IN THE LABOUR COURT OF SOUTH AFRICA (HELD …

1 Page 1 of 20 Case Number: JR 1852/05IN THE LABOUR COURT OF SOUTH AFRICA (HELD IN BRAAMFONTEIN)CASE NUMBER: JR 1852/05In the matter between:LM WULFSOHN MOTORS (PTY) LTDT/A LIONEL MOTORSA pplicantvDISPUTE RESOLUTION CENTREF irst RespondentHEIN GERBER Second RespondentNELITTA NEL Third RespondentJUDGEMENTBASSON, JBACKGROUND TO THE APPLICATION1)The Third Respondent (Ms Nel hereinafter referred to as Nel ) claimed that she was constructively dismissed by the Applicant in that it had made continued employment intolerable. Her claim in respect of Page 2 of 20 Case Number: JR 1852/05constructive dismissal arose mainly from an incident that occurred at her place of work on 11 November 2007 when she demanded to have access to, and to be permitted to review some 24 months of clock cards as she had a query as to her overtime payment. In support of the allegation of constructive dismissal, Nel also relied on other incidents that had occurred in November when Mr.

2 Wulfsohn (the dealer principal hereinafter referred to as Wulfsohn ) shouted at her and an incident where she was accused by the Applicant s financial manager Mr. De Waal (hereinafter referred to as De Waal ) of having made mistakes with warranties to the extent that other staff could not take leave. She alleged that Wulfsohn also dragged her by her armed and asked her whether or not she could count properly. 2)It is, however, clear from Nel s letter of resignation that it was mainly the incident of 11 November 2004 that prompted her to resign. This much is clear from her letter of resignation in which she stated as follows: Ek gee kennis, ek werk nie n maand kennis nie weens omstandighede wat met Jan de Waal bespreek is op die 11de Page 3 of 20 Case Number: JR 1852/05 Noveber oor my oortyd wat nie korrek uitbetaal is nie.

3 Ek het probeer om met meneer De Waat uit te sorteer, maar hy wou nie na my luister nie, want hy was te besig. 3)It is also common cause and should be noted at the outset that Nel has never raised any grievances with regards to the manner in which she was treated by the Applicant s management despite the fact that it was common cause that the Applicant had a grievance procedure in place that would have entitled Nel to lodge grievances. Nel also admitted that she had not read copies of the disciplinary code despite the fact that she had signed an acknowledgement that she will acquaint herself with the contents thereof. More in particular, Nel had never raised any grievances with her direct head a one Ferdi. She merely explained that she kept quiet because there was no one to talk to. It was put to her in cross examination that a reasonable person would have raised a grievance to which she merely responded that it was her perception that one could not talk to anyone: Ek het net gevoel, daar, dit was hoe ek gevoel het, n mens kon nie met iemand daar praat nie.

4 It should, however, be pointed out that it was not Nel s evidence that she had problems with her direct head nor was it her Page 4 of 20 Case Number: JR 1852/05evidence that she had elected not to use the grievance procedure because it was )It was also not in dispute that there was a rule in place in the workplace that regulated the process that had to be followed when salary queries are made. In this regard employees had received a memo which specifically stated that, because employees are wasting admin staff time by requesting what their salaries will be at the end of the month, during the month, or they want to know what their bonus or commission will there will be a window period of two working days after salaries have been paid into your bank account to enquire about your salaries and at any questions you might have in that regard after, that you request will not be considered [sic].

5 Nel admitted that she knew about the rule and that she had signed receipt of the document. It is common cause that Nel had, notwithstanding this rule, approached De Waal at a very inopportune time with a request that she wanted the clockcards for the past 24 months. When Nel approached De Waal with the request he (according to her) responded by asking her: waarom soek ek [Nel] 24 maande se klok kaarte . De Waal was candid in his evidence before the Page 5 of 20 Case Number: JR 1852/05arbitration and readily admitted that he was irritable when Nel had approached him with the request because she (Nel) knew that there was a rule in place which was put into place precisely to prevent circumstances such as this. De Waal explained that he was on his way to a statutory audit and that he was under pressure.

6 He admitted that he had used the f word. His evidence that this was an isolated incident, was not disputed. He further testified that he had called Nel later and requested her to reconsider her resignation but that she had refused to do so. When he was asked if he would have accepted the withdrawal of her resignation, he responded that he would have: .. ek sou dit so aanvaar het. Want ek dink dit was in n oomblik van ongelukkigheid of woede of iets, seker gewees [that she had resigned]. De Waal explained that grievances were raised with management in terms of the grievance procedure and that it was attended to. It is important to point out that this evidence of De Waal was not disputed by Nel in cross examination. 5)The Second Respondent (hereinafter referred to as the Arbitrator ) found that the termination of the employment relationship was the only reasonable option available to the Employee in the Page 6 of 20 Case Number: JR 1852/05circumstances.

7 The fact that there was a detailed grievance procedure in place does not assist the Employer . Mr. Badenhorst on behalf of the Applicant did not take issue with the fact that it was unacceptable for an employer (in this case De Waal) to have used a swear word. The main point asserted in argument was that there was a grievance procedure and that Nel therefore had an alternative other than to resign. THE REVIEW APPLICATION6)The Applicant brought an application in terms of section 145 of the LABOUR Relations Act 66 of 1995 (hereinafter referred to as the LRA ) to review and set aside the Second Respondent s award (hereinafter referred to as the Arbitrator ). On behalf of the Applicant it was argued that the Arbitrator committed a reviewable irregularity in misconstruing the evidence before him and placing undue weight to the conduct of the Applicant s management and insufficient weight to Nels alternative to invoke the grievance procedure in light of the evidence that was properly placed before the arbitration.

8 Before I turn to an evaluation of the merits, a few brief remarks in respect of Page 7 of 20 Case Number: JR 1852/05constructive dismissals need to be )A constructive dismissal occur in terms of section 186(1)(e) of the LRA where the employee rather than the employer ends the contract with or without notice because the work situation has become intolerable as a result of conduct on the part of the There are three requirements for constructive dismissal to be established: (i) whether the employee brought the contract to an end; and(ii)whether the reason for the employee s action was that the employer had rendered the prospect of continued employment intolerable ; and iii)whether the employee had no reasonable alternative other than to terminate the 8)The onus to prove these requirements rests on the If one of these requirements is not present, a constructive dismissal would not have been CEPPAWU & another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC) at paragraph [30]: Constructive dismissal involves a resignation because the work environment has become intolerable for the employee as a result of conduct on the part of the employer (see s 186(1)(c).

9 2 See Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) at paragraph See section 192(1) of the LRA4 See Solid Doors supraPage 8 of 20 Case Number: JR 1852/059)In most cases it is the second requirement that makes the enquiry into the question whether or not the resignation of an employee constitutes a constructive dismissal difficult. The test for establishing a constructive dismissal has been formulated in the following terms by the LABOUR Appeal COURT in Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC): When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfill what is the employee's most important function, namely to work.

10 The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned. 55 At 984E 9 of 20 Case Number: JR 1852/0510)The COURT in Smithkline Beecham (Pty) Ltd v CCMA & Others [2000] 3 BLLR 344 (LC) had the following to say about the decision in Pretoria Society: [38] What is clear from the aforesaid decision of the LABOUR Appeal COURT is that the test for determining whether or not the termination of employment constituted a constructive dismissal is an objective one.