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[2020] ZALCJHB 109
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Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others (JR 1619/2018) [2020] ZALCJHB 109; (2020) 41 ILJ 2623 (LC); [2020] 11 BLLR 1123 (LC) (19 June 2020)
The Labour Court of
South Africa
(Held at Johannesburg)
Judgment
Of interest to other
Judges
Case No: JR 1619/2018
In
the matter between:
CENTRE
FOR AUTISM RESEARCH AND EDUCATION CC
Applicant
(Registration
Number: 2011/066706/23)
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
A
VAN DER WALT
N.O
Second
Respondent
RUDOLF
JOHANNES JANSE VAN VUUREN
Third Respondent
KAREN
ROSE VAN DER WALT
Fourth Respondent
Hearing:
3 June 2020. Via Zoom
Date
of judgment: 19 June 2020. Judgment delivered by email at 12:00
JUDGMENT
Introduction
[1]
The applicant seeks to review and set aside an arbitration award
issued by the second
respondent (the commissioner) dated 20 June
2018. In his award, the commissioner held that the resignations of
the third and fourth
respondents (the employees) from the applicant’s
employ constituted a constructive dismissal, and awarded them
compensation
in sums equivalent to four and six months’
remuneration respectively. The commissioner further ordered the
applicant to make
payments to the employees in respect of unlawful
deductions and short payments in contravention of the
Basic
Conditions of Employment Act, 1997
. All of these orders were
initially the subject of review. At the hearing, the court was
advised that the orders for payment of
amounts unlawfully deducted
and short payments had become moot, since the applicant had paid the
employees the amounts that are
the subject of the order on the day
prior to the hearing. The scope of the review was thus confined to
the commissioner’s
finding that the employees had been
dismissed as envisaged by s 186 (1)(e) of the Labour Relations Act
(LRA), i.e. that they had
terminated their employment because the
applicant had made continued employment intolerable.
The
arbitration hearing
[2]
The applicant operates an independent school, registered with the
department of education,
catering for learners affected by autism
spectrum disorder. The employees resigned from the applicant’s
employ on 12 September
2017 by giving one month’s written
notice. At the arbitration hearing, both employees testified and were
cross-examined by
the applicant’s representative. The applicant
closed its case without leading evidence. The commissioner noted that
both
employees were exemplary witnesses, they were open and honest,
and did not contradict each other or themselves. A reading of the
record confirms this observation.
[3]
The sole member and director of the applicant is a Ms Rozanna Riback.
Both employees
were employed by the applicant as special needs
teachers; the third respondent in February 2017, the fourth
respondent in February
2015.
[4]
The third respondent testified first. He stated that prior to his
employment by the
applicant, he taught English at a high school. Soon
after he was employed by the applicant, teachers were required to
attend compulsory
training concerning visual learning. On the fourth
or fifth day of the training, the attendees were told that the cost
of the training
would be deducted from their salaries. The cost of
uniforms was also deducted from teachers’ salaries. The third
respondent
stated that he had at no stage consented to any deduction
from his remuneration, and that the matter was taken up by the
teachers
as a collective with Riback. Riback responded in an
aggressive manner, to the extent that two therapists in the
applicant’s
employ resigned after the meeting.
[5]
The third respondent testified further that Riback had on multiple
occasions referred
to him as a ‘screaming queen’. He said
the following:
Upon
her return she would shout at us for the mundane things, she would
attack people based on the fact that they are homosexual
and that as
a human being impaired my, my right to, to human dignity. As a
homosexual man being called a screaming queen on a daily
basis is
derogatory, it is insulting, it is embarrassing. And it makes me not
want to be at the, in the workplace.
[6]
Riback had referred to parents at the school in the same derogatory
terms. The fourth
respondent said the following:
She
called me often and she’ be like; Ag what a scream, oh my gosh
you such a queen, why you wearing make-up, all these little
(inaudible) that are derogatory were made to my way, and it escalated
when two parents came in and they are a lesbian couple, they
have
adopted a little girl with autism and uhm, Rozanna was not at work
for the screening process to happen uhm, which would, at
which the
Head Teacher then decided to start the screening process. Upon
Rosanna’s return, upon Rozanna’s return to
the school the
first thing she told Adele was; you could have least told me that
these two women are a bunch of screaming kings,
it is the first time
I have even heard the term screaming kings…
[7]
The third respondent then testified about being chosen to attend a
conference in Cape
Town, with Riback, the fourth respondent and an
employee named Beverley, an occupational therapist. At the
conference, he and the
fourth respondent, who are both smokers, went
outside to smoke during a tea break. The following events occurred:
However when it was the
tea break we got called from outside, were told in front of
Professionals in our Industry, in front of Peers,
in front of people
from all over the world, there were speakers from China, there were
speakers from America, people… International
speakers,
publicly embarrassing and humiliating us. Shouting at us, telling us
we are disgusting, we are pathetic, are you stupid,
are you death,
are you dumb, are you a moron…
APPLICANT REPRESENTATIVE:
Why would she do that?
COMMISSIONER: Why …
(intervened)
MR RUDOLF JANSE VAN
VUUREN: Because we
are smokers. Right we then went back into
the conference and at our
lunchtime after having had our meal we then went for a cigarette
which is acceptable as we had a half-hour
break from the conference,
from all the learning we are doing and sharing our skills and
Professionalism in our Industry. We then
got shouted again, we were
told that when we have one more cigarette we will have to pay for
this entire Conference, all the flights,
she will send us back on the
first plane to Johannesburg. She called us ungrateful…
APPLICANT REPRESENTATIVE:
Alright what else happened, anything else?
MR RUDOLF JANSE VAN
VUUREN: This continued and it caused a lot of hurt for us, as there
was nowhere to go, we were in Cape Town
in her space the whole time,
I couldn’t go home at night because for the first night we
slept in conjoining rooms at the
hotel we slept in, where she
required us to not close the door when we are dressing because the
rooms linked up to one another.
That made me feel uncomfortable. I
walked out the shower and she said; Hey let me see that little bum
your boyfriend is a lucky
man. I felt attacked, I felt unwanted
attention on me by my boss…
COMMISSIONER:
Why could you not close the door?
MR
RUDOLF JANSE VAN VUUREN:
Because she wanted the door open.
[8]
The third respondent went on to describe what transpired that evening
when he and
the fourth respondent attended a dinner in Stellenbosch
with Riback. After the third and fourth respondent had excused
themselves
from the table to have a cigarette, Riback began abusing
them calling them ‘pathetic’ and ‘immature’.
Other
diners were visibly concerned at Riback’s conduct,
especially when the fourth respondent had to excuse herself and go to
the bathroom.
[9]
On the Sunday that the third and fourth respondent were scheduled to
return to Johannesburg,
they visited the third respondent’s
brother in Betty’s Bay. In a discussion on their work
situation, the third respondent’s
sister-in-law, who is an
attorney, advised them that their treatment at the hands of Riback
was unlawful, unethical and unconstitutional,
and that they had
remedies available to them. The fourth respondent testified that he
and the third respondent had decided to have
a discussion with Riback
concerning her conduct and that as a ‘backup’, they had
prepared letters of resignation that
they intended to produce in the
event that the meeting went poorly.
[10]
On Monday, back at the school, the third and fourth respondents spoke
to Adele Hattingh, a senior
teacher, who reported to them that Riback
was ‘furious’. When they met with Riback that morning,
Riback told them that
they were rude and disrespectful and admonished
them particularly for failing to greet her that morning. The
employees then tendered
their resignations. Under re-examination and
in response to a question as to why the third respondent felt that he
could not in
the meeting say to Riback that they intended resigning
on account of her conduct but wish to give her an opportunity to
remedy
it, the third respondent answered as follows:
It
would result in more shouting and at that point I have had enough, I
have had enough of being shouted at, being reprimanded,
be abused
uhm, at the point when I submitted my resignation letter, when she
chase us off the property I was relieved that I can
just get out of
that situation to get, to take a step away from the person abusing
me.
[11]
The third respondent testified that ‘
I
was escorted off the premises about 5 minutes after my resignation.
’
He had offered to work out his notice period on account of the
learners under his care and in particular, to avoid any regression
by
reason of a sudden change.
[12]
The fourth respondent testified that her employment with the
applicant was first job after leaving
university. At the outset, she
noticed that the working environment was one in which the staff had a
‘vivid animosity’
towards Riback. She said the following:
…
I
notice that I arrived to a staff that was stressed out and I was
concerned because of my caring nature and I asked Krishen may
I take
the initiative to start off a staff well-being committee to allow
(inaudible) staff members to nice treat or think of ideas
to make a
more enjoyable workplace. He laughed in my face. I beginning to
realised that that was not going to happen…..
…
while
trying to do my job Rozanna conduct was sporadic and completely
unpredictable, at times she would walk into my classroom uhm,
to
address me in front of the children about matters that are not
appropriate to discuss in front of children. On one account I
didn’t
wear make-up to school because I realised that the Therapist weren’t
wearing make-up so maybe I didn’t
need to wear make-up. Uhm,
she came into the classroom, looked at me, got a fright, told me I
looked like a goblin, called in Therapists
who is, the once that had
been there the longest, call in those particular Therapist to look at
me, to look at how sick I look
and to, Come on guys tell her she has
a face that needs make up, you look sick sweetheart she said to me. I
felt belittled in front
of the children who respected me and in front
of the two Teaching Assistants that were (inaudible – very
soft). Uhm, also
I was attacked multiple times for my appearance.
Uhm, you are too skinny, you are not eating uhm, are you eating
enough, why is
your hair a funny colour, you look ridiculous, it is
not professional, why do you have tattoos uhm,, you look like a
convict uhm…
APPLICANT REPRESENTATIVE:
Were you the only person who she passed personal comments about in
the uhm, School?
MS
KARIN VAN DER WALT: No unfortunately she (inaudible) to express her
opinion to anyone whether they were receptive to it or not,
she would
talk about my colleague Rudolph to me behind his back saying I can’t
invite him to my birthday party because he
is wearing those jeans it
is so embarrassing I can’t take him with me. In her next breath
when Rudy walked past she would
say, won’t you help me plan my
birthday party. So it was always an untrusting relationship with her
you never actually knew
where you stood… It created an
unpredictable climate, my anxiety levels began to increase. I am, I
approach Krishen about
it, he again laughed it off or tell me she is
never going to change, that’s just how she is. I felt powerless
and I began
to believe that I was the one that was too weak to cope.
So I sought out uhm, extra support uhm, when I received the news that
Krishen was leaving I was very stressed because he had always been
the buffer between the staff and Rosanna. And he had always been
the
bravest person at work, and he seemed unafraid of her.
[13]
The fourth respondent then testified that after Krishen’s
departure in September 2016,
she sought help from a psychologist to
provide her with extra support structures that she could use, in an
effort to remedy the
situation. The reason for this she explained
was:
…
because
I started to believe that maybe I was pathetic, maybe I was stupid,
maybe I was (inaudible – very soft). Uhm, and
it began to
(inaudible) my self-confidence and my self-esteem. Uhm, and I never
felt like that before which is why I sought out
help... … I
was taught coping skills to help deal in the work environment. Uhm,
however that was not enough…
[14]
The fourth respondent testified that in April 2017, she had an
opportunity to attend a conference
in Botswana. She gave the
following evidence:
MS KARIN VAN DER
WALT:
I was chosen to go and present on half
of the Centre because of my
expert knowledge on Autism, my experience in Autism practically in
the classroom as well as the fact
that had (inaudible – very
soft) grew up in Botswana for 18 years of my life so I would be the
correct person to choose in
terms of someone who is familiar with the
culture, familiar with the mannerisms uhm, and personally I was
excited to be able to
bring these skills that I have learned back to
the Country that I grew up in. I felt it was a privileged.
APPLICANT REPRESENTATIVE:
So what was the problem with you going with her, if any?
MS
KARIN VAN DER WALT:
We arrived at the hotel uhm, I was under
the impression they would be
two single beds because that is what we had discussed prior however
when we arrived at the Reception
Rosanna calmly told the receptionist
not two single beds 1 double bed please? That’s when I realised
I will be sleeping in
a bed with my boss. I got anxious immediately
but I was there alone with her so there was no one to complain to.
Uhm, I was locked
in a room with her and she would not let me have
the keys because she enjoys the feeling of control so she needs to be
the person
in charge of the keys. Once we were at the hotel we
checked in, we went to the room, unpacked our belongings into the
cupboards
and then (sigh) then we proceeded to get ready for bed.
Uhm, I showered first and then after that Rosanna showered with the
curtains
of the shower open. Our room was adjoined to the bathroom by
glass partition so her showering with the curtains open the lights
on
the partition open so I am in the bedroom and her naked body is right
there in front of me, completely visible. I felt so trapped,
so
uncomfortable that I hid behind the curtain and face the windows
outside until she was complete with her shower…
[15]
The fourth respondent testified further that the hotel, at the
relevant time, was only 66% full.
The employees’ representative
then asked her why Riback had booked the room she did. The fourth
respondent replied as follows:
I
believe it was because Rozanna perceived me as her close friend. As I
have mentioned before she lowered the boundaries between
professionalism and personal from the moment I arrived at CARE.
Without my time at CARE she would conduct a conversation with me
from
the toilet, with the toilet door open, speaking to me, while using
the toilet, that was not uncommon. It was also not uncommon
for her
to, whilst speaking to us in her, or speaking to me in her office
uhm, begin changing into her gym clothes, stripping down
to her
underpants and her sports bra front of me during a meeting, carrying
on with the meeting as though it was normal. So many
inappropriate
things happened I just began to accept she is a unique individual,
she is not the usual boss I have come into contract
with in the
Professional Private Organisation and I began to try and adapt to
keep her happy. Once you have been scolded by Rozanna
the first time
and she has belittled you to the point where you feel like a two year
old child who has whetted her pants in a public
place it is essential
to surviving the work environments that you keep her in a good mood,
because her bad moods are so extreme.
An example; one day a
(inaudible) parent arrived at the school for the sign for Autism
outside and came to the gate to enquire
about the centre. I opene the
gate for him, and I asked him how can I help you, he said I have a
niece in Cape Town she is four
years old I suspect she has Autism.
Who can I speak to here to find out about the centre, supporting
(inaudible – very soft)
crisis etc. I said you are in luck our
Director is here today let me take you through. I took him through to
Rozanna’s office,
he was in Rozanna’s office, she
immediately looked at me with anger and I knew I was in trouble, but
I couldn’t figure
out or think of a reason why. He began to ask
her questions and she treated him as though he was a person off the
streets, he was
black man but he was dressed like a father, and a
parent, and a customer, a potential person at our school, he did not
look in
any way dangerous or
I would not
have let him into the school, I would like to make that clear. Uhm,
he then, she then berated him and told he was saying
out loud you
cannot talk to me like this, you cannot talk to me like this, I sat
in silence quietly waiting my turn. He was then
escorted off the
property by Security, from what I could see for no valid reason, or
any reason based on his conduct, his behaviour,
the nature of his
questions, or his appearance.
[16]
After this incident, the fourth respondent testified that she was
reprimanded by Riback, saying:
…
that
I am crazy do I want her to be killed, what if the guy had a gun, do
I want every child in the School to be murdered, it will
be on me.
And then she told me to go and tell every staff member at the School
that if anybody did my mistake of letting a stranger
onto the School
premises that each of us will receive a R1000 off our salary. Threats
like this were common.’
[17]
The fourth respondent was then asked about any further abuse that may
have occurred. She said
the following of Riback:
She
would ask me in public with this uncomfortable open personal
relationship Krishen created between uhm, are you having sex with
your boyfriend and is he … She would ask me if I (inaudible –
very soft) is he a smoker, I would say no, now she would
tell me well
he is going to dump you because you are a disgusting smoker. Despite
(inaudible – very soft) X smoker, this
comment was said when I
was in Cape Town and in Botswana when she asked me to get out of the
shower I assume it’s because
she needed to use the toilet or to
jump into the shower, she didn’t, she just wanted me to get out
of the bathroom wearing
my towel holding my undergarments and change
in front of her outside. Uhm, I began changing and I tried to be as
unengaging as
possible facing the corner of the room, facing the
curtains, to which I realised she was staring at me from behind and
made the
comment you have a nice little bum you got there, she said
it with surprise because she didn’t think I exercise or are on
a good diet she was obsessed with my food and my weight uhm, she said
my hair when it is green made me look like a goblin, told
me I look
sick without make-up on, or being pathetic if I wasn’t able to
solve a problem, if you didn’t have the solution,
ag pathetic…
I did my best to respect her, and in my first job as my employer, as
my authority, as the person who I saw
to lead me, I did my best to
respect her. However I found it impossible regardless of my behaviour
or my conduct. Do you know I
can fire you for that was a threat she
made often. An example with me, one day (inaudible) the Teaching
Assistant trip a child
in my class on playground and then I watch her
shout at him, pinch him and moved him to the corner for a timeout
which is not a
strategy usable for Autism. Uhm, my child who had
problems with his aggression began to punch the wall until his
knuckles bled.
I saw this incident and I was infuriated I went
straight to the employer and I said to her I have just witness
inappropriate conduct
on behalf of the Teaching Assistant resulting
in the physical harm of a child and the School I would like action to
be taken. I
was (inaudible – very soft) what you just said
about your colleague is slander, be careful I could give you your
first written
warning for that. She didn’t even hear me, so
trying to bring concerns to her I was, they fell on deaf ears and I
started
feeling more – and more unsupported in my workplace and
mentored and learned in terms of decisions I had to make about
child’s
lives on a daily basis, I dealt with a mother who came
home and found the child covered in blood, I needed to give an answer
and
I was forced to lie over the phone and I was said do not say
anything about Ivy, do not say anything, don’t get involved.
Uhm, she would also call us weird, oh you guys are coke crazy or
scream, uhm, she would say you acting like a 25-year-old uhm,
by the
third year towards the end of my appointment with her she felt
comfortable enough to refer to us in a friendly way as ag
you fucks
uhm, or you bitches, you such bitches because you get to drink
alcohol and I can’t because I am pregnant. Uhm,
that was common
that was said in front of colleagues, in front of public places
regardless of where we were. It was her over friendly
batter, made me
feel completely embarrassed whenever I was around her, because I knew
she would draw attention wherever we were.
[18]
The fourth respondent then gave evidence about the conference in Cape
Town that she attended
with Riback, the third respondent and another
member of staff named Bev. She testified that she soon realised that
Riback did not
enjoy her and the third respondent taking smoke breaks
– they were scolded despite only smoking during the conference
breaks.
She testified further about the incident at the restaurant in
Stellenbosch that evening, and said the following:
The
incident started uhm, I believe it was me who trigger her irrational
explosion uhm, I was sipping on my Gin and Tonic and I
was genuinely
thirsty from walking around that day so my first sip was a big sip. I
didn’t think this was a problem until
she had taken it as a
personal attack. Why are you drinking so fast is it because it is so
hard for you to deal with me uhm, why
are you … I am
sick of the animosity on this trip uhm, you are ruining my trip I
came here to have a nice time and
you are ruining my trip with your
cigarettes going in and out smoking you and Rudy pairing up together
uhm, she said to me that
I was acting like a 25-year-old and it was
pathetic. However the volume was so loud that the tables around us
stopped eating to
observe the scene that was happening in the
Restaurant. Uhm, and (laugh) she told me that smoking cigarettes was
disrespecting
her pregnancy, drinking alcohol in front of her was
disrespecting her because I know she likes to drink so it is not fair
how dare
we drink in front of her, if that was her issue why didn’t
she bring that up when we were ordering he drinks she never bring
it
us, and, and objection to that. Uhm, after she had finished screaming
we usually sit in silence for a few minutes to let her
calm down and
then wait on her que to see what she, what mood she will be in next
and see how we can facilitate that in a peaceful
way.... So I
continued to sit at the table and I did my best to keep a (inaudible)
face, as soon as the meal was over I politely
excused myself and went
to the bathroom and uncontrollably burst into to tears. And there
were four, three or four people waiting
for me at the bathroom who
had seen what had happened. Mothers saying who is that woman, what
just happened, are you okay, are
you okay, and I said no I am not
okay I can’t do this anymore, I physically can’t do this
anymore (laugh) it is too
unpredictable, too anxiety provoking, too
degrading and I am not even inspire by my leader… I left lost
and alone and abandoned
and I remember the conversation when I tried
to approach her before and she just said to me I get 100 CV’s
every day the
door is open by all means if you feel that way walkout.
And I will admit that the salary I received at CARE I was happy with,
so
to be threaten with go with anyone else you might get treated
better was the underlined connotation but you won’t get as much
money. Literally challenge my own sense and materials and was I going
to stay for the money or was I going to leave. And that is
why I
wrote in this message I would rather be poor and safe. It is not
healthy for me…(Inaudible) after I quite I had to
uhm, give
notice at the place I was living because she didn’t pay me my
full salary…
[19]
On the group’s return to their hotel, the fourth respondent
testified that there remained
‘
a
huge amount of animosity amongst us as three staff members and
Rozanna
’. The accommodation
arrangements were such that the third and fourth respondents shared a
room with two single beds, with
Bev and Rozanna sharing an adjoining
room with a double bed. After the fourth respondent had showered, she
requested the third
respondent to close the door. Riback told them to
leave the door open with the result that the fourth respondent had to
put on
her underwear in view of three of her colleagues and her boss.
[20]
The fourth respondent testified that on the next day, she and the
third respondent decided to
spend the day with the third respondent’s
brother and his wife. While they were with them, they related their
work experiences,
how they felt powerless and confused. The third and
fourth respondents were advised that Riback’s behaviour was not
appropriate,
and that she could not conduct herself as she had. She
and the third respondent had a conversation about what they were
going to
do when they returned to Johannesburg. They decided that if
Riback continued to harass them and belittle them, then they would
have to make the decision that they could not take it anymore and
‘
that must be some other job out
there where we don’t get treated like this
’.
[22]
On the Monday morning, the fourth respondent testified that she
received a message from Riback
who found it disturbing that the
fourth respondent did not greet her that morning, that this behaviour
was not acceptable and that
they needed to meet to discuss a way
forward. She and the third respondent agreed to print resignation
letters since Riback wish
to see them in her office that morning.
When they were called to the meeting, Riback sat down and was
immediately made uncomfortable
by the fact that they were not afraid
as they usually were. Riback told them that the way they treated her
during the trip was
disrespectful. During the course of the
conversation, it became apparent that her suspicion had been raised
she asked whether the
conversation was being recorded. Both the
third and fourth respondents were recording the conversation. The
fourth respondent
had her phone in her pocket. The third respondent
held out his phone, which Riback snatched saying ‘
I
knew it, you liars, you disrespectful, what are you trying to do,
what are you trying to do
.’
Riback demanded that the fourth respondent leave the office that she
could speak to the third respondent alone. The fourth
respondent
refused to do so and was told to get out. At that stage, the fourth
respondent advised Riback that she was not leaving
the third
respondent alone and she placed her letter of resignation on the
desk, followed by the third respondent.
[23]
The letters of resignation tendered one month’s notice. The
fourth respondent gave the
following explanation for resigning on
notice:
Because I have invested
three years of my life, my time every day from 7 till 5, sometimes
being asked to stay later, my contract
does not stipulate any
overtime. And yet I was being asked, my contract says I end work at
four, I was here until five o’clock,
six o’clock, oh the
parent didn’t fetch the child, drive the child home in your own
car or we are having a school trip
why don’t you take on the
responsibility of having these six special needs, or four special
needs children in the car with
you, with no pro.... legal protection,
no indemnity form signed by parents or myself uhm, these were the
types of demands that
were expected from me…
I
give, I tender the notice because I refuse to let the three years of
work that the team and myself has put into those children,
getting a
7 year old out of nappies, getting a 15 year old to stop biting
people, getting a 11 year old girl to stop screaming
in public
because she is afraid of the sound of the toilet flushing. I have
invested so much time with those parents, with those
families,
tending the children to the hospital, child falls on the playground I
am the one sitting in a hospital next to the mom
speaking in sign
language, understanding of the child says and translating it to the
doctor and the parent because my sign language
was better than
theirs… it killed me, it absolutely killed me to have to leave
those who were in my charge, my heart broke,
I felt ribbed from my
community, I was so sad, so (inaudible) but at the same time I knew I
wasn’t going to be able to make
contact because Rozanna
boycotted my name and Rudy’s name the moment we left. And the
staff will tell you I am not allowed
to talk about them. So when
parent enquire as to where is my child’s teacher they were met
with we are not allowed to talk
about it ask Rozanna and she made up
some excuse..,
[24]
In the result, the fourth respondent was not permitted to work on
notice period, nor was she
permitted to say goodbye to the children
under her care, nor was she permitted to engage in any handover
period.
[25]
In response to a question as to whether the fourth respondent had
addressed any of her grievances
with Riback, the fourth respondent
replied as follows:
like
I said I did try and approach Rozanna (laugh) because she did see me
as a personal friend at a stage, and I approached and
she said what
is wrong with everyone, why is everyone so flipping useless. And I
said the team is not useless Rozanna I just fear
you are not getting
the best out of them because sometimes you come across as aggressive
and your tone comes across as abrasive
and you can offend people
without you realising. She then said to me, seriously (inaudible) it
is getting boring now, I am bored,
it’s getting boring get out…
And I was dismissed.
[26]
The fourth respondent stated that she did discuss Riback’s
behaviour on the Botswana trip
with Adele Hattingh who said that she
could not believe that Rozanna did that, but at the same time, she
was not surprised since
she had previously been on a conference with
Rozanna and ‘
she had told me the
horror stories when she got back from a trip, of Rozanna refusing to
let any of the staff hold the key to their
rooms, and they are not
allowed to have the key, they weren’t allowed to leave, when
they wanted to’
.
[27]
The fourth respondent testified further that Hattingh was the most
senior person at the time,
that she had the idea to meet as a group,
and to approach Riback as a team. That initiative came to nothing,
and the group was
‘scolded for colluding against her ‘.
In relation to the Botswana trip in particular, Hattingh’s
response was
no more than that it was unfortunate that the fourth
respondent had to go through that, however there was nothing that she
could
do.
The
commissioner’s award
[28]
The commissioner correctly identified the requirements to be met to
establish a constructive
dismissal, i.e. that the employee must have
terminated the contract of employment, that the reason for
termination must be that
continued employment had become intolerable
for the employee, and that it was the employer who made continued
employment intolerable.
The commissioner observed that the second of
these requirements was an issue, i.e. whether Riback had made
continued employment
intolerable for the employees. The test to be
applied was correctly identified by the commissioner – the
intolerability of
employment is to be determined objectively; the
employees bearing the onus of proof.
[29]
The commissioner found that Riback’s behaviour towards the
applicants and other teachers
was ‘
shockingly
unacceptable
’. He came to the
following conclusions:
65. She [Riback] clearly
portrayed significant mood swings and subjected the applicants to
swearing, lewd behaviour and discriminatory
remarks. Calling a person
a “screaming queen” or a “goblin” or stupid
is wholly unacceptable. She continuously
impaired the dignity of the
two applicants.
66.
Insisting on sharing a bedroom and a bed with the second applicant
and insisting on keeping
an interleading door between bedrooms, and
bathroom door open, and commenting on subordinates bodies while they
have to dress in
front of Ms Riback is wholly inappropriate and
demeaning for them.
67.
So were the tantrums and screaming at the conference and the
restaurant. On the evidence
Ms Riback’s behaviour was
despicable. I have absolutely no doubt that Ms Riback’s
behaviour towards the two applicants
caused their employment to have
become intolerable.
[30]
The commissioner went on to observe that generally speaking, an
employee is required to exhaust
all possible internal remedies prior
to resigning and claiming a constructive dismissal. Further, in the
present instance, there
was a grievance procedure in the employees’
contracts of employment. However, the commissioner observed that
Riback was ‘the
final point of call’, and that Riback had
been dismissive of prior attempts to raise issues with her. The
commissioner concluded
in the following terms:
72.
I am satisfied that the applicants had no other option but to resign
in this matter. Objectively
speaking the respondent made continual
employment intolerable for them. Despite their commitment to their
pupils they had no other
way out.
The
test on review
[31]
The test to be applied on review is not in dispute. What a
commissioner does in the case of an
alleged constructive dismissal is
to determine the existence of a dismissal. Once the existence of a
dismissal is established,
the enquiry moves to one of the fairness of
the dismissal. The existence of a dismissal is a jurisdictional
enquiry (
SA Rugby Players Association & others v SA Rugby
(Pty) Ltd & others; SA Rugby (Pty) Ltd v SARPU & another
(2008) 29
ILJ
2218 (LAC)). In other words, the commissioner is
required initially to conduct an analysis of the facts to determine
whether the
CCMA has jurisdiction to determine the dispute (see
Regent Insurance Co Ltd v Commission for Mediation &
Arbitration & others
(2013) 34
ILJ
410 (LC)). On
review, the applicable test therefore is not a threshold of
reasonableness; the review court must decide whether the
commissioner’s decision is objectively speaking, correct (see
Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & othe
rs
(2012) 33
ILJ
363 (LC
), Conti Print CC v Commission for
Conciliation, Mediation and Arbitration and Others
[2015] 9 BLLR
865
(LAC)).
The
grounds for review
[32]
The applicant submits that the commissioner ignored the fact that the
employees had not lodged
a grievance prior to their resignation, and
that his conclusion that the employees and maintain WhatsApp and
other communications
with Riback solely to remain ‘in her good
books’ is irreconcilable with the objective facts and are thus
improbable.
Further, the applicant avers that the commissioner failed
to have regard to the fact that the employees never communicated
their
concerns regarding her alleged conduct during September 2017,
nor did they provide Riback with an opportunity to address the
issues.
Finally, the applicant contends that the fact that the
employees worked their months’ notice is irreconcilable with
the conclusion
that their continued employment was intolerable.
In short, the applicant contends that an objective consideration of
the
facts presented during the arbitration proceedings (including the
documentary evidence that was submitted), does not justify a finding
that the employees were constructively dismissed.
The
legal principles applicable to constructive dismissal
[33]
The Labour Appeal Court has observed that inherent in employment
relationships are often considerable
levels of irritation,
frustration and tension (see
Jordaan v Commission for
Conciliation, Mediation and Arbitration & others
(2010) 31
ILJ
2331 (LAC)). Generally speaking, these are insufficient in
themselves to establish the intolerability of continued employment.
Something more is required. As the court observed in
Regent
Insurance, at paragraph 53 of the judgment:
The
court’s function is to look at the employer’s conduct as
a whole and to determine whether its effect, judged reasonably
and
sensibly, was such that the employee could not be expected to put up
with it. The conduct of the parties is to be looked at
as a whole and
its cumulative impact assessed…
[34]
In broad terms, the key elements of the test are that the contract of
employment must have been
terminated by the employee, the employee
must not have terminated the contract voluntarily (in the sense that
he or she would have
continued in employment indefinitely but for the
unbearable situation created by the employer), continued employment
must, objectively,
be intolerable, the intolerable circumstances must
have been of the employer’s making, and the employer must be
culpably
responsible for the conduct that created the intolerable
conditions (see Myburgh and Bosch
Reviews in the Labour Courts
(Lexis Nexis 2016) at p 364-5).
[35]
The courts have highlighted the importance of the need to exhaust a
grievance procedure prior
to the resignation which is later contended
to constitute a constructive dismissal (see, for example,
Lubbe v
ABSA Bank
[1998] 12 BLLR 1224
(LAC);
LM Wulfsohn Motors (Pty)
Ltd t/a Lionel Masters v Dispute Resolution Centre & others
(2008) 29
ILJ
356 (LC)). This is sometimes expressed as a
requirement that where an employee could reasonably be expected to
invoke a grievance
procedure, the resignation will not be regarded as
a dismissal because resignation was not a measure of last resort. But
this is
not an inflexible rule – where on the facts of a
particular case it appears that the employee could or should have
raised
a grievance through available channels, the employee should
generally be expected to have done so. Where those channels are
ineffective
or where on the facts it would be futile for the employee
to resort to a grievance procedure, an employee is not necessarily
precluded
from claiming constructive dismissal. What is required is
an examination of all relevant facts, and a determination of what was
reasonable in the circumstances. As Gaibie AJ succinctly held in
Regent Insurance
(at paragraph 53 of the judgment):
…
the
court’s function is to look at the employer’s conduct as
a whole and determine whether its effect, judged reasonably
and
sensibly, was such that the employee could not be expected to put up
with it. The conduct of the parties has to be looked at
as a whole
and its cumulative impact assessed…
Analysis
[36]
The only element of the test in dispute in the present instance is
whether the employees have
established, objectively, that continued
employment by the applicant had become so unbearable that they could
not be expected to
remain in that employment. As I have indicated,
this is an assessment that must be made from the perspective of a
reasonable person
in the shoes of the employees.
[37]
In the pre-arbitration minute, the following was recorded under
‘Facts in dispute’
at paragraph 14:
The
Applicants contend that Ms Riback’s conduct, which the
Applicants contend which ultimately led to their constructive
dismissal, included but was not limited to unauthorised and/or
unlawful deductions from the applicants’ salaries, imposing
unreasonable and in some instances unlawful demands on the
applicants, use of abusive and offensive language when dealing with
the applicants, sexual innuendos, sexual harassment, sexual
orientation discrimination, making of disparaging and derogatory
remarks,
undermining and belittling the applicants, embarrassing and
humiliating conduct toward both applicants, and impairment of the
applicants’
constitutional right to dignity. This conduct was
in front of the respective applicants’ and/or their work
colleagues and/or
in public places.
[38]
As I have indicated, the third and fourth respondents testified as to
the above contentions and
in the course of doing so, made serious
allegations against Riback. None of these were seriously contested in
cross examination,
and Riback elected not to attend the arbitration
or lead any evidence. The objective assessment of the intolerability
of continued
employment must be made on the basis of the undisputed
version of the employees.
[39]
More than 10 years ago, Prof Alan Rycroft wrote an article in the
Industrial Law Journal
(see Rycroft ‘Workplace Bullying:
Unfair Discrimination, Dignity Violation or Unfair Labour Practice’
(2009) 30
ILJ
1431) in which he sought to give content to the
concept of workplace bullying, suggested that workplace bullying
constituted a
form of harassment. He said the following:
Workplace
harassment impacts in different ways. Sexual harassment impacts on an
employee’s dignity, bodily integrity, job
security and personal
safety. Racial harassment impacts on an employee’s sense of
worth, dignity and empowerment. Workplace
bullying has been linked to
a feeling of incompetence in handling the job, to a sense of
alienation from colleagues, to anxiety
that there will be no
promotional recognition, to job security, to feelings of inadequacy,
to knock on tensions in personal relationships,
and to depression.
[40]
Rycroft suggests the following definition of workplace bullying:
[Harassment]…is
generally seen as persistent and unwelcome conduct which is hostile
or offensive to a reasonable person and
induces a fear of harm and
demeans, humiliates or creates a hostile and intimidating environment
was calculated to induce submission
by actual or threatened adverse
consequences.
Taking
these generic aspects of harassment, it has been suggested that
bullying refers to any unfavourable or offensive conduct
on the part
of a person or persons, which has the effect of creating a hostile
workplace environment… In these terms, bullying
includes a
wide range of insulting, demeaning or intimidating behaviour that
lowers their self-esteem or self-confidence of an
employee.
[41]
Rycroft identifies a number of specific behaviours, which include
persecution in various forms,
threats and inspiration of fear,
degradation, e.g. sexual harassment, deliberate insults,
hypercritical negative responsible attitude
(ridicule,
unfriendliness, etc.), offensive administrative penal sanctions which
are suddenly directed against an individual employee
without any
objective cause, explanations or efforts at jointly solving any
underlying problems. Rycroft goes on to observe that
being humiliated
or demeaned lies at the heart of the concept of dignity, and that the
public humiliation of an employee is almost
certain to destroy or
seriously damage the relationship of trust and confidence between
employer and employee.
[42]
Turning to the present case, I have quoted from the evidence at some
length, simply because the
evidence best speaks for itself. A summary
would not inadequately convey the deep sense of degradation and
humiliation suffered
by the third and fourth respondents. The third
respondent gave uncontroverted evidence that as a gay man, he felt
demeaned, insulted
and embarrassed by being referred to as a
‘screaming queen’ on a daily basis. The fourth respondent
gave uncontroverted
evidence that Riback demeaned her on account of
her appearance and her dress. Both the third and fourth respondents
gave uncontroverted
evidence regarding sexual innuendo and harassment
at the hands of Riback, and in particular the discomfort they felt
when Riback
required them to shower and dress in circumstances where
their privacy was compromised, and when she made comments about their
bodies. Both the third and fourth respondents gave uncontroverted
evidence of Riback’s behaviour toward them in public places,
where they were admonished in abusive terms in front of colleagues
and members of the public.
[43]
To the extent that the applicant attempted to paint the third and
fourth respondent’s versions
as false or exaggerated, there is
no merit in this submission. The third respondent explained what
appeared to be the anomalous
friendly overtires made by him and the
fourth respondent to Riback in the following terms:
…
it
was all around her and how she felt. And as a result of that we
always had to be nice to her and chat nicely to her, to stay
in her
good books because working for a narcissist like that a (inaudible)
you have to make them happy, make them, give them the
impression that
you are unhappy because the second they notice that they will attack
you and break you down.
[44]
The fourth respondent in particular was clearly able to articulate
the effect of the workplace
environment on her mental well-being. She
identified the source of her feelings of inadequacy, and was
fortunate enough to receive
support both professionally and from
family. The fourth respondent testified as to how she came to
recognise the relationship between
her and Riback for what it was and
how she was able to summon the courage to confront Riback. In
response to a suggestion by the
applicant’s representative that
events at the conference were no more than a ‘friendship tiff’,
she said the
following:
About
her… let me be very clear that showed that she was my real
friend nothing about her, I could not trust her, she took
my money,
she is (inaudible) people against each other constantly, she was not
my real friend, she was my boss who pushed the boundary
from personal
life and professionalism. I had peace because I knew, didn’t
know any better I’d never been in another
working environment.
Now in the work environment I am in now these are all red flags I
don’t even have my principal cell
phone number. We communicate
over email that is perfect.
[45]
In short, what the evidence discloses is a workplace operated by a
narcissistic personality whose
offensive and unwelcome conduct had
the effect of creating a toxic working environment in which
discrimination, degradation and
demeaning behaviour became the norm.
I have no hesitation in finding that the nature and extent of the
workplace bullying suffered
by the third and fourth respondents was
such that for the purposes of s 186 (1) (e) of the LRA, their
continued employment was
rendered intolerable.
[46]
In so far as the applicant contends that the employee’s failure
to lodge a grievance is
fatal to their claim for constructive
dismissal. As I have indicated, and to the extent that the applicant
seeks to elevate this
to the status of a legal principle, this is not
the case. All of the relevant facts and circumstances must
necessarily be taken
into account. It was not in dispute during the
arbitration hearing that the employees did not lodge a grievance. The
commissioner
found that generally speaking, an employee is required
to exhaust all possible internal remedies before resigning and
claiming
a constructive dismissal. He found that Riback was in fact
the final point of court for the purposes of prosecuting any
grievance,
and that their direct supervisor was hesitant to take up
issues on their behalf. The fourth respondent testified that when she
had taken up issues with Riback, Riback became ‘bored and
disengaged’.
[47]
The fourth respondent also led evidence that she had attempted to
address complaints with Riback
directly, and with both the
co-director, Krishen Samuels and her senior, Adele Hattingh, on a
number of occasions. The third respondent
also testified that he had
raised grievances with the head of teachers, Adele Hattingh. When the
fourth respondent proposed to
Samuels that a staff well-being
committee be formed, he laughed at her. Samuels said that Riback
would never agree to it, ‘it’s
not going to happen’.
The fourth respondent lodged a grievance with Samuels, recording that
Riback did not speak to
staff appropriately, that staff were
struggling and their well-being was a matter of concern. When Samuels
left the applicant,
the fourth respondent testified that ‘
the
person was my protector and who was in charge of protecting the staff
make sure that everything was fair and now he had gone,
my sense of
security went with him
’. The fourth respondent testified
that after Samuels had left, there was no longer a ‘buffer’
and that when Riback
started to manage the staff, things went from
bad to worse. The third respondent testified that on their return
from the conference
in Cape Town, they approached Hattingh who
informed them that Riback was furious. The fourth respondent
testified:
After
this training we sought advice from a teacher who was in the same
boot (sic) as us, she had nowhere to go and this is where
it really
struck me that there is no grievance procedure, because the only
person that she can address their grievance with is
the person who
has inflicted this, the situation in the first place.
[48]
The evidence is clear that despite a term of the employees’
employment contracts to the
effect that employees may lodge any
grievance with their immediate manager/director, this was not an
option open to them. In particular,
the person against whom their
grievance was directed was Riback herself, the applicant’s sole
member and director. As the
third respondent put it in his evidence
in chief, ‘
But again you can’t’ approach a
person you have a grievance with as the Director, as the HR system,
as the Judge and
the Juror and the Culprit there is no possible
solution to that
’.
[49]
In so far as other agencies where grievances might have been lodged
are concerned, the fourth respondent
was asked in cross-examination
why she had not reported the acts of sexual harassment that she
described to the police. Her answer
was instructive, and goes to the
root of abusive power relationships in the workplace:
I
was disempowered the entire time that I was working for her, was made
to feel small, belittled I didn’t go to the police
I didn’t
tell my parents, I was ashamed I wondered why, why me does she do
this in front of Bev, does she do this in front
of Adel, I felt
uncomfortable and it is not uncommon for a victim of sexual
harassment or abuse to be silent in the moments directly
after, it is
not uncommon. It is fear and shame and guilt because you feel like
why me, why me what I do, why did she pick me she
doesn’t do
this to Anuska, she doesn’t do it to Bev, she didn’t do
it to Adel why me?
[50]
To the extent that the applicant contends that the employees’
willingness to work out the
notice period is incompatible with any
notion of intolerability of future employment, the evidence clearly
discloses the reasons
for the employees’ election to work their
one month’s notice period. The reason they chose to do so was
out of their
sense of duty towards the learners in their care, and
the need for a smooth transition so as to minimise any harm that
might be
caused to them. Instead, both employees were escorted from
the applicant’s premises by security guards within five minutes
after their resignation.
[51]
In summary, on the facts, viewed objectively, the applicant rendered
the employees’ continued
employment intolerable. The
commissioner’s decision that the employees had been unfairly
dismissed and are entitled to compensation
is thus correct, and the
application to review and set aside his decision stands to be
dismissed.
Costs
[52]
The court has a broad discretion in terms of s 162 of the LRA to make
an order for costs according
to the requirements of the law and
fairness. Mr Cook, who appeared for the third and fourth respondents,
submitted that an order
for costs on the scale as between attorney
and client was appropriate. He submitted that the third and fourth
respondents were
young adults, the fourth respondent in her first
employment, and that they had been traumatised by Riback’s
behaviour. Further,
the quantum of compensation awarded to them by
the commissioner was not overly generous, and an order for costs on
the ordinary
scale would amount to a pyrrhic victory given the legal
costs that they have had to incur in opposing the present
application.
I agree with these submissions. In my view, the
requirements of the law and fairness dictate that a punitive costs
order should
be granted. The court ought to express its concern and
displeasure at the manner in which the employees were treated in the
present
instance, and the fact that the applicant sought misguidedly
to review and set aside the commissioner’s award. Further, I
must necessarily take into account the fact that the applicant
abandoned its review of that part of the award that ordered the
repayment of monies unlawfully withheld and deducted only on the day
of the hearing. Frankly, had the employees filed a cross-review
to
increase the quantum of compensation, I would have given serious
consideration to the application.
I
make the following order:
1. The
application is dismissed, with costs, such costs to be paid on the
scale as between attorney and client.
André
van Niekerk
Judge
of the Labour Court
APPEARANCES
For
the applicant: Adv. D Groenewald, instructed by Serfontein Viljoen &
Swart
For
the third and fourth respondents: Adv. AL Cook, instructed by
Allardyce Attorneys.