Daymon Worldwide SA Inc. v Commission for Conciliation, Mediation and Arbitration and Others (JR 184/07) [2008] ZALC 111; (2009) 30 ILJ 575 (LC) (20 August 2008)

25

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR 184/07

In the matter between:

DAYMON WORLDWIDE SA INC APPLICANT

And

COMMISSIONER FOR CONCILIATION

MEDIATION AND ARBITRATION 1ST RESPONDENT

PAT STONE N.O 2ND RESPONDENT

EVITA VELOUDOS 3RD RESPONDENT

JUDGMENT

INTRODUCTION

[1] In this application, it is sought to have an arbitration award dated 10 December 2006, issued by the second respondent as a commissioner of the first respondent reviewed and corrected or set aside, in terms of section 145 of the Labour Relations Act 66 of 1995 (“the Act”). The application was opposed by the third respondent in whose favour it had been issued, as the erstwhile employee of the applicant.

BACKGROUND FACTS

[2] When the third respondent, Ms Veloudos commenced her employment with the applicant in 2003, she held the position of a Global Business Manager. She was based at the applicant’s head office in Cresta where she spent the majority of her employment time. With effect from January 2005 she was deployed in Edenvale, at Pick ‘n Pay’s FDC offices, (FDC) as a Marketing Manager of the Pick ‘n Pay account. She had an assistant with whom she shared the fully equipped office, which was better than her previous office. She reported to a Senior Business Manager, one Mr Anton Minett. The applicant’s Human Resources Director at the time was a Ms Letitia van Belkum.

[3] In early March 2005, Mr Veloudos took ill with the consequence that she was admitted at Linksfield Clinic. She telephonically reported her indisposition to Mr Minett who subsequently went to visit her in the evening of the same day.

[4] On 13 April 2005 Ms Veloudos approached Ms van Belkum and reported to her that Mr Minett had spoken to her in a manner which she found objectionable, saying that it had been on three occasions, over a period of some months. According to Ms Veloudos there was another incident which occurred when Mr Minett

visited her at the clinic. When pressed by Ms van Belkum if she wanted to formalise the complaint, Ms Veloudos insisted on having the complaint being kept informal. Ms van Belkum duly obliged.

[5] Soon thereafter, Ms van Belkum received a letter headed: “Statement re: Character assassination” from Mr Minett. In it, he was denying the truth in the rumours that he said were circulating about his sexual harassment of Ms Veloudos. He accused Ms Veloudos of character assassination and referred to several prior complaints which he said he had made to her, saying they were confirmed in writing, pertaining to aspects of her work performance. On 28 April 2005 Ms Veloudos wrote a letter to Ms van Belkum, disputing both Mr Minett’s version of events and any suggestion that she had engaged in a character assassination. Ms van Belkum reported the matter to the applicant and recommended that the two staff members be geographically and organisationally separated, so that Ms Veloudos would not report to Mr Minett. The applicant instructed Ms Veloudos to move back to its head office at Cresta where she then reported to applicant’s Managing Director, a Mr Sean Beautement.

[6] A meeting, the purpose of which was to facilitate conciliation between Ms Veloudos and Mr Minett, was convened by Ms van Belkum and was held on 17 May 2005. While Mr Minett maintained that he had not acted in the manner complained of, he however apologised to Ms Veloudos for any of his utterances which might have offended her. Following upon that meeting, Ms Veloudos wrote a letter to Ms van Belkum, questioning the sincerity of Mr Minett’s apology and recording her insistence which she had made at the meeting, that she would not accept the apology unless Mr Minett formally and sincerely apologised and gave an undertaking that he would, in no manner or form victimise or sexually harass her. Failing compliance with her request, she said that she would take advice as to her legal rights. The applicant’s position was that it could not force Mr Minett to apologise in the manner sought by Ms Veloudos.

[7] At the request of Ms van Belkum, Mr Minett wrote a letter to Ms Veloudos on 24 May 2005, reiterating that although his intentions had always been innocent, they might have been construed otherwise. He gave an undertaking that he would not in the future say or do anything that might be construed as having an explicit sexual connotation and which might, for that reason, be unwelcome. He apologised for any offence that he might have caused.

[8] Still on 24 May 2005, at about 16h45 Ms van Belkum met Ms Veloudos and indicated that in order to keep her and Minett apart, she was either

(i) to be stationed at Cresta and report to Sean Beautement or

(ii) report to Mr Louis Bodenstaff, an Associate Business Manager, in which event she would be stationed at FDC, where she preferred to be based.

[9] During the remaining part of May 2005, Mr Beautement raised some, concerns with certain aspects of Ms Veloudos’ performance. That dissatisfaction was however not of a formal or serious nature. Ms Veloudos took the view that the concerns were made against her due to the fact that she had complained about sexual harassment at the hands of Mr Minett.

[10] In respect of her placement, Ms Veloudos wrote a letter dated 26 May 2005 to Ms van Belkum in which she stated that she was unclear about the meaning of the options given to her and called for a clarification thereof. She recorded that, on the face of it, she could not accept either of the two placement and reporting options. In a letter dated 1 June 2005, addressed to Ms van Belkum, she stated, inter alia, that the fundamental complaint which she had initiated still remained unaddressed. She insisted that, by no later than 7 June 2005, she was to be reinstated at the work station that she had previously occupied and that she was not to report to Mr Bodenstaff whom she said was her subordinate. She asked Ms van Belkum to ensure that her continued and unwarranted harassment was brought to expeditious conclusion.

[11] Ms van Belkum issued a letter dated 6 June 2005 as a response to correspondence and discussions which had been held with Ms Veloudos hitherto. The body of the letter reads:

“1. I am concerned that you have expressed dissatisfaction with the manner in which your original complaint against Anton Minett has been handled. In this regard, I record the following:

As immediately possible your concerns became known to us, a thorough investigation was launched involving many hours of time of myself and others in an effort to determine the facts and deal with the situation.

Throughout the process, you have been treated with the utmost respect and your averments handled with the seriousness that they deserved.

Out of deference to you, immediate arrangements were made to enable you to carry out your duties where it is possible for you to do so in an entirely separate location from where Mr Minett is necessarily required to perform his.

On 24 May 2005, following your request for same, a formal written apology and undertaking was given to you by Mr Minett.

At some inconvenience to Daymon, reporting arrangements have also been changed, whereby you are now required to report directly to the CEO, in an attempt to address your concerns about the possibility of victimization occurring at the hands of Mr Minett.

2. All the above steps, as well as any others which I may have inadvertently omitted to mention, have all been taken in good faith

and in a genuine attempt to deal with the situation in a practical manner that best caters for the interests of all involved, including

Daymon’s. I regret that you have chosen to interpret our various actions differently from what was intended, as is apparent

from the contents of your several communications to us, which are specified above.

3. Regarding the current performance by you of your functions, I have been made aware of two recent communications addressed to you by Sean Beautement, indicating his expectations of you as a subordinate of his. He is not aware of having addressed “numerous” communications to you. He in any event emphatically denies the totally unfounded insinuation, contained in your letter of 1 June 2005, that any of his recent communications to you may in some way be construed as constituting victimization of you.

4. Regarding your response to my letter to you of 25 May 2005, I must inform you that the evidence I have contradicts your assertions.

Nevertheless, I have no intention of pursuing the issue, save to also most emphatically deny your insinuation that my communication to you constitutes victimization.

5. In conclusion, I wish to advise that it is intended that the reporting and other arrangements that pertain, including those affecting the place at which you are required to perform your duties, are regarded as the most satisfactory that are possible under all the circumstances and I express the sincere hope that, from the contents hereof, you will gain a different perspective on matters and be able to put recent events behind you with a view to refocusing on the operational challenges.”

[12] Through a letter dated 7 June 2005, Ms Veloudos set out her understanding of events by correcting what she perceived was an incorrect outlining of issues between her and the applicant. Simultaneously, she stated that her continued employment with the applicant had become untenable and intolerable. She tendered her resignation with effect from 7 July 2005. The body of her letter reads:

“1. Following the repeated sexual innuendos, expressions, actions and harassment of me by Anton Minett, I lodged a complaint,

which was premised on the above and which resulted in an apology being afforded to me by Anton;

2. There was no grievance process undertaken, neither did I wish any form of formal disciplinary action to be instituted. Infact, all that was required was that the matter be dealt with as informally and expeditiously as possible with a request from you to Anton that his wanton disregard of workplace values, ethics and policies discontinue and that I simply be respected as a woman and an employee.

3. His response was categoric denial accusing me of defamatory allegations, unlawful conduct and having created an “untenable”

situation.

4. The company’s insensitive and unprofessional approach was simply to relocate me to Cresta, some 45 minutes from my home,

designate me a” Molehole” as an office with inadequate furniture which I was required to share with an I.T. specialist, a far cry from what I had been accustomed to at the F.D.C.

5. My letter of the 17 May 2005 was not responded to at all (aside from a somewhat curt acknowledgment some 10 days later that a response would be proferred “in due course”) until I essentially provided you with an ultimatum which you barely managed to comply with.

6. In my letter of the 1 June 2005, I sought an undertaking that I revert to my previous workplace and that my terms and conditions of engagement be reinstated this you refused, ostensibly on the basis that it was not possible “under all the circumstances,” thereby re-inforcing my contention that I am the employee who has been adversely affected as a result of the unlawful, improper and malicious conduct of your senior business manager.

7. I am furthermore aware of efforts and endeavors to even get me to forgo the title which I currently occupy and to replace same with a somewhat nebulous “brand stewardship co-ordinator” I view this as yet again, further movement by the company to victimize me, notwithstanding your continued protests to the contrary.

8. I had honestly hoped and trusted that you being a woman and the custodian of human resources entrusted with enforcement and upholding of the fair labour practices in a workplace free of discrimination, harassment and disharmony, would have assisted me come to my rescue. Regrettably, you have failed in that regard (and failed dismally at that)

9. Under the circumstances I believe that:-

9.1 In consequences of the above (which certainly not intended to be exhaustive of my contentions) continued employment has become

untenable and intolerable; and

9.2 It would be best that I tender my resignation (which I hereby do) with effect from 7 July 2005 in terms of my contract of employment,

All my rights remain reserved”

[13] The applicant accepted her resignation in a letter dated 8 June 2005, stating that she did not have to perform any further duties as she was not required to serve a period of notice. She was paid all benefits until 7 July 2005. Paragraph 2 and 3 of that letter reads:

“The purpose of my letter to you of 6 June 2005 was to try to persuade you to accept a different perspective on recent events and one that might have allowed for a continuation of the employment relationship with you. The intention was not to get into a legalistic point-scoring exchange with you, which would merely have exacerbated the situation.

You have chosen to ignore my efforts and to instead persist with the approach of expressing yourself in terms which I suspect have been dictated by your legal representative and which have, unfortunately, now degenerated into an attack on me personally.”

[14] Ms Veloudos referred an unfair dismissal dispute for conciliation and arbitration by the first respondent, on the basis that the applicant had made her continued employment intolerable. The second respondent, being the commissioner, found that Ms Veloudos had been constructively dismissed by the applicant on 7 June 2005. A compensatory award equivalent to nine months remuneration was awarded in her favour against the applicant. It is that finding and the order which are the subject of the review application.

THE ARBITRATION HEARING

[15] The representatives of the parties in the arbitration hearing correctly pointed out that the issue to be resolved was about how the applicant handled the dispute between Ms Veloudos and Mr Minett. It was less about the merits of their dispute itself. The evidence pertaining to the real dispute was constituted, in the main, by correspondence exchanged by the parties. As such, the evidence was by and large, common cause.

THE ARBITRATION AWARD

[16] The second respondent was called upon to determine whether or not the continued employment of Ms Veloudos had been made intolerable by the applicant. He found that it had been made intolerable on the grounds that:

The transfer of Ms Veloudos to Cresta to report to Mr Beautement could not have been intolerable behaviour as she accepted it as a temporary measure

However, on 17 May 2005 Ms Veloudos made the applicant aware that her agreement to the temporary measure was then at an and and that Mr Minett was to substantiate the allegations he made against her; and that the applicant was to follow its sexual harassment procedures in conjunction with the key principles in the disciplinary code / procedure and the grievance and procedure policy.

When the applicant did nothing to force Mr Minett to substantiate his allegations against Ms Veloudos, she was left in the intolerable position of being removed from her place of work following unsubstantiated allegations made against her.

The applicant’s failure from 17 May 2005 to cause substantiation of the allegations by Mr Minett against Ms Veloudos and its response to her demand to return to FDC were grossly unreasonable.

It was justifiable for Ms Veloudos to reject the applicant’s proposal to return to her place of work and to report to Mr Bodenstaff. At best, Mr Bodenstaff was Ms Veloudos’ equal reporting to Mr Minett, as did Ms Veloudos before she was moved to Cresta.

Once Ms Veloudos had accepted Mr Minett’s apology, there was no longer any barriers for her return to FDC. There was no evidence that the applicant’s relationship with its client would suffer if she had been returned to FDC to work along side Mr Minett.

Applicant’s failure to instruct or request Mr Minett to take Ms Veloudos back, following the apology was not the action of an employer seeking to resolve staff problems in an even handed manner.

THE REVIEW GROUNDS

[17] In its founding affidavit, the applicant submitted that the second respondent’s decision in this matter has no rational

justification. That ground of review has since changed to the question whether the decision reached by the commissioner is one that a reasonable decision maker could not have reached. The further submission was that the second respondent failed to properly apply his mind:

To established and fundamental principle of law which wee relevant to the determination of the dispute before him

To the question of whether the applicant had exhausted her internal remedies before resigning.

To whether Ms Veloudos was entitled to insist on reporting to Mr Minett.

To the question whether it was a term and condition of Ms Veloudos’ employment that she be entitled to render services at FDC in Edenvale and not as required by her employer, in Cresta.

When he decided to award compensation equivalent to nine months’ remuneration in favour of Ms Veloudos.

[18] There are two fundament issues which the second respondent is said to have failed to apply his mind to. They are:

1. Whether Ms Veloudos was entitled to demand to return to FDC

[19] The submission by the applicant was that the commissioner failed to apply his mind to the question whether it was a term and condition of Ms Veloudos’ employment that she be entitled to render services at FDC in Edenvale and not, as required by her employer, in Cresta. Had he done so, he would have appreciated that the precise location at which an employee was required to perform her duties does not constitute a contractual term of employment, unless expressly stated or by necessary implication. In her case the contract of employment with the applicant specifically provided that:

“1.2 Operational reasons may require that the company transfers you to work at a different place, or it may be necessary that you perform other work for the company, on a temporary basis, providing that you are capable and / or qualified to do so. You also

agree to the need for such flexibility in the employment relationship.”

[20] The commissioner failed to consider whether Ms Veloudos was entitled to insist on reporting to Mr Minett. In fact, the substance of the work performed by her did not change at any material time. Had the commissioner applied his mind, to the issues, he ought to have found that an employer is entitled to deploy an employee to perform specific duties provided that those fell within the general nature of the duties for which the employee was engaged and provided that the employee has the requisite skills to perform

those duties. He should have concluded that it lay within the employer’s prerogative to determine reporting lines. Such arrangements do not constitute terms and conditions of employment and the commissioner erred in concluding otherwise.

[21] A further submission was that Ms Veloudos had been given the option of returning to FDC provided she would report to Mr Bodenstall. She rejected that option on 1 June 2005 on the ground that Mr Bodenstaff was her subordinate. However, she conceded in her evidence that Mr Bodenstaff was not her subordinate. Instead, she changed back and claimed that she, as a Marketing Manager, could not be expected to report to Mr Bodenstaff as an Associate Business Manager, with no specialised knowledge of marketing. It was pointed out to her that the same applied to Mr Minett and indeed to Mr Beautement, neither of whom had specialised knowledge or responsibility for marketing. Moreover, the premises at FDC belonged to Pick ‘n Pay and not to the applicant, which at all material times had its premises at Cresta. The more spacious accommodation at FDC and its proximity to Ms Veloudos’ home were purely fortuitous. When she accepted employment with the applicant, it was on the basis that she would work at Cresta, or elsewhere, if so required.

[22] The contrary submission made by Ms Veloudos in this regard was, neither the second respondent nor her legal representative made any reference to the terms and conditions of her employment as being to render her services from an office based in FDC. The fact was that she worked at FDC prior to her making the accusation of sexual harassment, and with no rational basis, she was not allowed to return from Cresta. It was vital to the proper performance of her duties that she be based at FDC to build and nurture client relations. That was why the applicant moved the staff to FDC in the first place. Furthermore it was crutial that she reported to Mr Minett as he was the head and needed to be involved in almost all decisions. As a result of her being moved from FDC to Cresta she was sidelined and thus could not perform.

[23] She said that it was never required of the second respondent to determine whether it was a term and condition of her employment, whether she was entitled to render her services at FDC and not in Cresta. It was unreasonable of the applicant, in the circumstances, not to allow her to return to FDC and thereby making her employment unbearable. The clause in the contract of employment was not brought to the attention of the commissioner, nor was it argued by the applicant at the hearing of this matter and therefore the second respondent could not be faulted for not addressing it in his award. She preferred Edenvale because it most certainly met with her personal, convenience but it was also more effective for her to be there to fulfil her job functions.

[24] In respect of deployment and reporting lines Ms Veloudos said that the second respondent did not conclude that the applicant was not entitled to deploy an employee to perform specific duties. On the contrary, he found that it was unreasonable in the circumstances to unfairly and without justification change her place of employment and to whom she had to report.

Whether the applicant was entitled to demand that Mr Minett be forced to substantiate his allegations against Ms Veloudos of character assassination.

[25] The applicant submitted that the second respondent found it intolerable that the applicant did nothing to force Mr Minett to substantiate his allegations against Ms Veloudos. That, according to the second respondent, left her in the intolerable position of being removed from her place of work following unsubstantiated allegations made against her. He found the applicant’s proposal that Ms Veloudos return to FDC and report to Mr Bodenstaff as intolerable, on the basis that, Mr Bodenstaff was her equal and not her superior. In so finding, he ignored the fact that the applicant advanced that proposal as one of two alternatives, but did not impose it on her when she rejected it.

[26] In response, Ms Veloudos simply denied that the second respondent ignored the fact that the applicant advanced a proposal that she was to return to FDC and report to Mr Bodenstaff as one of two alternatives but did not impose it on her when she rejected it.

SUBMISSIONS BY THE PARTIES

[27] Both parties have correctly, stated what the critical issues are for determination in cases involving a claim of constructive dismissal. They referred me to various cases including (1) Pretoria Society For The Care Of The Retarded v Loots (1997) 18 ILJ 981 (LAC); (2) Aldendirf v Outspan International Ltd (1997) 18 ILJ 810 (CCMA) and (3) Murray v Minister of Defense (2006) 27 ILJ 1607(C). Paragraph 31 of the Murray decision by Yekiso J encapsulates the issues thus:

“In order for the employee, therefore, to succeed on a claim based on constructive dismissal, and based on the authorities cited above, the employee must be able to prove that he or she has terminated the employment contract; that the conduct of the employer rendered the continued employment intolerable; that the intolerability was of the employer's making; that the employee resigned as a result of the intolerable behaviour of the employer and that the resignation or termination of employment was a matter of last resort. Finally, the employee bears the onus to prove that there has been constructive dismissal and that he or she has not in fact resigned voluntarily.”

[28] At the instance of the applicant my attention was further drawn to Murray v Minister of Defence [2008] ZASCA 44; [2008] 6 BLLR 513 (SCA), which is an appeal decision from the judgment of Yekiso J. Paragraph 13 reads:

“It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstances “must have been of the employer’s making” But even if the employer is responsible, it may not be to blame. There are many things that an employer may fairly and reasonably do that may make an employee’s position intolerable. More is needed; the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked “reasonable and proper cause”. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances of constructive dismissal that is the case.”

[29] The parties filed their heads of argument at a time when section 145 of the Act was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. See Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC); Rusternburg Platinum Mines Ltd (Rusternburg Section) v CCMA and Others (2006) 27 ILJ 2076 (SCA). The decision in Sidumo and Another v Rusternburg Platinum Mines (Pty) Ltd and Others [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) has brought about a change in the standard. At paragraph 110, the review test is expressed as:

“…That standard is the one explained in Bato Star: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.”

[30] Advocate Watt-Pringle SC filed supplementary heads of argument when the matter was argued before me, precisely to deal with the change in the review standard. He also referred me to Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) with its commentary interpretation of the Sidumo judgment. Advocate Hutchinson appearing for Ms Veloudos was then aware of the changed review standard but filed no supplementary heads of argument.

ANALYSIS

[31] This application was brought in terms of section 145 of the Act on the basis that the second respondent failed to apply his mind to the appropriate issues presented to him. The failure to apply the mind was escalated to a commission of a gross irregularity as contemplated in section 145(2)(a)(ii) of the Act, in the supplementary heads of argument. The applicant placed reliance on the decision in Goldfields Investment Ltd And Another v City of Johannesburg and Another, 1938 TPD 551 for this review ground, where the following appears:

“A mistake of law per se is not an irregularity but its consequences amount to a gross irregularity where a judicial officer, although perfectly well-intentioned and bona fide does not direct his mind to the issue before him and so prevents the aggrieved party from having his case fully and fairly determined.”

[32] Section 145 of the act has now been held to have been suffised by the constitutional standard of reasonableness – Sidumo. The enquiry I have to embark upon is one of a bifurcated nature to determine whether the second respondent committed a gross irregularity as alleged and whether the decision he reached is one that a reasonable decision-maker could not have reached. The

termination of the contract of employment by Ms Veloudos has never been in dispute. The second respondent found in his award that, as from 17 May 2005 the applicant rendered the continued employment intolerable to Ms Veloudos. It is the manner in which the applicant

dealt with the complaint lodged by Ms Veloudos that forms the basis of the intolerability.

[33] When the complaint was lodged, there was insistence by Ms Veloudos that it be dealt with informally. This can only mean that the applicant was being told not to utilise its Code of Conduct in resolving the issue. The process of verifying the truthfulness in the complaint was compromised by an informal approach. Yet Ms Veloudos wanted the applicant to nip the “problem” from its bud. All she wanted was to have Mr Minett informally disciplined by the applicant. That put the applicant in a somewhat difficult position of having to informally discipline its employee without giving him a chance to respond to the allegations as he was entitled to. The situation was complicated further for the applicant when Mr Minett lodged a written complaint in response to the allegations against him. By lodging a written complaint, Mr Minett was also entitled to his complaint being formally dealt with by the applicant.

[34] I consider the convening of a conciliatory meeting of 17 May 2005 by Ms van Belkum to have been a very responsible and appropriate action by the applicant. Ms van Belkum succeeded in extracting an apology from Mr Minett. It must be remembered that Ms Veloudos did not suggest any steps which the applicant had to take when dealing with the complaint informally. She had an opportunity to object to being a party to the conciliatory meeting if it was her view that it would not produce the desired results. It was always inherent in an informal hearing that the genuinity of contrition by Mr Minett would be questionable in circumstances where he had filed his own complaint based on the same allegations. Ms Veloudos is responsible for any shortfalls in the outcome of this conciliatory meeting. The meeting was held under her terms. She then insisted on a formal and sincere apology. Mr Minett’s letter of 24 May 2005 was clearly intended to meet the requirements set by Ms Veloudos. Regrettably, Ms Veloudos did not follow her own set principles of formally and sincerely accepting the tendered apology. She left the applicant in limbo in this regard. When the matter is seen from her perspective, the applicant had secured victory for her against Mr Minett. For that, she was never as thankful as she ought to have been. In these circumstances, the applicant was not entitled to demand that Mr Minett be forced to substantiate his allegations against Ms Veloudos on character assassination.

[35] Soon after the complaint was lodged by Ms Veloudos, she was made to report to Mr Beatement. Clearly that was to afford her protection against Mr Minett who could very easily take advantage of her reporting to him. It was clear to all that the arrangement was of a temporary nature. On 24 May 2005 the applicant engaged Ms Veloudos in a discussion for her return to Pick’n Pay offices and on the reporting lines. In this instance again, the applicant thought it was acting at the best interest of Mr Veloudos by returning her to her offices closer to her house. That she was to report to Mr Bodenstaff, was also a clear attempt to keep her away from Minett, for her own protection. Her response, that she was unclear about the meaning of the options and that she could not accept either of the two options, did not help to resolve the issue at hand. At that stage she had not yet indicated her acceptance of the apology and the applicant had no way of knowing unless she expressly said so.

[36] I have searched in vein for any evidence pointing towards Ms Veloudos having accepted Mr Minett’s apology as found by the second respondent. That finding was used to develop a conclusion that there was no barrier for Ms Veloudos to return to FDC. In the absence of evidence to support such a finding and a conclusion, the second respondent clearly failed to apply his mind to that evidence which had been led by the parties. Had he properly applied his mind to the facts, he would have found that no acceptance of an apology was made by her to Mr Minett. The finding reached by the second respondent, in this regard, had unfair consequences in the trial of the issues at hand.

[37] Paragraph 2.5.2 of the letter written by Ms Veloudos on 17 May 2005 leaves no doubt that she was far from being satisfied with the manner in which the matter had been handled up to that date by the applicant. Hence her reference to her letter of 28 April 2005. Her reference to the Code of Conduct is suggestive of her desire to have her complaint formally dealt with. In that event, she ought to have unequivocally revoked her insistence that the matter be handled informally and should thereafter have given the applicant time to prepare for a formal hearing. Such preparation may have involved the procument of statements from those of its employees that had already been informally interviewed by Ms van Belkum.

[38] The further concern raised by Ms Veloudos relates to a request by Mr Bodenstaff that she was to clear the office in FDC for him to use. The issues between her and Minett were in the process of being addressed. At the same time the ordinary business of the applicant was to be carried through, the issues between its employees notwithstanding. The request by Mr Bodenstaff was accordingly

reasonable in the circumstances and ought not to have been construed as a means of making her continued employment unreasonable or as a further means of victimising her. Thus far, the applicant had no control over what could make conditions intolerable to her. The critical circumstances were not of the applicant’s making as an employer.

[39] The letter of 1 June 2005 written by Ms Veloudos dispelled any doubt there might be about her reconciliation with Mr Minett. She stated in that letter that the fundamental complaint which she had initiated still remained unaddressed. Yet she still wanted to return to FDC and to report to Mr Minett. The place was the source of her anguish. The applicant was, in my view, entitled to

say, in its letter of 6 June 2005, that the reporting and other arrangements were the most satisfactory, possible under all the

circumstances.

[40] In paragraph 2.5.3 of her latter dated 17 May 2005, Ms Veloudos said that: “The terms of my employment had been changed to my detriment following my meeting with you on or about 28 April 2008…” (My emphasis). The applicant raised it as a review ground that the second respondent failed to properly apply his mind to whether it was a term and condition of her employment that she be entitled to render services at FDC and not in Cresta. Ms Veloudos responded by saying that it was never required of the second respondent to determine whether it was a term and condition of her employment to render her services at FDC and not in Cresta. If the applicant had the power and authority, emanating from the contract of employment, to order Ms Veloudos to report at its head office and render her services there, how then could it be held that the issue of such an instruction made a continued employment for her intolerable, in the circumstances of this matter? The applicant was still attending to the complaint, exploring various options at a time when a written apology by Mr Minett had been tendered but not yet accepted by Ms Veloudos and the next development was, she resigned. It must be remembered that there are many things that an employer may fairly and reasonably do that may make an employee’s position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must have lacked “reasonable and proper cause” – see the Murray decision of the SCA above. The evidence brought before the second respondent, in my view, did not show such a culpability. As a

consequence Ms Veloudos was never entitled to demand to return to FDC. The second respondent failed to apply his mind properly to the evidence before him with the result that there was not a full and fair trial of the issues before him. He thus committed a gross irregularity.

[41] As I consider the totality of the evidence, I conclude that the decision reached by the second respondent, in this matter, is not the one that a reasonable decision-maker could have reached. In my findings, the applicant has not been proved to have been culpably responsible for any intolerable circumstances under which Ms Veloudos found herself just before and leading to her resignation.

[42] Most of the relevant facts were common cause between the parties, the poor transcription record notwithstanding. The applicant seeks to have the arbitration award reviewed, set aside and an order issued in substitution of the award. The opposition to the application was neither mala fide nor vexatious. Fairness dictates to me that no costs order is to be made.

Finding: Ms Veloudos was not constructively dismissed by the applicant.

The order I make is the following:

The arbitration award dated 10 December 2006, issued by the second respondent, in this matter, is reviewed and set aside.

Ms Veloudos’ application is dismissed.

No costs order is made.

_______________

CELE AJ

DATE OF HEARING: 27 MARCH 2008

DATE OF JUDGMENT: 20 AUGUST 2008

APPEARANCE

FOR THE APPLICANT: ADV C.E WATT-PRINGLE S.C.

INSTRUCTED BY: KEN McDADE ATTORNEYS

FOR THE RESPONDENT: ADV W. HUTCHINSON

INSTRUCTED BY: FLUXMANS INC