Bosch v JDG Group (Pty) Ltd and Others (JR578/14) [2021] ZALCJHB 171 (21 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR578/14

In the matter between:

CELESTINE BOSCH

Applicant

and

JDG GROUP (PTY) LTD

First Respondent

PAUL POTO N.O.

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

Third Respondent

AND ARBITRATION

Heard: 09 JULY 2021

Delivered: 21 JULY 2021

Summary: Review application – constructive dismissal – de novo determination of the jurisdictional issue on whether the employee was constructively dismissed – intolerability is a high threshold – the conduct of the employer must have brought the employee’s tolerance to a breaking point – review application dismissed

JUDGMENT

DEANE AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act[1] (the LRA) calling for the review and setting aside of an arbitration award issued by the Second Respondent under the Third Respondent’s

case number GAJB 21685-12 (the Award) dated 14 February 2014, which Award found that Celestine Bosch (the Applicant) did not prove that she was constructively dismissed and found that she had resigned.

[2] However, this is not the only application that this Court has to consider. There are multiple applications before this Court. There is, as previously mentioned, the review application filed by the Applicant, there is a cross-review application filed by the First Respondent, JDG Group (Pty) Ltd; and two applications for condonation; the one condonation application relating to the late filing of the heads of argument and the other condonation application relating to the cross-review application.

[3] The application is no doubt voluminous where the pleadings alone are almost 225 pages, and with the record comprising of 550 pages, the papers before this Court exceed 1400 pages.

[4] I have to mention that despite the excessive volume of paper, in the end, the issue that had to be determined, was a crisp one.

[5] It is necessary to deal with all the applications separately.

The cross-review and the application for condonation for the late filing of the cross-review application

[6] The First Respondent has filed a cross-review and the relief sought is the review and setting aside of part of the findings of the Second Respondent which part can be found in paragraph 43 of his Award which states: “[43] …… I am convinced that Mr Riaan made the working environment unbearable for the Applicant and also that Mr Osthuizen was covering for him because they were friends and in the same church. The Respondent has also failed to conduct a fair grievance hearing for the Applicant and rejected the alternative that the Applicant suggested. I am convinced that the employer has created

an unbearable working environment for the Applicant……….The relationship was good when he first started working with her but it deteriorated when she missed targets as he would shout at her and become aggressive…..The grievance hearing was held on 26th April 2012…..”

[7] The First Respondent calls for the Award to be substituted with an order that “these findings are not compatible with the evidence, are entirely irregular and that on the basis of the evidence the first respondent did not create an intolerable working environment or conditions for the applicant, that the first respondent properly attended to the applicant’s grievance, and that Oosthuizen fully and properly dealt with all complaints he received from the applicant”.[2]

[8] The first issue to be determined is what is the status of the review filed by the First Respondent.

[9] It is acknowledged that Rule 7A of the Rules of this court does not make provision for a ‘cross-review application”. In the absence of any such provision, it follows that a party that wishes to challenge the findings of a commissioner in any material respects must comply with the provisions of Rule 7A even if another review application has been lodged by the other party. In essence, a separate review application must be launched with full compliance with the provisions of Rule 7A of the Rules of this Court. This point, which I align myself with, was emphasised in In SA Broadcasting Corporation Ltd v Grogan N O & another,[3], where it was held that:

“Rule 7A makes no provision for an animal such as a 'counter-review'. This is in contradistinction to rule A 5(5) of the Rules of the Labour Appeal Court, that provides for a notice of cross-appeal to be delivered within 10 days (or such longer period as may on good cause be allowed) after receiving notice of appeal from an appellant.

The absence of a similar provision in rule 7A relating to a 'counter-review' does not, to my mind, mean that a respondent in a review application can sit on his hands and then, only after the applicant has filed a rule 7A(8) notice, file a counter-review without further ado. On the contrary, it appears to me that what is styled as a 'counter-review' is simply an application for review by a different name. The second respondent seeks to review different aspects of the findings of the arbitrator, and on different grounds. That would usually be the case where a respondent seeks to bring an application for a 'counter-review'. He has to file a proper application for review, and has to do so within six weeks after publication of the award.”

[10] There is no provision in Rule 7A for a ‘counter or cross-review’ and the cross review filed by the First Respondent is in fact nothing but a review by a different name.

[11] In addition, the ‘cross-review’ application should have been filed by 5 May 2014 but it was only filed on 31 March 2017. The First Respondent seeks condonation for the late filing of the ‘cross-review’. In the application for condonation, the Applicant conceded that the delay is excessive. Indeed, the delay is inordinate and excessive.

[12] The degree of lateness should however not be considered in isolation.

Explanation for the delay

[13] It is trite that the longer the delay the better the explanation for the delay should be.

[14] Failure to comply with the prescribed time periods has to be explained and the reasonableness of the delay should be considered by having regard to the explanation for the delay.

[15] As the First Respondent seeks an indulgence from the Court, they bear the onus to satisfy the Court that condonation should be granted. The First Respondent has to provide the Court with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist the Court to properly assess the reasonableness of the explanation.[4]

[16] The explanation for the delay has to be compelling, convincing, comprehensive, and should cover every period of the delay.

[17] In the supporting affidavit, the First Respondent tendered the following explanation for the lateness: “This is the kind of review case and review grounds that can best be raised once the record of the arbitration proceedings have come to hand…….. [and that] the final and completed record only came to hand in November 2016”.[5]

[18] The problem with this reasoning is that effectively the First Respondent’s explanation is that since parts of the record were missing they waited for the complete transcribed record to be reconstructed, before the review was filed. This cannot be.

[19] A review application has to be filed within 6 weeks after the award has been served on the parties. Rule 7A specifically provides for a supplementary affidavit to be filed subsequent to the filing of the transcribed record and the reason for this is to allow an applicant in the review application to supplement the application after having had the opportunity and the benefit of perusing the transcribed record. Parties cannot wait for the transcribed record to be available before a review application is filed and this explanation as tendered by the First Respondent is not acceptable and not in accordance with the provisions of Rule 7A.

[20] In addition, the First Respondent argues that the Applicant served her supplementary affidavit on the First Respondent on 20 December 2016 and at that time the offices of the First Respondent’s attorneys were closed for the December holidays until 9 January 2017. It is further added that upon reading the entire record, of nearly four lever arch files, the First Respondent’s attorneys then found that the reconstructed part of the record had not been served on the First Respondent, in error, but that part of the record already served was again served and it was also found that the supplementary affidavit was also illegible on several pages. On 12 January 2017, the Applicant’s attorneys furnished the First Respondent with the proper part of the record and a copy of a legible supplementary affidavit.

[21] The First Respondent argues that the cross-review could then only be filed on 31 March 2017 due to the fact that the attorney only became involved in this matter on review, and that it took time to complete the answering affidavit.

[22] Even after contemplating these additional reasons, I am not satisfied that these circumstances justify the inordinate delay.

[23] Having found that the delay is inordinate and the explanation tendered not compelling or adequate, I now turn to deal with the issue of prospects of success.

Regarding the prospects of success

[24] In this Court, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the Applicant’s prospects of success are immaterial.

[25] This Court has conventionally applied the approach that in the absence of a satisfactory explanation for a delay, the applicant’s prospects of success are ordinarily irrelevant.[6] This principle was confirmed in National Education Health & Allied Workers Union on behalf of Mofokeng & others v Charlotte Theron Children’s Home[7] where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[26] In Collett v Commission for Conciliation, Mediation & Arbitration & others,[8] the LAC confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[27] The onus is on the applicant to satisfy the court that condonation should be granted. In employment disputes there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) & others:[9]

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental

principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good

cause must always be conducted against the back drop of this fundamental principle in employment law.’

[28] The fundamental requirement of expedition is not to be ignored. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others,[10] the Constitutional Court emphasised that one of the fundamental purposes of the LRA was to establish a system for the quick adjudication of labour disputes. When it assesses the reasonableness of a delay, the court must not lose sight of this purpose.

[29] In summary, the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation, condonation may be refused without considering the prospects of success and to grant condonation where the delay is not explained, may not serve the interests of justice. The expeditious resolution of labour disputes is a fundamental consideration.

[30] Condonation for delays in all labour law litigation is not simply there for the taking. As metioned, the starting point is that an Applicant in an application such as the present seeks an indulgence from the court and bears the onus to show good cause.

[31] In the authorities referred to above, the Courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[32] In casu, and in light of the aforesaid authorities and given that the First Respondent has not provided a compelling or convincing explanation for the delay, the prospects of success are immaterial, and thus need not be considered.

Prejudice

[33] In respect of prejudice, the First Respondent submitted that they would be severely prejudiced if the cross-review application is not granted as they would be deprived of a material part of its defence in this case. I disagree. If the First Respondent was dissatisfied with certain aspects of an arbitration award and sought to review same, the First Respondent has a choice to do so in accordance with the provisions of the LRA and the Rules of this Court.

[34] Additionally, this Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence it is a matter of fairness to both sides. In Melane v Sanlam Insurance Co Ltd[11] it was held that:

‘…. Among the facts usually relevant, are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there will be no point in granting

condonation. What is needed is an objective conspectus of all the facts.’

[35] I am not convinced that on an objective conspectus of all the facts and circumstances, it can be concluded that condonation should be granted for the late filing of the First Respondent’s ‘cross-review’ application.

[36] As I have already stated above, the extent of the delay is excessive, the explanation for the delay is not compelling, and based on the relevant authorities hereto I do not have to engage on the prospects of success; the application for condonation therefore cannot succeed and condonation for the late filing of the ‘cross-review’ application is consequently refused.

Applicant’s Failure to File Heads of Argument Timeously

[37] Regarding the Condonation Application, the principles applicable to applications for condonation are trite and as enunciated in Melane v Santam Insurance Co Ltd.[12] The following was said about the factors that will be taken into account when considering a condonation application:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interests in finality must not be overlooked’.[13]

[38] The court in Melane emphasised that any attempt to formulate a rule of thumb should be avoided. These factors are not necessarily cumulative, but they are interrelated, and the court or tribunal has a judicial discretion in deciding whether or not in any given case these factors have been canvassed.[14]

[39] The Supreme Court of Appeal in Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited[15] reiterated the applicable principles as follows:

‘A full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to

understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in considering an

application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s

interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.’[16]

[40] Condonation may be refused where there has been a flagrant breach of the rules especially where no explanation is proffered.[17]

The degree of lateness

[41] The Applicant contends on the papers that the heads of argument are significantly late. Despite requests to clarify the exact date of filing, this could not be done save to say that the heads of arguments were indeed filed significantly late.

The explanation for the delay

[42] The Applicant is required to provide a “full, detailed and accurate account of the causes of the delay and their effects … It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelt out.”[18]

[43] The explanation proferred was based on the failure of the instructed advocate to timeously finalise the heads of arguments.

[44] In addition at the end of June 2018, the instructing attorneys went to uplift the brief and instructed the current Advocate. Due to the recess and financial reasons, the Heads were completed and filed late.

[45] The Applicant makes reference to the importance of the case and various other reasons are enunciated in support thereof including the fact that this matter has become protracted.

[46] I am in agreement that it would be in the best interest of all parties especially the Applicant to obtain finality in the form of a judgment. It is over seven years that have passed since the issuing of the Award, she therefore has an interest in the finality of the matter.

[47] Taking into account the interests of justice herein, I am satisfied that the delay is not excessive and, in view of the evaluation on the merits of the Review Application, I am satisfied that, considering all factors relevant to condonation applications, condonation for the late filing of the heads of argument should be granted.

[48] Even though the delay is not inconsequential, the explanation is reasonable and there is no considerable prejudice.

[49] In any event the condonation application is not opposed.

[50] I will now proceed to consider the Applicant’s review application on the merits thereof, starting with the setting out of the relevant factual background.

Material Facts and Relevant Background

[51] Seeing that the record is voluminous consisting of three bundles of documents in excess of 1400 pages, I will not burden this judgment with re-iterating every factor or detail in this judgment save only to refer to the most pertinent factors relevant to this judgment.

[52] The Applicant was employed by the First Respondent as the Branch Manager of its Russells store in Brits, from 1 October 2006 until the Applicants resignation on 26 April 2012.

[53] The Applicant argues that she was constructively dismissed; and that such dismissal was unfair. The basis for the constructive dismissal was due to the regional area manager, Riaan Labuschagne (Labuschagne), her direct line manager, who made continued employment “intolerable” due to his “rude and abusive conduct”.[19]

[54] On 7 September 2010, the Applicant submitted a written complaint against Labuschagne, the gist of the complaint being that Labuschagne was sarcastic and aggressive.

[55] The First Respondent argues that the alleged scaracsm and aggressiveness complaint by the Applicant was as a result of the Applicant being rejected for a request to “work flexi working hours”.[20] It is further alleged that the Applicant complained that she did not get recognition for good figures, and motivation for work well done. She wanted Labuschagne to tell her “well done” in her performance appraisals and to hold regular performance appraisals. The Applicant further had difficulty with Labuschagne’s management style, and had a problem with the manner in which stock taking was being conducted.

[56] The Applicant argues that she, in fact, laid a grievance against Labuschagne but it was not pursued and that such grivenace was then dealt with through an informal procedure as opposed to a formal grievance hearing.

[57] The First Respondent argues that it was not an official grievance as the Applicant did not lay a grievance in terms of the company’s grievance policy.[21] What followed thereafter was an informal attempt to resolve the Applicant’s complaint.[22]

[58] On 20 January 2011, the Applicant received information from one Johannes Lodewikus Oosthuizen (Oosthuizen), the general manager, informing her that they would not consider her matter as a formal grievance. Reason furnished by the First Respondent was that the Applicant did not “follow or apply the grievance policy” in order for them to be able to proceed with a formal grievance hearing.[23]

[59] The First Respondent was under the impression that the matter was resolved as there were attempts to resolve the matter.

[60] In addition, on 20 January 2011, the Applicant states that she was called into a “counselling session since I did not do well in respect of my sales during December 2010 and we did not reach our sales target”.[24] She also indicated her refusal to sign an action plan.

[61] On 29 April 2011, the Applicant submitted a second complaint, via e-mail, against Labuschagne to Oosthuizen and JH Steyn Roets (Roets) in which she stated that “Riaan…..he was shouting and screaming at me. He said negative things and was sarcastic.”[25]

[62] The Applicant was requested to utilise the formal grievance procedure in order to formally proceed with a grievance hearing.

[63] She did not do so for various reasons and the time period for lodging a formal grievance had lapsed.

[64] After April 2011, it is argued that “the applicant’s performance improved and she then received the praise she desired”. It is further argued that “After April 2011, and following a detailed appraisal, Labuschagne writes a complementary e-mail to the applicant, deaing with all of the individual aspects of her performance, and concludes: ‘This month is really looking good for you well done, you are proving that you are coming back with force, keep it up. I know you can only go from strength to strength.”[26]

[65] In November 2011, the Applicant was charged with misconduct. Following a disciplinary hearing she was found guilty but which outcome was overturned on appeal.

[66] Due to poor sales, on or about 20 January 2012, Labuschagne “engaged (in) a process of detailed performance management of all stores, including the Brits store of the applicant.” This process involved frequent reportback from the Applicant as she was not meeting her sales targets.[27] Whilst the Applicant complied, it was argued by the Applicant that the circumstances were “extremely stressful”.[28]

[67] On 24 January 2012, the Applicant lodged a proper grievance against Labuschagne. The intention, the Applicant contends “was to stop the abuse by Riaan”.[29]

[68] The Applicant further contended that all that was happening to her was “sour grapes” as a result of her having been acquitted in the disciplinary proceedings of November 2011.

[69] The First Respondent argues that the grievance of 24 January 2012 “had little merit and …..[The] real reason behind the grievance was to detract from being required to do what was demanded from her, where it came to achieving sales targets. In simple terms if the sales were there, none of what was complained of in the grievance would have happened….”[30]

[70] This grievance was not pursued further by the Applicant.

[71] On 2 February 2012, the monthly managers meeting was held in Brits which was attended by both the Applicant and Labuschagne to discuss sales targets.

[72] In January and February 2012, the Applicant reached her sales targets.

[73] In March 2012, the Applicant did not reach her sales target and she was requested, on 3 April 2012, by Labuschagne, to collect her counselling documents due to her missing her monthly target.

[74] Various reasons were given by the Applicant at this counselling session as to the reasons for not meeting the target.[31]

[75] On 2 April 2012, a day before this counselling session was scheduled to occur, the Applicant resurrected her January 2012 grievance.

[76] A formal grievance meeting in terms of the grievance policy was then convened on 16 April 2012.

[77] At the hearing, Labuschagne indicated that since he had not seen the content of the grievance of the applicant, he would therefore not be able to proceed with the meeting.

[78] The Chair, Sean Oelofse (Oelofse), the general manager of another region, did not deal with the substance of the grievance and the outcome was that Oelofse, suggested that the applicant and Labuschagne meet on 21 April at a neutral venue, together with a HR consultant to attempt to resolve the issue.

[79] The HR officer of the First Respondent, Nomula Mabaso (Mabaso) then set up such a settlement meeting. Mabaso’s role was to try and facilitate a settlement, as proposed by Oelofse. The meeting was convened, by agreement, for 26 April 2012 at the Wimpy in Brits.

[80] The aim of this meeting was to ventilate all of their respective issues and to arrive at an amicable and agreed solution.

[81] At the meeting, Labuschagne stated that he did not intend to mistreat the Applicant, and that if this was her perception, he was sorry. He stated that he considered the Applicant to have a bright future in the company.

[82] The Applicant did not accept the apology and indicated that she could not work with Labuschagne.[32] She then requested that she be moved to another region, Pretoria. Mabaso assisted the Applicant to look for vacant positions but there were no alternative positions available at the time.

[83] The matter was then left unresolved and the Applicant resigned on the same day,[33] after the meeting at Wimpy.

[84] The Applicant thereafter pursued a constructive dismissal dispute at the CCMA contending that a continued employment was intolerable as contemplated by section186(1)(e) of the LRA.

[85] The dispute came before the Second Respondent for arbitration on 10 May 2013 and 7 Februrary 2014. In an arbitration award dated 14 February 2014, the Second Respondent concluded that the Applicant had not been dismissed by the First Respondent.

Grounds for Review

[86] Whether the arbitrator was correct or incorrect in finding that the Applicant resigned and was not dismissed is the issue for ventilation before this court.

Legal Principles and Application

[87] Tritely, an enquiry in a constructive dismissal case turns on the jurisdiction of the CCMA, a principle established by the Labour Appeal Court (LAC) in Solid Doors (Pty) Ltd v Commissioner Theron & others,[34] where it was held: ‘Having established what the requirements are for a constructive dismissal, it is necessary to make the observation at this stage of the judgment that the question whether the employee was constructively dismissed or not is a jurisdictional fact that - even on review - must be established objectively. That is so because if there was no constructive dismissal - the CCMA would not have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner's finding that the employee was constructively dismissed was unjustifiable. The question in a case such as this one - even on review - is simply whether or not the employee was constructively dismissed. If I find that he was constructively dismissed, it will be necessary to consider other issues. However, if I find that he was not constructively dismissed, that will be the end of the matter and the commissioner's award will stand to be reviewed and set aside.’

[88] In Western Cape Education Department v General Public Service Sectoral Bargaining Council & others,[35] the LAC pertinently stated that:

‘In terms of s 186(1)(e) of the LRA, dismissal means that 'an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee'. It is clear from the provisions of this section that in any proceedings concerning any unfair dismissal dispute, the employee must establish the existence of the dismissal if this is placed in dispute. In the case of SA Rugby Players Association & others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SA Rugby Players Association Union & Another,[36] the following was stated in relation to a dismissal in terms of s 186(1)(b) of the LRA:

'[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of s 191 of the Act.

The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court. … The question before the court a quo was whether on the facts of the case a dismissal had taken place. The question was not whether the finding of the commissioner that there had been a dismissal of the three players was justifiable, rational or reasonable. The issue was simply whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist the CCMA had no jurisdiction irrespective of its finding to the contrary……..’

[89] It follows, as stated in HC Heat Exchangers (Pty) Ltd v Araujo and Others,[37] that:

‘where the issue to be considered on review is about the jurisdiction of the CCMA or bargaining council, it is not about a reasonable outcome. What happens is that the Labour Court is entitled, if not obliged, to determine the issue of jurisdiction on its own accord… In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong’.

[90] Turning to the merits, the test for constructive dismissal has been set out in a number of authorities and, as mentioned in Solid Doors,[38] there are three requirements for constructive dismissal to be established and they are that:

‘…The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established. Thus, there is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace or for a certain company and that is not due to any conduct on the part of the employer.’19

[91] Put differently, as held by the LAC in National Health Laboratory Service v Yona & others,[39]

‘…a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employee…The test for proving a constructive dismissal is an objective one. The conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances.’ (Emphasis added)

[92] Since it is not disputed that Ms Bosch terminated the employment relationship herself, then the next leg in the enquiry turns on whether the reason for that termination is because the First Respondent made her continued employment intolerable.

[93] The Applicant testified that the reason for all of her ills was due to Labuschagne’s rude, sarcastic and aggressive attitude towards her.

[94] It is common cause that the Applicant laid three complaints against Labuschagne; however two of these three complaints did not comply with the company’s grievance policy. From the evidence, it is clear that there were attempts to resolve the complaints, albeit some were informal attempts due to the nature of the complaints being filed, i.e., that the form of the complaints did not comply with the requirements of a grievance in terms of the First Respondent’s grievance policy.[40] The third complaint of 24 January 2012 was done on the requisite form.

[95] From the evidence it is clear that each time that a complaint and or grievance was initated by the Applicant i.e., on 7 September 2010, 29 April 2011 and 24 January 2012, these complaints were made in direct correlation to the Applicant not achieveing her sales target.

[96] It must be noted that from the end April 2011-September 2011, the Applicant achieved her sales target and was complemented by Labuschagne via e-mail.

[97] In a separate matter, and which I believe does not have any bearing on the matter before this court; but for the sake of completeness, I would like to mention that in November 2011, Labuschagne brought disciplinary charges against the Applicant for misconduct; for failure to follow company policy and procedure and inappropriate behaviour. The Applicant was subsequently found guilty but successfully appealed the outcome on 14 December 2011. This brought the disciplinary matter to an end.

[98] In January 2012, since most of the stores in Labuschagne’s region were lagging behind on sales, Labuschagne engaged on a process of detailed performance management of all stores, including the Brits store of the Applicant. On 2 February 2012, the monthly managers meeting was held in Brits which was attended by both the Applicant and Labuschagne to discuss sales targets.

[99] Before the meeting of 2 February, and on 24 January 2012, the Applicant laid a formal grievance in terms of the grievance policy against Labuschagne.

[100] The end of months January and February 2012 respectively, saw the Applicant reach her sales targets and there was therefore no forthcoming performance management from Labuschagne.

[101] The Applicant chose not to pursue her grievance in February or in March 2012.

[102] It is apparent from the evidence that the grievance instituted on 24 January 2012 was meant to pre-empt her performance management or counselling session in the event that she did not reach her target and; the complaint was made because the Applicant was obviously not accepting of any intervention questioning or aimed at performance improvement.

[103] It is furthermore evident that when the Applicant achieved her target at the end of January 2012 she did not pursue the grievance that she lodged against Labuschagne; but when she once again did not achieve her target at the end of March 2012, she then pursued her 20 January 2012 grievance on 2 April 2012, knowing full well that she would be performance managed for this failure. I find this type of behaviour on the part of the Applicant opportunistic in nature.

[104] From the evidence, it is readily apparent that the real reason behind the grievance was because Labuschagne was placing pressure on the Applicant to achieve the requisite sales target for her branch.

[105] The pattern is clear, the Applicant, through the lodging of these complaints sought to detract from being held accountable for her duties, i.e., achieving her sales targets.

[106] The fact that Labuschagne was “pushing sales” was in direct relation to their responsibilities to achieve certain targets. In evidence of this the Applicant indicated in the Founding Affidavit that “Riaan explained to us that he would rather scream and shout at us during the month to avoid us missing budget than having to take us to a a disciplinary hearing at the end of the month”.[41]

[107] Whilst Labuschagne’s management style may be perceived as aggressive; aggressiveness does not equate to intolerability as enunciated in the cases mentioned above. From the papers before me, Labuschangne’s aggressive management style was far from intolerable in the sense that all his actions were aimed at ensuring that clearly defined targets were met. Achieving targets and budget was a core responsibility of the branch managers duty and if the Applicant could not cope with reaching these targets it was not the fault of Labuschagne, whose duty it was to ensure that the Applicant achieves her target.

[108] Now, whilst the manner in which Labuschagne went about ensuring the achievement of these sale targets i.e., by “shouting and screaming” and whilst this may in these circumstances equate to a complete lack of professionalism, it cannot be said in this case that his behaviour amounts to personal attacks or that his behaviour made continued employment so intolerable for the Applicant, so as to force her to resign.

[109] One needs to clearly define between aggressive management style and the standard of intolerability. The test or standard for intolerability is an objective standard.

[110] A proper analysis of the evidence shows that the Applicant’s complaint’s clearly arose when her performance was being managed when she did not achieve her targets.

[111] When the Applicant’s performance improved and she met her target, there was no possibility of a counselling session or performance review, then there were no complaints.

[112] When the Applicant did not meet the targets and she knew that her performance was going to be reviewed she would then complain.

[113] I am also convinced that there is no evidence to suggest that Labuschagne singled out the Applicant for any unfair treatment. It is clear that they all worked in an extremely stressful environment where daily and monthly targets had to be met which affected the core business. As the manager it was Labuschagne’s duty to ensure that branch managers complied with and reached their targets. Once again I reiterate that the question here is not the acceptability of Labuschagne’s management style but whether or not Labuschagne’s actions made the Applicant’s working environment so intolerable as to justify her constructive dismissal claim. On this issue, I am inclined to agree with the First Respondent that “the fact that an employee has a rude and unapproachable manager does not make continued employment intolerable”.[42] It is clear that the Applicant was unable to tolerate criticism about her work performance and was unhappy about being managed. The behaviour of Labuschagne, albeit harsh, was aimed at performance outputs. The grievance lodged in January was therefore clearly aimed at detracting from the Applicant’s failure to achieve these targets.

[114] The counselling and performance management measures taken by Labuschagne were operationally justifiable and was aimed at managing deficiencies in the performance of the Applicant.

[115] Looking at the material facts discussed above, it should also be mentioned that when the Applicant performed well, Labuschagne was complementary of her and when she did not perform well, counselling sessions where held in terms of the company policy but it was just before these sessions or when the Applicant knew that she did not achieve her targets that the Applicant would complain.

[116] To return to the Applicant’s request to pursue her January 2012 grievance, a formal grievance was convened on 16 Apri 2012. The Chairperson recommended that since Labuschagne was not ready to proceed with the grievance, the parties should meet at a neutral venue, with a facilitator to try and resolve their issues on an amicable basis. All parties agreed to this proposal.

[117] On 26 April 2012, a meeting was held between the Applicant, Labuschange and the HR officer, Mabaso; whose duty it was to facilitate an amicable resolution between the two. As mentioned, this meeting arose out of the aborted grievance hearing where it was recommended to have the matter resolved in an informal setting.

[118] At this meeting of 26 April 2012, which was held at Wimpy in Brits, Labuschagne indicated that he had no issue with working with the Applicant, that she had a bright further, that he had no intention of mistreating her and he apologised.[43]

[119] The Applicant remained adamant that she could not work for Labuschagne and she requested that she be moved into another region.[44]

[120] Mabaso attempted to assist by searching for positions in different branches for the Applicant. It is clear that the First Respondent was amenable to assisting the Applicant find alternative positions. However Mabaso could not find a suitable position for the Applicant at the exact moment that the Apllicant wanted her to find one. It is unreasonable to expect Mabaso, as part of HR, to find an immediate post for the Applicant, where there were none available at the time. The dispute therefore remained unresolved.

[121] The First Respondent has a formal grievance policy in place and of which the Applicant, being a branch manager, is fully aware of.[45] It not only requires that all grievances be lodged in terms of the grievance policy but it makes provision for the pursuit of a

grievance where an employee is not satisfied with the outcome of a hearing or procedure.

[122] The meeting on the 26 of April was one step towards resolving the grievance, and should the issues not have been resolved, the Applicant could still pursue the grievance process to the next or even higher level. Being unhappy with the outcome of this meeting the Applicant however tended her resignation before the grievance progressed beyond this first step. It is the view of this court that the Applicant acted petulantly and hastily because she did not get what she wanted when she wanted it.

[123] The facts of this case show that the Applicant was dissatisfied with what she perceived to be the unacceptable manner in which she was being managed by Labuschagne.[46] In reality, the Applicant had no substance to her grievance claim and she was simply unhappy about being managed on defiencies in her performance.

[124] In this context, it does not avail ‘an employee to unjustifiably claim constructive dismissal where such an employee has suitable available alternative remedies or mechanisms to resolve the cause of the intolerability, before resorting to a resignation’[47]

[125] To my mind, the Aplicant has failed to establish intolerability. It is well-accepted that intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly’.[48]

[126] Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.[49]

[127] This then only leaves the issue of costs to be decided on. The Applicant requests an order as to costs. I find in this case that an order of costs would be neither just nor fair.

In Conclusion

[127] Looking at the totality of the evidence before me, I am therefore satisfied that the Second Respondent reached the correct conclusion that the employee had in fact resigned and was not dismissed.

[128] I am also in agreement with the finding of the Second Respondent that the Applicant was not constructively dismissed.

In the premises, the following order is made:

Order

1. The cross-review and condonation of cross-review applications are dismissed.

2. The condonation for the late filing of the Applicant’s Heads of Argument is granted.

3. The Review application is dismissed.

4. There is no order as to costs.

____________________

T Deane

Acting Judge of the Labour Court

Appearances:

For the Applicant:

Lourens Attorneys

Adv Basson

For the First Respondent: Snyman Attorneys

[1] 66 of 1995 (as amended).

[2] Supporting Affidavit: Cross Review Pg 18 and pg 168 of the Bundle Of Documents Vol 1.

[3] (2006) 27 ILJ 1519 (LC). See also Singh v First National Bank and Others (D397/2011) [2014] ZALCD 44 (9 September 2014).

[4] See: Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council & others (2010) 31 ILJ 1413 (LC).

[5] Supporting Affidavit: Cross-Review pg 19 and pg 169 of the Bundle of Documents Vol 1.

[6] See: NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC).

[7] 4 (2004) 25 ILJ 2195 (LAC) at para 23.

[8] (2014) 6 BLLR 523 (LAC).

[9] (2015) 36 ILJ 232 (LC).

[10] (2016) 37 ILJ 313 (CC).

[11] 1962 (4) SA 531 (A) at 532 C - F.

[12] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

[13] Ibid at 532B-E.

[14] Minister of Justice & Constitutional Development v General Public Service Sectoral Bargaining Council & others 2017 (38) ILJ 213 at paras 3-4.

[15] Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA).

[16] Ibid at para 26.

[17] Erasmus v Absa Bank Ltd and Others, Unreported, Case No: A/982/13, Gauteng Provincial Division, Pretoria at para 11.

[18] Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at para 4.

[19] Pleadings Volume 1 Founding Affidavit pg 7 & 8.

[20] First Respondent’s Head of Argument dated 19 July 2019 at pg 2.

[21] First Respondents Answering Affidavit date 4 April 2017 at pg 4.

[22] First Respondent’s Head of Argument dated 19 July 2019 at pg 2.

[23] First Respondent’s Heads of Argument dated 19 July 2019 at pg 2.

[24] Applicants Founding Affidavit dated at 30 April 2014 at pg 10.

[25] Applicants Founding Affidavit dated at 30 April 2014 at pgs 11-12

[26] First Respondent’s Head of Argument dated 19 July 2019 at pgs 3-4.

[27] Applicants Founding Affidavit dated at 30 April 2014 at pg 14 and First Respondent’s Head of Argument dated 19 July 2019 at pg 4.

[28] See Applicants testimony in the Transcribed Record Vol 1 and that Applicants Founding Affidavit dated 30 April 2014 at pg 14.

[29] Applicants Founding Affidavit dated at 30 April 2014 at pg 14.

[30] First Respondent’s Head of Argument dated 19 July 2019 at pg 5.

[31] Applicants Founding Affidavit dated at 30 April 2014 at pg 16.

[32] Pg 91-92 of the Transcribed Record.

[33] Pg 103 of the Transcribed Record.

[34] (2004) 25 ILJ 2337 (LAC) at para 29.

[35] (2014) 35 ILJ 3360 (LAC) at para 19; see also Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and Others (2019) 40 ILJ 1539 (LAC) at para 5.

[36](2008) 29 ILJ 2218 (LAC) at paras 39-41.

[37][2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paras 35 to 39.

[38] Supra n 4 at para 28. 19 See: Conti Print CC v Commission for Conciliation, Mediation and Arbitration and Others [2015] 9 BLLR 865 (LAC) at paras 7 to 9.

[39] (2015) 36 ILJ 2259 (LAC) at para 30; see also Bakker v Commission for Conciliation, Mediation & Arbitration & others (JR1078/14) (2018) ZALCJHB 13; [2018] 6 BLLR 597 (LC); (2018) 39 ILJ 1568 (LC) at paras 5 to 16.

[40] See pg 65-67 of Volume 1 of the Bundle.

[41] Applicant’s Founding Affidavit pg 15.

[42] Supporting Affidavit – Cross Review pg 12 and pg 162 of Volume 1 of the Bundle and see pg 33 of the Transcribed Record.

[43] Pg 92 of the Transcribed Record.

[44] Pg 115 of the Transcribed Record.

[45] Pages 9-15 of the Transcribed Record.

[46] See Applicants testimony in the Transcribed Record Vol I and II.

[47] HC Heat Exchangers, supra n 7 at para 52 and 54.

[48] See: HC Heat Exchangers, supra n 7 at para 49; see also, Billion Group (Pty) Ltd v Ntshangase & others (2018) 39 ILJ 2516 (LC) at para 11.

[49] Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd & oOthers (2019) 40 ILJ 1539 (LAC) at para 39.