J2519/00-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2519/00
2001-05-22
In the matter between
SENTRY SECURITY Applicant
and
1ST Respondent
2ND Respondent
3RD Respondent
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J U D G M E N T
Delivered on 2 July 2001
________________________________________________________________
REVELAS J:
1.This is an application to review and set aside an award made by the first
respondent in favour of the third respondent dated 28 April 2000. The
application is brought in terms of section 145 of the Labour Relations
Act 66 of 1995, as amended, (“the Act”).
2.
3.The third respondent was employed by “Armed Response” since January 1994,
as a credit controller. He had been a polio sufferer since childhood.
Consequently he became semiparalysed in his left leg. He also,
apparently, suffers from a poor sense of balance.
4.In June 1998 Armed Response was taken over by the applicant in this matter,
(“Sentry Security”) and the third respondent's employment contract was
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transferred to the applicant.
5.On 26 February 1998 the respondent's legal representative wrote to the
applicant and raised a number of concerns regarding certain changes in
the third respondent's employment conditions as a result of the take
over, including the fact that it had come to the third respondent's
attention that there was an intention to move the credit control
department, where the respondent was working, to a new office located
upstairs. It was stressed that the third respondent was not able, to
descend and ascend stairs on a continuous and regular basis.
6.On 6 March the applicant informed the third respondent that no decision had
been taken regarding any relocation. The applicant also indicated that
the third respondent would not be required to climb stairs on a regular
and continuous basis.
7.A further letter was written on 11 March 1998, on behalf of the third
respondent. It was once again emphasised that the third respondent was
experiencing difficulty in negotiating the stairs in an office
environment.
8.In August of the same year the applicant had relocated to new work premises
where the credit control department was located on the first floor.
9.The third respondent handed the applicant a medical certificate to the
respondent at the time when the relocation took place. The certificate
states as follows:
In my opinion it would be detrimental to his health if he was forced
to work on the second/third floor of a building which does not have a lift. I
recommend that you give him an office on the ground floor.”
10.On 28 August 1998 when the relocation took place the respondent’s credit
control manager wrote to the third respondent’s representative as
follows:
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“1. The company takes note of the recommendation contained in the medical report on
your client’s physical circumstances.
2.Accordingly the company will make available a desk and a computer on the
ground floor of the company offices. Your client will therefore
(a)be able to continue to be employed as a credit controller; and
(b)not be required or requested to take any stairs at any time during the
working day;
(c)to further accommodate and safeguard your client’s disability and
vulnerability in positively unfriendly working environment your client
will no longer be required nor requested to drive anywhere on behalf of
the company. ”
2.The applicant in September raised certain grievances. He alleged that his
location on the ground floor was negatively affecting his ability to
earn commission and that the current situation was affecting his
efficiency. He also expressed fear that his prospects for promotion
would be adversely affected by the circumstances as he found it
difficult to manage people. He complained furthermore that the office
was too small.
3.On 26 October 1998, the third respondent requested in writing to be
permitted to move to the credit control office on the first floor.
4.After the move to the first floor of the applicant’s building, the third
respondent occupied a work station in the credit department for a period
of two months without as much as a suggestion that he was uncomfortable.
5.This was after he had been moved to a downstairs office where the applicant
had accommodated him. He stated that his current situation was not
working and he would be more productive with his colleagues. He then
joined them, but in December 1998, he handed in his letter of
joined them, but in December 1998, he handed in his letter of
resignation and terminated his employment with the applicant with effect
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from 31 January 1999, after working one month's notice.
6.In an analysis of the evidence, the second respondent (“the arbitrator”)
concluded that the third respondent was constructively dismissed as the
applicant made it intolerable for him to continue with a working
relationship. He was awarded compensation in the amount of R34 000
being equivalent to five months' salary, at the rate of remuneration he
was receiving at the time of his resignation.
7.The arbitrator accepted that the test for constructive dismissal is an
objective one with reference to the matter of SmithKline Beecham (Pty)
Ltd vs CCMA and Others (C) 70/1999. She stated that the crisp questions
to be asked are:
"Did the company do all that could be expected of a reasonable employer to
accommodate Pagel's (the third respondent’s) disability?"
“Was the alternative offer of accommodating Pagel on the ground floor a solution
which made it possible for him to continue fulfilling unhindered in time and
function for which he was employed?"
She held that:
"The question however remains without Pagel's active participation in the problem
solving process, can it be said that the solution arrived at was the only alternative
and that all other possible avenues had been exhausted?."
She also concluded:
"I do not believe in the final analysis that Sentry intended to create an intolerable
work environment for Pagel. Intention on the part of the employer is not
necessary in order to establish a constructive dismissal."
8.Much of the arbitrator's reasoning concerned whether there was a proper
consultation process regarding the third respondent's use of stairs.
She found that there was no proper consultation with the third
respondent. Patently there was. His attorneys were in correspondence
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with the applicant's attorneys on the issue. He raised grievances. The
fact that they were not all immediately adhered, to does not mean that
they were not dealt with or not considered. The very fact that the
third respondent was especially moved to a downstairs office is
indicative thereof that the applicant considered the third respondent's
grievances. It was no easy task to accommodate the third respondent.
9.It was common cause before the arbitrator that the third respondent lived
in a block of flats where he was required to negotiate a flight of
stairs daily. The applicant found a runner (an assistant) for the
third respondent to carry messages and make deliveries for him.
10.It is also a significant that the third respondent actually wanted to be
retrenched and that his attorneys had attempted to negotiate with the
applicant in this regard. The third respondent’s position was not
redundant and the applicant needed and wanted the services of the third
respondent and they had made their opinion of him known. There was no
reason why he should have been retrenched.
11.It is also true that on 20 March 1998 the third respondent wrote to his
representative wherein he stated that:
"The above matter has been resolved to my satisfaction and my concerns
are now being addressed. Please would you stop any further action
immediately."
12.The aforesaid actions do not reflect the attitude of an employer who did
not wish to want to accommodate its employees. Particularly, in
circumstances where the employee's permission is not required to
relocate, it can hardly be said that there was no consultation.
13.In a letter dated 14 September 1998 the third respondent states:
"Although I appreciate every effort that is being made to accommodate me, I am
"Although I appreciate every effort that is being made to accommodate me, I am
concerned that the current situation is affecting my ability to earn commission."
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14.There was no evidence before the arbitrator that the third respondent’s
capacity to earn commission was indeed impaired. On the facts before
the arbitrator, the third respondent's case was that there should have
been no relocation. It would be unfair to the applicant, if it were to
move expected that the whole credit control department elsewhere to
accommodate the third respondent.
15.On the same day the third respondents legal representative wrote:
"If at the end of the day no feasible or reasonable accommodation of our client's
unique circumstances are practical, a consultation should be entered with a view
to his proposed retrenchment."
16.The reasons for him wanting to sit and work on the first floor, were
advanced by the third respondent as follows:
"The current situation is not working (i e his location on the ground floor) and I
feel I would be more productive with my mates."
17.Even though the second respondent referred to all the relevant authority
with regards to constructive dismissal and confirmed that the intention
on the part of the employer is not a necessary ingredient in
establishing a constructive dismissal and that the test is an objective
one, this is not in fact what she applied.
18.She applied a subjective test, solely taking into account the point of
view of the third respondent and his discomfort, without taking into
consideration that in the circumstances there was very little that the
applicant could do. It would be unfair to expect an employer to move a
whole department, staffed by several persons, to another floor because
of one employee, even one in the third respondent’s position. The
applicant should not have been forced to engage in a retrenchment
exercise either.
19.The award falls to be set aside, because the arbitrator did not apply her
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mind to the evidence before her and came to a conclusion which is
rationally and reasonably disconnected to the facts.
20.I have also considered the question of costs. The third respondent
continued to persue an unsustainable case against the applicant and
there is no reason why he should not pay the applicant's costs of having
to bring a review to set aside the decision of the first respondent.
21.I have also considered whether this matter should be referred back to the
CCMA. I do not believe so.
22.I therefore make the following order:
1. The award made by the first respondent under case number GA57190 dated
28 April 2000 is set aside.
2. The award of the third respondent is substituted with the following:
"The third respondent was not unfairly dismissed by the applicant, but
resigned of his own accord."
3. The third respondent is to pay the applicant's costs.
________________
E. Revelas
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