Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others (JR 1619/2018) [2020] ZALCJHB 156; [2020] 12 BLLR 1260 (LC) (19 August 2020)

The Labour Court of South Africa

(Held at Johannesburg)

Case No: JR 1619/2018

In the matter between:

CENTRE FOR AUTISM RESEARCH AND EDUCATION CC

Applicant

(Registration Number: 2011/066706/23)

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

A VAN DER WALT N.O

Second Respondent

RUDOLF JOHANNES JANSE VAN VUUREN

Third Respondent

KAREN ROSE VAN DER WALT

Fourth Respondent

(In Chambers)

Date of judgment: 19 August 2020. Judgment delivered by email by 16:00

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicant seeks leave to appeal against the whole judgment of this court, delivered on June 2020, in which the court dismissed with costs on the attorney client scale, an application to review and set aside an arbitration award issued by the second respondent.

[2] The test for leave to appeal is established by s 17 of the Superior Courts Act. The court must determine whether there is a reasonable prospect that another court would come to a different conclusion; more precisely, whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC)).

[3] In the present instance, there is no dispute on the factual matrix. The material facts were not in dispute, if only because the applicant elected to close its case in the arbitration hearing without calling witnesses. The arbitrator satisfied himself that the third and fourth respondents were credible and reliable witnesses, and accepted their

evidence without hesitation. There was thus only one version of events before the arbitrator, a version that he correctly accepted.

[4] In so far as the applicant relies on a submission to the effect that the court erred in finding that the third and fourth respondents had established that their continued employment was intolerable, the applicant relies principally on the contention that the third and fourth respondents had failed to invoke the grievance procedure or exhaust internal remedies prior to resigning. While it is correct that ordinarily, an employee claiming constructive dismissal would be

required to establish that resignation was not a matter of first resort, there is no inflexible rule to the effect that a failure

formally to invoke a grievance procedure precludes a finding of constructive dismissal. The absence of any attempt to invoke a

grievance procedure is obviously an important factor to be taken into account in determining the existence of a constructive dismissal, as the applicant submits (see Albany Bakery Ltd v Van Wyk and others (2005) 26 ILJ 2142 (LAC).) It is also correct that intolerability extends beyond a ‘difficult, unpleasant or stressful working environment or employment conditions (see HC Heat Exchanges (Pty) Ltd v Araujo and Others [2007] ZALC 72; [2020] 3 BLLR 280 (LC)). But each case must necessarily be determined on its own facts.

[5] In the present instance, the third and fourth respondents gave evidence that their direct supervisor was hesitant to take up matters with the owner Riback, and that attempts to engage with Riback directly had been fruitless, that she had become ‘bored and disengaged’. That evidence was not disputed. Further, the fourth respondent testified that she had attempted to address her grievances to Riback directly, with Samuels (a co-director of the applicant) and her senior Hattingh, on a number of occasions. When the fourth respondent had attempted to raise with Samuels an initiative to start a staff well-being committee, he had ‘laughed in her face’. In short, the undisputed evidence was that there was no practical solution nor legitimate avenue open to the third and fourth respondents to address their concerns. Further, both the third and fourth respondents gave evidence of the deep hurt and anxiety that Riback’s conduct had generated. This is not a case of ‘difficult’ or ‘stressful’ working environment – as the court found, the third and fourth respondents were the victims of a toxic and hostile work environment, and both were pushed to the point of resignation after having endured Riback’s conduct over a sustained period, in circumstances where they received advice to the effect that it was not the norm and that they were not obliged to accept Riback’s behaviour.

[6] In the court’s judgment, reference was made to Prof Rycroft’s article on workplace bullying, and the definition that he sought to attach to that term. As the court observed, Riback’s behaviour fell squarely within the definition. More recently, the International Labour Organization has adopted the Violence and Harassment Convention 2019. That Convention defines ‘violence and harassment’ as behaviours, practices or threats that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm. The Convention reminds member states of the ILO that they have a responsibility to promote a ‘general environment of zero tolerance’. The Convention explicitly

recognises that without respect, there is no dignity at work, and without dignity, there is no social justice. This is a standard that must necessarily be taken into account when assessing employer conduct for the purposes of any determination of the existence or otherwise of a constructive dismissal. Riback’s conduct stripped the third and fourth respondent of any vestige of respect

and dignity.

[7] In short, in my view, there is no reasonable prospect that another court would come to a different conclusion. First, there is no factual dispute (if only by virtue of the applicant’s failure to call any witnesses at the arbitration hearing), on the undisputed facts; secondly, the failure by the third and fourth respondent to formally invoke a grievance procedure was entirely justifiable; and thirdly, so was their decision to tender their resignations in response to Riback’s conduct.

I make the following order:

1. Leave to appeal is refused, with costs.

André van Niekerk

Judge of the Labour Court of South Africa