Westdawn Investment (Pty) Ltd t/a JIC Mining Service v Patel NO and Others (JR1662/11) [2016] ZALCJHB 129 (30 March 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO: JR 1662/11

In the matter between:

WESTDAWN INVESTMENT (PTY) LTD t/a

Applicant

JIC MINING SERVICE

and

COMMISSIONER M PATEL N.O.

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION (CCMA)

Second Respondent

S H FOURIE

Third Respondent

Heard:

9 September 2015

Delivered: 30 March 2016

Summary: Constructive dismissal. Commissioner not taking into account relevant

evidence necessary for establishment of intolerable employment conditions. Alleged intolerable conditions created by the

employer not proved. Award reviewed and set aside.

BALOYI AJ

Introduction

[1] In this application, the Applicant is seeking an order for review and set aside of the arbitration award handed down by the First Respondent sitting as an arbitrating Commissioner under the auspices of the CCMA in the North West province under case number NWRB 888-11. The First Respondent made a finding in his award that the Third Respondent’s resignation from his employment with the Applicant amounted to dismissal which he found to be unfair. As result he awarded the Third Respondent compensation equivalent to five months remuneration. The application is opposed.

Preliminary issue

[2] The Applicant in its replying affidavit raised a point that due to the late filing of the Third Respondent’s answering affidavit with no application filed to condone such late filing, the application should be treated as if unopposed. The Third Respondent argued that there was no need to file condonation application as the Applicant did not file a notice of objection to such late filing in terms of the Practice Manual. The Third Respondent specifically relied on section 11.4.2 which reads as follows;

“11.4.2 Where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filling of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse”

[3] Indisputably, it came to record that the Third Respondent’s reliance on the said clause was misplaced in the light of the answering affidavit being filed on 09 July 2012 under the era of the practice manual of October 2010 that has since been replaced by that of April 2013. It is highly notable that the practice manual of 2010 does not have a provision for filing of notice of objection to the late filing of answering affidavits. Even if the answering affidavit was filed during the period of

operation of the 2013 practice manual, the preliminary point raised in the replying affidavit is sufficient to constitute an objection with or without notice to the effect. It should be noted that the objection conveyed through a replying affidavit will logically remain effective if filed within the time frames allowed for filing of the notice of objection. For these reasons I made ruling not to admit the Third Respondent’s answering affidavit for non-compliance with the rules. I nevertheless allowed the Third Respondent to proceed with its arguments in opposition of the review application in so far as legal issues are concerned, the matter was accordingly argued.

Factual Background

[4] Based on what was placed before the First Respondent, the Third Respondent was employed in November 2007 as mine overseer stationed

at 12 shaft Amanda-Bult. In 2010 he was moved to 20 Shaft due to the end of contractual relationship between the Applicant and its client. In 20 Shaft the Third Respondent was no longer required to report to Mr Lourens but Mr Love. During his tenure at 20 shaft few scenarios emerged inter alia, that the Third Respondent was exposed to certain substandard conditions and made it clear to the Applicant that he was not willing

to accept them. He was as result moved to another shaft in Mooinooi which he did not like due to salary issues. He thereafter went for an interview in another shaft of the Applicant at Klerksdorp and turned not to be interested in the position in question as it was for a shift boss rather than mine overseer.

[5] The Applicant accused the Third Respondent of failing to prepare reports for the two work place accidents which took place in January and February 2011. As a result the Third Respondent was subjected to counselling in respect of both accidents though he was adamant that he was not to blame for non-compiling of such reports.

During a meeting with Applicant’s client on 07th February 2011, the Third Respondent made remarks which the Applicant viewed inappropriate. When called to order with specific

instruction to keep quiet, the Third Respondent expressed his option to go out to look for another job. He took two days leave and when he came back on 10th February 2011 he was served with charges relating to of his conduct during the meeting of 07th February 2011. On the very same day he responded by delivering a resignation letter with notice period ending on 09th March 2011. The disciplinary hearing proceeded and ended up with a guilty finding with the sanction of written warning imposed.

[6] It was undisputedly brought to the First Respondent’s attention by the Third Respondent that the said two days leave was utilized for interviews for the new job he secured at Impala. He commenced working in the new job on 10th March 2011. Furthermore during notice period the Third Respondent informed his colleagues at the Applicant that he had secured a new job. He referred constructive dismissal dispute on 15th March 2011 which was ultimately arbitrated. The award that forms subject matter of this application was then handed down.

[7] The question before the First Respondent was whether the Third Respondent resigned because he wanted to avoid the disciplinary

hearing or whether the conditions were made intolerable for him to continue with employment relationship. Based on what he considered as evenly balanced evidence, the First Respondent accepted the Third Respondent’s version and went on to find in his favour.

Grounds for Review

[8] The award is firstly attacked on the basis of the First Respondent’s decision not being reasonable as it was not coherent with evidence led in

respect of the Third Respondent’s grievance. The crux of this complaint is heavily rested on the First Respondent’s finding that the Third Respondent’s grievance was to no avail while according to the Applicant the Third Respondent did not produce any evidence to the effect.

The Applicant’s second take, still on unreasonableness is the First Respondent’s ignorance of the fact that the Third Respondent had already secured another job at the time of his resignation. The last attack on the award is rooted on the First Respondent’s failure to properly deal with mutually conflicting versions which resulted in a finding that it was ‘probable that the Respondent attempted to make the Applicant’s employment intolerable’.

Evaluation

[9] For the employee in a claim for constructive dismissal to succeed, his/her evidence must reveal three elements for arbitrator’s assessment,

that is;

- Termination of employment at the instances of the employee,

- Continued employment being intolerable,

- Such intolerability came as a result of employer’s conduct.

[10] The Labour Appeal Court in Pretoria Society For The Care Of The Retarded v Loots[1] reaffirmed these requirements and gave direction as to the handling of such instances in constructive dismissal disputes wherein the following was said at page 725 A-C.

“The enquiry then becomes whether the appellant, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship and trust between employer and employee. It is not necessary so show that the employer intended any repudiation of the contract; the court’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. I am also of the view that the conduct of the parties has to be looked at as a whole and it’s cumulative assessed.”

[11] This essentially calls for a determination of the dispute not merely based on the form as it appears. It is thus incumbent upon the arbitrator to look at the underlying issues to find substance of the matter in order to arrive at a conclusion that will be non-receptive to the attacks based on unreasonableness or otherwise. In so doing, the facts as to the surrounding events at the time of termination of employment by employee together with the parties’ conduct, require the Commissioner’s high precision in assessing evidence placed before him. The parties’ emotions at that particular time or some time prior to termination of such employment often lure the arbitrators into a trap of quick arrival to a decision of preferring one party’s version over the other. In many such instances the review Court finds itself having to deal with an award containing no analysis but probabilities not supported by evidence as tendered by the parties. The end point thereof is that the Arbitrator failed in his duties as a Commissioner and the award will thus be prone to review in terms of section 145 of the Labour Relations Act.

[12] On the same token the review Court had at all times been conscious of what reasonableness entails post Sidumo’s[2] case and other subsequent judgments. The mere formulation of unreasonableness cannot be guarantee for the award to be reviewed.

The reasonableness on the arbitrator’s decision must in fact be so gross to the extent that no reasonable decision maker could reach.

[13] When turning onto the Applicant’s grounds for review, I see it imperative to first give attention to the second ground. The ground in question deals with the First Respondent’s total ignorance of evidence that on the

date of Third Respondent’s termination of employment, the Third Respondent had already secured employment with another company.

This issue in my view, while taking into account that circumstances around constructive dismissals always come in various forms requiring to be approached on case by case basis. The securing of a new job by the Third Respondent is certainly a material issue for consideration. What is of significance is that he started working in the new job the day after the last day of his notice period. By overlooking this evidence coupled with the First Respondent’s failure to give even a single reason for not taking this into account, gives rise to the decision not being reasonable. In Southern Sun Hotel Interest (Pty) Ltd v CCMA & Others[3] at paragraph 17 the Court per Van Niekerk J had this to say in so far as reasonableness is concerned:

“[17] In summary, section 145 requires that the outcome of CCMA arbitration proceedings (as represented by the commissioner’s decision) must fall within a band of reasonableness, but this does not preclude this court from scrutinising the process in terms of which the decision was made. If a commissioner fails to take material evidence into account, or has regard to evidence that is irrelevant, or the commissioner commits some other misconduct or a gross irregularity during the proceedings under review and a party is likely to be prejudiced as a consequence, the commissioner’s decision is liable to be set aside regardless of the result of the proceedings or whether on the basis of the record of the proceedings, that result is nonetheless capable of justification”.

[14] The parties were undoubtedly in agreement that the employment relationship was terminated by the Applicant. The intolerability of employment conditions and the cause thereof remained in contention hence deserving scrutiny. As stated above regarding emotions of the parties as well as pulling and shoving regarding a suitable site for the Third Respondent, such have no bearing if not little in the light of events that unfolded during and after the meeting at which the Third Respondent was reprimanded. The said meeting surely brought about a cause for termination of employment relationship and the following could be picked from the record during cross examination on the Third Respondent:

“In that meeting I told IFM I do not think I can work anymore for it. I do not contribute. My name is now coming back for the mine and for JIC. I think I am going to look for other work. That was my words.

MS SENNE: In the meeting.

10 MR FOURIE: In that meeting.

MS SENNE: Okay, so when did you actually decide to hand in your resignation letter and why?

MR FOURIE: After that meeting when I said I cannot do my work. I do not get any assistance. Louis Lourens [inaudible] and said thank you. We will charge because I do not do my work. Another charge on top of this one that was still pending. Then I said, no, Sir, rather that I will get other work. You cannot work in this way. They are now clearly [inaudible].

MS SENNE: Wait. So, on top of the suspension that you were given.

20 He actually told you that he will charge you further.

MR FOURIE: Because I do not want to keep quiet when the manager said to me “keep quiet”. Then I put in two days leave. I actually asked time off for all this overtime I put in to prepare the documentation, which was refused.

I put two days leave in. I want to go to the Free State for a mine overseer advertised in the Sunday papers. They called me back.

I need to come back to the work. So, I went back to the work. They did not give me the case money back. They said no. You had two days leave. Just do the work that you were supposed to do. And then I went to the mine, the 3rd shaft I used to work. Apply there for a post. They said the only thing that they had available is a shift supervisor. I said I will take it. Then I put my resignation in and I went back to 20 shaft”.

[15] The answer to the question whether intolerability was established and whether at the Applicant’s instances should be found from this crucial piece evidence from the Third Respondent. Firstly this extract of the record shows nothing but a display of arrogance on the part of Third Respondent who blatantly showed no intention to work for the Applicant.

Secondly the Third Respondent’s resignation made on his return from two day leave which he utilized for a successful search for a job is not consistent with genuine claim for constructive dismissal. The claim for constructive dismissal is undoubtedly characterized by the employee’s willingness to have continued employment relationship but frustrated by employer’s conduct of rendering employment conditions intolerable. Resignation in constructive dismissal cases comes as last resort but in this matter the Third Respondent openly declared his intentions to look for another job which is indicative of the fact that such intolerability was only within himself. The First Respondent had regrettably failed to identify this weakness in the case of the Third Respondent, a party bearing onus in this respect. On this ground alone, there can be no better reason for the First Respondent’s award to stand.

[16] Regarding the first and the third grounds, the First Respondent is mainly attacked for failure to use proper tools in assessing evidence which he found to be evenly balanced. The First Respondent rested his decision on credibility of the Third Respondent. His finding that the Third Respondent was credible on the stand without making a finding on credibility of other witnesses who testified against the Applicant surely indicates that he failed to apply the means properly, which is an irregularity that cannot be excused. The Labour Appeal Court in Conti Print v CCMA & Others[4] noted the basics for determining disputes whether credibility is an issue as follows;

“[2] The versions of the parties adduced in evidence contained several material conflicts. To decide the matter, an evaluation of the credibility of the witnesses and of the probabilities was essential. Insofar as one version was preferred over another, a rational basis has to exist. The basis, if any, for preferring Molokwane’s version over that of the appellant’s witnesses is at the heart of the factual controversy. In addition, on either version, the question as to whether a proper case for a constructive dismissal was made out is the subject matter of the legal controversy”.

[17] It cannot be said more about the First Respondent’s selective assessment of evidence on credibility other than noting that the First Respondent has failed to properly apply his mind to the issues placed before him. The cumulative effect of the above when the dispute is considered in its substance rather than form, points to the Third Respondent’s misconception of the nature of inquiry for his determination. (see Herholdt v Nedbank Ltd[5]).

[18] In essence there are sufficient grounds to conclude that the Applicant made out a case for the relief sought. There is thus no reason why the Third Respondent’s award should not be interfered with. In the circumstances the Third Respondent’s

award falls to be reviewed and set aside. As to costs, it will not be in fairness and reasonableness to award cots against the Third Respondent in the light of its crumbled opposition though self-created. In any event there is no evidence of prejudice suffered

by the Applicant as a result.

Order

[19] In the premises the following order is therefore made:

19.1 The arbitration award issued by the First Respondent under case number NWRB 888-11 is reviewed and set aside and replaced with the following order;

19.1.1 The Third Respondent was not constructively dismissed.

19.1.2 There is no order as to costs.

___________________

Baloyi AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. G J Rossouw

Instructed by:

Snymans Incorporated

For the Respondent: Adv. A Platt

Instructed by:

Van Velden – Duffy Incorporated

[1] (1997) 6 BLLR 721 LAC

[2] Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR 109 (CC)

[3] (2009) 11 BLLR 1128 LC

[4] (2015) 36 ILJ 2245 LAC

[5] (2013) 11 BLLR 1074 SCA at paragraph 25 wherein the Court held a view that the arbitrator’s misconception of nature of enquiry is sufficient

to establish unreasonableness as opposed to material errors of fact together with weight and relevance to be attached to particular

facts which are not in themselves sufficient for review of an award unless their effect renders the outcome unreasonable.