Fabbriciani v Commission for Conciliation Mediation and Arbitration and Others (J3298/98) [1998] ZALC 149 (18 December 1998)

IN THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG Case No: J3298/98

In the matter between

FABBRICIANI Applicant and COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION First Respondent J CAMPANELLA, COMMISSIONER Second Respondent DAEWOO SA (PTY) LTD Third Respondent

JUDGMENT

GROGAN A J:

[1] The applicant in this matter was employed as a human resources and administrative manager by the third respondent from 23 June 1997 to 20 March 1998. He resigned on the latter date, and referred a dispute to the CCMA (the first respondent) claiming that he had been constructively dismissed and that he had been the victim of unfair labour practices. Conciliation was unsuccessful, and the disputes were referred to arbitration in terms of sections 191(5)(a)(ii) and item 3(4)(b) of Schedule 7 of the Labour Relations Act 66 of 1995 (the Act).

[2] After surveying the case law concerning constructive dismissal, the second respondent concluded:

A...one must consider only whether the relevant conduct on the part of the employer party, i.e. its failure to grant the employee party the salary increase that he was expecting and not paying him the sum of money to assist him in paying for his studies, was unlawful and unfair and whether it amounted to deliberately oppressive conduct which was calculated or likely to render the continuation of the employment relationship unbearable or intolerable due to the damage caused by it to that relationship. Any other conduct by the employer is not relevant as, on his own version, the employee party continued working without noting any meaningful objection, e.g. lodging a grievance or recording his unhappiness by way of letters to such conduct and only initiated a course of action which led to his resignation once he became aware of what salary increase he had actually been granted and that it did not take into account any payment towards his studies.

Clearly, no finding can be made in favour of the employee party in this matter on the tests and approaches outlined above as he simply could not demonstrate an entitlement on his part to either a payment of his studies or a specified salary increase from his employer. Accordingly, I cannot find that he was constructively dismissed. For the same reason, I also cannot find that he was subjected to an unfair labour practice relating to the provision of a benefit.

The second respondent accordingly dismissed the case.

[3] The applicant now seeks review of the second respondent’s award in terms of section 145 of the Act, relying specifically on the following allegations (I quote verbatim from his founding affidavit):

A1. It is clear to me that Mr Campanella [the second respondent] was intimidated in the presence of the two lawyers from Hofmeyr, Herbstein, Gihwala & Cluver Inc.

Mr Campanella never took control over the Arbitration allowing irrelevant examination from the Respondent over a period of 5 days. A lot of time was wasted on irrelevant information, but Mr Campanella never disallowed this information.

I did not appreciate the fact that Mr Campanella spoke to the Respondent’s lawyers off record, giving them advice, and when he saw me, said to me he will repeat it again on record.

1. Mr Campanella was not consistent in the asking of his questions.

2. He would ask me a question, and when I answered him, he would tell me to keep quiet. 6. I wanted to ask that Mr Campanella be removed. 7. After going through the emotional stress of being constructively dismissed, I landed up with someone who did not want to understand what it feels like to be constructively dismissed.

1. I do feel that Mr Campanella committed misconduct in relation to his duties as a Commissioner. Firstly he was not objective, and secondly he was negligent in the way of denying valid information, which is relevant to the matter.

2. My plea is to please to look at my case objectively, and to make a fair decision.

3. What more must employees go through before the law will recognise the fact that they are constructively being dismissed if their work is denied from them?

[4] It must be mentioned at the outset that the third respondent has not replied to the applicant’s founding affidavit, and that the first and second respondents have indicated that they abide the decision of this Court. The first respondent has, however, filed a set of hand written (and barely legible) notes taken at the arbitration hearing by the second respondent that appears to cover only the cross-examination of the applicant during the arbitration hearing.

[5] This Court can interfere with the awards of commissioners only if they are defective within the meaning of section 145(2) of the Act i.e. if the commissioner committed misconduct in relation to his duties as such or a gross irregularity in the proceedings, or exceeded his powers. An award will be considered to be irregular if it emanates from a procedurally defective hearing or if there is no rational connection between the evidence that was before the commissioner and the conclusion reached by him: Carephone (Pty) Ltd v Marcus NO & others [1998] 11 BLLR 1093 (LAC). Such a rational connection will be lacking when the award is based on irrelevant evidence, where relevant evidence is disregarded, or where the conclusion reached is not logically connected to the facts: Pep Stores (Pty) Ltd v Laka NO & others [1998] 9 BLLR 952 (LC) at 960A-C. A material misinterpretation of the law which the commissioner purports to apply will also amount to a reviewable irregularity:

Metcash (Pty) Ltd t/a Trador Cash & Carry Wholesalers v Sithole & others

Labour Court Case no. J1079 dated 11 October 1998, unreported.

[6] I am aware that the applicant is a lay person and has chosen to bring this

application without professional assistance. However, it must be pointed out immediately that the allegations on which he relies are for the most part legally irrelevant. Even if they were to be accepted, the averments that the second respondent was intimidated by the presence of lawyers, that he took control of the proceedings, that he was not consistent in the asking of questions and that he did not understand what it was like to be constructively dismissed do not disclose misconduct or irregularities that warrant interference by this Court. In any event, no factual basis for these allegations is to be found in the applicant’s founding affidavit. Furthermore, this Court cannot assist an applicant solely on the basis that he wishes to have his case objectively reconsidered.

[7] Only two allegations put forward by the applicant could, if charitably construed, possibly fall within the terms of section 145, as interpreted in Carephone (Pty) Ltd v Marcus NO supra. These are that the first respondent was biased and that he excluded relevant information.

[8] Apart from the adverse conclusion reached in the award, the only factual allegation upon which the applicant relies to support his allegation that the first respondent was biased is the cryptic claim that the first respondent spoke to the Respondent’s lawyers off record, giving them advice, and when he saw me, said to me he will repeat it again on record. In so far as any meaning can be attached to this statement, it does not disclose bias or any impropriety per se. Commissioners acting as arbitrators are empowered by the Act to regulate arbitration proceedings. The only limitation on this freedom is that they adhere to the requirements of the Act and do not infringe the common law rules emanating from the audi alteram partem principle. Merely talking to the parties off the record is not in itself precluded by the Act or the common law.

[9] As to the claim that the first respondent excluded or failed to have due regard to relevant information, the applicant’s founding affidavit sets out in great deal his experiences in the employ of the third respondent. The applicant does not expressly state whether this information was placed before the second respondent during the arbitration hearing. However, it is apparent from the award that the second respondent was aware of the facts that had induced the applicant to resign. Having set them out, the second respondent concluded that the applicant had been an unsatisfactory witness and had adduced insufficient evidence to prove that he was entitled to a salary increase of a particular magnitude or to payment of his study expenses. The second respondent further concluded that the applicant had resigned because he was dissatisfied with the salary increase that had been granted to him shortly before.

[10] Given the timing of the applicant’s resignation, this is a perfectly logical conclusion. The second respondent cannot accordingly be criticised, still less be held to have committed a gross irregularity, by attaching less importance than he otherwise might have to the prior incidents relied upon by the applicant to justify his claim that he was constructively dismissed. The second respondent noted, again perfectly justifiably, that had these prior incidents played the role that the applicant claimed they did in inducing him to resign, he would undoubtedly have lodged grievances when they occurred. There is also no basis for concluding that the second respondent failed to have proper regard to material evidence by rejecting as irrelevant the fact that other employees of the third respondent had previously resigned because they were unhappy with their working conditions.

[11] The legal question which the first respondent was called upon to address was whether the applicant had been dismissed within the meaning of that term in section 186 of the Act. In that regard, he reviewed the case law extensively in the award and concluded, following the Labour Appeal Court judgment in Pretoria Society for the Care of the Aged v Loots (1997) 18 ILJ 721, that in order to prove that he has been constructively dismissed, an employee who has resigned must show that he did so on the correct assumption that there was no prospect of the employer abandoning the conduct that had created an unbearable working environment. The second respondent found that the applicant had not discharged the onus of proving that this was the case. There is no basis for finding that in so doing the second respondent misinterpreted the relevant legal principles or applied them incorrectly to the facts before him.

[13] The application is accordingly dismissed.

[14] Since the respondents did not enter appearance to defend, no order is made as to costs.

GROGAN AJ Acting Judge of the Labour Court

For the applicant: In person. For the respondents: No appearance. Date of hearing: 18 December 1998 Date of judgment: