HC Heat Exchangers (Pty) Ltd v Araujo and Others (JR155/16) [2019] ZALCJHB 275; [2020] 3 BLLR 280 (LC) (8 October 2019)

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[2019] ZALCJHB 275
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HC Heat Exchangers (Pty) Ltd v Araujo and Others (JR155/16) [2019] ZALCJHB 275; [2020] 3 BLLR 280 (LC) (8 October 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: JR 155/16
In
the matter between:
HC HEAT EXCHANGERS
(PTY) LTD

Applicant
and
VICTOR J L DE ARAUJO

First Respondent
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL

Second Respondent
DAISY
MANZANA N.O. (AS ARBITRATOR)

Third Respondent
Heard
:
21 June 2019
Delivered
:
08 October 2019
Summary:
Bargaining Council
arbitration
proceedings – Review of award of arbitrator – principles
considered – test for review – s 145
as read with
158(1)(g) of LRA 1995 – issue of jurisdiction regarding whether
dismissal exists – reasonable outcome
test does not apply –
review considered on the basis of a
de
novo
determination of what is
right or wrong
Dismissal –
constructive dismissal – section 186(1)(e) considered –
principles and requirements for proper case
of constructive dismissal
set out
Dismissal –
constructive dismissal – availability of alternative means to
resolve issue – resignation not measure
of last resort –
employee should have followed grievance process to finality –
constructive dismissal not shown
Review
of award – award by arbitrator ignoring pertinent facts and
committing material error of law and misdirection –
award
reviewable and set aside – substituted with determination that
employee was not dismissed and arbitrator having no
jurisdiction
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
In
this case, the applicant has brought an application in terms of
section 145 as read with section 158(1)(g) of the Labour Relations

Act (‘LRA’),
[1]
to
review and set aside an arbitration award handed down by the third
respondent in her capacity as an arbitrator of the Metal
and
Engineering Industries Bargaining Council (‘MEIBC’),
being the second respondent.
[2]
How this all came about is when the first
respondent, who had resigned from his employment with the applicant,
pursued an unfair
dismissal dispute as contemplated by section
186(1)(e) of the LRA to the MEIBC, thus contending his resignation
was a so-called
‘
constructive
dismissal
’ by the applicant. On
the other hand, the applicant contended that first respondent had
resigned of his own volition, and
was thus never dismissed. The third
respondent was the arbitrator tasked to decide this matter, and was
called upon to first decide
whether the first respondent had indeed
been dismissed, and only if this was so, whether such dismissal was
fair. In an arbitration
award dated 14 December 2015, the third
respondent held that the first respondent had indeed been
constructively dismissed by the
applicant, and that such dismissal
was unfair. The third respondent then directed that the applicant pay
compensation to the first
respondent in the sum of R115 000.00,
being an amount equivalent to five months’ salary.
[3]
Dissatisfied with this award, the applicant
then served a review application on the respondents on 27 January
2016, seeking to review
and set aside such award. Considering that
the arbitration award itself was served on the applicant on 17
December 2015, the date
of 27 January 2016 is literally the last day
of the six weeks’ time limit contemplated by section 145 (1) of
the LRA. However,
it appears that the review application, despite
being served on the respondent parties in time, was never filed in
Court until
8 June 2016.
[4]
The aforesaid irregularity was discovered
when the matter came before Lagrange J on 23 February 2017. The
learned Judge then made
an order that
inter
alia
required the applicant to file a
condonation application by 3 March 2017 as a result of this late
filing in Court. The applicant
complied with the order, and brought
the condonation application.
[5]
What followed was a rather unfortunate
litigation journey. The matter was set down again on 25 October 2017,
but none of the parties
were in attendance at Court. Gush J struck
the matter from the roll. The applicant then applied for the
reinstatement of the matter,
which reinstatement application was set
down before Prinsloo J on 27 February 2018. Prinsloo J considered
both the reinstatement
application and the condonation application,
and the learned Judge granted an order on 27 February 2018
reinstating the applicant’s
review application and also
granting condonation for the late filing of the review application.
The learned Judge further directed
that the matter be set down on the
opposed roll on an expedited basis in the July 2018 recess.
[6]
The application was then indeed set down on
13 July 2018 in the recess. There was no appearance for the applicant
on that day, and
Mosebo AJ dismissed the review application with
costs. A rescission application brought by the applicant followed,
which rescission
application came before Mabaso AJ on 6 November
2018. Mabaso AJ granted the application, and rescinded the order of
Mosebo AJ in
terms of which the review application was dismissed and
this is how the review application then came before me for hearing.
[7]
All considered, the review application is
now in all respects properly ripe for hearing, and is properly before
me for consideration.
I will now proceed to decide this review
application, by first setting out the relevant factual matrix.
The
relevant background
[8]
The first respondent became employed with
the applicant in January 2009. The applicant’s business is the
manufacture and maintenance
of heat exchangers, which resorts under
the scope of the MEIBC. By the end of 2012, the first respondent had
been appointed as
the applicant’s health and safety manager.
[9]
Towards the end of 2014, the applicant
decided to move its workshop to a bigger workshop, and at about the
same time commenced construction
in this regard. During the period
between October and December 2014, there were different contractors
on site attending to the
building and renovation of the new workshop.
The first respondent’s duties then included the monitoring of
health and safety
throughout this entire process, and present a
report and recommendation on a weekly basis at a production meeting
in this regard.
The applicant would then deal with any issues raised
by the first respondent, following the reports made by him in such
meetings.
Or at least that was the idea.
[10]
But matters unfortunately did not entirely
turn out that way. It was not operationally possible to immediately
attend to all the
concerns raised by the first respondent at the
weekly safety meetings, and safety issues were prioritized to be
dealt with, depending
on how serious they were and whether there was
the capacity to do so. But the recommendations were all considered.
The reality
therefore is that not all the recommendations the first
respondent made concerning safety issues were done, and this
situation
was exacerbated by the applicant being short staffed at the
time and that the new workshop which had to be ready by January 2015,

still not being complete. The point is that this situation left the
first respondent frustrated, feeling his recommendations were
being
ignored and he was not receiving support.
[11]
There was a lot of detail pertaining to the
various safety issues and how the applicant failed to address these
issues, raised by
the first respondent in the course of the
arbitration proceedings. However, and in my view, none of this is
important in deciding
this matter. What is however important to
consider is that this undoubtedly, because it was perceived by the
first respondent to
be a lack of the applicant’s commitment in
dealing with all the safety issues he raised, strained the working
relationship
between the first respondent and the factory manager,
Norman Dixon (‘Dixon’). Before this workshop move, it
appeared
that the first respondent and Dixon indeed always had a good
working relationship. But with the workshop move, the relationship

between the first respondent and Dixon started deteriorating. Dixon
confirmed in his testimony that also because of the workshop
move, he
was stressed, overworked and short staffed at the time. This
underlying state of affairs contributed to what in the end
happened.
It must also be mentioned that at this time, the first respondent did
not report to Dixon, but to David Nurden (‘Nurden’),
the
operations manager.
[12]
The next important eventuality to consider
is an issue that arose as a result of the first respondent’s
use of company vehicles.
First, the first respondent from time to
time used Dixon’s company vehicle. There was no problem with
him doing so, as this
was allowed. The issue however was that
according to Dixon, whenever the first respondent used the vehicle,
it was returned with
a mechanical problem or damaged, and this was
never reported to Dixon. The upshot is that Dixon then refused to
allow the first
respondent to use this vehicle, and the first
respondent was required to use other company vehicles. This clearly
added to the
strain in the relationship between the first respondent
and Dixon.
[13]
Then the proverbial bomb blast happened on
23 April 2015. On that day, the first respondent was allocated a
company vehicle which
he had a problem with, as he was not happy with
its gears. He made some disparaging remarks about the vehicle and the
company vehicles
in general, which was overheard by Dixon. Dixon
confessed that this caused him to snap. He swore at the first
respondent, using
a number of expletives, and saying to the first
respondent that he would ‘
fuck him
up
’. He threatened to harm the
first respondent. Dixon did not dispute that this indeed happened.
Nurden, who was also present,
also confirmed this happened. No one
shied away from it. After this altercation, however, the parties
simply parted, and the first
respondent remained at work and
continued to work in the ordinary course for the remainder of that
day.
[14]
The first respondent also reported for work
in the ordinary course on 24 April 2015. What was undisputed was that
in the course
of that day the first respondent also had a job review
which involved Dixon. Nurden stated that Dixon had to do the job
review
because the first respondent only recently started reporting
to him, and he would thus not be in a position to do a proper review.

According to the first respondent, Dixon repeated the threats he made
on 23 April 2015 in this job review. Dixon disputed making
any
threats to the first respondent in the job review, and said that as
far as he could observe, everything was normal following
such job
review. What is however undisputed is that after this job review, the
first respondent went to Nurden, stating he was
not feeling well and
asked to go and see a doctor, but said nothing about further threats
from Dixon made that day. The first respondent
also went to the human
resources manager, Soibhan Hilton (‘Hilton’), and said he
needed to report an incident on 23
April 2015, but that he first had
to go to the doctor before doing so. Hilton asked him if he wanted to
sit down with her to talk
about his problem, but he declined.
[15]
The first respondent was not at work as
from 25 April 2015. The first respondent only consulted his doctor on
29 April 2015, who
issued him with a medical certificate booking him
off work for 28, 29 and 30 April and 4 and 5 May 2015, due to chest
pain with
anxiety and panic attacks due to ‘
work
related stress
’. The certificate
also recorded that the first respondent was fit to resume work on 6
May 2015. The first respondent sent
this certificate by e-mail to
Hilton on 30 April 2015.
[16]
The first respondent however did not return
to work on 6 May 2015. Instead, he obtained another medical
certificate booking him
off work to 11 May 2015 for depression and
general anxiety. He however did inform Hilton (through his partner)
that he would be
returning to work on Monday 11 May 2015.
[17]
But
again, the first respondent did not return to work on 11 May 2015.
Instead, and on 11 May 2015, the first respondent applied
for a
protection order against Dixon in terms of section 2 (1) of the
Protection from Harassment Act.
[2]
He also obtained an interim order in terms of section 3 (2) of such
Act preventing Dixon from verbally or physically threatening,

harassing or victimising him. The return date for the interim order
was 8 June 2015. As part of this application for a protection
order,
the first respondent deposed to an affidavit on 8 May 2015 referring
to the conduct of and the threats made by Dixon on
23 April 2015, as
referred to above.
[18]
Despite being familiar with the applicant’s
grievance procedure, the first respondent for the first time on 11
May 2015 raised
a formal complaint in writing with the applicant
about the incident on 23 April 2015, which complaint was sent to
Hilton by e-mail.
This complaint was however still not a proper
grievance. However, and in this complaint, the first respondent set
out the particulars
of the incident, and stated that it caused him to
be in a state of anxiety, experiencing chest pains, and compelled him
to seek
medical treatment. He was clearly justifying his continued
absence from work, considering he was not at work as from 25 April
2015.
He also stated that he was considering legal options. He
complained of victimization, harassment and bullying by Dixon, which
he
indicated he was compelled to report. He also said he felt he was
being constructively dismissed. However, the first respondent
also
stated in this same complaint that he wanted the matter investigated
by the applicant before he would take it up with the
Commission for
Conciliation, Mediation and Arbitration (‘CCMA’). But
virtually in the same breath, he reflects that
the working
relationship has broken down and that he was unable to enter into the
work premises for as long as Dixon was there.
[19]
As a result of now having received this
complaint, Hilton telephonically contacted the first respondent on 12
May 2015 to discuss
the matter, as he was still not at work. The
conversation between Hilton and the first respondent was confirmed in
writing by way
of a letter e-mailed by Hilton to the first respondent
that same day. In this letter, Hilton records that the applicant’s

management viewed the accusations in very serious light and this
would be immediately followed up by management. She also stated
that
a grievance meeting needed to be immediately held, and the first
respondent was asked to report for work as soon as possible
so that a
grievance meeting could be arranged without delay. On this date,
Hilton also asked the first respondent to submit a statement
about
the events on 23 April 2015 as part of the grievance investigation
Hilton also requested Dixon and Nurden to do the same
(which they
did).
[20]
The first respondent in turn answered by
e-mail the same afternoon (12 May 2015), thanking Hilton for giving
him the option of setting
the time for a meeting to be held at the
applicant’s premises on 13 May 2015, and elected the time to be
at 07h30. He however
never gave Hilton a statement as she requested.
[21]
The first respondent attended at work on 13
May 2015 at 07h30 and met with Hilton, as agreed. Hilton advised the
first respondent
to complete a formal grievance in terms of the
applicant’s grievance process, which the first respondent then
did. In this
grievance form, the first respondent refers to his
earlier letter (complaint) of 11 May 2015 as the reasons for the
grievance,
and then records, as the desired outcome for the
grievance, the following:
‘
Relationship
(working relationship) be restored and to be able to submit my
improvement plan towards uplifting H & S as well
as QA within the
company
’
In
his testimony under-cross examination, the first respondent conceded
that this was indeed his view at the time, and that he believed
the
relationship could be restored.
[22]
The first respondent did not remain at work
on 13 May 2015. He left after submitting his grievance. On the same
day, the first respondent
was again booked off work by way of a
medical certificate, until 18 May 2015, for ‘
chest
pain: workup/investigation
’. The
certificate reflected that the first respondent would be fit to
resume duties on 18 May 2015. The first respondent
sent this medical
certificate to Hilton late the afternoon of 13 May 2015. There was no
further contact between Hilton and the
first respondent after that.
[23]
Instead of returning to work on 18 May
2015, the first respondent submitted a letter of resignation to
Hilton by e-mail just after
07h00 on that day. In this letter of
resignation, the first respondent records that his working conditions
have become intolerable
and his life has been threatened by Dixon. He
stated that he reported the matter and laid a grievance. He also
stated that the
applicant itself was undermining his role as health
and safety officer and that his recommendations were disregarded, as
another
reason for the resignation. The resignation was with
immediate effect.
[24]
Hilton answered this resignation letter at
just after 09h00 on 18 May 2015, intimating it was not accepted.
Hilton again confirmed
that management of the applicant took all the
first respondent’s allegations very seriously and intended to
deal with the
same as a matter of ‘
extreme
priority
’. It was pointed out
that the first respondent had been advised that a grievance meeting
would be arranged as soon he returned
to work. It was indicated that
the applicant’s management was still intent on dealing with the
matter despite the first respondent’s
resignation.
[25]
The first respondent did not heed the
invitation extended by Hilton in the above letter. Instead, he
referred a constructive dismissal
dispute to the MEIBC on 19 May
2015. Upon receipt of this referral, Hilton again wrote to the first
respondent on 20 May 2015.
It was again indicated that the applicant
was still willing to deal with the first respondent grievance in what
was called a ‘
serious, transparent
and urgent manner
’. Hilton
expressed disappointment because the first respondent chose not to
co-operate or participate in the grievance process
and instead chose
to resign and refer a constructive dismissal dispute to the MEIBC.
Hilton specifically stated in this letter:
‘
I
don’t accept that you were left with no other option in terms
of dealing with your grievance but to resign, in fact from
the moment
I became aware of the situation you found yourself in, I immediately
commenced the process of collecting all the relevant
information,
statements and preparing for a full and in-depth grievance meeting in
line with the Company’s grievance procedure
’
(sic)
[26]
The first respondent did not answer the
content of the letter from Hilton of 20 May 2015, but instead sent a
written response on
25 May 2015 raising a further issue that since he
was booked off sick, no one at the applicant including the operations
manager
(Nurden) contacted him to enquire about his well-being, and
that the operations manager, once he was aware of the incident,
should
have initiated an internal enquiry at company level. Of
importance is that the first respondent yet again failed to avail
himself
of the opportunity extended by the applicant to have his
grievance addressed.
[27]
The saga ended with a response from Hilton
on 26 May 2015, reiterating all that had been conveyed to the first
respondent earlier,
and in particular stating that because the first
respondent chose to resign with immediate effect, it was not possible
to conduct
a grievance without his participation and cooperation.
Hilton said:
‘
For
the record, management is still available and prepared to proceed
with the matter on condition that confirm your availability
to
participate and stand by your accusations … Insofar as the
allegation that management is unconcerned, either about your
health,
state of mind and/or the alleged circumstances referred to your
letter under reply – the record will reflect that
on the
contrary management went out of its way to quickly deal with the
circumstances referred to in your letter of 12
th
May 2015, that management wanted to deal with the matter in a serious
and urgent manner and that ultimately it was due to your
immediate
resignation and unwillingness to participate in a comprehensive
grievance process, even after you resigned and after
numerous
invitations by management to do so, that you are now allegedly
claiming that you have been unfairly treated
’
(sic)
[28]
The matter continued in the MEIBC.
Following unsuccessful conciliation, the first respondent referred
his constructive dismissal
dispute to arbitration on 2 July 2015. The
arbitration proceedings convened before the third respondent on 29
July, 8 October and
16 November 2015. Her award followed on 14
December 2015.
[29]
In her award, the third respondent accepted
that she was called on to decide whether the first respondent was
dismissed as contemplated
by section 186(1)(e) of the LRA, and that
the first respondent had the onus to prove such dismissal.
[30]
The third respondent held that the first
respondent was visited with animosity because of his safety reports,
and he received no
support from his managers. She also accepted the
common cause evidence about the altercation between the first
respondent and Dixon
on 23 April 2015. She also considered the
complaint letter the first respondent had written to Hilton, as
discussed above, and
the grievance that followed it.
[31]
The third respondent devoted a fair part of
her award to what was in reality a peripheral issue of past
complaints and difficulties
raised by the first respondent about
safety, which were being ignored, and caused him frustration. The
third respondent held that
the first respondent was being sent from
‘
pillar to post
’
in this regard and he had a history of experiencing problems with
managers. The third respondent did however accept that
the first
respondent had raised no past grievances or formal complaints in this
regard.
[32]
The third respondent articulated the first
respondent’s reason for resignation in her award that he was
fearful of returning
to work because of Dixon, and for that reason he
could not go back to work to ‘
complete
’
his grievance. According to the third respondent, nothing was done by
the applicant’s management to further allay
the treats by Dixon
against the first respondent and the fears of the first respondent,
because of the pending grievance brought
by the first respondent. The
third respondent reasoned that Dixon and Hilton should have
‘
reassured
’
the first respondent about his fears, and was express in her
dissatisfaction with the applicant’s ‘
lack
of compassion
’ for the first
respondent. The third respondent also rejected the applicant’s
contention that the first respondent’s
fears were unfounded, on
the basis that fears were ‘
subjective
’,
and should be dealt with on that basis.
[33]
The third respondent found that there was
no evidence that Dixon had apologized to the first respondent or
retracted the threats
made. The third respondent also placed reliance
on the medical certificates which recorded that the first respondent
suffered from
panic attacks, chest pains and anxiety, which the third
respondent then attributed to the threats made by Dixon. The third
respondent
also held that nothing had been done to Dixon by the
applicant.
[34]
For all the above reasons, the third
respondent then held that the first respondent’s continued
employment had become intolerable,
and thus his resignation
constituted a constructive dismissal, which dismissal was unfair. The
third respondent then awarded the
first respondent five months’
salary in compensation, which she considered to be ‘
fair
and reasonable’
. The applicant’s
review application then followed as a result.
The
test for review
[35]
In
this instance, the crux of the issue the third respondent had to
decide was whether the first respondent had been dismissed.
As such,
the very jurisdiction of the MEIBC and the third respondent to
entertain this matter was at stake, because if there was
no
dismissal, then the MEIBC would have no jurisdiction. In
Mnguti
v Commission for Conciliation, Mediation and Arbitration and
Others
[3]
the Court held as follows:
‘
The issue whether
or not a dismissal exists concerns the jurisdiction of the CCMA. If
there is no dismissal, then the CCMA has no
jurisdiction to entertain
an unfair dismissal claim. Where a commissioner thus finds that no
dismissal exists, that commissioner
in essence determines that the
CCMA does not have jurisdiction and the matter is then dismissed on
that basis.’
[36]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[4]
the Court considered the now trite ordinary review test postulated by
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
and said:
‘…
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If the CCMA had
no jurisdiction in a matter, the question of the reasonableness of
its decision would not arise …
’
(emphasis added)
[37]
The
aforesaid means that where the issue to be considered on review is
about the jurisdiction of the CCMA or bargaining council,
it is not
about a reasonable outcome. What happens is that the Labour Court is
entitled, if not obliged, to determine the issue
of jurisdiction of
its own accord. In doing so, the Labour Court determines the issue
de
novo
in order to decide whether the determination by the arbitrator is
right or wrong.
[6]
In
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others,
[7]
the Court articulated the enquiry as follows:
‘
The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then, the
CCMA had no jurisdiction to entertain the dispute
in terms of s 191
of the Act.
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court…’
[38]
This
‘right or wrong’ review approach has been consistently
applied in a number of judgments, in instances where the
issue for
determination on review concerned the jurisdiction of the CCMA or
applicable bargaining council, as the case may be,
and where the
arbitrator had to decide whether a dismissal existed.
[8]
With particular reference to section 186(1)(e) (constructive
dismissal) disputes, this was equally confirmed to be the case.
[9]
[39]
Accordingly, and in
this instance, I shall proceed to decide this matter
de
novo
on
the basis of determining whether the third respondent’s
determination that a constructive dismissal existed was right
or
wrong, and not whether the outcome the third respondent arrived at
was reasonable. I will commence this exercise by first setting
out
the relevant grounds of review as raised by the applicant.
The
grounds of review
[40]
The
applicant’s case and grounds for review must be made out in the
founding affidavit, and supplementary affidavit.
[10]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[11]
:
‘…
.
The basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging
the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[41]
Because this review application entails a
de novo
consideration as to whether the decision of the third respondent is
right or wrong, the actual reasoning of the third respondent
as
contained in her award is of lesser importance. The review grounds
raised by the applicant would thus not be aimed at showing
that the
third respondent’s reasoning is unreasonable, but would rather
be aimed at setting out a basis as to why the applicant
contends the
finding of the third respondent is incorrect (wrong).
[42]
The applicant raised a number of complaints
about the sustainability of the reasoning of the third respondent in
the founding affidavit
and the subsequent supplementary affidavit. A
lot of these complaints are repetitive, or just further elaborations
on already raised
complaints. I will summarize all these into what I
considered to be the following succinct grounds:
42.1
According to the applicant, the third respondent failed to apply an
objective test in deciding whether constructive
dismissal existed.
The applicant contended that this objective test entailed that the
third respondent had to consider that continued
employment must have
objectively been rendered intolerable to the extent that a reasonable
employee could not be expected to put
up with it, which test the
third respondent never applied. The third respondent had undue regard
to the subjective views of the
first respondent.
42.2
The applicant contended that the third respondent ignored material
evidence relating to the grievance lodged
by the first respondent, in
which grievance he desired an outcome that the relationship be
restored. The applicant also complained
that the third respondent
ignored the fact that the matter was only reported to the applicant
some three weeks after the incident,
and that this time lapse
indicated that intolerability did not exist.
42.3
Another ground of review is that the third respondent failed to
consider that resignation had to be a measure
of last resort and that
in this case, the evidence showed that it was not a measure of last
resort. According to the applicant,
the third respondent should have
had proper consideration to the fact that the grievance process had
to first be followed to finality,
which she did not do.
42.4
The applicant also contends that the third respondent failed to
consider that the applicant assured the first
respondent that his
concerns were taken seriously and that his complaint would be
properly dealt with, and that there existed no
evidence to contradict
that this would the case.
42.5
A final ground of review concerns a contention that the third
respondent failed to appreciate that the first
respondent should have
given the applicant an opportunity to finalize the grievance before
resorting to a resignation, especially
in the light of the evidence
concerning all the commitments given by the applicant that this would
be done, even after his resignation.
[43]
I will now decide the applicant’s
review application based on the above main grounds of review.
The
legal position
[44]
The
best point of departure in deciding this matter is to first come to
grips with the concept of ‘
constructive
dismissal
’.
The phrase does not emanate from the LRA. Rather, it is a concept
adopted from English Law by the former Industrial Court
in the course
of the development of the labour law jurisprudence under the former
LRA.
[12]
This concept entailed
the notion that there existed an implied term in the contract of
employment of an employee that an employer
would not conduct itself
in a manner designed to bring about the destruction or material
damage to the relationship of trust and
confidence underlying the
employment relationship, which term if breached by the employer
entitled the employee to elect to accept
that breach and cancel the
contract.
[13]
The concept was
succinctly summarized in
Murray
v Minister of Defence
[14]
as follows:
‘
The
term used in English law, 'constructive dismissal' (where
'constructive' signifies something the law deems to exist for reasons

of
fairness
and justice, such as notice, knowledge, trust, desertion), has become
well-established in our law. 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 recognized as the employer's
unacceptable conduct, and the latter therefore remains responsible

for the consequences. When the labour courts imported the concept
into South African law from English law in the 1980s, they adopted

the English approach, which implied into the contract of employment a
general term that the employer would not without reasonable
and
proper cause conduct itself in a manner calculated and likely to
destroy or seriously damage the relationship of confidence
and trust
with the employee: breach of the term would amount to a contractual
repudiation justifying the employee in resigning
and claiming
compensation for dismissal.
’
[45]
With
the advent of the current LRA,
[15]
the concept of ‘
constructive
dismissal
’
was codified into the LRA by making it part of the definition of
dismissal in section 186 of the LRA. In section 186(e),
which changed
to section 186(1)(e) in 2002,
[16]
a dismissal was defined as including the instance where:
‘…
an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee.’
In
2015, the reference to ‘
contract
’
was removed, and section 186(1)(e) now reads:
[17]
‘
Dismissal
means that - …
an
employee terminated employment with or without notice because the
employer made continued employment intolerable for the employee’
[46]
But
despite this codification, and despite no specific reference to it in
the LRA, the phrase ‘
constructive
dismissal
’
stuck. The term has become part of the dictionary of employment law
phrases colloquially used by practitioners and the Courts
alike in
cases where section 186(1)(e) of the LRA finds application. But as
will be set out below, the principles applicable to
the current
concept of constructive dismissal as embodied in section 186(1)(e) is
somewhat different to the concept as initially
imported out of the
English law.
[18]
[47]
Considering
then the provisions of section 186(1)(e), three specific issues
emerge for determination, as set out in
Solid
Doors (Pty) Ltd v Commissioner Theron and Others
[19]
as follows:
‘…
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. …
’
[48]
From
the aforesaid
dictum
in
Solid
Doors
,
it is clear that the first determination is that it must be the
employee that brought the employment relationship to an end, either

by way of submitting an actual resignation,
[20]
or by way of other form of clear and unequivocal conduct showing an
intention on the part of the employee to unilaterally bring
the
employment relationship to an end.
[21]
As said in
Fijen
v Council for Scientific and Industrial Research
[22]
,
a resignation includes where an employee:
‘…
either
by words or conduct, evince a clear and unambiguous intention not to
go on with his contract of employment. …
’
Because
is constructive dismissal is dependent upon the employee terminating
the employment relationship, the respective claims
of constructive
dismissal and an ‘ordinary’ dismissal (for the want of a
better description),
[23]
are
mutually exclusive and cannot be both pursued.
[24]
[49]
Once
it is so that the employee terminated the employment relationship,
then the next step in the enquiry is to establish whether
the reason
for that termination is because the employer made continued
employment intolerable for the employee. In other words,
there must
be a proper nexus (link) between the intolerability, and the
termination.
[25]
However, and
at the heart of this part of the enquiry is establishing what is
‘
intolerable
’.
In my view, intolerability is far more than just a difficult,
unpleasant or stressful working environment or employment
conditions,
or for that matter an obnoxious, rude and uncompromising superior who
may treat employees badly.
[26]
Even a breach of the employment contract, deductions from salary, or
unfair disciplinary action would not
per
se
establish intolerability.
[27]
It is, as said in
Billion
Group (Pty) Ltd v Ntshangase and Others
[28]
,
‘
a
high threshold
’.
In
Solidarity
on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and
Others
[29]
the Court dealt with the meaning of ‘
intolerability
’
as follows:
‘ …
The
word ‘intolerable’ implies a situation that is more than
can be tolerated or endured; or insufferable. It is something
which
is simply too great to bear, not to be put up with or beyond the
limits of tolerance …
’
Similarly,
and
in
Bakker
v Commission for Conciliation, Mediation and Arbitration and
Others
[30]
the Court said:
‘‘
Intolerable’
is not defined in the LRA, but it is a strong word which suggests a
high threshold: In this regard, Grogan, in
his
Workplace
Law
,
states
:
‘
[T]he
requirement that the prospect of continued employment be
“intolerable” ... suggests that this form of
“
dismissal
”
should be confined to situations in which the employer behaved in a
deliberately oppressive manner.’;
[50]
The
onus to prove the existence of intolerability rests squarely upon the
shoulders of the employee party.
[31]
The subjective views of the employee is of no consequence in
discharging this onus, as the enquiry to establish whether
intolerability
exists is always an objective one.
[32]
The topic of what objectively establishes intolerability has been the
subject matter of a number of judgments over the years. From
a proper
conspectus of these judgments, the following core considerations can
be extracted, which would serve to establish the
existence of
intolerability:
50.1
Whether the
employer's
conduct, considered as a whole together with its cumulative impact,
is such that when reasonably and sensibly judged,
an employee could
not be expected to put up with it.
[33]
In other words, no reasonable employee could be expected to tolerate
or put up with the conduct.
[34]
50.2
It is not necessary to show that the employee had no other choice but
to resign.
[35]
All that must
be shown is that it was the actual existence of the intolerable
conduct of the employer that caused the resignation.
Or, as described
in
National
Health Laboratory Service v Yona and Others
[36]
,
‘
Resignation
must have been a reasonable step for the employee to take in the
circumstances
’.
50.3
In my view, the following
dictum
in
Pretoria
Society for the Care of the Retarded v Loots
[37]
aptly formulates the enquiry:
‘…
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 has in fact
resigned.
’
[51]
The
third requirement is that the employer must have caused the
intolerability. In this regard, it has been held that the employer

must in some way be culpable. Culpability does not mean that it must
be proven that the employer had the intent to get rid of the

employee, but at least it must be shown that the employer acted
without ‘
reasonable
and proper cause
’.
[38]
[52]
It
is in the context of the two requirements that that continued
employment must objectively be shown to be intolerable and that
the
employer was the cause of such intolerability, that a particular
consideration has arisen, when determining a claim for constructive

dismissal. The principle that an employee cannot legitimately claim
constructive dismissal where such an employee has suitable
available
alternative remedies or mechanisms to resolve the cause of the
intolerability, before resorting to a resignation. This
consideration
was first articulated with such specificity in
Albany
Bakeries Ltd v Van Wyk and Others
[39]
where the Court stated, in no uncertain terms, that ‘…
The
decision of an employee to leave because of the intolerable work
relationship has to be a last resort …
’.
The Court in
Albany
Bakeries
specifically considered the
dictum
in
Loots
supra
,
as quoted above, and held:
[40]
‘
Conradie
JA referred to the
Loots
case where mention was also made of a belief of the employee that the
employer would never reform or abandon the pattern of creating
an
unbearable work environment. 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. …’
[53]
In
Bandat
v De Kock and Another
[41]
the Court considered the aforesaid
dicta
in both
Loots
and
Albany
Bakeries
,
and came to the following conclusion:
‘
What
the court in
Loots
and
Albany
Bakeries
thus clearly said was that the employee, in order to show that a
continued working environment was intolerable, has to convince
the
court that the employee had a genuine belief that the employer would
never change its ways. An important component of establishing
such a
genuine belief then has to be the use of suitably available
alternative remedies, such as raising a grievance or using the

remedies provided for in the LRA. As the court said in
Albany
,
it can be considered to be opportunistic for an employee to resign
out of the blue, so to speak, without even raising an issue
with the
employer and giving the employer the opportunity to remedy the cause
of complaint, thus giving it a chance to remedy any
errant ways.
’
[54]
In
short, and where there is a grievance process in the employer
available to the employee which would, if applied, resolve the
cause
of complaint, the employee must follow it. If the employee does not
follow it, the employee cannot as a matter of principle
claim
constructive dismissal, unless the employee proves that there exists
truly exceptional circumstances that may serve to absolve
the
employee from this obligation.
[42]
And for the employee to subjectively claim that he or she has no
confidence in the grievance outcome or that the employer would
not
reform, cannot suffice as such exceptional circumstances.
[43]
In
Armaments
Corporation supra
the Court held:
[44]
‘
It
may be that the appellant had a legitimate complaint about the
performance outputs and appointments to his division. But such

matters occur often and are run of the mill points of difference or
tension in any workplace. Grievance procedures exist for that
very
purpose. They are the compulsory means of resolving conflict over run
of the mill disagreements between subordinates and their
superiors. A
proper application of the grievance procedure aims at testing the
legitimacy of any difference of opinion and through
conciliation
hopes to find workable remedial solutions.’
[55]
The
aforesaid approach that there is an obligation on the employee to
exhaust available alternative remedies before resigning has
been
consistently applied in this Court since the judgment in
Albany
Bakeries supra
.
[45]
Statements made by this Court in this regard include the following:
55.1
In
Bakker
supra
[46]
the Court said: ‘…
The
Labour Court has held that if an employee is too impatient to wait
the outcome of the employer’s attempts to find a solution
to
the perceived intolerable situation and resigns,
then
constructive dismissal is
almost
always out of the question…
’.
55.2
In
Foschini
Group v Commission for Conciliation, Mediation and Arbitration and
Others
[47]
the Court held: ‘…
It
has also become fairly trite law that an employee should make use of
the employer's grievance procedure where such is in place
to resolve
the problem before resigning and alleging constructive dismissal. If
an employee fails first to lodge a grievance before
resigning and
alleging constructive dismissal, she may very well be precluded from
claiming to have been constructively dismissed
’.
55.3
In
Johnson
v Rajah NO and Others
[48]
it was said that: ‘
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
.’
55.4
And
lastly in
Distinctive
Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre
(Motor Industry Bargaining Council) and Others
[49]
it was held as follows: ‘
If
an employee finds herself confronted by conduct which she considers
intolerable, but the employee can avoid such (intolerable)
conduct by
taking some course of action which is reasonably within her power,
other than resignation, then the employee should
follow such other
course of action. To hold that the employee is entitled in such
circumstances to resign and claim constructive
dismissal would, in my
view, undermine the right to fair labour practices enshrined in s. 23
of the Constitution which requires
that fairness be viewed from the
perspective of both employer and employee.
’
[56]
Although
not in itself decisive, further considerations that would work
against a conclusion that intolerability exists is where
the employee
resigns on notice,
[50]
where
the employee later sought to withdraw the resignation,
[51]
where the employee continued to work for the employer for some time
after the events that it is alleged caused the intolerability
to
arise,
[52]
or where the
employee imposes a condition that must be met by the employer against
which the employee would resign willingly and
then the condition is
not met with the employee therefore resigning and claiming
constructive dismissal.
[53]
It
has also been held that where an employee resigns in the face of
disciplinary or poor work performance proceedings, it would
be very
difficult to successfully claim constructive dismissal.
[54]
[57]
Finally,
and even if it is true that the employee was constructively
dismissed, all that proves is that the employee was dismissed.
This
is only the first stage of a two stage enquiry.
[55]
As the employee in such circumstances has proven he or she was
dismissed, the employer must then prove the dismissal was fair.
[56]
The arbitrator concerned can only afford the employee relief for
unfair dismissal if the arbitrator also finds, with proper reasoning,

that the dismissal as established by the constructive dismissal is
unfair.
Analysis
[58]
Returning to the matter at hand, something
must first be said about the testimony of the first respondent.
Having read the transcript
of his testimony in the arbitration, he
was in my view a poor witnesses. He exaggerated the events and the
consequences thereof
to the extreme. He was argumentative, long
winded and on occasion sarcastic when answering questions. He on
several occasions read
from a file of his on which he did not
discover, to the extent that he had to be directed to put it away.
Under cross-examinations,
he failed or avoided to answer direct and
clear questions. He refused to make concessions where it was called
for, for example
in respect of the simple issue that he had never
raised a formal grievance before the current one. He gave long
speeches which
were not in response to questions he was asked. Under
re-examination, he came up with a new version of events relating to
what
happened on 13 May 2015, never raised before. He even suggested
the grievance process could be conducted without him, to explain
why
he did not return to work to participate therein.
[59]
The
third respondent however completely failed to appreciate the first
respondent’s complete lack of credibility as a witness.
This
unfortunately tainted her reasoning in this matter, when she should
have viewed the first respondent’s testimony with
extreme
caution instead of in effect simply plumbing for his
ipse
dixit
.
[57]
Also, the instances where she referred in her award to testimony
given by the first respondent not being disputed by the applicant
is
mostly the testimony that came out for the first time during the
first respondent’s re-examination, and as such should
have been
rejected, and not accepted as undisputed. The following
dictum
in
Conti
Print
CC
v Commission for Conciliation, Mediation and Arbitration and
Others
[58]
,
which actually dealt with a constructive dismissal case, aptly
describes the criticism that would be applicable to the manner
in
which the third respondent considered the testimony:
‘
In
my view, this appreciation of the evidence on record is a travesty.
No genuine analysis was undertaken. As alluded to earlier,

Mathebula's testimony is ignored. There is no rational basis to
reject Mathebula's version….
’
[60]
Fortunately, this matter can be decided
without becoming embroiled too much in the issue of whose testimony
to accept. This matter
can be decided based on what turned out to be
common cause and undisputed facts, after all evidence was in and as
supported by
the documentary evidence, as dealt with hereunder.
However, and insofar as testimony presented by the parties is
concerned, I have
very little hesitation in saying that the testimony
of the first respondent should have been rejected insofar as it was
not corroborated
by the testimony of the other witnesses and the
documentary evidence.
[61]
As the point of departure in deciding
whether the third respondent’s award was right or wrong, it was
uncontested that the
first respondent resigned on 18 May 2015.
Therefore, the first requirement for constructive dismissal has been
met.
[62]
I will next deal with the remaining two
requirements, namely whether continued employment was made
intolerable for the first respondent
and whether the applicant was
the cause of such intolerability, together. It is with regard to
these two requirements that the
first respondent’s case of
constructive dismissal faces considerable difficulty, for the reasons
to follow.
[63]
Undoubtedly, there was an altercation
between the first respondent and Dixon on 23 April 2015. In the
course of this altercation,
it is also true that Dixon behaved in an
entirely unacceptable manner. He lost his cool, swore at the first
respondent and threatened
him with physical harm. There was no
legitimate cause or reason for Dixon to have behaved in such a
fashion. In this regard, the
findings of the third respondent are
unassailable. It however cannot be ignored that Dixon admitted that
he had done wrong and
said that he never intended to or would harm
the first respondent. The pressure caused by the unique event of the
workshop move
must also be considered. Nurden also testified that
everyone was under a lot a pressure at the time because of the
workshop move
and being present during the altercation and knowing
and working with Dixon for 17 years, he did not believe Dixon would
ever have
harmed (attacked) the first respondent.
[64]
However, and even accepting that the
conduct of Dixon as aforesaid is the kind of conduct that can be seen
to render continued employment
beyond the limits of what can be
reasonably tolerated and to be unduly oppressive, thus justifying the
label of ‘
intolerable conduct
’,
this does not automatically lead to a conclusion that the continued
employment of the first respondent with the applicant
is rendered
intolerable to the extent that the first respondent would be entitled
to call it quits on the employment relationship
and claim
constructive dismissal. Rather, the real question to answer is what
the first respondent did when confronted with this
state of affairs,
and in particular, whether he brought it to the attention of the
applicant’s responsible management, followed
by a consideration
of what the applicant then did about it upon being so informed.
[65]
Considering the nature of the incident
complained of by the first respondent, and that it was perpetrated by
one employee onto another
in the course of a one on one altercation,
it was essential for the first respondent to have brought it to the
attention of the
applicant’s responsible management, such as
for example the human resources manager or even a responsible
director. The reason
for this is simple. It simply cannot be said
that the applicant as the employer of the first respondent acted in
such a fashion
so as to render continued employment of the first
respondent intolerable if the applicant is not aware of what plagued
the first
respondent and was given the opportunity to try and fix it.
This is precisely what is envisaged by the
dicta
in
Loots
,
Albany Bakeries
,
Armaments Corporation
and
Bandat
referred to above.
[66]
There
is an appropriate comparison that can be drawn with this kind of
situation, and the circumstances under which an employer
can be held
liable for acts of discrimination perpetrated by an individual
employee upon another employee. This is found in section
60 of the
Employment Equity Act (‘EEA’)
[59]
which requires that the discriminatory conduct must first be brought
to the attention of the employer and that the employer be
afforded an
opportunity to deal with it, before the employer can be held
liable.
[60]
The point is that
intolerable and oppressive behaviour perpetrated by one employee upon
another can only render an employer culpably
responsible and liable
for such conduct if the employer knows of it and is given a chance to
deal with it, but then fails to do
so properly and fairly.
[67]
So did the first respondent react as
required? In my view, and unfortunately for his constructive
dismissal case, he did not. He
did not immediately report the
incident to responsible management. He only intimated to Hilton on 24
April 2015 that he had something
to report to her, but he did not say
what, declined her invitation to sit down and talk, and instead said
he needed to visit his
doctor. He then left work that same day, never
to return back to work, and justifying most of his absence from work
by way of a
succession of medical certificates. In the absence of the
applicant being informed about the event of 23 April 2015 by the
first
respondent, it would not be able to establish from a reading of
these certificates on face value that it related to such incident
or
that the incident even existed. In short, the incident cannot be
intimated from the certificates.
[68]
But
even under those circumstances, and despite removing himself from the
area of conflict, it still takes the first respondent
until 11 May
2015 (close on three weeks later) to report the incident to Hilton.
This is also the same time when the first respondent
obtains an
interim protection order against Dixon, rather than first approaching
the applicant. It has the hallmarks of a planned
strategy, so to
speak. One has to ask why, if what Dixon did on 23 April 2015 was
considered by the first respondent to be so egregious
that it could
not be reasonably expected that he put up with it and remain employed
by the applicant, it takes him just short of
three weeks to bring
what happened to the attention of responsible management at the
applicant. This kind of diminishing of the
temporal nexus between the
incident itself and the action taken by the employee as a result
thereof, detracts from a legitimate
complaint of intolerability.
[61]
[69]
The written report by the first respondent
to Hilton on 11 May 2015, which was the first occasion of the conduct
by Dixon being
brought to the attention of responsible management at
the applicant, was not a grievance. But this does not detract from
the fact
that the said conduct was at least now specifically raised
by the first respondent with the applicant as his employer. The
complaint
also at least properly sets out the events complained of,
which is the squarely conduct of Dixon. However, it is contradictory
as to how the first respondent views this. On the one hand, he says
that he sees it as constructive dismissal and a destruction
of the
employment relationship, but on the other hand he says that he would
first like the applicant as an employer to investigate
and do
something about it before he proceeds to the MEIBC. The first
respondent does not say in this complaint that he is actually

considering resigning or otherwise terminating his employment because
of what Dixon did.
[70]
With the applicant now being aware of the
issue, what does it then do? Firstly, it is immediately dealt with by
Hilton, who as HR
manager, would be the proper member of management
to deal with it. Hilton immediately (the very next day on 12 May
2015) calls
the first respondent and assures him that his complaint
is viewed in a serious light and will receive proper attention. The
first
respondent is told that a grievance meeting will be held and
will be arranged with him as soon as he is back at work. This
conversation
is confirmed in writing by Hilton. Hilton also
immediately proceeds to ask all involved to give statements. The
first respondent
and Hilton then actually agree on a time on 13 May
2015 when the first respondent will report at work to facilitate this
process.
[71]
The
first respondent then does report at work on 13 May 2015 as arranged.
He is asked to complete a proper grievance document in
terms of the
applicant’s grievance procedure, and he does so. What is
however of critical importance is that first respondent
records in
that document, as a grievance outcome, considering all that had gone
before which includes the medical certificates,
the protection order,
and the written complaint, that he would like to restore he
employment relationship and in essence be given
the necessary support
and recognition as health and safety officer. This is an outcome
which as a matter of logic and common sense
inconsistent with any
legitimate complaint of an intolerable working relationship between
the first respondent and the applicant
that would justify a
constructive dismissal case. As held by the Court in
Value
Logistics Ltd v Basson and Others
[62]
:
‘
In
the present case, Basson was clearly of the view that the employer
could or might improve the work environment. He was willing
to
continue working and, in his words, to 'meet with [Morais] in person
to discuss my responsibilities and how I can/should reach
such
goals'. Or, as he told his wife, he was willing to sit around a table
and talk. These are not the sentiments of a person whose
continued
employment has been made intolerable.’
[72]
Insofar as the issue of the first
respondent not receiving the necessary support and recognition as
health and safety manager is
now pertinently raised as part of the
grievance, I am of the view that on the facts, this cause of
complaint was substantially
exaggerated by the first respondent in
any event. There was no reason not to have accepted the testimony of
Nurden that this was
never the case, and that all recommendations by
the first respondent were properly considered. In fact, Nurden was
candid in agreeing
that not all recommendations were always
implemented, due to operational reasons, but this did not mean they
were not considered.
According to Nurden, the first respondent in
effect wanted all that he recommended to be done, which was not
always possible, and
this aggrieved the first respondent. Nurden
however said that this situation could not come close to making
continued employment
intolerable, and I agree with him.
[73]
Returning to the chronology, the first
respondent goes off work on 13 May 2015 after lodging the grievance,
and is booked off work
until 18 May 2015. This unfortunately deprives
the applicant of an opportunity to deal with the grievance at this
point, which
has now been properly initiated and is pending, and in
respect of which the first respondent had the assurance that it would
be
properly dealt with. The simple reality is that between 13 May
2015 and 18 May 2015, there is absolutely no change in circumstance

or any further events that could serve to objectively convince the
first respondent that his continued employment was actually

intolerable and that the applicant would not properly and fairly
attend to his grievance.
[74]
In fact, there is no evidence at all that
the applicant was not genuine in saying that it would attend to the
first respondent’s
grievance in a proper, transparent and fair
manner. It was never shown that the applicant had somehow decided to
protect Dixon
or sweep the first respondent’s complaint under
the rug or just ignore it. The only evidence was that the applicant
genuinely
intended to deal with and try to resolve the grievance.
Unfortunately, and as a result of his own conduct, the first
respondent
deprived the applicant of the opportunity to show that its
money was where its mouth was, in this regard.
[75]
All the first respondent had to do was to
return to work on 18 May 2015 and arrange with Hilton to set up the
grievance meeting.
After all, and up to that point, the first
respondent had clearly indicated that this is what he wanted and was
a willing participant
in this process. However, and instead, early
the morning on 18 May 2015, the first respondent simply resigned with
immediate effect,
contending as the reasons for this that that his
working conditions had become intolerable and his life has been
threatened by
Dixon. He seemed to rely on the fact that his mere
bringing of a grievance was proof of this intolerability. He also
complains
that the applicant itself was undermining his role as
health and safety officer. The difficulty with all these
justifications for
alleging intolerable working conditions as
contained in the letter of resignation, is that it is directly
contradicted by the first
respondent’s own grievance on 13 May
2015, in which he specifically seeks the outcome that the working
relationship be restored
and his role as health and safety officer be
given the necessary support. If this grievance process achieved this
objective, then
surely there would be no need to resign. And nothing
at all changed between 13 May and 18 May 2015. The first respondent
simply
could also not say that his grievance was not being dealt
with, because he was booked off work for this whole period, and knew
it would be arranged when he was back at work.
[76]
Further,
the applicant did not simply just accept this resignation. Hilton
immediately engaged with the first respondent, and again
assured him
that his complaints were taken seriously and that his grievance would
be properly dealt with. The first respondent
was informed that all
that was needed was that he come back to work so the grievance
meeting can be initiated. The applicant indicated
that it was still
willing to do so, despite the first respondent having submitted a
letter of resignation. The first respondent
should have taken this
approach by the applicant to heart. At the very least, and if he
believed in the justification of his cause
and the
mala
fides
of the applicant, he should have called what would then have been a
bluff on the part of the applicant, and attended at work to
set up
the grievance and so establish what happens and what the applicant
does next. If it then turned out the grievance process
was nothing
but a sham and/or that the applicant was intent on protecting Dixon,
then the first respondent would have gone a long
way indeed in
establishing that it could not reasonably be expected for him to
continue being employed by the applicant, and that
the applicant was
culpable for this situation. Comparable is the following
dictum
in
Armaments
Corporation supra
:
[63]
‘…
The
appellant in effect resigned before the grievance procedure
progressed beyond the first step. … But most importantly,
even
if there were merit in his assertion that he justifiably had no
confidence in the internal grievance process, his letter of

resignation indicates that he was aware of step 5 of the process
which required him to refer the grievance to the CCMA. He resigned

before he invoked that remedy. The appellant was too hasty in his
decision to resign. His conviction in the merit of his cause,
fuelled
by his obvious outrage and indignation, may well have been misplaced.
His assumption that his superiors’ views about
the performance
contract outputs and appointments were wrong or unacceptable needed
to be objectively tested and there was a legitimate,
prescribed
remedy available for that very purpose, which he opted not to pursue.
In the circumstances, his resignation was petulant,
premature and
ill-considered. In the premises, it cannot be concluded that he was
constructively dismissed.
’
[77]
The
first respondent should have pursued the grievance he had brought to
finality. However, he did not even give the applicant a
chance to
convene it. The only way in which the first respondent could have
avoided the consequences of this failure to his constructive
case was
to prove, and not just assume, that the grievance process was
pre-determined, or a sham, or simply part of an orchestrated
campaign
to get rid of the first respondent and protect Dixon. As held in
Johnson
supra
:
[64]
‘
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.
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.
’
[78]
In
my view, the real frustration of the first respondent was his
subjective views that certain of the applicant’s operational

management was not taking his role and recommendations as health and
safety manager seriously, and viewed him as a hindrance to

production, leading him to reconsider if he wanted to remain employed
with the applicant. The altercation with Dixon simply served
as the
basis upon which he could orchestrate his exit from the applicant
with an appropriate compensation package and not just
a resignation.
This is evident from the fact that virtually immediately following
his resignation, the first respondent’s
attorneys wrote to the
applicant to explore a monetary settlement. As held in
Bandat
supra
:
[65]
‘
It
is my view that the applicant, on the advice of her current
attorneys, decided to resign and so create a cause of action to sue

the respondents for compensation. This matter has all the hallmarks
of intolerability designed after the fact, and is not one which
is
consistent with a true intolerable working environment.
’
[79]
In
the end, and as unacceptable as the conduct of Dixon may have been,
this was insufficient to
per
se
establish intolerable working conditions the first respondent could
not be reasonably expected to put up with, considering the
following:
(1) the time lapse between the event itself and when the issue was
raised with the applicant; (2) the applicant’s
immediate steps
taken to deal with the issue in a formal grievance process and
providing assurance to the first respondent that
his complaint is
considered serious and will receive proper attention; (3) the fact
that the first respondent raised and was a
willing participant in the
grievance in which he sought an outcome restoring the working
relationship; (4) the first respondent
not being at work between the
event and his ultimate resignation, and thus did not further interact
with Dixon which may have compounded
matters, before the grievance
was dealt with; and (5) there was no case that the grievance would
not have been properly dealt with
by the applicant. In
Ternsportswear
(Pty) Ltd v National Bargaining Council for the Clothing
Manufacturing Industry and Others
[66]
the Court said:
‘
Taking
the above into account and as the record in this matter reveals that
the first time the Third Respondent raised his concern
regarding his
treatment by Mr Lu in writing with the Applicant was on the 4
th
February, in the face of clear evidence that the Third Respondent’s
issue was in the process of being dealt with; the Third
Respondents
resignation can only be described as deliberate and premeditated and
his resignation does not constitute a constructive
dismissal.’
[80]
Finally, and even if it can be said that
the conduct of Dixon establishes intolerability, the fact is that
because the first respondent
short circuited the actual pending
grievance process and did not allow such process to conclude and
possibly arrive at a solution,
how can it be said that the applicant
as employer is culpable and should be held accountable for the
intolerability. This is especially
so considering the applicant’s
repeated efforts, even after the first respondent’s
resignation, to bring him back into
the fold and conclude the
grievance process. A simple illustration shows the point. It may well
have been an outcome of the grievance
process that the first
respondent is not required to deal with Dixon any longer or in any
way interact with or report to him, or
even that Dixon may have been
disciplined. Either way, the applicant would have acted in a manner
designed to avoid the cause of
any intolerability. The applicant must
have been given the opportunity to do so by the first respondent. The
fact that the first
respondent deprived it of such opportunity is
destructive of the constructive dismissal claim. In short, and in
this case, resignation
by the first respondent was not the measure of
last resort.
[81]
The
third respondent placed reliance on the medical certificates which
recorded that the first respondent suffered from panic attacks,
chest
pains and anxiety, which the third respondent then attributed to the
threats made by Dixon. The difficulty with this is that
the medical
certificates themselves cannot justify such a conclusion. The third
respondent is in effect speculating. If the case
is that
intolerability was compounded by the first respondent’s medical
conditions which resulted directly from the conduct
of Dixon, this
needed to have been proven by the first respondent though calling the
medical practitioner to testify that this
was the case, or at least
submit an affidavit to this effect. In
Mgobhozi
v Naidoo NO and Others
[67]
the Court held:
‘
Although
the Labour Court did not decide the issue of admissibility and merely
determined the application on an acceptance of the
certificates at
face value, I believe it ought to have done so. I do not believe that
it ought to have exercised its discretion
to consider the
certificates at all, in the absence of affidavits by the medical
practitioners in question.
’
[82]
The third respondent held that there was no
evidence that Dixon apologised to the first respondent. Whilst it may
be so that Dixon
did not apologize at the time, it must be said that
the grievance meeting was the appropriate occasion in which it could
have been
established if Dixon showed genuine contrition for his
conduct and how the first respondent may view such an apology offered
to
him in those formal proceedings, with a temporal wedge being
driven between the actual conflict and the hearing of the grievance,

giving the parties a proper opportunity to reflect on all the events
and their relationship and so make informed decisions. In
short, the
face to face grievance meeting would have been the proper opportunity
for Dixon to apologize, and it was the conduct
of the first
respondent that stopped this from happening.
[83]
Lastly, and insofar as the third respondent
placed reliance on past issues and complaints raised by the first
respondent, relating
to his dealings with management on safety
issues,  the simple answer to this is that on the evidence, he
had never raised
a formal complaint about this in the past and never
instituted grievance proceedings in this regard. Also, his issue
about being
taken seriously and receiving support for his duties as
health and safety officer would have been one of the issues dealt
with
in the grievance process, as it was raised in the grievance
submitted by the first respondent on 13 May 2015. Again, these
considerations
do not advance the cause that resignation was a
measure of last resort.
[84]
In sum, the third respondent got it wrong
both on the facts, and in law. She failed to have proper regard to
all the essential factual
considerations I have set out above. She
plumbed for the evidence of the first respondent when she should have
rejected it. In
particular, her finding that the first respondent was
justified in not returning to work to ‘
complete
’
his grievance has no factual foundation, and completely negates the
content of the first respondent’s own grievance
form of 13 May
2015. The third respondent failed to apply the requisite legal
principles where it comes to deciding constructive
dismissal claims,
in particular the requirement that resignation must be a measure of
last resort and that an employee must pursue
the internal remedies
available to the employee to finality, in particular grievance
processes. Her conclusion that the first respondent
was
constructively dismissed is unsustainable on review, and must be set
aside.
[85]
It therefore follows that the applicant did
not dismiss the first respondent, but the first respondent resigned
of his own accord.
Because the first respondent was not dismissed,
the MEIBC and the third respondent thus had no jurisdiction in this
matter. And
because the MEIBC and the third respondent had no
jurisdiction, the award of the third respondent on the merits of the
matter (i.e.
that the dismissal was unfair) and the consequential
relief she afforded the first respondent can equally not be allowed
to stand,
as it was simply not competent to have been made in the
first place.
Conclusion
[86]
For all the reasons as set out above, the
third respondent’s award cannot stand. The first respondent
failed to prove that
he was dismissed as contemplated by section
186(1)(e) of the LRA, which was the case he brought before the MEIBC.
The third respondent
should have dismissed the matter for want of
jurisdiction. The arbitration award of the third respondent
accordingly falls to be
reviewed and set aside.
[87]
With
the third respondent’s award having been reviewed and set
aside, what is this Court to do?  As stated above, it
is up to
this Court to finally determine the matter, not only because the
dispute is in reality one of jurisdiction, but also considering
the
issues of law at stake. The pertinent facts in this matter ultimately
turned out to be largely uncontested and there is simply
no need to
go through arbitration all over again. For all the reasons elaborated
on above, I am satisfied that the third respondent
should have found
that the first respondent was not dismissed, and should thus have
disposed of the dispute on the basis of a lack
of jurisdiction.
Accordingly, the arbitration award of the third respondent must be
substituted with a determination that the first
respondent was not
dismissed by the applicant, and consequently the MEIBC and the third
respondent had no jurisdiction to entertain
the dispute.
[68]
Costs
[88]
This
then only leaves the issue of costs. In terms of section 162 of the
LRA, I have a wide discretion where it comes to the issue
of costs.
Even though the applicant was successful, this was certainly an
arguable case. I also cannot ignore that Dixon had some
part to play
in the unfortunate events that happened. I do not think any of the
parties acted unreasonably in seeking to pursue
this matter to
finality, and in any event, it is an issue that called for final
determination by this Court. I also consider
the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[69]
where
it comes to costs awards in employment disputes before this Court,
and in this case there certainly exists no reason to depart
from the
principle set out therein.
Therefore,
I consider it to be in the interest of fairness that no costs order
should be made.
[89]
In the premises, the following order is
hereby made:
Order
1.
The
applicant’s review application is granted.
2.
The arbitration award of the third
respondent, arbitrator Daisy Manzana, dated 14 December 2015, and
issued under case number MEGA
46900/15, is reviewed and set aside.
3.
The arbitration award is substituted with a
determination that the first respondent was not dismissed by the
applicant, and therefore
the second and third respondents had no
jurisdiction to entertain the dispute.
4.
There is no order as to costs.
_____________________
S. Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:                       Mr

M Vilakazi of Menzi Vilakazi Attorneys
For the First
Respondent:           Advocate
A J Nel
Instructed
by:                               Goldberg

Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
Act 17 of 2011.
[3]
(2015)
36 ILJ 3111 (LC) at para 14.
[4]
(2008)
29 ILJ 964 (LAC) at para 101.
[5]
(2007)
28 ILJ 2405 (CC).
[6]
See
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013)
34
ILJ
2662 (LC) at para 22.
[7]
(2008)
29
ILJ
2218
(LAC)
at paras 39 – 40.
[8]
See
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and Others
(2013)
34 ILJ 1427 (LAC) at para 24;
Hickman
v Tsatsimpe NO and Others
(2012)
33
ILJ
1179 (LC) at para 10;
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others
(2013)
34
ILJ
392 (LC) at paras 5–6;
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others
(2012)
33
ILJ
1171 (LC) at para 14;
Workforce
Group (Pty) Ltd v CCMA and Others
(2012)
33
ILJ
738
(LC)
at para 2;
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others
(2013)
34
ILJ
1272
(LC) at para 21;
Mnguti
(
supra
)
at para 20.
[9]
See
Solidarity
on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and
Others
(2019)
40 ILJ 1539 (LAC) at para 5;
Solid
Doors (Pty) Ltd v Commissioner Theron and Others
(2004)
25
ILJ
2337 (LAC)
at
para
29
;
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012)
33
ILJ
363 (LC) at para 23
.
[10]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27. The supplementary affidavit is filed in
terms of Rule 7A(8).
[11]
(2010)
31 ILJ 713 (LC) at para 27.
[12]
Act 28 of 1956 – now repealed.
[13]
See
Halgreen
v Natal Building Society
(1986)
7 ILJ 769 (IC) 775G-I;
Ndebele
v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse
(1992) 13 ILJ 1247 (IC) 1251B-H;
Amalgamated
Beverages Industries (Pty) Ltd v Jonker
(1993) 14 ILJ 1232 (LAC) 1248 F-1249B;
Jooste
v Transnet Ltd t/a SA Airways
(1995) 16 ILJ 629 (LAC) 636D-637J.
[14]
(2008)
29 ILJ 1369 (SCA) at para 8.
[15]
Which came into effect on 11 November 1996.
[16]
By
way of Act 12 of 2002, with effect from 1 August 2002.
[17]
By
way of Act 6 of 2014, with effect from 1 January 2015.
[18]
See
Albany
Bakeries Ltd v Van Wyk and Others
(2005)
26 ILJ 2142 (LAC) at paras 17 – 18.
[19]
(2004)
25 ILJ 2337 (LAC) at para 28. See also
Agricultural
Research Council v Ramashowana NO and Others
(2018) 39 ILJ 2509 (LC) at para 11;
Conti
Print CC v Commission for Conciliation, Mediation and Arbitration
and Others
(2015) 36 ILJ 2245 (LAC) at para 9;
Bandat
v De Kock and Another
(2015) 36 ILJ 979 (LC) at para 49;
Johnson
v Rajah NO and Others
(JR33/15) [2017] ZALCJHB 25 (26 January 2017) at para 38.
[20]
See
Eagleton
and Others v You Asked Services (Pty) Ltd
(2009)
30 ILJ 320 (LC) at para 31.
[21]
For examples of such kind of conduct see
Solidarity
and Another v Public Health and Welfare Sectoral Bargaining Council
and Others
(2013)
34 ILJ 1503 (LAC) at para 19;
Mnguti
(
supra
)
at paras 22 – 23 and 33.
[22]
(1994)
15 ILJ 759 (LAC) at 772C-D. See also
Uthingo
Management (Pty) Ltd v Shear NO and Others
(2009)
30 ILJ 2152 (LC) at para 19.
[23]
Being a dismissal as contemplated by section 186(1)(a) which reads:
‘
Dismissal
means that -
an
employer has terminated employment with or without notice …
’
.
[24]
See
Eagleton
(
supra
)
at para 33.
[25]
See
Murray
(
supra
)
at para 12;
Johnson
(supra
)
at para 57;
Bandat
(
supra
)
at para 66.
[26]
Compare
Foschini
Group v Commission for Conciliation, Mediation and Arbitration and
Others
(2008)
29 ILJ 1515 (LC) at para 22.
[27]
See
Albany
Bakeries
(
supra
)
at para 24;
Agricultural
Research Council
(
supra
)
at paras 17 – 19;
Experian
Regent Insurance Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013) 34 ILJ 410 (LC) at paras 60 – 61.
[28]
(2018)
39 ILJ 2516 (LC) at para 11.
[29]
(2019)
40 ILJ 1539 (LAC) at para 39.
[30]
(2018)
39 ILJ 1568 (LC) at paras 12 – 13.
[31]
This is of course because the employee has the onus to prove the
existence of a dismissal in terms of section 192(1) of the LRA.
See
also
Murray
(
supra
)
at para 12;
National
Health Laboratory Service v Yona and Others
(2015)
36 ILJ 2259 (LAC) at para 30.
[32]
See
Armaments
Corporation
(
supra
)
at para 42;
Yona
(
supra
)
at para 30;
Foschini
(
supra
)
at para 26;
Johnson
(
supra
)
at paras 50 – 51;
Bandat
(
supra
)
at para 55;
Smithkline
Beecham (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2000)
21
ILJ
988
(LC)
at
para 38;
Asara
(
supra
)
at para 38.
[33]
Murray
(
supra
)
at para 12;
Yona
(
supra
)
at para 30.
[34]
Armaments
Corporation
(
supra
)
at para 40.
[35]
Strategic
Liquor Services v Mvumbi NO and Others
(2009) 30 ILJ 1526 (CC) at para 4;
Johnson
(
supra
)
at para 47
[36]
(2015)
36 ILJ 2259 (LAC) at para 30.
[37]
(1997)
18 ILJ 981 (LAC) at 984D-G. This
dictum
was referred to with approval in
Old
Mutual Group Schemes v
Dreyer
and Another
(1999)
20 ILJ 2030 (LAC)
at
paras 16 – 17.
[38]
Murray
(
supra
)
at para 13;
Metropolitan
Health Risk Management v Majatladi and Others
(2015)
36 ILJ 958 (LAC) at para 30;
Bandat
(
supra
)
at para 53.
[39]
(2005)
26 ILJ 2142 (LAC) at para 27. See also
Jordaan
v Commission for Conciliation, Mediation and Arbitration and Others
(2010)
31
ILJ
2331 (LAC) at 2336A-B;
Foschini
(
supra
)
at para 32.
[40]
Id at paras 28 – 29.
[41]
(2015)
36 ILJ 979 (LC) at para 52.
[42]
In
Foschini
(
supra
)
at para 37 the Court said: ‘…
Where
an employee resigns and claims a constructive dismissal under
circumstances where he did not avail himself of an available

grievance procedure or the mechanisms for dispute resolution
provided for in the Labour Relations Act, he will have to show very

compelling reasons why he failed or refused to follow these
procedures available to him prior to resignation …
’
[43]
See
Armaments
Corporation
(
supra
)
at para 46;
Sampson
Associates (Pty) Ltd t/a Interbrand Sampson v Cities Shepherd and
Others
[2010]
JOL 25430
(LC) at para 65
.
[44]
Id at para 44.
[45]
See
Nedcor
Bank Ltd v Harris and Others
[2010]
JOL 24790
(LC) at para 32;
L
M Wulfsohn Motors (Pty) Ltd t/a Lionel Motors v Dispute
Resolution
Centre and Others
(2008)
29 ILJ 356 (LC)
at
para 12.
[46]
Id
at para
13.
[47]
(2008)
29 ILJ 1515 (LC) at para 33. See also para 37 of the judgment.
[48]
(JR33/15)
[2017] ZALCJHB 25 (26 January 2017) at para 74.
[49]
(2013)
34
ILJ
3184 (LC)
at
para 131.
[50]
Billion
Group
(
supra
)
at para 12.
[51]
Value
Logistics Ltd v Basson and Others
(2011) 32 ILJ 2552 (LC) at para 61.
[52]
Volschenk
v Pragma Africa (Pty) Ltd
(2015) 36 ILJ 494 (LC) at para 26.
[53]
Albany
Bakeries
(
supra
)
at paras 31 – 32.
[54]
Asara
(
supra
)
at paras 37 – 38
[55]
See
Niland
v Ntabeni NO and Others
(2017)
38 ILJ 1686 (LC) at para 22;
Majatladi
v Metropolitan Health Risk Management and Others
(2013) 34 ILJ 3282 (LC) at para 49;
Asara
(
supra
)
at para 36;
Eagleton
(
supra
)
at para 35.
[56]
As contemplated by section 188(1), as read with section 192(2), of
the LRA.
[57]
The third respondent failed to make proper credibility findings
which is in itself a reviewable irregularity – see
Sasol
Mining
(
Pty
)
Ltd
v Ngqeleni NO and Others
(2011)
32 ILJ 723 (LC) a
t
para 7;
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010)
31
ILJ
452 (LC)
at
para 20;
University
of Venda v M and Others
(2017)
38 ILJ 1376 (LC) at para 90.
[58]
(2015)
36 ILJ 2245 (LAC) at para 19. See also paras 20 – 21 of the
judgment.
[59]
Act
55 of 1998 (as amended).
[60]
Section
60 reads ‘
(1)
If it is alleged that an employee, while at work, contravened a
provision of this Act, or engaged in any conduct that, if
engaged in
by that employee's employer, would constitute a contravention of a
provision of this Act, the alleged conduct must
immediately be
brought to the attention of the employer; (2) The employer must
consult all relevant parties and must take the
necessary steps to
eliminate the alleged conduct and comply with the provisions of this
Act; (3) If the employer fails to take
the necessary steps referred
to in subsection (2), and it is proved that the employee has
contravened the relevant provision,
the employer must be deemed also
to have contravened that provision. (4) Despite subsection (3), an
employer is not liable for
the conduct of an employee if that
employer is able to prove that it did all that was reasonably
practicable to ensure that the
employee would not act in
contravention of this Act
’
.
See
Moatshe
v
Legend
Golf and
Safari Resort Operations (Pty) Ltd
(2015) 36 ILJ 1111 (LC) at para 29, and the authorities referred to
in paras 30 – 31 of the judgment;
TFD
Network Africa (Pty) Ltd v Faris
(2019) 40 ILJ 326 (LAC) at para 51;
Liberty
Group Ltd v M
(2017) 38 ILJ 1318 (LAC) at para 37.
[61]
Compare
Bandat
(
supra
)
at para 66;
Taylor
and Another v ILC Independent Loss Consultants CC
(2011)
32 ILJ 2006 (LC) at para 34.
[62]
(2011)
32 ILJ 2552 (LC) at para 59.
[63]
Id at para 46
[64]
Id at paras 75 – 75
[65]
Id at para 68
[66]
(D534/08)
[2010] ZALC 308
(27 January 2010) at para 30.
[67]
(
2006)
27 ILJ 786 (LAC) at para 30.  See also para 33 of the judgment.
[68]
This Court has the power under section 145(4) of the LRA to
substitute the award.
[69]
(2018)
39 ILJ 523 (CC) at para 25.