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Arbitration Award

 

Case Number: GAEK1374-23

Commissioner: Vusumuzi Eugene Moyo

 Date of Award: 13-Mar-2023

 

In the ARBITRATION between

 

Angelina Horswill                                                                                     (Union/Applicant)

 

and

 

Heli -Afrique CC                                                                                       (Respondent)

 

 DETAILS OF HEARING AND REPRESENTATION

 

1.            This is an arbitration award issued in terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).

 

2.            The matter was set down for an arbitration process in terms of section 186(1)(e) of the LRA. The arbitration hearing was held under the auspices of the CCMA on the 01st of March 2023.

 

3.            The Applicant was represented by Mr Bill Kobras, an Attorney, whereas the Respondent was represented by Mr Willie Swanepoel, an HR Official. The proceedings were conducted in English. Submissions were both digitally and manually recorded.

 

ISSUE TO BE DECIDED

 

4.            Whether the Applicant was constructively dismissed by the Respondent or not.

 

RELIEF SOUGHT

 

5.            The Applicant sought compensation as a remedy for the alleged constructive dismissal in terms of section 193 of the LRA.

 

BACKGROUND TO THE ISSUE

 

6.            This is a matter related to an alleged constructive dismissal in terms of section 186(1)(e) of the LRA. The Applicant had also referred another matter in terms of section 73A of the BCEA related to non-payment of her salary for two months under case number GAEK1394-23. Both matters were consolidated into one dispute without any objections.

 

 SURVEY OF EVIDENCE AND ARGUMENT

 

7.            As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means comprehensive minutes of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:

 

8.            As is the case in most constructive dismissal disputes, the existence of a dismissal was disputed by the Respondent. The Applicant party therefore bore the onus of proof to discharge the existence of same. For this purpose, the Applicant testified first. Thereafter, the Respondent called one witness for its case.

 

9.            The Applicant testified under oath. She read her resignation letter for the record. She listed her reasons for resigning as follows:

 

Ø   Numerous threats by Tino, the owner;

Ø   Ill-treatment by the owner;

Ø   Being sworn at many times by the owner;

Ø   Felt unsafe in the company due to the owner;

Ø   Felt victimized due to her prior CCMA case that was settled.

Ø   She had opened a criminal case against the owner for assault.

 

10.         The Applicant testified that on the 18th of November 2022 at around 8h00, the owner shouted at her to come to his office. This disrespect was a daily occurrence. She went to the office and he asked about invoices that were incorrectly done. She asked how the invoices should be split. At the time, the Applicant was employed as a Receptionist but was assisting with invoices in the Accounts department. She possesses neither costing nor accounting qualifications. While talking about these invoices, the owner was seated and she was standing next to his chair. He was very upset. He lifted the file, threw it on the table and swung out from his chair. When he turned, he hit the Applicant on the left arm with the back of his right hand. The Applicant averred that this was intentional and the owner never apologized for back slapping her.

 

11.         Afterwards, the Applicant went to report the matter to Debbie. She advised her open a case as the owner had previously threated her and has now physically done it. The Applicant started feeling the pain and a burning sensation where she was hit. Pictures of the bruised, red mark were submitted as evidence of the alleged assault. The Applicant went to report the matter at the Germiston Police station. She went to hospital on the following day. Medical certificates thereof were duly submitted.

 

12.         The Applicant testified on a prior incident on or around September 2020 whereby she settled a dispute with the Respondent at the CCMA for monies that she was owed by the company. On return to work, the owner continued to treat her badly and swore at her. She made examples of words used by the owner to her such as “You are f… useless”, “You don’t belong here” and “can you give me a rope, I just wanna hang this lady.” It appeared to the Applicant that the owner still held a grudge against her for the CCMA case they had. The Applicant was too afraid to talk to him about it.

 

13.         The Applicant complained that as a woman she did not feel safe to work with him as had no respect for her and was never calm nor respectful towards her. He often also told her to get out. The owner was arrested sometime later for the assault and the matter is currently pending at the Magistrate’s Court. The Applicant never returned to duty since the incident but had furnished the Respondent with a number of medical certificates for this period. The owner refused to pay her for her sick leave, hence the other referral in terms of section 73A of the BCEA.

 

14.         The Applicant’s left arm was put on an arm sling due to the injury she suffered at the hand of Tino, the owner. Since then, the Applicant has been attending trauma counselling and physio sessions at the hospital. She testified that her arm is still painful and she is taking lots of pain killers. Throughout her struggles, no one at the company called to check up on her well-being. She attested that she is too afraid to go back to work as the abuse is likely to continue. This is what led to her resignation on the 30th of January 2023.

 

15.         Under cross examination, the Applicant conceded that she was given numbers of the HR representative to talk to him about her problems. However, she was adamant that she was scared to call him and furthermore she had no money as her medical certificates were rejected and she was not paid. She also felt that she could not talk to the HR person and was still in shock. The Applicant affirmed that Debbie and Belinda witnessed “the red mark of the hit” and took pictures of same. With regards to the injury, the Applicant revealed that the J88 form is not yet completed by the hospital.

 

16.         The Respondent called Ms Debbie Wurdeman as its sole witness. She testified under oath that the Applicant had a terrible relationship with Tino, the owner. However, she attributed the nature of this relationship to how they are all treated by him as he is strict and reprimands any employee if something is wrong. When asked by the Respondent’s representative whether the Applicant was treated differently from the others, she conceded that the owner was stricter with her.

 

17.         Ms Wurdeman testified that the Applicant and the owner were always fighting and disagreeing. She averred that the owner is always shouting and the Applicant has taken a lot of it. With regards to the assault incident, she testified that they all heard the commotion as the owner was loud and her office is about 3 metres from his. She stated that the Applicant was in the owner’s office for about 10 – 15 minutes and she came out upset, holding her arm. The other employees came out of their offices to check if she was fine. She denied taking the pictures and clarified that the pictures were instead taken by Belinda. The Applicant pointed at her arm and told them that Tino has grabbed/ slapped her. Ms Wurdeman confirmed that there were red marks on the Applicant’s arm. She further described how that the Applicant cried and waited for her husband after the injury. On medical certificates, she confirmed that medical certificates were indeed sent to Bella. She also knows that the Applicant has been attended to by a number of Doctors at the hospital.

 

18.         Ms Wurdeman affirmed under cross examination that the owner treated the Applicant harshly. She qualified her response by adding that there was never any special treatment for any employee. She stated that they (employees) all felt sorry for the Applicant. On whether it would have made any difference to report the matter to HR she stated that, “It’s not like a big corporation where you have internal HR/ internal hearings.”

 

19.         Ms Wudernam accepted that the owner is loud but she has her own way of dealing with it and the other employees are also used to it. She asserted that the Applicant is a soft spoken and humble person unlike her therefore she finds it hard to be a character witness. When asked what the company has done to address the assault, she responded that, “It’s the first time so firstly it has to be proven. I can’t reprimand Tino” Ultimately, she conceded that nothing was done.

 

20.         On the non-payment of the Applicant’s sick leave, Ms Wuderman explained that this was because the owner wanted more information on the medical records and was waiting for more proof.

 

ANALYSIS OF EVIDENCE AND ARGUMENT

 

21.         Despite arbitration being a quasi-judicial process, one must always follow the Charles Dickens rule that says “take nothing on its looks; take everything on evidence”.[1] In this matter the legal question that needs to be answered is whether Ms Angelina Horswill has been dismissed. If so, was that dismissal unfair and can it be referred to as a constructive dismissal?

 

22.         Section 23(1) of the Constitution states that everyone has the right to fair labour practices. Section 185(a) of the LRA states that every employee has the right - not to be unfairly dismissed. Section 186(1)(e) of the LRA states that “Dismissal” means that – (e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; Section 192 (1) states that ‘In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal. Section 192(2) proceeds thus, ‘If the existence of a dismissal is established, the employer must prove that the dismissal is fair.’

 

23.         In Sergio Carlos v IBM South Africa (Pty) Ltd (2006) (LAC), unreported, the Labour Court clarified the key elements of a constructive dismissal established in sec 186(1)(e) in that,

 

(a)       there must be a termination of the contract of employment;

(b)       the employee must be the one who terminated the contract of employment;

(c)       the employee’s reason for the termination of the contract employment must be that continued employment had become intolerable; and

(d)       the employer must be the one who made continued employment intolerable for the employee.

 

24.         In Albany Bakeries v Van Wyk[2] as well as Solid Doors v Theron[3] the court comprehensively outlined the requirements of a constructive dismissal.

 

25.         Later in 2009, the Labour Court in the Eagleton matter[4] simplified the requirements into three basic requirements to successfully claim for constructive dismissal as follows

 

a.         the employee terminated the contract of employment; 


b.         continued employment had become intolerable for the employee; and 


c.         the employer must have made continued employment intolerable.

 

 ‘When an employee resigns or terminates the contract of employment as a result of constructive dismissal, such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil his/ her duties. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. He does so on the basis that he does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If he is wrong in this assumption and the employer proves that his/her fears were unfounded, then he has not been constructively dismissed and his/her conduct proves that he has in fact resigned.[5]

 

26.         In dealing with Ms Horswill’s matter, it would be remiss not to highlight Conradie JA, as he was at the time, when he immortalized the phrase that ‘constructive dismissal is not for the asking’![6]

 

27.         ‘A constructive dismissal is a two stage enquiry’.[7] The first stage of the constructive dismissal is that at the onset of the proceedings, Ms Horswill had to prove the existence of a dismissal in terms of section 192(1) of the LRA. This onus of proof on the employee is a tough challenge[8] but the Applicant succeeded in proving the existence of her constructive dismissal on a balance of probabilities.

 

28.         The Respondent submitted a bare denial but its own witness corroborated the Applicant’s version. Tino was not called to deny the accusations and to rebut the Applicant’s version. While Ms Wurdeman tried to dispute the veracity of the assault allegation, she confirmed the loud noises she heard on the day as well as the red mark on the Applicant’s arm. She also confirmed that she was not in the office with them. Even without the assault, the ill-treatment was completely unacceptable and intolerable.

 

29.         No employee should ever have to endure such dehumanizing treatment. In the absence of an opposing version from Tino and on a balance of probabilities, I find that the owner of this company abused the Applicant and inflicted gender based violence on her. Ms Wuderman is not in a position to deny the assault as she was not in the office with them at the time. I found the Applicant to be a credible and reliable witness and her version to be probable.

 

After violating the Applicant’s body and causing her physical injury, the owner continued the abuse by rejecting the medical certificates and reports signed by a Doctor. This is utterly abhorrent and callous. Ms Horswill’s employment was undoubtedly made intolerable by a tyrant.

 

30.         In Albany Bakeries Ltd v Van Wyk & Others [2011] JOL 27545 (LAC) the Court held that it was critical to consider in a constructive dismissal case, whether the employer had made continued employment intolerable for the employee. The Court pointed out that the employer had a grievance procedure, which the employee should have exhausted before his resignation.

 

31.         In the current matter, the Applicant had no one above the owner to lodge a grievance to. The pending criminal case was not disputed. The HR representative is a subordinate and did not testify on the powers that he may have had above the owner. It goes without saying that the HR person would not be able to discipline his own boss. The Respondent also failed to show any care or compassion for the Applicant after the incident. The owner’s belligerent, chauvinistic, violent and misogynistic behaviour could not be curbed nor chastised by anyone internally. The Applicant’s fear of him was reasonable and legitimate

 

32.         In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) the Court held that the first test was whether, when resigning, there was no other motive for the resignation, in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct.

 

33.         In the current matter, the Applicant suffered intolerable abuse and it had to end. ‘In this context, a fitting definition for intolerable is ‘not to be endured’’.[9] The Applicant adduced sufficient evidence in this matter for her claim of a constructive dismissal to prevail on a balance of probabilities. It is on this conspectus of factors that her claim of intolerability stands and is upheld. There was no reasonable option, save for termination.[10]

 

34.         It is indeed true that employees taken advantage of rely on the law for recourse. I therefore agree with the Applicant’s Attorney that this compensation should send a message to other employers not to degrade, dehumanize and abuse their employees. The LRA and the BCEA need to be respected. To remedy what the Applicant went through, maximum compensation of 12 months is awarded. This compensation is inclusive of the outstanding sick leave payment. The Respondent did not have any sensible reason to withhold payment of Applicant. In casu, I render the award as follows:

 

 AWARD

 

35.         The Applicant was constructively dismissed by the Respondent.

 

36.       I order the Respondent, Heli-Afrique CC, to pay the Applicant, Ms Angeline Horswill, compensation amounting to R60 000, 00 by no later than the 25 March 2023. In case of non-payment, this amount shall begin to accrue interest from the 26th of March 2023 in terms of section 143 (2) of the Labour Relations Act 66 of 1995 as amended, read with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975).

 

37.       I make no order as to costs.

 

Commissioner: Vusumuzi Eugene Moyo

Sector: Business/Professional Services

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