---

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

REPORTABLE

CASE NO: JR2241/08

In the matter between:

CHABELI, KOAHELA ISRAEL APPLICANT

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION 1^ST RESPONDENT

KEISH NANA N.O. 2^ND RESPONDENT

SWISS RE AFRICA LIMITED 3^RD RESPONDENT

JUDGMENT

Molahlehi J

Introduction

1. This is an application to review and set aside the ruling of the second respondent (the commissioner), issued under case number GJAB1504/08 and dated 16^th September 2008. In terms of the ruling the commissioner refused to grant the applicant condonation for the late referral of his alleged unfair dismissal by the third respondent.

Background facts

2. It is common cause that the applicant tendered his notice of resignation on 1^st April 2008, which notice period was to expire on 1^st May 2008. In responding to the resignation notice the third respondent accepted the resignation and indicated in the letter 1^st April 2008, that it was not necessary for the applicant to continue working during the notice period. The third respondent’s letter reads as follows:

“Dear Mr Chabeli

YOUR RESIGNATION

The Company has taken note of your decision to resign.

The Company views as unfortunate that you have chosen to resign rather than to engage in consultation with the Company regarding your position.

It is further noted that you have chosen not to provide specific reasons for your resignation on the registration form.

The Company decided to respect your decision and accepts your resignation.

In the circumstances it appears that no purpose would be served by attempting to continue the consultative process and the Company considers the process to have terminated.

It has been noted you have, in your notification of termination, provided for a notice period of one month instead of the three month notice period reflected in your contract of employment. The Company does not intend to hold you to your full contractual obligations and accept the repudiation of your full contractual obligations and accepts the repudiation of the relevant contractual provisions.

Whilst being paid, you will not be required to provide services during your notice period. 

Please note that you must however ensure that all Company property is returned to the Company before you leave the Company’s premises.

Yours faithfully”

3. Subsequently, and on the 29^th May 2008, the applicant referred a dispute to the first respondent alleging that he was unfairly dismissed by the third respondent. In the dispute referral forms the applicant stated the reason for his resignation as follows:

“The employer made the employment conditions so unbearable to an extent that there was a breakdown of trust to an extent that I had no alternative but to resign.”

4. The CCMA after receipt of the referral of the dispute required the applicant to file an application for the condonation for the late filing of the dispute which the applicant filed through his attorney on the on 28^th July 2008. In the application for condonation the applicant stated that the dispute arose on 1^st April 2008 and that it was 57 (fifty seven) days late. He further states that, he at the time of this application did not realize that this was factually incorrect and not in accordance with a proper calculation of the period of the alleged delay. The applicant contend in this respect that from the evidence and objective facts he remained an employee of the third respondent until 30^th April 2008, and therefore that the termination of his employment which is the subject matter of the dispute was referred to the first respondent on 29^th May 2008, and that this is the date on which his employment was terminated or effectively the day when he left the third respondent’s employment.

5. It is on the basis of the above that the applicant contends that factually and objectively speaking his dispute was timeously referred to the CCMA.

6. The alternative prayer of the applicant is that should the Court find that the applicant was indeed late in referring his dispute to the CCMA, the Court should calculate the date of termination as being the 2^nd April 2008 and therefore the thirty days period would have expired on 1^st May 2008, and therefore the delay in referring the dispute would have been 29 (twenty nine) days late. The argument about the expiry date being the 1^st May 2008 is based on the fact that the applicant received his pay slip on that date.

7. I do not intend canvassing in this judgment the merits and demerits of the commissioner’s ruling because in jurisdiction matters, which reach this Court through review applications, the decisions or rulings of commissioners are insignificant in the ultimate determination as to whether or not the CCMA has jurisdiction. In review applications relating to jurisdictional issues applicants need to be aware that although the matter comes before the Court on review, the Court is effectively required to consider the matter de novo. This means that the reasonable decision maker test as enunciated in Sidumo and others v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405(CC), does not apply. It therefore means that the applicant has to make out a case de novo in the founding affidavit.

8. In SA Rugby Players Association & others v SA Rugby (Pty) Ltd [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at paras [39] to [40], Tlaletsi AJA writing a judgment for the Labour Appeal Court held that:

“[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA the significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal then the CCMA had no jurisdiction to entertain the dispute in terms of s 191 of the Act.

[40] The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court. In Benicon Earthworks & Mining services (Pty) Ltd v Jacobs NO & others (1994) 15 ILJ 801 (LAC) at 804 C-D, the old Labour Appeal Court considered the position in relation to the Industrial Court established in terms of the predecessor to the current Act.

[41] The question before the court a quo was whether, on the facts of the case, a dismissal had taken place. The question was not whether the finding of the commissioner that there had been a dismissal of the three players was justifiable, rational or reasonable. The issue was simply whether, objectively speaking the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary.”

9. In interpreting the above dictum Van Niekerk J in Gabriel Tsietsi Banda v Emfuleni Local Municipality and Others unreported case number J1214/08, had this to say:

“What I understand this passage to mean is that whenever a commissioner has to determine whether or not there was a dismissal, this is an enquiry into a jurisdictional fact, a matter falling outside of the scope of the CCMA’s jurisdiction. When a commissioner makes such a determination (as commissioners commonly do), this is done as a matter of convenience. The function of this court is to conduct an enquiry de novo into the existence or otherwise of a dismissal and to determine, on the facts before it, the existence or otherwise of a dismissal. Whatever criticisms might be levelled against the SARPA decision, this court is bound by it, and must apply it.

10. As discussed earlier in this judgment that is also my understanding which I align myself to. The two jurisdictional issues that have arisen in this matter that needs determination concerns both late filing of the referral of the dispute and whether or not there was a dismissal.

11. The issue of whether or not the referral of the dispute to the CCMA in this matter was late can be determined by establishing the date of dismissal. In terms of section 190 of the Labour Relations Act 66 of 1995 (the LRA) the date of dismissal is the earlier of-

“(a) the date on which the contract of employment terminated; or

(b) the date on which the employee left the service of the employer.”

12. As stated earlier the applicant served notice of his intention to terminate his employment with the respondent on the 1^st April 2008. The respondent accepted the shorter notice of termination of the contract by the applicant which in terms of the contract ought to have been 3 (three) months and offered to release the employee with immediate effect and therefore not requiring him to report for work during the one moths notice period. The applicant accepted the respondent’s offer to be released earlier than the 30 (thirty) days notice and left the employ of the respondent.

13. On these facts the applicant’s initial calculation was in terms of the provisions of section 190 (b) of the LRA, correct and remains so, in my view. The contract between him and the respondent was terminated on the day he left his employment and not as he contended when he received the pay slip. Therefore, in my view, the commissioner was in fact correct to conclude that the applicant referred his dispute after the expiry of the 30 (thirty) days contrary to what the LRA required of him to do.

14. The issue that follows, concerns the merits of the condonation application for the late filing of the referral of the dispute. The guidelines to follow in considering an application for condonation for failure to comply with the time frames provided for in the law are set out in the case of Melane v Santam Insurance Limited 1962 (4) SA 531 (A). In terms of these guidelines the court has a discretion which is to be exercised judicially after taking into account all the facts before it. The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non compliance with the prescribed time frame, (b) the explanation for the lateness or  the failure to comply with time frames, (c) bona fide defence or prospects of success in the main case; (d) the importance of the case, (e) the respondent’s interest in the finality of the judgment, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).

15. In the present instance the applicant has not made out a case for condonation. In the application before the CCMA except for making reference to “REASON FOR LATENESS” in one of the headings in the founding affidavit, the applicant tendered no explanation for the late referral of his dispute. The same applies to the founding affidavit in this application. The applicant’s contention in the founding affidavit is that his referral was not late. In the alternative he submitted that if his application was to be found to be late then his referral was 28 (twenty eight) days late. However, despite this concession (though in the alternative) there is no explanation for that delay.

16. For the above reason alone, the applicant’s application stand to fail. Even if other factors, like prospects of success were to be considered, none have been dealt with in any reasonable manner in the applicant’s application. In fact the applicant has not made out a case showing that there was a dismissal.

17. The duty to establish the existence of a constructive dismissal in terms section 192 (1) of the Labour Relations Act 66 of 1995 (LRA), rests with the employee. The employee has to establishes the existence of the dismissal by showing that he or she terminated the employment relationship because the employer had in terms of section 186(1) (e) of the LRA made continued employment intolerable. Thus the onus to show that the dismissal was constructive because the employer had made the continued working relationship intolerable rests with the employee. See Sappi Craft (Pty) Ltd t/a Tugela Mills v Majaka NO & others (1998) 19 ILJ 1240 (LC) and Secunda Supermarket CC t/a Secunda Spar & others v Dreyer NO & others (1998) 19 ILJ 1584 (LC); [1998] 10 BLLR 1062 (LC). To succeed in the claim that he or she was constructively dismissed, the employee has to show that objectively assessed the conditions at the work place were so intolerable that he or she had no other option but to terminate the employment relationship.

18. The test for determining whether or not an employee was constructively dismissed was set out in Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC), at paragraph [37] as follows:

“[37] The enquiry [is] whether the appellant, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. It is not necessary to show that the employer intended any repudiation of a contract: the court's function is to look at the employer's conduct as a whole and determine whether . . . its effect, judged reasonable and sensibly is such that the employee cannot be expected to put up with it.”

19. It is clear from the above that the objective assessment of the employer’s conduct that may have made the continued employment intolerable has to be assessed in its totality and not piece meal. In this respect the Supreme Court of Appeal in the case of Murray v Minister of Defense (2008) 29 ILJ 1369 (SCA), held that in assessing whether the conduct of the employer made the relationship with the employee intolerable, the Court should not fragment employee’s complaints, in other words consider them one by one in isolation and conclude that each was neither pivotal to employee’s resignation nor rendered his position intolerable. The Court held that the conduct of the employer must be considered as a whole including its cumulative impact on whether its effect judged reasonably and sensibly, was such that the employee could not be expected to put up with it. The intolerable conditions which the employee complained about must have been of employer’s making.

20. In Murray supra the SCA went further to say:

“It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstance must have been of the employer's making. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do that may make an employee's position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked 'reasonable and proper cause. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances of constructive dismissal that is the case.”

21. I do not intend going into details about the allegations of constructive dismissal by the applicant save to say that he failed to set out the basis for this allegation. His letter of resignation does not state the reason for the resignation. In his founding affidavit he alleges that the respondent made his employment unbearable by making unilateral decisions about his position. He further states that he took the matter internally with the Human Recourse Management and also the management at the highest level both orally and in writing to no avail. He claims to have e-mail communication in this respect but did not make them part of this application.

22. I see no reason, regard being had the circumstances of this case why costs should not follow the results.

23. In the premises the following order is made:

    1. The applicant’s application is dismissed.

    2. The applicant was not dismissed but resigned.

    3. The applicant is to bear the costs of this application.

_______________

Molahlehi J

Date of Hearing : 22^nd September 2009

Date of Judgment : 22^nd December 2009

Appearances

For the Applicant : Adv G Shakoane

Instructed by : Mangena & Associates Attorneys

For the Respondent: Mr F Malan of Edward Nathan Sonnenbergs Inc

---