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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN BRAAMFONTEIN)

CASE NUMBER: JR 1852/05

In the matter between:

LM WULFSOHN MOTORS (PTY) LTD

T/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

3. 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

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

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 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 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 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 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}

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 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 2007

DATE 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

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