, Jacques
Oosthuizen
(Oosthuizen), the Financial Manager for Hyprop, suggested
that the applicant apply to their in-house counsel for exposure
especially
since she was studying towards an LLB degree. This she
did. Also, he noted that Jacobs, as far as Van Der Merwe was
concerned,
‘walked on water’ and advised the applicant
against complaining about her.
[18]
I pause here to elucidate the applicant’s
personal concern. The applicant thought that with the sale of the
buildings and
her redundancy she would be made to immediately pay
back her double study loan.
[19]
Jacobs knew of the applicant’s purported
‘inflexibility’ almost from inception and did nothing
using her managerial
prerogative to resolve it. Instead, Jacobs began
to,
inter alia
, leave
the applicant ‘out of the loop’. At one stage the
applicant tells Jacobs that she will not be ‘uitgehaal
as ‘n
klein brat nie’. The issues the applicant had, that led to the
work environment becoming tainted were as follows:
19.1
Jacobs had an issue with the applicant’s flexi-time, talking to
her daughter
telephonically during the day and studying during her
free time;
19.2
At first, the applicant performed the operational functions because
it was
only temporary, but her willingness to continue on a full-time
basis, changed when Merrington failed to return and,
inter
alia
, the extra work, additional hours and
Jacobs’ supervision became permanent and Jacobs became
disparaging;
19.3
It is common cause that Jacobs relied on the applicant’s
financial management
acumen. And, so she requested that the applicant
draft minutes of their meetings. This was a task that the applicant
never had
to do before. Despite Jacobs’ lack of financial
management acumen, the applicant was made to utilise Jacobs’
documents.
The applicant believed that the documents she presented
were sufficient. Jacobs was unpersuaded. Further, she was made to
redo
work that was correct from inception.
19.4
Jacobs would have queries at the 11
th
hour on delivery day budgets. This would mean that the applicant
would miss her deadline and look incompetent in the eyes of Jacques
Oosthuizen. The applicant felt as if she became Jacobs’ fall
guy. Jacobs did not apologise in instances when the applicant
had
been correct all along;
19.5
Jacobs took her time to oversee and respond to documents that needed
immediate
attention;
19.6
The applicant also did not believe that the new systems implemented
by Jacobs benefitted the first respondent;
and
19.7
Further, the applicant required oversight on financial management
documentation, in terms of ordinary checks
and balances. This support
was seldom provided by Jacobs timeously.
[20]
When Merrington resigned, Jacobs and Merrington
did not do a final handover. In or during October/November 2013, the
applicant put
up her hand for Merrington’s position. This was
declined by Van Der Merwe without justification.
[21]
According to Jacobs, at the outset of
Merrington’s maternity leave (March 2013) she detected
reluctance on the part of the
applicant to assist her. However,
according to Jacobs, this reluctance stops in April 2013. And, only
begins again in November
2013. Jacobs did not discipline the
applicant for her reluctance because the fact that she did not want
to do ‘it’,
inter alia
,
the tracking system, was not an issue for the first respondent and
Jacobs’ extra role was only temporary. When the
status
quo
became permanent, the applicant became
‘difficult’. Despite this, Jacobs does not discipline the
applicant or guide
her into the new role. Instead, Jacobs complains
to Van Der Merwe about the applicant, before 2013 was out. As such,
Jacobs was
frustrated about the applicant’s repeated negligent
mistakes, her failure to listen and adhere to her instructions which
was, according to her, disrespectful. The applicant was also not a
team player. She did not deny the applicant flexi-time; she just
wanted to know specifically when the applicant was leaving. This
contradicts Van der Merwe, who in an email explains to the applicant
that Jacobs has a right to monitor her working hours.
[22]
Despite the difficulties that Jacobs is having
with the applicant, Jacobs does not touch base with Merrington to
ascertain if she
experienced the same frustrations with the
applicant. Or perhaps, it is not a big deal for Jacobs. It is a big
deal for the applicant
who is experiencing Jacobs’ management
of her.
[23]
Jacobs insists that the applicant take a day’s
annual leave when she leaves work an hour and a half early to watch
her child
play sport. She starts to undermine the applicant,
personally, for instance, at the year-end party, Jacobs refuses to
buy the applicant
a Gautrain ticket because ‘you are not part
of my staff’. She castigates her staff for wanting to wait for
the applicant
to arrive at the train station. She does not want her
staff to fraternise with the applicant. In December 2013, the
applicant threatens
to resign, Jacobs persuades her not to. (This is
odd for Jacobs who is purportedly experiencing so much frustration
with the applicant.)
According to Jacobs, she managed to calm the
applicant down and stop her from resigning by requesting the
applicant to think of
the welfare of her daughter. It is this Court’s
opinion that Jacobs knew that with the applicant gone, she would be
inundated
with more work and it was for this reason she asked the
applicant to think of her daughter. In fact, when the applicant did
leave,
there was madness and mayhem in the office and this is the
sense I get from Jacobs’ account in her testimony.
[24]
On 18 February 2014, the applicant sought Van Der
Merwe out, requesting her assistance with Jacobs. Van Der Merwe
advised the applicant
to set out her grievances in writing and allow
Jacobs to reply in the same manner. Should the two of them be unable
to resolve
things, then Van Der Merwe would get involved.
[25]
Unbeknownst to the applicant, Van Der Merwe and
Jacobs had been discussing her for a while and so Van Der Merwe was
already involved.
[26]
The applicant forwards her letter of complaint to
Jacobs on 27 March 2014. According to Jacobs this is the first time
she became
aware as to how the functions between Merrington and the
applicant were split. This corroborates the applicant’s
assertion
that Jacobs was inundated, the applicant undertook
Merrington’s job and Jacobs neither does Merrington’s
work nor oversee
and manage the applicant as a general manager
should.
[27]
The above-mentioned letter ventilates the
applicant’s issues and the fact that Jacobs has failed to
appreciate that the applicant
was busy too and trying to find her
feet in a new, albeit temporary, portfolio. The insinuations that she
was uncooperative were
unfair. The applicant offers examples of her
frustrations in the hope that Jacobs would see her point of view.
Further, her examples
show Jacobs out to be hostile toward the
applicant creating an environment that sees the applicant take the
blame for tardiness
and ineptitude.
[28]
Whilst Jacobs replies to the applicant that she
does not have time to read her email, in her testimony, she is so
upset that she
immediately goes to Van Der Merwe who ultimately
assists Jacobs in drafting her reply.
[29]
Further, Van der Merwe specifically tells Jacobs
not to involve HR.
[30]
On 2 April 2014, Jacobs furnishes the applicant
with a letter stating that:
30.1 Negligent
mistakes are being made;
30.2 Direct
instructions are not executed;
30.3 There is no
proper support for Jacobs; and
30.4 The applicant
is inflexible.
[31]
None of the applicant’s grievances are
acknowledged. There is seemingly no understanding of the applicant’s
issues.
Jacobs (and Van Der Merwe) skirt around the issues in order
to move forward. It is at this juncture that I pause and revert to my
initial sentiments about this matter. One cannot resolve issues if
they are not ventilated. When one understands another’s
issues
one can see the iceberg. Not only the 30% that is above the water but
also the 70% below it. Understanding of this is crucial
because
Jacobs (and Van Der Merwe) should have taken the time to analyse and
reflect on her participation in the applicant’s
grievances.
Instead, Jacobs wanted to meet the applicant to discuss a way forward
and her ideas to improve the working relationship.
In her testimony,
Jacobs had big plans. However, Jacobs never expounds on them. The
applicant wanted to focus on what has gone
wrong, in order to move
forward and this was as advised by Van Der Merwe. Why Jacobs (and Van
Der Merwe) chose to blame the applicant
is a mystery. This was the
opportunity to make things right. For some reason, irrelevant to this
Court, Jacobs (and Van Der Merwe)
chose not to take the ‘gift’
provided to her by the applicant’s letter.
[32]
It is Jacobs’ (and Van Der Merwe’s)
reply that makes the applicant realise that there is no intent on the
part of the
employer to help her resolve the situation she finds
herself in and she resigns giving a month’s notice. Van Der
Merwe invites
the applicant to her office and asks her if she has
another position to which the applicant says ‘no’. Van
Der Merwe
tells the applicant that she can take time off to find
herself an alternative position. HR holds an exit interview with the
applicant
and advises the applicant that she can leave immediately.
The applicant does not work her notice period not of her choosing.
The
test for Constructive Dismissal
[33]
Constructive
dismissal is defined in the LRA in section 186(1)(e) as termination
of employment by the employee because the employer
made continued
employment intolerable. Precedent has
established
that the onus rests on the employee to prove that the resignation
constituted a constructive dismissal. In other words,
the employee
must prove that the resignation was not voluntary, and that it was
not intended to terminate the employment relationship.
[8]
Once
this is established, the inquiry is whether the employer
(irrespective of any intention to repudiate the contract of
employment)
had without reasonable and proper cause conducted itself
in a manner calculated or likely to destroy or seriously damage the
relationship
of confidence and trust with the employee. Looking
at the employer’s conduct as a whole and in its cumulative
impact,
the courts have asked in such cases whether its effect,
judged reasonably and sensibly, was such that the employee could not
be
expected to put up with it.
[9]
[34]
When the
applicant answers Van Der Merwe that she has no other position to go
to, that reply, for this Court, is sufficient to show
that her
resignation was not voluntary. Further, the applicant resigns with
notice, however she is told by HR to leave immediately.
This was an
opportunity for HR to attempt to resolve the matter. In
Strategic
Liquor Services v Mvumbi NO and Others
[10]
the employee resigns with the quip ‘I am going to get fired
anyway so I might as well resign’. When the applicant,
in
casu
,
receives Jacobs’ reply, a similar sentiment is observed by this
Court.
[35]
The above
conclusion stems from
Murray
v Minister of Defence
[11]
where the court held that the employer
”
made no
effort whatever to explain the job to the plaintiff, to illuminate
its parameters and challenges, and to engage him in a
process that
would enable him to consider it properly. The navy’s
decision not to return the plaintiff to his post
presented it with a
classic reorganisation or rationalisation problem. Given
the outcome of both court-martials, the decision not to return him
to
his post involved no fault on the plaintiff’s part. In
these circumstances the law clearly places a duty on the
employer to
consult fully with the employee affected and to share information to
enable him to make informed decisions. The navy
did not fulfil this
responsibility until after the plaintiff resigned.
This observation
warrants elaboration. Explaining the job offer was anything but
superfluous. The job the navy proposed
for the plaintiff was an
entirely new position, carved out from a previous post that embraced
both ‘protection services’
and ‘amphibious
warfare’. Navy staff referred colloquially to the old
post simply as ‘SSO protection services’.
The
plaintiff thought his new duties would embrace amphibious warfare,
for which he had neither suitable qualification nor inclination.
He was wrong. But his misperception was both understandable and
reasonable. And the navy never put him right.
Nor did it
make any effort to ensure that he knew what he was being offered, or
what it would require of him.”
[36]
I turn to consider the rest of the above rubric.
[37]
In
Mafomane
v Rusternburg Platinum Mines Ltd
[12]
wherein the court held that the employee must prove that s/he
terminated the contract of employment because continued employment
had become intolerable due to the employer’s own making, caused
by the employer and within the employer’s control.
S/he could
no longer reasonably be expected to endure the workplace environment
and there is no reasonable alternative to escape
the intolerability
other than to resign. Resignation must be a last resort, if not an
applicant would find it hard to characterise
the resignation as a
constructive dismissal. Whilst the perspective of intolerability must
be that of a reasonable person - It
is an objective test that this
Court must follow . The court in
Mafomane
held
that it would be unfair to deny the remedies of dismissal to
employees who resign because their continued employment became
intolerable from their perspective. The ultimate test however,
remains whether it was reasonable to resign to escape the intolerable
working environment. That is always a question of fact that
depends on the circumstances of every case. The idiosyncrasies
of the
employee, are not the benchmark. The assessment must be made from the
perspective of a reasonable person in the shoes of
the employee, that
is, from the perspective of a reasonable person with the same
background, life experience and position. This
is the rubric used by
this Court in considering the applicant’s prospects of success.
[38]
Secondly,
in
Murray
[13]
the
Court
held:
“
In
employment law, constructive dismissal represents a victory for
substance over form. Its essence is that although the employee
resigns, the causal responsibility for the termination of service is
recognised as the employer’s unacceptable conduct, and
the
latter therefore remains responsible for the consequences.”
[39]
So,
the critical circumstances ‘must have been of the employer’s
making’.
[14]
The
applicant works well with Jacobs. Jacobs takes over the applicant’s
manager’s portfolio. Jacobs is inundated already
and so
delegates the portfolio to the applicant without informing her or
educating her about what is required of her. Jacobs does
not even
know what the portfolio requires. A temporary arrangement becomes
permanent; the applicant is told she cannot have the
job she is
doing, she must do more and the building may be sold and she may be
made redundant and have to pay pack a double study
loan. The employer
begins to interfere with the applicant’s working times, her
telephone discussions with her daughter and
the applicant’s
ability to study. Disparaging remarks are made about the applicant by
Jacobs, she is shown up to be inept
by Jacobs and Van Der Merwe
betray the applicant’s trust by assisting Jacobs’ to
reply to the applicant’s grievance.
[40]
I turn to assess the review application.
[41]
The
starting point in determining the power of the Labour Court to
intervene is the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[15]
.
According to the Constitutional Court, the main objective of review
is to determine whether the commissioner has perpetrated some
irregularity that has denied either party a fair hearing. A review of
a commissioner's decision is not an appeal. The test in the
Sidumo
matter reduces the significance of an commissioner’s reasons
because the reviewing court applying the test examines the result.
There is a low threshold of interference set by
Sidumo
.
[42]
After
perusing the arbitration award and the record it is evident that the
commissioner applies his mind to a slice of the evidence.
I am unsure
as to whether he considered it all. As stated above, in constructive
dismissal matters the commissioner must apply
his mind to the
circumstances in totality. In Paragraph 25 of the award the
commissioner quotes the test for constructive dismissal
from the
Pretoria
Society for the Care of the Retarded v Loots
[16]
matter as:
“
The enquiry then becomes
whether the appellant, without reasonable and proper cause, conducted
itself in 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 the contract; the court’s function is to look at
the employer’s
conduct as a whole and determine whether it’s
effect, judged reasonably and sensibly, is such that the employee
cannot be
expected to put up with it”
[43]
Further, the commissioner makes use of precedent
without fully comprehending the
ratio
decidendi
of each case he seeks to follow to
legitimise the reasons for his award. His failure means that the test
is not applied correctly.
Also, the commissioner refers to CCMA case
law as if they are precedent when they are not binding on him at all.
[44]
What concerns this Court and it was not addressed
on this point is how the Afrikaans emails were dealt with in
evidence. They were
not transcribed for the commissioner. Further, he
failed to adequately refer to them in his award. It may have been
because they
were not transcribed. The emails are crucial to the
constructive dismissal tests espoused above. It seems as if the
commissioner
failed to take cognisance of their importance. A
resignation and the reasons therefore are vitally important to found
jurisdiction
of the CCMA. It is irregular, in terms of section 185 of
the LRA, for the commissioner not to have taken cognisance of the
emails.
[45]
The commissioner believes that HR should have
been involved and that it was the applicant’s duty to have
involved the HR.
In her evidence, Jacobs states that Van Der Merwe
did not want HR to become involved. The commissioner is clearly
incorrect on
this score.
[46]
The
commissioner is confronted with mutually destructive evidence and
fails to elucidate on why he believes Jacobs over the Applicant
[17]
.
Upon my perusal of the record, Jacobs struggles to give answers to
the questions asked. In cross-examination she provides explanation
for things that are not asked of her. She continuously tries to guide
the spotlight on her and her workload and how frustrated
she was but
cannot give cogent answers as to why she failed to discipline or
performance manage the applicant. She contradicts
Van Der Merwe with
the changing of the applicant’s working times and does not, in
her testimony, come up with the big plans
she had for the applicant
to ensure that the applicant remains working. This gives credence to
the applicant’s assessment
that her working environment has
become intolerable. Jacobs, is not as reliable and credible as the
applicant. The probabilities
point towards the applicant’s
version as true as opposed to Hyprop’s version. Because the
commissioner does not explain
his preference for Jacobs, I cannot
consider it. I can only conclude that he failed to apply his mind to
the tests he needs to
when considering mutually destructive versions.
The applicant has good prospects of success.
Conclusion
[47]
I find that the applicant on a balance of
probabilities, has satisfied the constructive dismissal test. I find
that the applicant
was constructively dismissed and that same was
unfair.
[48]
As
mentioned initially, the resolution of the applicant’s issues
should have been dealt with before arbitration. In
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[18]
the court stated that:
“
the entire scheme of the LRA
and its motivating philosophy are directed at cheap and easy access
to dispute resolution procedures
and courts. Speed of result
was its clear intention. Labour matters invariably have serious
implications for both employers
and employees. Dismissals
affect the very survival of workers. It is untenable that
employees, whatever the rights
or wrongs of their conduct, be put
through the rigours, hardships and uncertainties that accompany
delays of the kind here encountered.
It is equally unfair that
employers bear the brunt of systemic failure.”
[49]
The above
was endorsed by
Strategic
Liquor Services
.
[19]
[50]
The above assists me with the awarding of costs
in this matter. I therefore make the following order.
Order
1.
The condonation application is granted with
costs;
2.
The arbitration award is reviewed, set aside and
replaced with the following:
2.1
The applicant was constructively dismissed.
2.2
The applicant is awarded 6 (six) months’ compensation;
2.3
Costs of transcription of the record are borne by the Respondent;
and
2.4
There is no other order for costs.
_____________________
N Moni
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
G Van Der Westhuizen
Instructed
by:
Du Pre Le Roux Attorneys
For
the Respondent:
A Snider
Instructed
by :
Larry Dave Inc.
[1]
Act 66 of 1995 as amended.
[2]
In
Herholdt
v Nedbank Ltd (2013) 34 ILJ 2795
(SCA),
the Supreme Court stated that the reviewing court should examine the
merits of the case “in the round”. In the event
that the
court finds that the reasons provided by the arbitrator are
erroneous and do not assist the court in determining whether
the
decision reached is one a reasonable decision-maker would reach,
then the court must still consider whether apart from those
reasons,
the decision is one that could be reasonably reached in light of the
issues and evidence in the matter. The effect of
the
Herholdt
decision is that, even where the reasons given by a commissioner are
clearly wrong and there has been some irregularity, such
a decision
may not be set aside if based on the issues raised and the evidence
presented to the commissioner, the outcome was
a reasonable one. The
Sidumo
test will, however, justify setting aside an award on review if the
decision is “entirely disconnected with the evidence”
or
is “unsupported by any evidence” and involves
speculation by the commissioner.
[3]
1962 (4) SA 532
(A)
[4]
(2000) 21 ILJ 166 (LAC).
[5]
Section 9 of the
Children’s Act 38 of 2005 provides: “In all matters
concerning the care, protection and well-being
of a child the
standard that the child’s best interest is of paramount
importance, must be applied.”
[6]
(2008) 29 ILJ 318 (LC) at paras 17 – 18.
[7]
(2015) 36 ILJ 232 (LC) at para 22.
[8]
The LRA now provides in section 192,
Onus
in dismissal disputes
,
that in any proceedings concerning any dismissal, the employee must
establish ‘the existence of the dismissal’,
but once
this is done, ‘the employer must prove that the dismissal is
fair’.
[9]
Some of the principal cases are
Amalgamated
Beverage Industries (Pty) Ltd v Jonker
(1993) 14
ILJ
1249 (LAC) (Stafford J);
Jooste
v Transnet Ltd
(1995) 16
ILJ
629 (LAC) (Myburgh J) (representing the culmination of the pre-1995
LRA jurisprudence of the labour courts);
WL
Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
(1997) 18
ILJ
361 (LAC) (Froneman J);
Pretoria
Society for the Care of the Retarded v Loots
(1997) 18
ILJ
981 (LAC) (Nicholson JA);
Van
Der Riet v Leisurenet Ltd
[1998] 5 BLLR 471
(LAC) (Kroon JA);
Smithkline
Beecham (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration
(2000) 21
ILJ
988 (Revelas J);
Mafomane v
Rustenburg Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) (Trengove AJ).
[10]
(2009) 30 ILJ 1526 (CC);
[11]
[2008]
6 BLLR 513 (SCA) ; 2009 (3) SA 130 (SCA); 2008 (11) BCLR 1175 (SCA);
(2008) 29 ILJ 1369 (SCA) at paras 54 and 56.
[12]
[2003] ZALC 87
(11 August 2003).
[13]
supra at para 8.
[14]
Mafomane v Rustenburg
Platinum Mines Ltd
[2003]
10 BLLR 999
(LC) para 50.
[15]
(CCT 85/06) [2007] ZACC 22.
[16]
(1997) 18 ILJ 981 (LAC).at 985 A-B
[17]
Assmang Limited (Beeshoek
Mine) v Commission for Conciliation Mediation and Arbitration and
Others
(JR911/13) [2015]
ZALCJHB 6;
[18]
[2008] ZASCA 24
;
2009 (3) SA 493
(SCA) at para 34.
[19]
Supra.