Serrem v Commission for Conciliation, Mediation and Arbitration and Others (JR 1585/19) [2021] ZALCJHB 200 (29 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1585/19

In the matter between:

ANNETTE

ELIZABETH SERREM

Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATIon

First Respondent

JACOB

DANIEL SELLO N.O. Second Respondent

DIKGABO DI KOPANE

MERCHANDISING

(PTY)

LIMITED Third Respondent

Heard: 7 July 2021 (Virtual Hearing)

Delivered: 29 July 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties by email. The date for hand-down is deemed to be 29th July 2021)

JUDGMENT

MANCHU, AJ

Introduction

[1] In her notice of motion, the applicant seeks an order reviewing and setting aside the arbitration awarded handed by the second respondent.

[2] The notice of motion also prays that the arbitration award should be substituted with various orders. These include an order that the applicant’s dismissal (and/or her unlawful suspension) constituted a dismissal as contemplated by section 186(1)(e) of the Labour Relations Act[1] (LRA), and/or the third respondent’s failure to afford the applicant a hearing constitutes an unfair labour practice as envisaged in section 186(2)(b) of the LRA.

[3] Because of the conflated nature of the notice of motion, it is not immediately clear whether the applicant contends that the dispute before the second respondent was an unfair dismissal or unfair labour practice dispute. In order to understand the true dispute before the second respondent (the Commissioner), and whether his award should be reviewed and set aside, it is necessary for me to set out the material facts.

Background Facts

[4] The applicant was employed by the third respondent as a general office administrator and personal assistant to the third respondent’s managing director, Mr David Ramela (Mr Ramela).

[5] During the period that the applicant was employed by the third respondent, the third respondent had Coca-Cola Beverages South Africa as its only client or customer.

[6] In August/September 2017, the third respondent failed an audit conducted by Coca-Cola Beverages’ auditors. Because of the failed audit, Coca-Cola Beverages cancelled its contract with third respondent and put the contract out to tender.

[7] The third respondent blames the applicant, together with other employees, for the failed audit.

[8] It is not disputed between the parties that, on 19 October 2017, the applicant was suspended without pay for a period of three months. There is however a dispute about how the suspension was conducted and whether it was fair.

[9] Following her suspension, the applicant obtained legal assistance from the law firm Dreyer and Nieuwoudt. On 7 November 2017, Dreyer and Nieuwoudt sent the third respondent a letter questioning why the applicant had not been afforded a fair hearing and enquiring whether the applicant had been dismissed by the third respondent.

[10] On 11 November 2017, the third respondent’s consultants, Emanzini Staffing Solutions, responded on behalf of the third respondent and alleged that a hearing was held, were the applicant pleaded guilty for poor performance and was sanctioned with three months suspension with no pay. The letter also said that the applicant is expected to resume work on 22 January 2018.

[11] On 14 November 2017, Dreyer and Nieuwoudt responded with a letter to the third respondent in which they said that they note that the applicant is expected to resume work on 22 January 2018. The letter also said that by virtue of what transpired prior to, and on 19 October 2017, the applicant was terminating her contract of employment with the third respondent, as the third respondent had made her continued employment intolerable.

[12] Following her letter of termination, the applicant became aware that the third respondent had completed an Umbrella Fund Withdrawal form with Momentum. The form was signed by the third respondent’s representatives on 12 November 2017 and identifies the reasons for withdrawal as being dismissal.

[13] Although the form predates the applicant’s 14 November 2017 letter of termination, the applicant only became aware of the form after her letter of termination.

[14] The applicant referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), on the same day that she sent her 14 November letter to the third respondent. The CCMA’s certificate of Outcome of Dispute Referred to Conciliation, identified the dispute as being an unfair dismissal, which relates to “Constructive”. The certificate did not identify an Unfair Labour Practice as being the dispute.

[15] In her request for arbitration, the applicant described the issues in dispute as being:

15.1. Whether there were grounds for the employee’s suspension without pay.

15.2. Whether the employee was afforded a hearing, alternatively a fair hearing.

15.3. Whether the employee is entitled to compensation and severance. The applicant later abandoned her claim for severance pay, but still persisted with her claim for compensation.

[16] Therefore, although what was conciliated and referred to arbitration was a constructive dismissal, the applicant’s request for arbitration form references issues around constructive dismissal and unfair suspension.

[17] The dispute came before the second respondent who found that he had a duty to determine the true nature of the dispute, and that in this case, he was required to determine whether the applicant’s resignation constituted constructive dismissal as contemplated by section 186(1)(e).

[18] The second respondent found that the applicant had not been constructively dismissed. To the extent that the applicant relied on the fact that her suspension was unfair, the second respondent found that resigning was not her first recourse and that she could have filed an unfair labour practice dispute.

[19] The second respondent also found that the applicant resigned in order to access her pension/ provident fund benefits, and that resigning in order to access pension/ provident fund benefits did not constitute a dismissal. I should mention that the applicant does rely on her financial constraints caused by her suspension as being part of the reasons for terminating her employment, and she does not dispute that she terminated her employment in order to access her pension/ provident fund benefits.

The constructive dismissal dispute

[20] Section 186(1)(e) provides that dismissal means inter alia that “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.” Although this section does not contain the words “constructive dismissal”, it is colloquially referred to as the section dealing with constructive dismissals and is generally understood and invoked in disputes where an employee alleges that they terminated their employment because of continued intolerable conduct by an employer.

[21] In Solid Doors (Pty) Ltd v Commissioner Theron NO and Others[2], the Labour Appeal Court said that 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.

[22] In this case, there is no dispute that the applicant terminated her employment with the third respondent. This was expressly communicated in the applicant’s 14 November letter.

[23] The next enquiry is whether the applicant’s continued employment was made intolerable. The applicant bears the onus to establish this. The subjective views of the applicant are of no consequence in discharging this onus, as the enquiry to establish whether intolerability exists is always an objective one.[3]

[24] In her heads of argument, the applicant alleges that the third respondent, represented by Mr David Ramela, made her continued employment intolerable in that:

24.1. He refused her the opportunity to present her version, or to explain what had happened in relation to the preparation of the documentation for the audit.

24.2. The applicant was never informed of any charges against her.

24.3. The applicant was never provided with a date of disciplinary hearing or any written charge sheet.

24.4. The applicant was never granted a disciplinary hearing as provided in the Code of Conduct or at all.

24.5. The applicant was summarily suspended without pay for three months.

[25] Therefore, the applicant’s claim that her continued employment was made intolerable, primarily relies on the fact she was subjected to an unfair suspension.

[26] Even if the applicant’s allegations about the fairness of her suspension are accepted, I do not agree that these complaints establish grounds for a claim of constructive dismissal. As the second respondent correctly found, the applicant had another recourse and could have referred an unfair labour practice dispute.

[27] In Albany Bakeries Ltd v Van Wyk and others[4], the Labour Appeal Court held that a decision of an employee to leave because of the intolerable work relationship has to be a last resort[5] and that it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem.[6]

[28] This was also confirmed in Distinctive Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre (Motor Industry Bargaining Council) and others[7], where it was held that:

“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.”

[29] The term intolerable, implies a situation that is more than can be tolerated or endured; or insufferable. It is something which is simply too great to bear, not to be put up with or beyond the limits of tolerance. It will need to be said that when objectively, reasonably and sensibly judged, an employee could not be expected to put up with it, that no reasonable employee could be expected to tolerate or put up with it.[8] Intolerability extends beyond a difficult, unpleasant or stressful working environment or employment conditions.[9]

[30] The applicant’s complaints do not pass this muster. Firstly, it needs to be said that other employees, who were similarly suspended, did not find it too intolerable to continue with their employment.

[31] Second, it is to be noted that the suspension was to only endure for a period of three months. In my view, the fact that it was for a fixed period, means that the applicant’s complaints were not expected to be indefinite. It cannot, in such circumstances, be said that her continued employment would be intolerable.

[32] Third, properly construed, the continued intolerability that the applicant complains of was the fact that her suspension meant that she would be without an income. Again, as correctly found by the second respondent, the applicant’s personal financial circumstances, no matter how severe, did not render her continued employment intolerable.

[33] In the premises, I find that the second respondent correctly found that the applicant had not been dismissed within the meaning of section 186(1)(e).

The applicant’s alleged unfair suspension

[34] As mentioned above, the applicant’s application is directed at reviewing and setting aside an award of the second respondent. Flowing from this, the applicant seeks an order substituting the second respondent’s award with various orders, that tally to 10 sub paragraphs.

[35] The sought substituted orders are based on the applicant’s allegation that her dismissal was in breach of 186(1)(e) of the LRA, and/or the third respondent’s failure to afford the applicant a hearing constitutes an unfair labour practice as envisaged in section 186(2)(b).

[36] I have already dealt with the applicant’s claim that her dismissal was in breach of 186(1)(e) of the LRA, what remains to be considered is whether I can competently find that the third respondent’s failure to afford the applicant a hearing constituted an unfair labour practice as envisaged in section 186(2)(b).

[37] As appears, from the chronology above, because of the way the applicant had framed her dispute, it is not readily discernible what was the true dispute before the second respondent.

[38] Before the second respondent, much like in this review application, the applicant’s complaint appears in substance to be that she was constructively dismissed because the manner in which she had been suspended made her continued employment intolerable. However, the applicant conflates her claim by also asserting an unfair suspension claim.

[39] The second respondent confronted this conflation and found that it was incumbent on him, as the Commissioner, to determine the true nature of the dispute before him. In this respect, the second respondent, found that the true nature of the dispute was the section 186(1)(e) dispute.

[40] The applicant’s founding affidavit does not make any challenge to this approach or finding. Furthermore, I raised the issue with Mr van Wyk, appearing for the applicant, and he similarly did not make any arguments against it. On the contrary, Mr van Wyk, submitted that the real dispute in this application was the section 186(1)(e) dispute. In my view, the second respondent was correct to determine the true nature of the dispute as he did.

[41] In Zeuna-Stärker Bop (Pty) Ltd v NUMSA[10] the Labour Appeal Court, dealing with a jurisdictional dispute made the following remarks on a Commissioner’s obligation to determine the real dispute between the parties: [11]

“The commissioner was obliged to enquire into the facts to decide whether he had jurisdiction to conciliate the dispute. He was not bound by the description, and date, of the dispute provided by the respondent in form LRA 7.11. Rather, the commissioner was obliged to examine all the facts in order to ascertain the real dispute between the parties . . . and having done so, to determine the actual dispute and the date that that arose.”

[42] The real or true dispute before the second respondent was the section 186(1)(e) dispute, this is what a proper examination of all the facts reveals. In addition, as mentioned above, even at conciliation, the dispute was conciliated as an unfair dismissal in terms of a section 186(1)(e) dispute and that is what was referred to arbitration. This is further evidence of the real dispute before the second respondent.

[43] Given that the real or true dispute before the second respondent was the section 186(1)(e) dispute, and that the section 186(2)(b) unfair labour practice dispute was not before the second respondent, no review can be brought against his award in this regard. In other words, since the award does not deal with an unfair labour practice (because that was not the real dispute before the second respondent), the applicant cannot seek to review and set it aside.

[44] In the premises the following order is made:

Order

1. The review application is dismissed.

2. There is no order as to costs.

T. Manchu

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant : A.M. van Wyk

Instructed by : Dreyer & Niewoudt

For the Respondents : L.M.S. Mello

Instructed by : Steven Mogoro Attorneys

[1] No. 66 of 1995, as amended.

[2] (2004) 24 ILJ 2337 (LAC), at paragraph 28

[3] HC Heat Exchangers (Pty) Ltd v Araujo and others [2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paragraph 50.

[4] (2005) 26 ILJ 2142 (LAC).

[5] Ibid at para 27.

[6] Id fn 4 at paras 28 and 29.

[7] (2013) 34 ILJ 3184 (LC) at para 131.

[8] Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and others [2019] 8 BLLR 782 ((2019) at paras 39 and 40

[9] Id fn 3.

[10] (1999) 20 ILJ 108 (LAC), at 109J-110C,

[11] See also Wardlaw v Supreme Moulding (Pty) Ltd (2007) 28 ILJ 1042 (LAC) and Parliament of the Republic of South Africa v NEHAWU obo members and others [2011] 9 BLLR 905 (LC), para 13