in the labour court of south africa (held in … · page 1 of 20 case number: jr 1852/05 in the...

of 20Case Number: JR 1852/05

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN BRAAMFONTEIN)

CASE NUMBER: JR 1852/05

In the matter between:

LM WULFSOHN MOTORS (PTY) LTDT/A LIONEL MOTORS Applicant

v

DISPUTE RESOLUTION CENTRE First Respondent

HEIN GERBER N.O Second Respondent

NELITTA NEL Third Respondent

JUDGEMENT

BASSON, J

BACKGROUND TO THE APPLICATION

1) The Third Respondent (Ms Nel – hereinafter referred to as “Nel”)

claimed that she was constructively dismissed by the Applicant in that

it had made continued employment intolerable. Her claim in respect of


constructive dismissal arose mainly from an incident that occurred at

her place of work on 11 November 2007 when she demanded to have

access to, and to be permitted to review some 24 months’ of clock

cards as she had a query as to her overtime payment. In support of

the allegation of constructive dismissal, Nel also relied on other

incidents that had occurred in November when Mr. Wulfsohn (the

dealer principal – hereinafter referred to as “Wulfsohn”) shouted at her

and an incident where she was accused by the Applicant’s financial

manager Mr. De Waal (hereinafter referred to as “De Waal”) of having

made mistakes with warranties to the extent that other staff could not

take leave. She alleged that Wulfsohn also dragged her by her armed

and asked her whether or not she could count properly.

2) It is, however, clear from Nel’s letter of resignation that it was mainly

the incident of 11 November 2004 that prompted her to resign. This

much is clear from her letter of resignation in which she stated as

follows:

“Ek gee kennis, ek werk nie ‘n maand kennis nie weens

omstandighede wat met Jan de Waal bespreek is op die 11de


Noveber oor my oortyd wat nie korrek uitbetaal is nie. Ek het

probeer om met meneer De Waat uit te sorteer, maar hy wou nie

na my luister nie, want hy was te besig.”

3) It is also common cause and should be noted at the outset that Nel

has never raised any grievances with regards to the manner in which

she was treated by the Applicant’s management despite the fact that it

was common cause that the Applicant had a grievance procedure in

place that would have entitled Nel to lodge grievances. Nel also

admitted that she had not read copies of the disciplinary code despite

the fact that she had signed an acknowledgement that she will

acquaint herself with the contents thereof. More in particular, Nel had

never raised any grievances with her direct head a one Ferdi. She

merely explained that she kept quiet because there was no one to talk

to. It was put to her in cross examination that a reasonable person

would have raised a grievance to which she merely responded that it

was her perception that one could not talk to anyone: ““Ek het net

gevoel, daar, dit was hoe ek gevoel het, ‘n mens kon nie met iemand

daar praat nie”. It should, however, be pointed out that it was not Nel’s

evidence that she had problems with her direct head nor was it her


evidence that she had elected not to use the grievance procedure

because it was inefficient.

4) It was also not in dispute that there was a rule in place in the

workplace that regulated the process that had to be followed when

salary queries are made. In this regard employees had received a

memo which specifically stated that, because “employees are wasting

admin staff time by requesting what their salaries will be at the end of

the month, during the month, or they want to know what their bonus or

commission will be….. there will be a window period of two working

days after salaries have been paid into your bank account to enquire

about your salaries and at any questions you might have in that

regard after, that you request will not be considered [sic].” Nel

admitted that she knew about the rule and that she had signed receipt

of the document. It is common cause that Nel had, notwithstanding

this rule, approached De Waal at a very inopportune time with a

request that she wanted the clockcards for the past 24 months. When

Nel approached De Waal with the request he (according to her)

responded by asking her: “waarom soek ek [Nel] “f…n” 24 maande

se klok kaarte”. De Waal was candid in his evidence before the


arbitration and readily admitted that he was irritable when Nel had

approached him with the request because she (Nel) knew that there

was a rule in place which was put into place precisely to prevent

circumstances such as this. De Waal explained that he was on his

way to a statutory audit and that he was under pressure. He admitted

that he had used the “f”word. His evidence that this was an isolated

incident, was not disputed. He further testified that he had called Nel

later and requested her to reconsider her resignation but that she had

refused to do so. When he was asked if he would have accepted the

withdrawal of her resignation, he responded that he would have: “…

ek sou dit so aanvaar het. Want ek dink dit was in ‘n oomblik van

ongelukkigheid of woede of iets, seker gewees [that she had

resigned].” De Waal explained that grievances were raised with

management in terms of the grievance procedure and that it was

attended to. It is important to point out that this evidence of De Waal

was not disputed by Nel in cross examination.

5) The Second Respondent (hereinafter referred to as “the Arbitrator”)

found that the termination of the employment relationship was “the

only reasonable option available to the Employee in the


circumstances. The fact that there was a detailed grievance procedure

in place does not assist the Employer”. Mr. Badenhorst on behalf of

the Applicant did not take issue with the fact that it was unacceptable

for an employer (in this case De Waal) to have used a swear word.

The main point asserted in argument was that there was a grievance

procedure and that Nel therefore had an alternative other than to

resign.

THE REVIEW APPLICATION

6) The Applicant brought an application in terms of section 145 of the

Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”)

to review and set aside the Second Respondent’s award (hereinafter

referred to as “the Arbitrator”). On behalf of the Applicant it was

argued that the Arbitrator committed a reviewable irregularity in

misconstruing the evidence before him and placing undue weight to

the conduct of the Applicant’s management and insufficient weight to

Nels’ alternative to invoke the grievance procedure in light of the

evidence that was properly placed before the arbitration. Before I turn

to an evaluation of the merits, a few brief remarks in respect of


constructive dismissals need to be made.

7) A constructive dismissal occur in terms of section 186(1)(e) of the LRA

where the employee rather than the employer ends the contract with

or without notice because the work situation has become intolerable

as a result of conduct on the part of the employer.1 There are three

requirements for constructive dismissal to be established:

(i) whether the employee brought the contract to an end; and

(ii) whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment “intolerable”; and

iii) whether the employee had no reasonable alternative other

than to terminate the contract.2

8) The onus to prove these requirements rests on the employee.3 If one

of these requirements is not present, a constructive dismissal would

not have been established.4

1 CEPPAWU & another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC) at paragraph [30]: “Constructive dismissal involves a resignation because the work environment has become intolerable for the employee as a result of conduct on the part of the employer (see s 186(1)(c).” 2 See Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) at paragraph 28.3 See section 192(1) of the LRA4 See Solid Doors supra


9) In most cases it is the second requirement that makes the enquiry into

the question whether or not the resignation of an employee constitutes

a constructive dismissal difficult. The test for establishing a

constructive dismissal has been formulated in the following terms by

the Labour Appeal Court in Pretoria Society for the Care of the

Retarded v Loots (1997) 18 ILJ 981 (LAC):

“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 fulfill 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.”5

5 At 984E – F.


10) The Court in Smithkline Beecham (Pty) Ltd v CCMA & Others [2000] 3

BLLR 344 (LC) had the following to say about the decision in Pretoria

Society:

“[38] What is clear from the aforesaid decision of the Labour

Appeal Court is that the test for determining whether or not the

termination of employment constituted a constructive

dismissal is an objective one. The subjective apprehensions

of an employee can therefore not be a final determinant of

this issue. The conduct of the employer must therefore be

judged objectively. It would be unfair to an employer to allow the

subjective perceptions of an employee of its conduct, particularly

when these perceptions turn out to be incorrect, to be the

determining factor in penalizing the employer

with the penalties imposed by the Act.[39] Grogan, in his Workplace Law 4 ed at 105, states that:

“The requirement that the prospect of continued

employment be ‘intolerable’… suggest that this form

of ‘dismissal’ should be confined to situations in which

the employer behaved in a deliberately oppressive


manner and left the employee with no option but to

resign in order to protect his or her interests.”

[40] In Aldendorf v Outspan International Ltd (1997) 18 ILJ 810

(CCMA), 6 it was held that:

“[W]here employees could reasonably have lodge a

grievance regarding the course of the unhappiness,

and failed to do so before resigning, they may be

hard put to persuade the court or arbitrator the they

had no option but to resign”

11) It appears from the aforegoing that it is not sufficient for an employee

to allege that she genuinely believed that the employment relationship

had become “intolerable”, the employee must satisfy the

commissioner that her subjective mindset was (objectively) reasonable

in the circumstances. The subjective mindset of an employee alleging

constructive dismissal cannot therefore be disassociated from the

circumstances surrounding the resignation. John Grogan in Dismissal

Discrimination & Unfair Labour Practices6 is of the view that –

“The test for establishing whether a constructive dismissal has

6 (2005) at 159.


taken place is therefore party subjective and partly objective –

ie regard must be had to the perceptions of the employee at the

time of the termination of the contract, as well as to the

circumstances in which the termination took place”.

12) In some cases the Courts have asked the question whether or not the

decision to resign was an “action of last resort”. Where an employee

could reasonably be expected to invoke a grievance procedure, the

resignation will not be regarded as a constructive dismissal. See in

this regard Lubbe v ABSA Bank Bpk [1998] 12 BLLR 1224 (LAC)

where it was held that, because the employee had the opportunity to

take up the dispute with other levels of management, the resignation

was therefore not an action of “the last resort”. I agree with the

sentiments expressed by Grogan7 that this test should not be applied

too stringently but that it does protect employers from unscrupulous

employees from resigning from their employment without informing the

employer about their grievances in order to claim compensation from

them.8 Where it appears from the circumstances of a particular case

that an employee could or should reasonably have channeled the

7 Supra at 161.8 Ibid.


dispute or cause of unhappiness through the grievance channels

available in the workplace, one would generally expect an employee to

do so. Where, however, it appears that objectively speaking such

channels are ineffective or that the employer is so prejudged against

the employee that it would be futile to use these channels, then it may

well be concluded that it was not a reasonable option in the

circumstances.

13) Turning to the facts of this case. It is common cause that De Waal

used a swear word when Nel approached him with her request. It is

indeed so that swearing in the workplace may result in a constructive

dismissal. The obvious example that springs to mind is where an

employer swears “at” an employee. It is, however, equally true, that

although foul language in the workplace should not be condoned, not

all cases of foul language will necessarily result in the workplace being

rendered intolerable to such an extent that an employee will have no

other option to resign.9 As pointed out, whilst swearing at an

9 Although the circumstances in the case of Miladys (A division of Mr Price Group Ltd) v Naidoo & Others (2002) 23 ILJ 1234 (LAC) differed from the present case in that it was held by the Court that the employee in that matter was a mature woman and that she ought to have been able to handle the situation properly, the principles set out in this case are, in my view, relevant to the present case. The Court held as follows.”[26] The second respondent found that Roy spoke to first respondent in a 'rude and disrespectful manner and that she gained the impression that he wanted her to leave'. If he had spoken 'nicely' to her she would never have wanted to resign. That abuse of a serious nature can result in constructive dismissal is evidenced by the English


employee can never be condoned, it is still incumbent upon the

commissioner to carefully analyse the circumstances in which it took

place in order to decide whether it rendered the employment

relationship intolerable to such an extent that continued employment

was no longer possible.

14) In the present case it was not in dispute that the swearing was an

isolated incident: De Waal was frank and admitted that he had used

the “f”word but explained that it was an isolated incident. He

explained that he was under severe pressure and that he was irritated

with Nel because she had acted outside of the rules in the workplace

by requested 24 month’s clockcards whilst fully knowing what the

procedures were for processing such queries. It is not relevant in

review proceedings whether another court would have come to a

case of Palmanor Ltd v Cedron [1978] IRLR 303. In that case the applicant, who was employed at a night club and had previously arranged to attend later than usual, was wrongly accused by the night club manager of being late. The manager then became abusive saying 'You are a big bastard, a big cunt, you are pigheaded, you think you are always right.' When Cedron (the employee) objected the manager responded, 'I can talk to you any way I like, you big cunt' and 'if you leave me now, don't bother to collect your money, papers and anything else. I'll make sure you don't get a job anywhere in London'. Not surprisingly Cedron resigned and his claim, that he had been constructively dismissed, by reason of the behaviour in question, including the abuse, was upheld by the Employment Appeal Tribunal.

[27] In giving judgment in that matter Slynn J acknowledged that many cases involving foul and abusive language did not constitute constructive dismissal. That particular case was exacerbated by the threats relevant to the employee (Cedron) leaving, ie 'don't bother to collect your money, papers and anything else' and to prohibit him finding other work, ie 'I'll make sure you don't get a job anywhere in London'. (Emphasis supplied.)


different conclusion on whether or not this isolated incident objectively

viewed, rendered the employment relationship so intolerable that the

employee had no other than to resign. What is, however, at issue is

whether or not the arbitrator had applied his mind seriously to the

issues at hand and came to a reasoned and justifiable conclusion in

light of the evidence and material that was properly placed before

him.10 11

10 The test of review is set out in Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others (2001) 22 ILJ 1603 (LAC) where the Labour Appeal Court held as follows: “In considering whether or not the first respondent’s award falls to be set aside on the ground that it is not justifiable in relation to the reasons given for it, I consider that one must have regard to the material that was properly available to the first respondent, the decision he took and the reasons that he gave for such decision. As one does this, one must bear in mind what Chaskelson P said in the Pharmaceutical Manufacturers’ case namely hat a decision that is objectively irrational is likely to be made only rarely. Of course, I am saying this insofar as it seems that there is much communality between justifiability and rationality. One must also bear in mind the importance of maintaining the distinction between appeals and reviews, It must also be none in mind that the Act contemplates that the disputes that it requires to be referred to arbitration and that the disputeresolution dispensation of the Act which is meant to be expeditious – would collapse if every arbitration award could be taken on review and set aside.” …… “In the light of what has been said above in regard to Carephone and the Pharmaceutical Manufacturers’ case and what was said by the Constitutional Court in the latter case, and in the light of the possibility that the PAJA may well be applicable to arbitration awards issued by the CCMA, I am of the view that it would not serve much purpose for this court to consider whether or not its decision in Carephone was correct and whether or not such decision should be departed from. In those circumstances Carephone stays. This appeal can therefore, be considered on the basis that, as was decided by this court in Carephone, CCMA awards can be reviewed and set aside if they are not justifiable in relation to the reasons given for them.”

11 See Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA): “The test for review of CCMA arbitrations [18] Section 145(1) of the LRA provides for 'review of arbitration awards' by the Labour Court on the ground of 'a defect'. Subject to the Court's power to grant condonation (s 145(1A)), the application must be brought within six weeks of the award (or, in cases of corruption, six weeks from discovery of the offence). In terms of s 145(2), 'defect' means '(a) that the commissioner (i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the commissioner's powers; or (b) that an award has been improperly obtained'. Until 2002 s


15) I cannot find fault with the arbitrator’s reasoning that it is not

acceptable to treat an employee rudely in the workplace. However, I

do take issue with the finding that the fact that there was a detailed

grievance procedure did not assist the employer in light of the

uncontested evidence. I am in agreement with the submission on

158(1)(g) empowered the Labour Court 'despite s 145' to review the performance of any function provided for in the LRA 'on any grounds that are permissible in law'. In 2002 'despite' was replaced with 'subject to'. …….

[21] Despite some initial dissent the LAC accepted after the decision of the Constitutional Court in Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others, and after the enactment of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), that the Carephone test was applicable to the review of CCMA decisions. PAJA, which enacted grounds of review considerably more extensive than those set out in s 145(2) of the LRA, came into force on 30 November 2000. Of present moment is s 6(2)(f)(ii), which empowers a court to review an administrative action if the action itself is 'not rationally connected to' '(cc) the information before the administrator; or (dd) the reasons given for it by the A administrator'.

[22] In Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others 9 the LAC considered the possible effect of PAJA's enactment on s 145(2). The LAC accepted 'the possibility that the PAJA may well be applicable to arbitration awards issued by the CCMA' (para [33]), but found it unnecessary to decide the issue.

[23] In my view PAJA by necessary implication extended the grounds of review available to parties to CCMA arbitrations. In interpreting the LRA, and the impact on it of the later enactment of PAJA, the Constitution of the Republic of South Africa, 1996 obliges us to promote the spirit, purport and objects of the Bill of C Rights. This means that, without losing sight of the specific constitutional objectives of the LRA, and the constitutional values it embodies, we must in interpreting it give appropriate recognition to the right to administrative justice under the final Constitution and the legislation that gives effect to it.

…………… [26] A slightly different path leads to the same conclusion. At the time the LRA was

enacted the interim Constitution required that administrative action be 'justifiable in relation to the reasons given for it'. For the reasons set out in Carephone, this right suffused the interpretation of s 145(2). When the administrativejustice provisions of the Constitution, as embodied in PAJA, superseded those of the interim Constitution, it could not have been intended that parties to CCMA arbitrations should enjoy a lesser right of administrative review than that afforded under the interim Constitution. The repeal of the interim Constitution and its replacement by the Constitution did, in other words, not diminish the review entitlement under s 145(2). Section 6(2) of PAJA is the legislative embodiment of the grounds of review to which arbitration parties became entitled under the Constitution.


behalf of the Applicant that this conclusion is not rational and/or

justifiable in light of the evidence that was properly placed before the

arbitrator. I have already referred to the fact that it was not disputed by

Nel that there was a grievance procedure in the workplace although,

on her own evidence, she did not bother to acquaint herself with the

contents thereof. It was also the uncontested evidence on behalf of

the Applicant that this grievance procedure has been used and, from

De Waal’s evidence, it appears that it was used successfully. It was

De Waal’s uncontested evidence that grievances were attended to

and resolved as far as possible. Nel merely testified that she was of

the (subjective) view that “n mens kon nie met iemand daar praat nie”.

It would appear that the Arbitrator had unqualifiedly accepted the

subjective perception of Nel that she could not use the grievance

procedure and that she therefore had no other option than to resign.

This conclusion is unjustifiable in light of the uncontested evidence on

behalf of the Applicant. I am of the view that this is one of those

instances contemplated by the case in Aldendorf (supra) where Nel

could reasonably have lodge a grievance regarding the cause of her

unhappiness, but failed to do so. By failing to objectively evaluate the

decision not to lodge a grievance in light of the uncontested evidence,


the Arbitrator arrived at a decision which is not rationally connected to

the evidence properly before him and accordingly the award is

reviewable.

16) I am in agreement with the submission on behalf of both parties that

this Court is in a position to substitute the Arbitrator’s award with its

own. In this regard I am of the view that the order should be that Nel

did not proof the existence of a constructive dismissal. In respect of

costs, I am of the view that it would be fair in the circumstances not to

award costs against Nel although the Applicant was successful in the

review application.

17) One issue remains to be decided. It is common cause that the

answering affidavit was filed out of time. A condonation application

was filed explaining the reason for the delay. The Court was, however,

advised at the commencement of the hearing that the Applicant would

no longer oppose the application for condonation. I have nonetheless

perused the condonation application and, without going into detail, I

am satisfied that a reasonable explanation is tendered for the delay. In

the event the late filing of the answering affidavit is condoned.


18) In the event the following order is made:

1. The condonation application for the late filing of

the answering affidavit is granted.

2. The arbitration award handed down by the

Second Respondent dated 16 June 2005 is

reviewed and set aside.

3. The award by the Second Respondent is

substituted with an order that the resignation of

the Third Respondent does not constitute a

constructive dismissal as contemplated by

section 186(1)(e) of the Labour Relations Act 66

of 1995.

……………..…………….

BASSON, J

DATE OF HEARING: 6 SEPTEMBER 2007DATE OF JDUGEMENT: 7 SEPTEMBER 2007

FOR THE APPLICANT:

WJJ BADENHORST OF LEPPAN BEECH INCORPORATED ATTORNEYS


FOR THE RESPONDENT:

ADV P GILLISSEN

INSTRUCTING ATTORNEY: DIONNE LAMBRECH ATTORNEYS

in the labour court of south africa (held in … · page 1 of 20 case number: jr 1852/05 in the...

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