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IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
BRAAMFONTEIN CASE NO: JR187/01
2002-03-06
In the matter between
BLOEMCARE Applicant
and
COMMISSIONER M B MORERELA 1ST Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 2ND Respondent
3RD Respondent
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J U D G M E N T
Delivered on 6 March 2002
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REVELAS J:
1. This is an application for review in terms of Section
145 of the Labour Relations Act 66 of 1995, (“the
Act”). There is also a condonation application for the
late filing of this application for review. The
applicant seeks to review an award made by the first
respondent, the arbitrator, in favour of the third
respondent, the erstwhile employee of the applicant.
1. 2. In her award, the arbitrator found that the third
respondent was constructively dismissed when she
tendered her resignation on 31 May 2000 in that the
applicant had:
"Made continued employment intolerable for the employee."
3. The arbitrator awarded compensation in the amount of
R46 637,50 to the third respondent.
4. The third respondent was employed on 1 July 1999 by the
applicant as an administrative manager. She initially
reported to a Mrs Le Roux, one of the respondent's
directors, and later to Mr Du Plessis, another
director, and she also had several interactions on a
work level with a Mrs Van Niekerk. During November
1999 she was no longer required to perform certain
bookkeeping functions and other duties. At some stage
a reduction in her salary was also proposed but was not
effected.
5. The arbitrator accepted that the employment
relationship between the parties gradually
deteriorated. Here I wish to make mention of the fact
that the arbitrator focussed somewhat extensively,
compart to the remaining issues in the matter, on the
question of the deteriorating relationship and the
diminishing of certain functions.
6. It is common cause that the third respondent had a
heavy workload and I accept that the third respondent's
workload was diminished for operational reasons rather
than a form of victimisation as she attempted to
portray during the arbitration hearing.
1. 7. The arbitrator also made no finding, and should not
have, that reduction in responsibilities justified the
applicant's resignation.
8. It is further common cause that on 16 May 2000 the
parties had a meeting to discuss certain work related
issues. It is in dispute whether most of the
conversation was about overtime or not. In any event,
work related issues were discussed and the third
respondent conceded that it was a productive meeting.
9. On 30 May 2000 Mr Du Plessis uttered words to the
effect that:
"It is not 'fucking' acceptable that documentation is in this
order."
10. It is not in dispute that the words were uttered, but
it is in dispute that they were directed to the third
respondent. Mr Du Plessis denied that he directed the
same foul language this time in relation to a missing
cheque at the third respondent over the telephone the
following day. The arbitrator accepted that Mr Du
Plessis addressed the applicant in this fashion on both
occasions.
11. This factual finding, which is a credibility finding, I
do not criticise.
12. The third respondent did not file a grievance about the
swearing. The arbitrator found that she was justified
in electing rather to resign, than lodge a complaint.
It is important that I should quote directly from the
arbitrator's award in this regard:
"The employer could not adduce any evidence to justify the
dismissal. Looking at both the employer's and the employee's
conduct as whole I find that the employer made continued
employment intolerable for the employee as the employee has:
1. Shown that Du Plessis was the stronger director of the two.
2. That she reported to Du Plessis, and
3. That Le Roux's position was parallel to that of Du Plessis.
I find that the employee was justified in not lodging a
grievance about Du Plessis' conduct to Le Roux. The
employee's dismissal was therefore procedurally and
substantially unfair."
13. The applicant contends that the third respondent should have
exhausted other alternatives before considering resignation.
There could have been a range of alternatives. There was an
offer by the applicant to have a meeting to resolve the issue
right after the resignation.
14. The third respondent believed that such a meeting
would be to no avail. By this time she had instructed
an attorney who had advised her. Of this important fact
the arbitrator makes no mention.
15. In Carephone (Pty) Ltd v Marcus N.O. & Others 1998 19
ILJ 1425 (LOC) the Labour Appeal Court applied the
constitutional directive that an arbitration award of
the arbitrator was required to be:
"Justifiable in relation to the reason given for it."
(At paragraph 31) The Labour Appeal Court also
reasoned that:
"In determining whether administrative action is justifiable in
terms of the reasons given for it, value judgments will have to
be made which will almost inevitably involve a consideration of
'the merits' of the matter in some way or another. As long as
the Judge determining these issues is aware he or she enters
the merits not in order to substitute his or her own opinion on
the correctness thereof but to determine whether the outcome
is rationally justifiable the process would be in order."
16. No employee should be expected to tolerate abusive
language or any other form of abuse. It is not
acceptable for employers to use the word 'fuck' in
front of employees. The word is still offensive to
some people, even though it is a word that has lately
become integrated into the vocabularies of many.
Whether an employee is entitled to be compensated upon
resignation as a result of this word being used by an
employer, will depend on the facts.
17. The third respondent is an elderly lady and she found
it offensive. There was corroborative evidence by her
husband that the word in question was not used not in
their home and that they both found it offensive.
18. In Pretoria Society for the Care of the Retarded v
Loots 1997 6 BLLR 71 (LAC) it was held:
1. "When an employee resigned or terminated contract as a
result of constructive dismissal, such an 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.. Where the
employee seeks compensation the Court looks at whether the
employee was constructively dismissed. A part of that inquiry
may well be whether the employee's evidence should be
believed or whether the employer's evidence which is to the
effect that she actually resigned, should carry the day. The
inquiry then becomes, whether the appellant [the employer]
without reasonable and proper cause, conducted itself in a
manner calculated or likely to destroy or seriously damage the
relationship of confidence and trust between the employer and
the employee. The Court's function is to look at the employer's
conduct as a whole and determine whether it is such that its
effect, judged reasonably and sensibly, is such that the
employee cannot be expected to put up with it."
19. Whether the employer has behaved reasonably and the
whether the employee's perception of the employer's
conduct was reasonable is an objective test. That is
also clear from the aforesaid judgment.
20. The third respondent was of the view that if she were
to lodge a grievance or lay a complaint with Mr Le Roux
against Mr Du Plessis, she would be victimised because
her four superiors simply brooked no criticism.
21. The third respondent would have been wiser to have
lodged a complaint. If matters did not improve after
she had made her position clear, she would be perfectly
entitled to resign and that could have constituted a
constructive dismissal.
1. 22. It is also of great importance in this matter,
that the employer sought to rectify the situation.
Having chosen to simply resign, I do not believe the
third respondent is able to show that she was coerced
involuntarily to resign. There was no basis on which
she could have reasonably accepted that the situation
would continue. That may have been so with regard to
the working problems which is more of a performance or
operational requirements issue, than the breaking down
of the employment relationship.
23. Mr Du Plessis swore twice in two days. No other
incidents of swearing were referred to. It appeared
that he had done so when he was somewhat angry. There
was no indication that the third respondent would be
subjected to these swear words for the rest of her
employment relationship with the respondent. The
situation could have been rectified by lodging a
complaint.
The applicant at least attempted to rectify the
situation.
24 In my view, the award was punitive and unfair towards
the applicant. This award creates a situation where an
employee who hears two swear words, may claim 12
months’ compensation for constructive dismissal,
despite the employer’s attempt to make good the
situation. Such a situation should not be permitted.
(See: C.W.I.U. v Johnson and Johnson (Pty) Ltd (1999)
20 ILJ 89 (LAC) ).
24. The arbitrator also accepted the applicant's contention
that the words had a sexual connotation. It is
difficult for me to understand why, particularly in the
context the words were used, these words imported such
a meaning.
25. The arbitrator did not apply her mind to all the
evidence before her and consequently her award falls to
be set aside. I do not believe that it would serve any
purpose to remit the matter to the CCMA and I can
substitute the arbitrator's finding with my own order.
26. Consequently I make the following order:
1. The late filing of the review application is condoned.
2. The award of the second respondent dated 7 December
2000 is set aside.
3. The finding of the first respondent is substituted with
the following:
"The third respondent voluntarily resigned from the
applicant's employ and was not dismissed."
4. The applicant is to pay the respondent's costs wasted
costs incurred for the postponement on 8 February 2002.
27. I make no order as to the costs of this application.
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E. Revelas