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[2019] ZALCJHB 102
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De Wet v Bigen Africa (Pty) Ltd and Others (JR590/17) [2019] ZALCJHB 102 (10 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR590/17
In
the matter between:
CHRISTINE
C DE WET
Applicant
and
BIGEN
AFRICA (PTY) LTD
First
Respondent
NC
MACHAKA N.O
Second Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
&
ARBITRATION
Third Respondent
Heard
:
17
January 2019
Delivered:
10 May 2019
JUDGMENT
SCHENSEMA, AJ
Introduction
[1]
The applicant seeks to review and set aside the arbitration award
issued on 10 February
2017, wherein the second respondent found that
the applicant had failed to prove that she was constructively
dismissed. The applicant
further seeks that Rules 39 (3) and (4) of
the Commission for Conciliation, Mediation and Arbitration (CCMA)
Rules be declared
to be inconsistent with sections 9, 23 (1) and 34
of the Constitution of the Republic of South Africa
[1]
(the Constitution) and also that section 4 (1)(b) of the Competition
Act
[2]
be set aside. However, at
the commencement of the Court proceedings, counsel for the applicant
confirmed that the applicant would
be abandoning the relief sought in
respect of the Competition Act.
[2]
The application for review is brought in terms of s145 of the Labour
Relations Act
[3]
(the
LRA). The review application was filed with this Court on 10 April
2017. The application is opposed by the first respondent.
The
applicant further seeks condonation for the late filing of the review
application, which condonation is contained at paragraphs
133 to
134.4 of the applicant's founding affidavit.
Condonation
application
[3]
The only submission made by the applicant in respect of condonation
is that the review
is one week late and that the delay is
insignificant. Furthermore, that the cause of the delay was as a
result of arrangements
having to be made for the financing of these
proceedings and that the applicant has excellent prospects of success
in the review
application based on the evidence and legal submissions
deposed to in the founding affidavit.
[4]
The condonation has been opposed on the basis that no proper
condonation application has been
brought by the applicant in that the
applicant has failed to provide a full explanation for the delay, has
further failed to deal
with the prospects of success and to address
the issue of prejudice. In conclusion the first respondent has
submitted in its opposing
papers that the applicant has failed to
show good cause and that for this reason the application for
condonation should fail.
[5]
In terms of Rule 12 (3) of the Labour Court Rules, the Court may, on
good cause shown
condone the non-compliance with any period
prescribed by these Rules. Where it comes to deciding condonation
applications, the
law in this regard is now well settled on the basis
of the following principles as set out in the case of
Melane
v Santam Insurance Co Ltd
[4]
:
"In deciding whether
sufficient cause has been shown, the basic principle is that the
Court has a discretion, to be exercised
judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually
relevant are the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily
these facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there
would be no point in
granting condonation."
[6]
In the case of condonation applications brought in the Labour Court,
and by applying
the
ratio
in
Melane
supra
,
the Court in
Academic
and Professional Staff Association v Pretorius NO and Others
[5]
summarised the principles for consideration as follows:
"The factors which
the court takes into consideration in assessing whether or not to
grant condonation are: (a) the degree
of lateness or non-compliance
with the prescribed time frame; (b) the explanation for the lateness
or the failure to comply with
the time frame; (c) prospects of
success or bona fide defence in the main case; (d) the importance of
the case; (e) the respondent's
interest in the finality of the
judgment; (f) the convenience of the court; and (g) avoidance of
unnecessary delay in the administration
of justice… It is
trite law that these factors are not individually decisive but are
interrelated and must be weighed against
each other. In weighing
these factors for instance, 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."
[7]
What is clear from the
ratio
in
Academic
and Professional Staff Association
is that the providing of a proper explanation for any default or
delay is a critical component to any condonation application.
As to
how this explanation must be provided was further set out in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[6]
where the Court held:
"
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay…"
[8]
The Labour Appeal Court (LAC) in
NUM
v Council for Mineral Technology
[7]
emphasised that the two crucial elements for deciding on the issue of
condonation are prospects of success and a good explanation
for the
delay. The LAC stated that:
"…
Without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial and without
prospects of success,
no matter how good the explanation for the delay, an application for
condonation should be refused. "
[9]
There are a number of worrying factors in this case insofar as
condonation being sought. The
applicant has failed to properly
address the requirements for condonation and merely states that the
delay is insignificant and
that due to financial reasons it was not
possible to launch the review application within the applicable time
frame and furthermore
that there are excellent prospects of success.
This is the totality of the applicant's condonation.
[10]
It has repeatedly been stated in this Court that condonation cannot
be had for the mere asking
[8]
and that there is an obligation on the defaulting party to proffer a
reasonable, adequate and satisfactory explanation for the
delay. In
this case the applicant merely seeks an indulgence on the basis that
the delay is insignificant and that due to financial
reasons it was
not possible to timeously launch the review application.
[11]
Despite the weak reasons given and notwithstanding the
aforementioned, it is my view that upon a consideration
of the
interests of justice, condonation should be granted.
Grounds for review
[12]
The applicant had been in the employ of the first respondent for a
period of 19 years. The applicant has
submitted that her employment
with the first respondent became intolerable and she was left with no
alternative but to resign with
effect from 30 April 2016. The
applicant subsequently referred a constructive dismissal dispute to
the CCMA, at the conclusion
of which the Commissioner dismissed the
applicant's case.
[13]
The applicant seeks to review and set aside the arbitration award for
the reasons set out in
the founding affidavit, which
inter alia
include that the Commissioner committed a material error of law,
ignored relevant evidence and arrived at a conclusion which no
reasonable decision-maker would have reached on the evidence
presented to the Commissioner.
[14]
The applicant submits that the Commissioner committed a material
error of law by admitting the
"without prejudice" letter
written by her attorneys. The Commissioner further committed a gross
irregularity in the proceedings
by ignoring relevant evidence which
explained the intolerability of the applicant's employment and that
the Commissioner had materially
misdirected himself as to the nature
of the questions he had to answer and only considered the form of the
applicant's complaints
instead of the contents and merits thereof.
[15]
In opposition, the first respondent raised several points
in
limine
which
inter alia
related to the applicant's failure
to adhere to the time lines contemplated in s145 of the LRA, the
applicant's failure to launch
a proper condonation application, the
relief sought by the applicant is not competent and the applicant's
reliance on the evidence
is tantamount to an appeal.
The test on review
[16]
It is trite that 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 LAC has confirmed on numerous occasions
that the review test as
laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[9]
does not find application.
[17]
The present application is premised on the review test as laid down
in
Sidumo
supra
.
In its opposing affidavit the first respondent did not take issue
with the fact that the applicant seeks to review the arbitration
award on the basis of unreasonableness and has further defended the
arbitration award. In the matter of
Johnson
v Rajah NO and Others
[10]
the Court held that reasonableness finds no application in cases such
as these and further referred the parties to the matter of
NUMSA
obo Zahela and 3 Others v Volkswagen SA (Pty) Ltd and Others
[11]
.
In this matter the Court dismissed an application for review where an
applicant had 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 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."
[18] I
am guided by both these cases and having considered the applicant's
founding affidavit, the basis of the
applicant's review clearly
relates to reasonableness. In this regard I refer particularly to
paragraphs 127 to 132 of the founding
affidavit which clearly sets
out the basis of the review. Furthermore, the heads of argument refer
to various cases relating to
the reasonableness test and the
requirements to set aside an arbitration award on the basis that the
decision is one that a reasonable
decision maker could not have
reached when considering the evidence. For the aforementioned
reasons, reasonableness finds no application
in casu
and the
grounds for review relating to reasonableness can therefore not be
considered.
[19]
Accordingly a decision has to be made as to 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.
The question this Court
therefore has to decide in view of the
applicable test is whether the arbitrator correctly found that the
applicant had indeed
resigned and she had not been dismissed.
[20]
Accordingly I will only consider this application on the basis
whether the arbitrator was correct
to find that the applicant was not
constructively dismissed in line with the submissions made by both
counsel.
[21]
My analysis in this regard commences with a review of the record and
the evidence that was submitted
during the arbitration proceedings.
The applicant firstly submitted extensive evidence in relation to her
employment history with
the first respondent. Secondly the applicant
made reference to the Bushbuckridge project where she commenced
working with effect
from 1 March 2015.
Background Facts
[22]
On 23 June 2015 a meeting was arranged during which the applicant
raised the challenges she had been experiencing
at the Bushbuckridge
project. A week after this meeting, the applicant was informed that
someone else will be taking over from
her at the Bushbuckridge
project. On 13 July 2015 another meeting was held, where the
applicant again raised her concerns, which
resulted in the applicant
being transferred to the South Hills project in Gauteng. The
applicant contended that she was being transferred
as the "scapegoat"
and that the real reason for her transfer was as a result of her
complaints and consequently there
was a concerted effort by the first
respondent to get rid of her.
[23]
The applicant on 15 July 2015 addressed a letter to advance reasons
as to why she could not be
transferred. In response the first
respondent insisted that the applicant had to transfer and that no
assistance would be provided
to her in this regard, thereafter which
the applicant escalated her grievance to the head of human resources.
In August 2015, the
applicant's travel claims were declined unless
she was able to submit an explanation for the travel. Upon the
applicant's transfer,
the first respondent refused to make payments
(which payments had been previously made) for accommodation, a site
allowance and
payment of travel to home once a month. The first
respondent in response to these complaints advised that in light of
the fact
that there had been a change in the applicant's base pay
that the aforementioned payments were no longer possible.
[24]
During November 2015 a performance appraisal process was conducted.
The applicant raised her
concerns that the performance rating was
never discussed with her and further criticised that the score of 3
was inappropriate
as she had previously always received a score
between 4 and 5. On 21 November 2015, the applicant submitted a
grievance in which
she stated that the objectives and performance was
never discussed with her. During this period the applicant's health
was also
suffering.
[25]
During March 2016 further issues were raised in relation to the
handing over of the Lufhereng
project which ultimately, according to
the applicant, was "
the final straw
" which resulted
in her resignation. In response to the resignation the first
respondent invited the applicant to lodge a formal
grievance, which
was done. Of significance, during these proceedings is that the
applicant proposed that she be afforded the same
financial
opportunities that were extended to other employees when the
Nelspruit office was closed and if this was not possible,
to be
permitted to return to the Bushbuckridge project.
[26]
In response counsel for the first respondent dealt with the various
points raised by the applicant's
counsel and referred me to various
portions in the record in support of the first respondent's
opposition to the review application.
With reference to the email
that the applicant addressed to the first respondent, it is
noteworthy that the applicant makes no
reference to her
dissatisfaction in moving or that she felt that as result of the
meeting that she had "
stepped on toes
". Nowhere
throughout the email correspondence is a dispute raised by the
applicant in respect of the transfer or that it was
unfair. At this
stage of the discussions, a "
without prejudice
"
letter is submitted and due to the fact that it is clear from the
previous correspondence that no dispute existed, there
was no basis
to challenge the acceptance of this letter by the commissioner.
[27]
At this stage in August, the applicant's concerns now relate to the
fact that she holds the position
of an assistant and raises no
further concerns in relation to the transfer. Between August to
November 2015, no further complaints
and/or discussions are held
between the parties. On 21 November 2015, a letter is then sent by
the applicant in which she raises
her complaints relating to the
performance appraisal process, the subsistence allowance and that she
feels that she is being victimised.
There is no mention of
relocation, the sick note or the unfair treatment in relation to the
time sheets and her transfer.
[28]
The first respondent responds to the letter, which does not result in
the applicant lodging a
formal grievance. A further three months
pass, and in January a letter is addressed to the first respondent in
which the issues
relating to Mr Moodley's allowance, which had
previously been dealt with, however was now being referred to again.
Furthermore,
reference was made to the demotion and that it is this
that had pre-empted the resignation. In respect of the performance
appraisal
the first respondent had proposed a remedy, which remedy
was declined by the applicant.
[29]
The applicant in respect of her demotion complaint had been invited
by the first respondent to
attend a grievance hearing on 14 April
2015, during which meeting the applicant recorded her demand either
to be paid a severance
package or to be transferred back to the
Bushbuckridge project. The first respondent criticises the
applicant's allegation of intolerability
primarily on this basis, in
that had the employment relationship become so intolerable, why would
the applicant agree to be transferred
back to the Bushbuckridge
project.
Arbitration Award
[30]
The Commissioner found that the applicant had been unable to prove
that the first respondent
had constructively dismissed her and
accordingly did not award compensation as sought by the applicant.
The Commissioner further
made no order as to costs.
[31]
The Commissioner in his analysis of the evidence and argument made
specific references to various
cases in order to substantiate his
reasoning in determining whether or not the applicant had been
constructively dismissed. The
Commissioner further
inter alia
considered the fact that the applicant had worked her notice
period and had further participated in the grievance process which in
the view of the Commissioner did not support an allegation of
intolerability.
The test for
constructive dismissal
[32]
In the case of alleged constructive dismissal the enquiry is centred
on whether or not there
was a dismissal. As aforementioned the
question of whether a dismissal has taken place goes to jurisdiction.
In
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen & others
[12]
Steenkamp J explained the
test as follows:
"In
most unfair dismissal cases, the existence of the dismissal is common
cause and the enquiry at arbitration- or on review
by the Labour
Court – is whether the dismissal was fair, and whether the
finding of the arbitrator in this regard was reasonable.
In
the case of an alleged constructive dismissal in terms of s186(1)(e),
though, the prior question is whether there was a dismissal.
The onus
is on the employee to prove that his resignation amounted to a
dismissal. In order to decide whether there was a dismissal,
the
commissioner has to investigate the full merits of the case. Only
then can the commissioner decide if there was a dismissal
as defined.
If so, the commissioner must still decide whether it was fair. If
not, though, the CCMA did not have jurisdiction in
the first place,
even though the commissioner can only make that finding ex post
facto."
[33]
Section 186(1)(e) of the LRA defines a constructive dismissal to
mean:
"
an
employee terminated employment with or without notice because the
employer made continued employment intolerable for the employee."
[13]
[34]
It is trite in our law that 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 this onus, the
conduct of the employer must be assessed and the question is then
whether the employee
could reasonably have been expected to put up
with the conduct of the employer.
[14]
Accordingly the mere fact that an employee resigns because work
became intolerable does not, in and by itself, make for a
constructive
dismissal.
[15]
[35]
Having regard to the conspectus of the facts, it is clear that the
employee did resign however
I am of the view that the resignation was
for a voluntary reason in that the applicant had made it clear that
she would accept
a severance package were she not transferred back to
the Bushbuckridge project, thereby providing an alternative to her
resignation.
[36]
In the matter of
Pretoria
Society for the Care of the Retarded v Loots
[16]
the LAC 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 working environment.
[37]
In this regard, the applicant had provided the first respondent with
an option of being transferred
back to the Bushbuckridge project,
therefore the working environment could in my view have not been so
intolerable. This was clearly
an alternative that had been proposed
by the applicant thereby demonstrating that continued employment with
the first respondent
was therefore possible.
[38]
The applicant has therefore failed to demonstrate that the first
respondent had behaved in a
manner that rendered the relationship
intolerable and would continue to do so. I am further not convinced
that the first respondent
conducted itself in a manner calculated or
likely to destroy or seriously damage the relationship with the
applicant.
Conclusion
[39]
Therefore in conclusion I am not persuaded on the objective facts
that the applicant in fact
discharged the onus of proving a
constructive dismissal and her claim therefore has to fail.
[40]
The Commissioner in my view correctly found that the applicant had
failed to establish a constructive
dismissal by taking into account
the totality of the evidence before him. The Commissioner further
considered the cumulative impact
of the conduct complained of and
adjudged whether such conduct viewed reasonably and sensibly was such
that the applicant could
not be expected to put up with it.
[41]
Having regard to my findings it is therefore not necessary to deal
with the various challenges
raised by the applicant in respect of the
constitutionality of Rules of the CCMA.
Costs
[42]
In regards to costs, I have a wide discretion in respect of the
awarding of costs, having regard
to the provisions of s 162 (1) of
the LRA. In this instance, I believe a costs order is indeed
appropriate. It must have been clear
to the applicant that firstly in
respect of condonation that the awarding of condonation must come at
a price. Secondly the first
respondent was compelled to engage in
litigation and oppose an application that had no merit from the
onset. In my view the applicant
came to Court without merit and with
no proper consideration of the prospects of success, causing the
first respondent to incur
legal costs.
[43]
It is trite that a cost order is method of ensuring that decisions to
litigate in this Court
are taken with due consideration of the law
and the prospects of success. I am of the view that this review
application was ill
considered and therefore taking into account the
law and fairness a costs order should follow.
[44]
In the premises, I make the following order:
Order
1.
The
applicant's review application is dismissed with costs.
________________________
H.
Schensema
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate J. L. Basson
Instructed
by:
Du Toit Smuts & Partners
For the First Respondent:
Advocate Bernard
Instructed
by:
Yusuf Nagdee Attorneys
[1]
108 of 1996.
[2]
89 of 1998.
[3]
66
of 1995
[4]
1962
(4) SA 531
(A) 532C-E.
[5]
(2008)
29 ILJ 318 (LC) paras 17-18.
[6]
(2010)
31 ILJ 1413 (LC) para 13.
[7]
[1999]
3
BLLR
209
(LAC) at para 10.
[8]
See:
Uitenhage
Transitional Local Council V South African Revenue Service
2004 (1) SA 292 (SCA).
[9]
(2007)
28 ILJ 2405 (CC) paras 78 to 79.
[10]
Case
number JR33/15. Unreported (26 January 2017).
[11]
Case
number PR137/13. Unreported (16 November 2016).
[12]
(2012)
33 ILJ 363 (LC) at paras 20-21.
[13]
See:
Eagleton
and Others v You Asked Services (Pty) Ltd
[2008]
BLLR 1040 (LC).
[14]
Murray
v Minister of Defence
(2008)
29 ILJ 1369 (SCA) at para12. The Supreme Court of Appeal reasoned
that:
"These
cases have 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. Once this is established, the inquiry is whether the
employer (irrespective of the 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. Look at the
employer's conduct as
a whole 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. " (Footnotes omitted)
[15]
Ibid
para 13.
[16]
(1997)
18 ILJ 981 (LAC) at p. 984.