Asara Wine Estate & Hotel (Pty) Ltd v J C van Rooyen & others (LC Case no: C 272/2010) Judgment given 24 August 2011
When a Commissioner’s decision regarding constructive dismissal is reviewed, the test that must be applied is not whether the conclusion reached by the Commissioner was so unreasonable that no commissioner could have come to the same conclusion, but whether the Commissioner correctly found that the employee had been dismissed in terms of s 186(1)(e).
The employee was employed by the employer as its winemaker. In July 2009 the employer received a complaint from an irate German customer that a container of about 12000 bottles purchased from the employer was oxidised. The employer took the matter up with the employee and discussions took place over the next few days regarding what action was to be taken against the employee as a result.
On 22 July 2009, after the employee had taken legal advice, his attorneys described the issue in these terms: “Our client [Van Rooyen] was given an ultimatum by Mr Rahmann to either accept a severance package equal to payment to the end of August 2009, or to face summary dismissal for gross misconduct and/or professional negligence”.
The employer’s attorneys denied this version of events, stating that the employee had been told him that the employer could no longer trust him as the estate’s winemaker; and that he had “discussed three alternatives” with him – (a) a disciplinary procedure which may very well result in Mr van Rooyen’s dismissal; (b) a pre-dismissal arbitration with the CCMA; (c) alternatively the employee could submit a proposal on how the issue should be resolved.
The employer’s attorneys also sent another letter marked “without prejudice” saying that the settlement proposal contained in letter from the employee was rejected, but that the employer was prepared to allow the employee to resign with immediate effect.
Before formal disciplinary charges had been laid, the employee resigned. He did so by way of an email referring to the letter from the attorney and stating that he accepted the conditions in that letter. The employee subsequently referred an alleged constructive dismissal dispute to the CCMA, claiming that: “It was suggested to me that I resign or face charges.”
Extract from the judgment:
 At the commencement of the argument of this matter, Mr Leslie, who appeared for the applicant, submitted that the well-known review test of unreasonableness as set out in Sidumo & another v Rustenburg Platinum Mines Ltd & others does not apply in the review of an arbitration award concerning constructive dismissal. This is so, he argued, because the prior question is whether the employee was dismissed; if not, the CCMA had no jurisdiction, and the question whether the CCMA had jurisdiction is not to be decided on the grounds of reasonableness, but simply whether the commissioner was right or wrong. Mr Duminy, for the first respondent, did not take issue with this submission.
 Authority for this proposition is to be found in the judgment of the Labour Appeal Court in SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others. Although the court in that case had to consider s 186(1)(b) of the LRA, it dealt with it as a species of constructive dismissal and held as follows:
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.…
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 they had been a dismissal of 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 findings to the contrary."
 Section 192 of the LRA provides that:
(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. In most unfair dismissal cases, the existence of the dismissal is common cause and the enquiry at arbitration – or on review by the Labour Court – is whether the dismissal was fair; and whether the finding of the arbitrator in this regard was reasonable.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair."
 In the case of an alleged constructive dismissal in terms of section 186 (1) (d), though, the prior question is whether there was a dismissal. The onus is on the employee to prove that his resignation amounted to a dismissal. In order to decide whether there was a dismissal, the commissioner has to investigate the full merits of the case. Only then can the commissioner decide if there was a dismissal as defined. If so, the commissioner must still decide whether it was fair. If not, though, the CCMA did not have jurisdiction in the first place, even though the Commissioner can only make that finding ex post facto.
 Anomalous as this may seem, I am bound by the authority in SA Rugby. This court also applied SA Rugby in Member of the Executive Council, Department of Health, Eastern Cape v Odendaal & others. In that case, dealing with a constructive dismissal, Basson J explicitly held that the question of whether a dismissal had taken place goes to jurisdiction and that the review test as laid down in Sidumo does not find application in reviewing a jurisdictional ruling.
 The test I have to apply, therefore, is not whether the conclusion reached by the Commissioner was so unreasonable that no commissioner could have come to the same conclusion, as set out in Sidumo, but whether the Commissioner correctly found that Van Rooyen had been dismissed.