IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) In the arbitration between MOGALE CRUSHERS (PTY) LTD

Transcription

1 IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) HELD AT JOHANNESBURG In the arbitration between AMANDA STEENKAMP APPLICANT AND MOGALE CRUSHERS (PTY) LTD RESPONDENT A R B I T R A T I O N A W A R D CASE NUMBER: CEGA DATE AWARD SUBMITTED: 17 JUNE 2016 NAME OF COMMISSIONER: JOSEPH MPHAPHULI Centre for Dispute Resolution: 1 Kramer Road, Bedfordview, Johannesburg, 2007 P O Box 2699, Bedford view, Johannesburg, 2008 Tel No. (011) /3 Fax No disputes@bccei.co.za [CASE REF. NO.: CEGA068-15] Page 1

2 Details of hearing and representation 1. The hearing took place at the Bargaining Council premises situated at 1 Kramer Road, Bedfordview. The hearing was conducted in terms of section 191 of the Labour Relations Act 66 of 1995 on 25 January 2016, 05 April 2016 and 31 May Parties filed the final closing arguments on 06 June Mrs Dricky Rossouw, union official appeared for the Applicant. The Respondent was represented by Mr Lodewyk Pienaar, official of an employer organisation 0n 25 January 2016 and 04 April Mr Gert Strydom, also an official of an employer organisation appeared for the Respondent on 31 May The proceedings were digitally recorded. Issue to be decided 4. I had to determine whether the Applicant was dismissed or not, if so, whether the dismissal was fair or not and the appropriate remedy. Background to the dispute 5. The Applicant had completed two years service at the time of termination of employment. The Applicant served in the capacity of administration officer at R per month. The Applicant s services were terminated on 20 July The applicant Party favoured compensation as a remedy. [CASE REF. NO.: CEGA068-15] Page 2

3 Survey of evidence Applicant s case 7. The Applicant, Mrs Steenkamp gave evidence in her case. She resigned her position by way of cellular phone WhatsApp. The Applicant had no knowledge of a formal grievance procedure in the company. 8. She had always put her grievance by way of Her functions did not include weighbridge operator functions. The weighbridge was meant for weighing trucks unloaded on entering the client s premises and weighing the truck on exiting the premises. 10. She sustained an injury on duty in November She fell on a slippery floor in and around the office and sustained a back injury. She was hospitalised. The company was unsymphathetic and did not even grant her injury on duty leave. Instead her leave days were reduced to pay her for the duration of her temporary incapacity. To the best of her knowledge the matter was not brought to the attention of the responsible authorities, i.e Department of Labour. 11. The injury caused her so much pain that from the date of injury onwards the Applicant was in and out of work for reasons related to temporary incapacity related to the injury. The Respondent did not however pay her in accordance with applicable legislation. She also had to foot her hospital bills. 12. She suffered from photosensitivity responses which if triggered may have the effects of epilepsy. [CASE REF. NO.: CEGA068-15] Page 3

4 13. She reported for duty as normal on 17 February There was welding to take place in the container office she worked in. She was warned to leave the container before the process started due to her condition. 14. She was instructed by her manager, MR Van der Merwe to return to her office to weigh an incoming truck. 15. On approaching her office she observed that there were welding sparks which trigged her photosensitivity resulting in her losing control and falling down and wetting herself. This happened in the presence of other employees. 16. She felt so embarrassed when she came by. Mr Van der Merwe did not even offer assistance but simply drove away. Other employees in the vicinity offered assistance and even called for an ambulance. 17. She did not understand why Mr Van der Merwe, fully knowledgeable about her condition which could lead to a seizure would expose her in the manner that he did. She had since experienced repeated concussions from time to time. 18. To the date of her resignation the company did not put any measures in place to secure the environment in a manner that would have made the environment safe. 19. There was no assistance or support from the Respondent despite numerous requests to move welding activities from her work area or to put up a screen or even provide her with protective equipment. It was even hard for her to walk to the toilet because she had to walk past the welding area. 20. She lost faith and confidence in the company to the extent that she liaised with the client where she was based in search of assistance. [CASE REF. NO.: CEGA068-15] Page 4

5 21. It was her general observation that the Respondent did not have any regard for the safety of the employees. Neither did the Respondent have any respect for laws and regulations relating to safety. 22. She had consulted and has been advised that she had to make the call whether to put up with an unsafe working environment and put her health at risk or simply give it up. These were hard choices for her to make. Her health was important to her but so was her job. 23. A month later after lodging her grievance the Respondent constituted a grievance hearing. This happened on 23 March The hearing did not take place because she objected to Mr Pienaar presiding over the enquiry. Mr Pienaar had earlier interviewed her and made snipe remarks suggesting that the Applicant was to blame for the incident on 17 February She took strong exception to Mr Van der Merwe s denial that he instructed her to face the welding sparks hazards. She would not have raised a grievance had Mr Van der Merwe apologised. 25. Life became a lot more intolerable after the incident as Mr Van der Merwe began to load her with more job responsibilities. Her relationship with Mr Van der Merwe took a turn for the worst when he even made her work very long hours. She was made to bring her own printer from home to do company business 26. Mr Van der Merwe overruled her by employing someone without valid legal documents or even undergoing induction. The employee was signed in on 05 March Mr Van der Merwe s conduct placed her job in jeopardy. 27. She was in attendance when one Jerry a fellow employee accused Mr Van der Merwe of stealing. Mr Van De Merwe suspended the employee from duty and instructed her to substitute Jerry on weighbridge duties. This she resisted as she was [CASE REF. NO.: CEGA068-15] Page 5

6 neither qualified for the job nor had the time for it. Jabulani took turns in manning the weighbridge 28. Jabulani, the weigh bridge stand in employee was in a meeting when a truck showed up at the weighbridge. She called for Jabulani who also did not know exactly what to do. The truck was on the weighbridge for longer than expected which got Mr Van der Merwe very cross. 29. Mr Van der Merwe walked up to her threateningly which got her very scared. She was shaken and was trembling. A fellow employee called her son on the phone to pick her up. 30. She went straight to Hospital. She felt so unsafe at work that she was compelled to give up her work and did so through a whatsapp 31. She felt that her work though important was not worth risking her life. She has now secured another employment and was much happier and better off financially. 32. Mrs Karin Vuurman, administration manager testified in the Respondent s case. Mogale Crushers was situated in Krugersdorp. Her offices were situated in Jet Park. She was not in charge of the injury.on duty management process. The process was conducted on site. 33. The mine, being the Respondent s client was responsible for conducting investigations in respect of all injuries on duty. The Applicant has not at any stage asked for her assistance in pursuing the I.O.D matter. 34. Mr Jabulani Zulu, foreman in the service of the Respondent gave evidence. He was a witness to what happened on 20 July 2015 where it concerned the Applicant. Mr Johann Van der Merwe approached the Applicant to assist on the weighbridge. [CASE REF. NO.: CEGA068-15] Page 6

7 35. The Applicant replied that she was not familiar with the process on the weighbridge. Nonetheless Mr Johann proceeded to a safety meeting. A while later the Applicant made an appearance at the safety meeting complaining that she could not cope. 36. One participant in the meeting opted to assist. Mr Johann Van der Merwe gave permission for the man to assist. 37. One Swartbooi was tasked with the weighbridge duties at the conclusion of the meeting. He took note of the Applicant s shortcomings where it concerned weigh bridging duties. It was for this reason that he instructed Mr Swartbooi to assist the Applicant. 38. The Applicant was within earshot of the conversation and respondent that she would not need assistance because she did not work there anymore. 39. According to the Applicant she had had enough to which he responded that it was sad news. The Applicant was in tears. 40. In came Johan Van der Merwe who instructed the Applicant to type him some documents. The Applicant turned down the instruction stating that she was no longer an employee of the company. He left the office at that stage and later learned that the Applicant had left the company premises. 41. Mr Petrus Johannes Van der Merwe, Quary Manager testified in the Respondent s case. He reported to the mine where safety issues were concerned. Mogale Crushers was audited by the mine on safety issues. 42. Defects would be recorded after which the Respondent would be allowed time to make amends. The inspections were carried out monthly. The Respondent has never failed to rectify deviations pointed out by the Mine inspections team. [CASE REF. NO.: CEGA068-15] Page 7

8 43. He was at work on 20 July There was no scale operator on the weighbridge. He instructed the Applicant to perform weighbridge duties. The Applicant was familiar with the operations on the weighbridge. 44. He recalled that the Applicant approached him in the tool box talk meeting. He could not attend to the Applicant immediately but undertook to attend to the Applicant after the meeting. 45. He however released one Francois to go and assist the Applicant while the meeting was still underway. 46. He approached the Applicant after the meeting to impress upon the Applicant that she would have to do weighbridge duties until such time that a suitable replacement was found. 47. He denied that he threatened the Applicant. He observed that the Applicant was unhappy. The Applicant was packing her bags and told him that she did not work for him anymore and neither did she work for Mogale Crushers. 48. The Applicant had disclosed to him that she was photo sensitive. Light flashes triggered her photosensitivity. 49. The arrangements where that the Applicant would vacate her office when the boiler maker made preparations for welding in the vicinity of her office. The office door will be closed. The Applicant would not return to the office as long as the door was closed. 50. On 17 February 2015 the Applicant stayed in a container when the welding was underway. [CASE REF. NO.: CEGA068-15] Page 8

9 51. The Applicant breached the arrangement by returning to the office while the door was closed. The welding sparks triggered the attack. 52. He recalled as quickly as he could by summoning an ambulance to the scene. He also issued an instruction for the Applicant s husband to be called to the scene. 53. The Applicant s fellow employee and good friend by the name of Jerry was dismissed on 17 July The Applicant did not take the dismissal well and took an afternoon off to consult medically. 54. It was his view that the Applicant was upset by the events of 17 July 2015, that the Applicant did not like weighbridge duties and reported for duty on Monday 20 July 2015 with her mind already made up to resign. 55. Mr Van der Merwe disputed that he unfairly loaded her with work on 17 July 2015 and further that he instructed her to work until the job was done. Mr Van der Merwe denied putting undue pressure on the Applicant. 56. He did not at all single out the Applicant for unfair treatment. It was expected of everybody to put a little bit more and not only do enough to get by. 57. It was his experience that the Applicant always took over weighbridge duties whenever Jerry was not on duty. The Applicant required no training, and if so, training was conducted on line by head office. Analysis of evidence and argument Substantive fairness 58. Termination of employment may be the result of an act of an employer in which case dismissal will be at issue. In the second place termination of employment may be the result of an employee s act, in which case resignation may be at issue. [CASE REF. NO.: CEGA068-15] Page 9

10 59. Dismissal is only at issue where an employer has taken actual positive steps to terminate the employment relationship. Examples of which may be where an employer put an employee through an incapacity hearing for underperforming or inability to perform, retrenchment resulting from the employer s inability to keep an employee/ employees in employment due to financial hardships, such as in the case of economic down turn. Ordinarily an employer would follow a consultation process prior to terminating the relationship. 60. Finally an employer would put a disciplinary process in motion where an employee is suspected of having breached a work standard. Depending on the gravity of the misconduct an employee found guilty of the misconduct may be liable for dismissal. 61. Where an employee brings about the termination of an employment relationship by for example absconding or tendering resignation, termination is on face value seen to have been at an employee s instance. 62. Dismissal is ordinarily not at issue in the circumstances. The complexion of the set up however takes a different turn if the affected employee argues that he or she did not wilfully and voluntarily bring an end to the relationship but that termination was influenced by an employer s unfair conduct. 63. Unlike in the case of actual dismissal where an employer has a duty to prove that dismissal was for a fair reason i.e for misconduct, incapacity or operational requirements as in the case of retrenchments, the situation is somewhat different where dismissal is said to have been a result of an employer s unfair conduct resulting in resignation. 64. In the case of constructive dismissal, meaning that the unfair conduct of the employer has compelled an employee to give up his job and that walking out was the last resort, the onus to prove that indeed the employer due to unfair conduct made continued employment intolerable rests with the employee. [CASE REF. NO.: CEGA068-15] Page 10

11 65. As in the case of the fairness or otherwise of an undisputed dismissal, the standard of proof is proof on a balance of probabilities. 66. An employee prosecuting a case of constructive dismissal must show that the conduct complained of was persistent, unfair, that no reasonable employee could be expected to put up with the conduct and finally that his efforts to redress the matter drew a blank. 67. The employee s testimony must establish a solid nexus between the conduct and his or her departure. The employer s conduct and the inability or unwillingness on the part of the employer to resolve the employee s grievance must be illustrated by the employee s evidence. 68. The employee s testimony to support intolerability of continued employment was in brief that: a. The Respondent paid scant regard to workplace safety and in the process acted in violation of safety legislation. b. The Respondent singled her out to do onerous duties, made her work extended hours as well as loading her with work. c. The Respondent side-lined her to the extent of excluding her from taking part in meetings were work related issues were discussed. d. The Respondent, particularly through the actions of Mr Van der Merwe caused her untold hardships at the workplace. 69. The Applicant was the only witness in her case. 70. In response the Respondent called Mrs Buurman, Mr Zulu and Mr Van der Merwe to testify in its case. [CASE REF. NO.: CEGA068-15] Page 11

12 71. The essence of Mrs Buurman s testimony was that safety audits and compliance where essentially the domain of the client, Mogale Gold. 72. Mr Zulu s testimony was that he was a witness to the events that took place on 20 July His experience of the events of the day was that the Applicant detested working on the weighbridge. To this end the Applicant had remarked that she was no longer an employee when he hinted that he would assign one Swartbooi to assist her on the weighbridge. 73. It was Mr Zulu s recollection that the Applicant appeared upset and was preparing to vacate the office. 74. Mr Johan Van der Merwe s evidence in as far as essential issues were concerned was that he treated the Applicant in the same way that he treated everyone else. 75. Job pressure according to Mr Van der Merwe required everyone to put in an extra effort and to avail themselves within reason, whenever duty called. 76. Mr Van der Merwe denied ever putting the Applicant in harm s way or making the Applicant s continued employment intolerable. 77. The Applicant had indeed filed a grievance at one point during the course of her employment. The grievance was lodged early in 2015 and was in respect of the unfortunate incident on 17 February The grievance was against the alleged conduct of Mr Johan Strydom for having allegedly put the Applicant in harm s way, and deliberately so. 78. The Applicant stated in her testimony that all she wished or her desired outcome of the process was for Mr Johan Van der Merwe to apologise for the consequence of his action. [CASE REF. NO.: CEGA068-15] Page 12

13 79. Mr Johann Van der Merwe dismissed the allegation forming the subject of the grievance. 80. The reading of the Applicant s cellular phone message forwarded to the Respondent, which is produced here below reveals the immediate and close link between the Applicant and her act of bringing the employment relationship to an end. 81. The message read: Karin, Johan has victimised me for the last time that man threatened me this morning because I told him that I don t know what to do on the weighbridge because everything changed so much and the customers were standing on the bridge. Jabulani and Swartbooi was standing in a toolbox meeting whilst our customers were standing on the weighbridge. He allows personal vendettas to overrule what is good for the company. When I told him that I don t know what to do as I have not worked on the weighbridge and everything has changed and can Jabulani at least work on it till we get training and also told him how much I have to do for you he told me that I will do what he says and my work can wait The Applicant s testimony that her pleas for a safe working environment and the persistent breach of workplace safety by the Respondent, particularly Mr Van der Merwe, which state of affairs led to her resignation found no support in evidence. 83. One is also mindful of the fact that the Applicant equally made reference to being over worked and singled out by Mr Van der Merwe for unfair treatment. 84. The incident of 17 February 2015 featured prominently in the Applicant s case. It cannot though be argued that this incident was the direct and immediate factor that influenced the resignation. Resignation came approximately five months later with no further attempts on the part of the Applicant to get further grievance processes underway owing to the Respondent s relentless conduct to continue operating business in an unsafe made. [CASE REF. NO.: CEGA068-15] Page 13

14 85. The safety environment at the workplace was monitored and managed by Mogale Gold. Safety audits proved that any unsafe acts or practices where identified and redressed. 86. Mr Jabulani Zulu did not mince his words when testifying to the precautionary measure adopted by the Respondent to create a safe working environment. Contrary to the Applicant s testimony that Mr Zulu would support her evidence in respect of the events of 20 July 2015, Mr Zulu s evidence was that Mr Johan did nothing untoward to upset the Applicant on 20 July Mr Zulu s observation on the day was that the Applicant was visibly upset and sobbing and had remarked that she had had enough and was no longer an employee of the Respondent. 88. Mr Zulu conceded that the Applicant had worked on the weighbridge on previous occasions even though she detested working on the weighbridge. Mr Zulu was aware that Mr Van der Merwe had assigned the Applicant duties in the weighbridge on the day. 89. I find favour with Mr Zulu and Mr Van der Merwe s testimony that the Applicant detested weighbridge duties, that the fact that one Jerry s services were terminated and that pointed to her spending more time on the weighbridge played a major role in her resignation. 90. The cellular message serving to indicate her resignation illustrated this point. 91. The intolerable working conditions attributed to Mr Johann Van der Merwe were not borne by evidence. [CASE REF. NO.: CEGA068-15] Page 14

15 92. The Applicant Party did not succeed in discharging the onus that there was a dismissal. The applicant has not shown on an objective basis that the Respondent created an intolerable working situation or that resignation was an action of last resort. Award 93. Termination of employment was at the instance of the Applicant and was not influenced by the unfair conduct of the Respondent. The applicant has not shown that she was constructively dismissed. SIGNED AT BOKSBURG ON THIS 17 th DAY OF JUNE 2016 JOSEPH MPHAPHULI Council Commissioner [CASE REF. NO.: CEGA068-15] Page 15