O`Reilly v Commission for Conciliation, Mediation and Arbitration, Johannesburg and Others (JR2395/19) [2022] ZALCJHB 33 (28 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE No: JR2395/19

In the matter between:

MANUELLA MARELLA CASILDA O’REILLY

Applicant

And

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION, JOHANNESBURG

First Respondent

COMMISSIONER THEMBA CEDA N.O

Second Respondent

SOUTH AFRICAN COUNCIL FOR THE

ARCHITECTURAL PROFESSION

Third Respondent

Date Heard: 22 February 2022

Date Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website and release to SAFLII. The date and time for hand-down is deemed to be on 28 February 2022 at 14h00.

Summary: Review application – Alleged constructive dismissal – jurisdiction of the CCMA to determine an alleged breach of section 34(1) of the BCEA regarding deductions made to an employee’s remuneration

JUDGMENT

MKWIBISO AJ

INTRODUCTION

[1]. In this matter, the applicant (“the employee”) claims to have been constructively dismissed. She further claims that the third respondent (“the employer”) made unlawful deductions from her remuneration and seeks to be reimbursed for those deductions. She claims her alleged dismissal constituted an automatically unfair dismissal and seeks 24 months’ compensation.

[2]. The matter comes before me as a review application, the applicant seeking to challenge an award by the second respondent (“the

Commissioner”) dismissing her referral to the first respondent (“the CCMA”).

[3]. In the main, and in the context of a review application, the issues are: whether the employee was constructively dismissed as envisaged in section 186(1)(e) of the LRA;[1] whether her dismissal, if she was dismissed, constituted an automatically unfair dismissal for which she could be awarded compensation up to a maximum of 12 months’ salary; whether the CCMA had jurisdiction to determine the employee’s claim of breach of section 34 of the BCEA, and whether any deductions that were made from her remuneration by the employer constituted a breach of section 34(1) of the BCEA that would entitle her to a re-payment of those amounts. A finding that the employee was not constructively dismissed and that the CCMA lacked jurisdiction to determine her claim of breach of section 34(1) of the BCEA would result in the other issues falling away.

RELEVANT FACTS

[4]. The employer is an entity established by section 2 of the Architectural Profession Act 44 of 2000 (“the Act”).

[5]. The employee commenced her employment with the employer on 10 March 2014 in the position of Registrar and Chief Executive Officer. She reported to the employer’s Council – a body equivalent to a Board in the corporate world.

[6]. The Act empowers the Minister responsible for Public Works to appoint members of the employer’s Council.

[7]. It would seem by Council resolution dated 12 October 2017, the Council, inter alia:

7.1 Ratified and approved the delegated authority of the employee as Registrar/CEO by Council, “in terms of the actions that the Council had approved to be actioned against the Minister of Public Works”;

7.2 Confirmed its approval of a mandamus application as contained in a notice of motion and founding affidavit against the Department of Public Works;

7.3 Confirmed that Advocate Matthew Chaskalson had been authorised to represent the employer when the mandamus was heard on 10 October 2017; and

7.4 Confirmed its approval of “the progress to date”.

[8]. The employee alleges that in December 2017, the Minister responsible for Public Works appointed four members of the Council. According to the employee, this appointment by the Minister was unlawful and caused factions in the Council. No evidence of such unlawfulness was presented in this matter and that issue is not before this Court. If I am to accept the contents of the Council resolution as correct, it is apparent that December 2017 might be the date when the four new Council members commenced their duties having been appointed at an earlier date. This is so because by 10 October 2017 the mandamus application had already served before the High Court.

[9]. The legal fees that were invoiced to the employer in connection with the mandamus application amounted to approximately R242 000.

[10]. The employee was suspended with effect from 01 August 2018 for reasons that are irrelevant to this matter.

[11]. The employer formed the view that the employee had without authorisation approved the usage of its funds to pay the legal fees associated with the mandamus application. As the employer was cited as a respondent in that application, it adopted the view that its own funds were used to fund litigation against itself.

[12]. In December 2018, the employee was served with a notice to attend a disciplinary hearing. This hearing was scheduled for 21 to 23 January 2019. It seems the hearing did not proceed on those dates. The allegations of misconduct were subsequently amended and the hearing scheduled for 15 to 19 February 2019.

[13]. In the meantime, the employer decided to unilaterally deduct amounts from the employee’s remuneration, to recoup the legal fees of approximately R242 000.00 it considered to constitute unauthorised expenditure for which the employee was at fault. The first deduction occurred at the end of December 2018. The second deduction occurred at the end of January 2019. The employee at this stage had not decided to resign and had contented herself with writing letters to the employer complaining about the unlawfulness of the deductions. The employee had not filed any formal grievance, nor had she approached a Court of competent jurisdiction to enforce her rights against unlawful deductions.

[14]. On 15 February 2019, the disciplinary hearing commenced. However, before the employee could plead to the allegations of misconduct against her, she resigned on 18 February 2019 with immediate effect. She thereafter referred a dispute to the CCMA seeking:

14.1 Compensation for constructive dismissal;

14.2 Reimbursement of her unlawfully deducted monies; and

14.3 One month’s remuneration as notice, despite the immediate effect of her resignation.

[15]. In a pre-arbitration minute concluded by the parties prior to the commencement of the CCMA arbitration hearing, they agreed that the issues to be determined by the Commissioner were the following:

“4.1 Whether the Applicant was constructively dismissed.

4.2 Whether there was a breach of contract committed by the Respondent as a result of alleged unfair and unlawful deduction.

4.3 Whether the Applicant will be entitled to maximum compensation for the alleged constructive dismissal.

4.4 Whether the CCMA can award in favour of the Applicant, the amounts that were allegedly unlawfully deducted”.

[16]. The Commissioner dismissed the employee’s claim at arbitration, hence this review application.

EVALUATION

[17]. During argument, Ms Scallan for the employee abandoned the claim of one month’s remuneration, due to the immediate nature of the employee’s resignation. This approach was correct. It is trite that resignation is a unilateral action that does not require an employer’s acceptance.[2] It is not an agreement and, thus, one cannot rely on section 5 of the BCEA to argue that the BCEA takes precedence over an employer’s

acceptance of a resignation.

[18]. It is trite that the Commissioner’s decision on the issue of constructive dismissal can only be reviewed if it is incorrect. The existence of a dismissal is a jurisdictional issue to which the standard of reasonableness does not apply.[3]

[19]. The requirements or elements of a constructive dismissal claim were set out by the Labour Appeal Court in Solid Doors,[4] in the following terms:

“[28] … there are three requirements for constructive dismissal to be established. 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”.[5]

[20]. The second requirement is not met in this current matter.

[21]. In Gold One Limited,[6] the Labour Court dealt with the requirement of intolerability by stating that “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”.[7]

[22]. This high threshold of intolerability applies to both employees and employers. In Booi,[8] an employer who sought to avoid the reinstatement of an employee on grounds of the intolerability expressed in section 193(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”) was met with this response by the Constitutional Court:

“[40] It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability”.[9]

[23]. An employee who has alternative remedies that are reasonably available at her disposal cannot complain that her continued employment was rendered intolerable.[10] It is not enough for an employee to simply raise her concerns with her superiors through letters of demand.[11] In this regard, Ms Scallan’s supplementary heads of argument correctly cited the following passage from Distinct Choice 721:[12]

“[131] If an employee finds herself confronted by conduct which she considers intolerable, but the employee can avoid such (intolerable) conduct by taking some course of action which is reasonably within her power, other than resignation, then the employee should follow such other course of action. To hold that the employee is entitled in such circumstances to resign and claim constructive dismissal would, in my view, undermine the right to fair labour practices enshrined in s. 23 of the Constitution which requires that fairness be viewed from the perspective of both employer and employee”.

[24]. It remained common cause that the employee did not lodge a grievance in this matter. She also did not approach a Court with competent

jurisdiction with a claim of unlawful deductions. It is doubtful whether the deductions from her remuneration were the trigger of her resignation with immediate effect – she did not resign after the first two deductions of December 2018 and January 2019, but testified that the intolerability arose on a date that fell within her scheduled disciplinary hearing (18 February 2019). She was the most senior member of the administrative staff, being the CEO and Accounting Officer of the organisation. She knew her rights. She was evidently able to afford legal representation as she was legally represented even after she had resigned. Importantly, the disciplinary proceedings cannot objectively be a trigger of intolerability in light of an employer’s prerogative to discipline its employees and in light of the remedies available under the LRA where disciplinary action is alleged to be unfair. Under all these circumstances, the employee did not exhaust remedies that were reasonably available to her and her claim for constructive dismissal falls to be dismissed.

[25]. The employee’s case of breach of section 34(1) of the BCEA comes before me on review, the Commissioner having dismissed it at the arbitration. It is true that the parties had agreed in a pre-arbitration minute that the Commissioner must determine that

claim, and a pre-arbitration minute is binding on the parties.[13] However, it seems to me the Commissioner did not have jurisdiction to determine that claim. In Amalungelo Workers Union,[14] the Constitutional Court emphasised that jurisdiction over BCEA claims is regulated by section 77 of the BCEA[15] and the Labour Court has exclusive jurisdiction over matters regulated by the BCEA.[16]

[26]. Section 77(1) of the BCEA provides the following:

“Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act” (my emphasis).

[27]. There is no provision in the BCEA that says the CCMA has jurisdiction to determine a claim regarding an alleged breach of section 34(1) of the BCEA. In the absence of jurisdiction, the employee’s argument that the Commissioner was unreasonable by not upholding her claim is unsustainable and falls to be dismissed.

[28]. Ultimately, the employee’s review application should be dismissed because she has been unable to establish a claim of constructive dismissal and the Commissioner did not have jurisdiction to entertain her claim of breach of section 34(1) of the BCEA.

COSTS

[29]. The parties left the issue of costs in my hands. The end of this litigation ought to be sufficient relief for the employer, much to the employee’s despair. Under the circumstances, fairness dictates that I make no order as to costs.

Order

1. The review application is dismissed.

2. No order as to costs.

VG Mkwibiso AJ

Acting Judge of the Labour Court

APPEARANCES

For the Applicant : Adv J Scallan

Instructed by C R Mertz Attorneys

For the Respondent : Mr T Majang of Majang Inc Attorneys

[1] The Labour Relations Act 66 of 1995.

[2] Sihlali v South African Broadcasting Corporation Ltd [2010] 5 BLLR 524 (LC), paragraph [11]; Mafika v South African Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC); Mnguti v CCMA and Others (2015) 36 ILJ 3111 (LC), paragraphs [22] – [24]; Sunshield Solutions (Pty) Limited v Ngwenya and Others (JR1629/2016) [2017]

ZALCJHB 39 (7 February 2017) (saflii.org), paragraph [34].

[3] SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others (2008) 29 ILJ 2218 (LAC), paragraphs [39] – [40]; Assmang (Pty) Limited t/a Mine v Commission for Conciliation, Mediation and Arbitration and Others (JR273/2017) [2020] ZALCJHB 247 (30 November 2020) (saflii.org), paragraph [8].

[4] Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC).

[5] Ibid, paragraph [28].

[6] Gold One Limited v Madalani and Others (2020) 41 ILJ 2832 (LC).

[7] Ibid, paragraph [46].

[8] Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC).

[9] Ibid, paragraph [40].

[10] Gold One Limited (supra), paragraphs [47] – [48].

[11] Ibid.

[12] Distinct Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre (Motor Industry Bargaining Council) and Others (2013) 34 ILJ 3184 (LC), paragraph [131].

[13] South African Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC); [2018] 1 BLLR 26 (LAC), paragraph [8].

[14] Amalungelo Workers Union and Others v Philip Morris South Africa (Pty) Limited and Another (2020) 41 ILJ 863 (CC).

[15] Ibid, paragraph [16].

[16] Ibid, paragraphs [20], [21] and [25].