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[2024] ZALCJHB 170
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Mothupi v City of South African Local Government Bargaining Council and Others (JR2300/2022) [2024] ZALCJHB 170 (24 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2300/22
In the matter between:
CHUPETSO MESHACK
MOTHUPI
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First Respondent
EVAH NGOBENI
N.O
Second Respondent
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
Third Respondent
Heard:
20 March 2024
Delivered:
24 April 2024
This
judgment was handed down electronically by consent of the parties’
legal representatives by circulation to them via email.
The date for
hand-down is deemed to be 24 April 2024.
JUDGMENT
PRINSLOO J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 4 October 2022 and issued under case
number PMD021906 wherein
the Second Respondent (arbitrator) found
that the Applicant was not constructively dismissed and that the
First Respondent lacks
jurisdiction to adjudicate the dispute.
[2]
The Third Respondent
(Respondent/municipality or employer) opposed the application.
The test on review
[3]
The
first question to be decided in a constructive dismissal case is
whether there was a dismissal or not and this must be determined
before any enquiry into the fairness thereof. The question as to the
existence of a dismissal goes to jurisdiction and this Court
has
confirmed on numerous occasions that the review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
does not find application in reviewing a jurisdictional ruling.
[2]
[4]
This Court must decide whether the
arbitrator was right or wrong and not whether the conclusion reached
by the arbitrator was one
that a reasonable decision maker could not
reach. The question to be decided in view of the applicable test is
whether the arbitrator
correctly found that the Applicant was not
constructively dismissed.
Background facts
[5]
The Applicant was employed with the
Respondent since November 1998 and from May 2003 he was employed as
the Director: Support Services
in the department of corporate
services.
[6]
The Applicant resigned in December 2018 and
his last day of service was 15 January 2019. He subsequently referred
an unfair dismissal
dispute to the First Respondent where the issue
to be decided was whether his resignation constituted a constructive
dismissal
and if so, whether it was fair. If the Applicant’s
dismissal was unfair, the arbitrator had to determine what the
appropriate
relief should be.
[7]
In order to assess the arbitrator’s
findings, it is necessary to consider the evidence adduced at the
arbitration proceedings.
[8]
It is evident from the onset of the
proceedings that the arbitrator identified the “
actual
issue for determination is the constructive dismissal”
and
“
whether objectively speaking the
applicant was constructively dismissed.”
The
Applicant’s attorney, Mr Mkhize, responded that the arbitrator
was correct in identifying the issue to be decided.
The Applicant’s
case
[9]
The Applicant testified that that he
reported to many different supervisors and there was never any
tension, but things changed
in 2016 when Mr Shingange started to act
as the head of the department, in the absence of Ms Ramulifho. During
late November 2016,
Mr Shingange called the Applicant to his office
and he requested his assistance to deal with Ms Ramulifho, who was
the head of
the department because Mr Shingange wanted her position.
They both reported to Ms Ramulifho and the Applicant indicated that
he
could not assist Mr Shingange. Mr Shingange smiled and said to the
Applicant “
mchana, do not forget
that one day I will be your boss and you will find yourself in the
street”.
The Applicant testified
that he did not take it seriously because it had nothing to do with
him.
[10]
In February 2017, Mr Shingange started to
act formally in the position held by Ms Ramulifho and he was
appointed permanently on
1 August 2017 as the head of the department.
[11]
The Applicant testified that at the time
they moved to Tshwane House, Ms Ramulifo was still the head of the
department and it was
part of his responsibilities to make sure that
everyone was allocated an office according to their positions. The
Applicant allocated
an office to Ms Ramulifo and Mr Shingange had an
issue with that and he subsequently instructed Mr Laubscher to deal
with the allocation
of offices. Mr Shingange wanted the office that
was allocated to Ms Ramulifo.
[12]
He testified that his relationship with Mr
Shingange used to be close and they called each other ‘mchana’,
but it changed
around June 2017 and Mr Shingange started to ignore
him, notwithstanding the fact that he tried to contact him, to
communicate
with him and had set up formal meetings with Mr
Shingange. He wanted to find out from Mr Shingange why he was
treating him this
way and what the issue was as he could not identify
a particular issue which could have caused Mr Shingange’s
attitude towards
him. The Applicant’s messages to Mr Shingange
remained unanswered and the meeting he tried to schedule never took
place.
The working relationship changed in June 2017 and requests
from Mr Shingange which would normally be sent to the Applicant, were
suddenly sent to his subordinates.
[13]
In cross-examination, it was put to the
Applicant that Mr Shingange gave instructions directly to the
Applicant’s subordinates
because the Applicant was either not
taking instructions from Mr Shingange or did not deliver and there
were time constraints which
caused instructions to be given directly
to his juniors.
[14]
The Applicant in his testimony referred to
a number of examples to illustrate the relationship between him and
Mr Shingange. His
case was that Mr Shingange took away his functions
and prevented him from attending strategic meetings.
[15]
In cross-examination, it was put to the
Applicant that the reason why he could not attend meetings was
because he refused to take
instructions, was disruptive in meetings
and opposed each and every decision made by Mr Shingange. The
Applicant disputed this
version.
[16]
When the relationship with Mr Shingange
deteriorated further and all efforts he made to resolve the issues
came to nought, he wrote
to the acting governance and support officer
(AGSO) on 2 August 2017, indicating that he needed to formalise his
grievance in terms
of the grievance procedure. He completed the
grievance form, which is an attachment to the main collective
agreement and formally
put in his grievance. The issues raised in the
Applicant’s grievance included the use of abusive, insulting
and offensive
language; continuous and deliberate exclusion from
workplace activities; withholding of information vital for effective
work performance;
denial of access to information, supervision and
resources; spreading of misinformation and malicious rumours; and
changing of
work arrangements.
[17]
The Applicant explained that the main
collective agreement provides for a grievance procedure, which is
deemed to be a condition
of service. Step 1 of the grievance
procedure provides that an aggrieved employee must lodge a grievance
in writing with his or
her immediate superior, on the prescribed
form, setting out the complaints and the desired results. Should the
grievance concern
the conduct of an employee’s immediate
superior, the procedure requires such an employee to proceed to the
next step. Step
2 provides that if the grievance has not been
resolved to the satisfaction of the aggrieved employee or within 10
days of the lodging
thereof, the matter may be referred to the head
of the department. In the Applicant’s case, Mr Shingange was
the head of
the department and he had to refer his grievance to Mr
Shingange’s senior, being the GSO. The procedure provides that
the
head of department or his or her nominee, shall arrange a meeting
to consult and hold a discussion with the affected parties in
an
attempt to achieve a resolution. In step 3 of the grievance
procedure, the matter is referred to the City Manager.
[18]
A step 2 grievance meeting was held on 17
August 2017. The Applicant had escalated his grievance to Mr Mayur,
Mr Shingange’s
senior, who also chaired the grievance hearing.
Mr Mayur asked Mr Shingange what the Applicant did to him and he
responded that
“
sometimes you feel
like not working with a person”.
[19]
The Applicant indicated his difficulties to
Mr Mayur and the outcome he wanted was to transfer to the shared
services division because
Mr Shingange did not want to work with him.
The Applicant already completed the forms requesting a transfer and
Mr Shingange was
required to sign the forms.
[20]
On 29 August 2017, the Applicant received
the outcome of the step 2 grievance hearing, held on 17 August 2017.
Mr Mayur found that
there was a clear breakdown of trust and a
conducive working relationship between the parties. The outcome was
that:
‘
The
issues raised by the aggrieved did not relate to unfair labour
practices and do not meet the definition of grievance as defined
in
the grievance procedure. The aggrieves (sic) desired solution cannot
be acceded to and the parties are requested to consider
the following
options in order to resolve the conflict:
1.
The parties need to explore the option of
addressing the personality issues amicable or finding an alternative
placement using the
secondment or transfer policy for Mr Mothupi if
the trust relationship is found to irrevocable (sic) broken down;
2.
If either party wants to address the
allegations of misconduct they should follow the correct process of
following a disciplinary
process. (A grievance hearing is not meant
to hear evidence on such matters).’
[21]
The Applicant indicated that he agreed with
the outcome and the recommendation as per paragraph 1, as he was of
the view that it
would resolve the issues. He indicated that he had
made a request for a transfer and that his request should be attended
to urgently.
Mr Shingange signed his request for a transfer the
following day and approved the transfer “
once
the microstructure has been agreed upon
”.
The process was left with an understanding that the Applicant’s
transfer was going to be effected.
[22]
It was put to the Applicant in
cross-examination that he tried to dictate to the employer as he
never considered resolving the issues
with Mr Shingange amicably, but
instead immediately opted for a transfer.
[23]
The Applicant testified that the
Respondent’s new structure was approved on 27 September 2017
and he expected that his transfer
could have been effected.
[24]
Mr Mayur, who chaired the grievance
hearing, left and Ms Tredoux became the new GSO on 1 October 2017.
[25]
The Applicant explained that there is a
material difference between a ‘transfer’ and a
‘secondment’. The
procedure applicable to secondment is
that the request for the secondment of an employee to another
department must be initiated
by the departmental head and negotiated
with the future departmental head. He explained that a transfer and
secondment are not
the same – “
when
you transfer a person to a department it becomes a permanent feature,
but when you second a person, you can recall that person
at any given
point in time”.
[26]
The Applicant’s version was that Mr
Mayur, as the chairperson of the grievance hearing, tried to play it
safe – “
He says, use the
secondment or transfer, and I think he was giving you know, that
leeway that the head of department must decide
how he wants to deal
with that”.
[27]
Notwithstanding the fact that Mr Shingange
agreed that the Applicant’s transfer would happen after the
microstructure had
been finalised and that the said structure was
approved on 27 September 2017, he was not transferred or seconded.
[28]
The Applicant tried to follow up with Mr
Mayur, but he was told that Mr Mayur had given all the relevant
documents to Ms Tredoux
and he should follow up with her. She
promised to arrange a meeting to have the issue resolved, but the
meeting never took place.
According to the Applicant, step 2 of the
grievance procedure was concluded in terms of what Mr Shingange said
– “
once the structure is
approved, you will get transferred”.
The
structure was approved and still, the transfer did not happen. The
Applicant sent a plethora of emails to Ms Tredoux since October
2017
to enquire about the progress regarding his transfer. He testified
that he not only sent emails as reminders, but when he
met her at
management meetings, he would verbally ask for feedback, but they
never “
even bother to deal with
that or listen to me”.
[29]
On 10 November 2017, the Applicant made
another follow-up with Ms Tredoux and she responded on the same date
as follows:
‘
Kindly
accept my apology for the delay in reply. I had a discussion with the
Acting Group Head: Human Capital, and I was informed
that the
collective agreement on the placement of staff on the microstructure
has been agreed to, but has not been formally signed
yet. It is
anticipated that this will be done either at the special bargaining
council meeting scheduled for Tuesday the 14
th
of November, or upon conclusion of the said meeting. Once the
agreement has been signed, placement can start and your matter can
be
attended to. I understand that you are anxious for the matter to be
resolved, but we cannot act beyond the agreed process. I
will liaise
with you once the collective agreement has been entered into.’
[30]
The Applicant explained that he expected
the recommendations made by Mr Mayur to be implemented, the new GSO
was briefed on the
process and he made continuous follow-ups, Ms
Tredoux promised to attend to the matter but she never did and on 15
May 2018, he
decided to lodge a new grievance as he was of the view
that, because the GSO did not implement his transfer, she did not
want to
be associated with her predecessor’s outcome.
[31]
A number of other employees who also
requested to be transferred were transferred during the same period
and the finalising of the
micro-structure and the signing of the
collective agreement had no bearing on their transfers. The Applicant
did not know why his
request for a transfer was treated differently.
The Applicant believed that he was ill-treated by Mr Shingange
because he refused
to assist him to unseat Ms Ramulifo.
[32]
The Applicant expected the implementation
of the outcome of step 2 of the grievance procedure, but it was not
implemented. He was
frustrated by the fact that nobody communicated
with him “
at any point in time,
especially Mr Shingange and Lorette Tredoux who were my supervisors”.
[33]
The Applicant lodged a new grievance on 15
May 2018 because Ms Tredoux “
was
not interested in it, I felt that maybe she does not want to be bound
by her predecessor’s decision, because nobody would
even care
to look at it or what. I then put in the new one. The new grievance
was never attended to…”
[34]
On 4 June 2018, the Applicant received a
memorandum from the GSO stating that on 29 August 2017, the GSO made
a finding in a step
2 grievance hearing that an alternative placement
for the Applicant had to be found and that when she (Ms Tredoux) was
appointed
as GSO, the Respondent was in the process of finalising the
microstructure:
‘
and
during that period it was not possible to implement the finding as a
number of processes still needed to be finalised. The City
however,
is now in a position to implement the said finding and pending the
final placement being done in the City, it would be
to second you to
region 2 in the office of the Acting Regional Executive Director who
has agreed that you can be seconded to his
office to perform tasks
and render a service in the position of Director Management and
Support with immediate effect. You will
report directly to the Acting
Regional Executive Director. Your current conditions of service will
be applicable during the secondment
period and thus your salary,
allowance and benefits will remain unchanged. A secondment agreement
has been prepared and is available
for signature by yourself. Kindly
acknowledge receipt thereof. The hearing for the second grievance
will be scheduled without delay.’
[35]
The Applicant responded to the GSO and he
turned down the offer of secondment
.
He
explained during the arbitration proceedings for the first time that
the offer sought to amend or change the decision of the
chairperson
of the step 2 grievance process, the position of Director Support he
was seconded to in region 2, did not exist, the
Respondent’s
own staffing policy did not allow what the Respondent intended to do.
The Applicant referred to clause 12.3.3.
of the staffing policy,
which provides for the secondment of an employee only “
to
a similar or equal position for a certain period, provided that the
job level and the job category are the same”.
According to the Applicant, the secondment was unlawful and unfair.
He was working in the City centre and region 2 was in Hammanskraal.
The issues were not discussed with him prior to receiving the
memorandum from the GSO. To the Applicant, it was a demotion and
purely to frustrate him to get rid of him.
[36]
It was put to the Applicant in
cross-examination that he once again tried to dictate to his
employer, the Respondent, who had offered
him a temporary secondment
to address his situation, which he rejected. The Applicant responded
that the offer was a demotion,
a humiliation and that no such
position existed.
[37]
After the Applicant made numerous
follow-ups on the status of his grievance, he indicated that he would
have no choice but to implement
stage 3 of the process and to request
a meeting with the City Manager, as the person with the final
authority to deal with the
issues. He subsequently contacted the
secretary of the City Manager to set up a meeting, but he was not
successful to set up such
a meeting.
[38]
Ms Tredoux intended to send an email to the
City Manager’s secretary, but it was by mistake sent to the
Applicant wherein
she stated that “
If
he is not happy with step 2, it needs to go to step 3. He cannot
approach the CM. In any event, he is not open and honest. I
would
suggest that you divert this matter as it should not be escalated to
the CM at this stage…”
[39]
On 23 October 2018, the Applicant was given
notice of a step 3 grievance meeting which was scheduled for 23
November 2018 and it
was to be chaired by Ms Kock, the nominee of the
City Manager and to be attended by the GSO, the group head human
capital management,
the Appplicant and Mr Geldenhuys as the
secretariat. Mr Shingange did not attend as he was suspended in July
2018.
[40]
The said meeting took place but the GSO did
not attend. The Applicant told Ms Kock ‘his story’ and
she said she would
consult with the GSO and revert to him as to the
way forward. According to the Applicant, this was unprocedural
because, once an
employee lodges a grievance, it must be investigated
with all the relevant parties present. The policy provides that the
parties
should endeavour to reach an agreed outcome, which cannot
happen if all the parties are not present.
[41]
On Monday 26 November 2018, the Applicant
addressed an email to the GSO, requesting a meeting to discuss what
had transpired at
the grievance meeting of 23 November 2018, as no
one from the GSO’s office attended the meeting. The GSO
responded that “
once the grievance
is at step 3, I am not in a position to intervene with the process. I
recommend that you await the outcome of
the matter before you take
the matter further, but it is now dealt with by the representative of
the CM and this [is] beyond my
authority”.
[42]
On the following Thursday, the Applicant
asked Ms Kock about feedback from the grievance meeting and her
discussion with the GSO
and Ms Kock responded “
I
asked the GSO. The GSO said she is not interested”.
[43]
The Applicant testified that:
‘
The
GSO is Lorette Tredoux who sent me an email that she cannot
interfere. Then you get the chairperson who promised you that she
will meet with the GSO and then she tells you that she cannot, I mean
the person that she was supposed to meet says she is not
interested.
And then that is, that was on a Friday. Then over the weekend with
respect I then sat down to be honest and then take
all these things
and the I came to a conclusion that this is not an employer that is
willing to really resolve this issue. Remember
this issue has been
left for dragging since 2017 and I have been the one who has been on
a daily basis a nuisance to the employer,
and I am the one who, who
was just, I do not know, and when I looked at it and then I said but
what is it that I have done that
this employer must treat me in this
way, then I decided over that weekend. I then submitted a resignation
letter to Lorette Tredoux,
because at that point I have now reached a
cul-de-sac. Within the City, therein it is very clear that there is
nobody who is going
to resolve this issue.’
[44]
The Applicant testified that he had cried
in his office and suffered from headaches.
[45]
The letter to Ms Tredoux, dated 1 December
2018, recorded
inter alia
that
“
I apologise for not being able to
wait for the outcome of my grievance which in anyway was delayed
deliberately and I cannot continue
to work under unbearable
conditions. However, I regret that due to circumstances beyond my
control, I need to resign right away.
You know very well my situation
which has been going on for more than a year now.”
He
received no response after he submitted his resignation.
[46]
The Applicant testified that he never
received the outcome of the step 3 grievance meeting. The policy
provides that an employee
should be informed of the outcome of the
hearing, and as he was never informed, there was no compliance with
the provisions of
the policy.
[47]
In cross-examination, the Applicant
conceded that he had indeed received the mail dated 19 December 2018
regarding the step 3 grievance
outcome. The outcome recorded the
action required as: “
The aggrieved
should be utilised fully as Director Management and Administration
Support within the Department of Group Human Capital
Management. All
necessary delegations, responsibilities and accountability must be
returned to him, as per the requirements of
the position”.
The
Applicant was asked why he persisted with his resignation after he
had received the step 3 outcome. His answer was peculiar
and almost
obstinate that he saw the outcome but that he was only copied in the
email, which was in the main addressed to Mr Radebe
and that “
there
was nothing that I must do with it… I was not expected to do
anything. What was I expected to do?”
On
20 December 2018, the Applicant responded to the Municipality,
stating that “
Unfortunately I am
not Dr Mosola or Tshepo Hadebe. In terms of the grievance procedure
the Chairperson is required to inform the
aggrieved employee in
writing and to date I have not been informed. I am not sure why you
are sending me the CM’s letter
and that of Tshepo also”.
[48]
It was put to the Applicant that he indeed
received the outcome of his step 3 grievance and he insisted that “
No
I did not. I am still saying that I did not receive the outcome even
now as we speak, unless you can give me a letter that says
that the
chairperson sent it to Meshack Mothupi. It is not me, it is the
policy which you can go and read”.
It
was put to him that by 19 December 2018, he knew about the outcome of
his step 3 grievance, whether it was emailed to him directly
or as a
copied recipient, but he was aware that the outcome gave him
everything he wanted and that it restored his responsibilities,
yet
he persisted with his resignation. It was further put to the
Applicant that he resigned because he was disgruntled because
he was
not appointed to the promotional positions he had applied for and
when he got everything he wanted from the employer, he
resigned
because he would no longer be able to throw his toys. The Applicant
disputed the proposition.
[49]
The Applicant denied that he could have
fulfilled his functions as he used to after the suspension of Mr
Shingange in July 2018.
He complained that Mr Shingange took away his
functions, but argued that after Mr Shingange was suspended, he
requested that his
functions be reinstated, but it never happened.
[50]
Ms Ramulifho was called as a witness for
the Applicant. She testified that she was the ‘strategic
executive director (SED),
head of department’ and that the
Applicant was a director in her office and he reported to her. Ms
Ramulifho testified about
the Applicant’s knowledge of the
Respondent’s policies and about him as an employee and his
relationship with other
employees, whether he could be described as a
‘disgruntled’ employee and the move to Tshwane House. Her
evidence did
not contribute to the issues the arbitrator had to
decide.
[51]
The last witness called by the Applicant
was Mr Jele, who reported to the Applicant in his capacity as deputy
director responsible
for performance management. He testified that
reporting changed in 2017 when instructions were sent directly to him
from the office
of the group head, Mr Shingange. He used to receive
his instructions through or to report to the director, Mr Mothupi.
There were
meetings convened where the director (the Applicant) was
not invited and the deputy directors had to account for their
functions
directly to the group head.
The Respondent’s
case
[52]
Ms Tredoux, the Respondent’s GSO
testified that she met the Applicant for the first time in 2017,
after she was appointed.
He approached her about the outcome of a
grievance that was not implemented and he wanted her to implement the
outcome. The Applicant
specifically wanted the part of the outcome
which recommended an alternative position to be implemented. Ms
Tredoux could not implement
the recommendation at that stage as the
Municipality was in the process of developing a new microstructure
and the City Manager
indicated that at the time, there would be no
transfers or secondments, pending the finalisation of the
microstructure. She indicated
to the Applicant that at that point it
was not possible to do a secondment or a transfer, as those were not
allowed pending the
finalisation of the microstructure.
[53]
Ms Tredoux indicated that it was explained
to the Applicant, but he was insistent on being transferred or
seconded before the microstructure
was finalised. After the
microstructure was finalised, a position in region 2 was identified
for the Applicant – it was a
position similar to the job he was
appointed in and on 4 June 2018, the Applicant was informed about the
possible secondment to
region 2. The Applicant responded that he did
not want the seconded position he was offered as he was of the view
that it would
be in his own as well as the Respondent’s best
interest to turn down the offer.
[54]
The group head indicated that the Applicant
would be transferred once “
the
collective agreement under the microstructure process plan had been
finalised with the unions
”. Ms
Tredoux explained that this meant that firstly, the microstructure
had to be developed and approved by the mayoral committee
and as a
result some positions might fall away therefore secondly, there was a
requirement for a placement agreement to be agreed
to with the
unions. The Applicant however insisted on leaving the group human
capital once the microstructure was approved, but
before the
placement agreement was agreed to and therefore there was a decision
to second the Applicant in the interim. He could
not be transferred
at that time as there could have been a dispute about the position.
If the Applicant was seconded in the interim,
he could have been
moved back to his previous department if there was a challenge or a
dispute and in this way, he could have been
assisted prior to the
placement agreement being finalised. Ms Tredoux explained that it was
an interim measure to try and assist
the Applicant to get him out of
the department where he felt aggrieved and to work in a different
environment, whilst the placement
agreement was being finalised,
which could have taken another 6 to 12 months, but the Applicant
rejected the offer.
[55]
Ms Tredoux reiterated that she was trying
to assist the Applicant by seconding him as an interim measure
because of his insistence
to be moved from his department –
“
Because of his insistence I tried
to assist him to go somewhere and this was the only way I could
assist him, by seconding him,
because he refused to remain in the
department”.
[56]
The Applicant rejected the offer and
submitted a second grievance, which took its course up to step 3. Ms
Tredoux explained that
there was a backlog of grievances and the City
Manager appointed the group head legal and secretariat services to
deal with all
step 3 grievances that were not dealt with. It took
time to schedule all of them due to the backlog and the outcome of
the Applicant’s
step 3 grievance was made available in December
2018. The outcome was that the Applicant be utilised fully as
director management
and administration support within the department
of human capital management and that all the necessary delegations,
responsibilities
and accountability be returned to him as per the
requirements of the position. the Applicant however resigned before
the outcome
could be implemented.
[57]
Ms Tredoux testified that the Applicant was
aware of the step 3 outcome at the time he had resigned as he was
copied in an email
wherein the outcome was indicated. Ms Tredoux also
had a meeting with him on 18 December 2018 – the Applicant
indicated that
he wanted to resign and she indicated that she wanted
him to reconsider his resignation in view of the fact that the step 3
hearing
was completed and that he would get all his duties and
delegations back. Ms Tredoux asked the Applicant to reconsider his
resignation
during the meeting as well as in a letter dated 19
December 2018, wherein he was asked to “
consider
the outcome of step 3 before going ahead with your resignation
”.
Ms Tredoux thought that if the Applicant was returned to his
position, it would address his concerns.
[58]
After the festive season, the Applicant had
another meeting with Ms Tredoux on 9 January 2019. It became clear
that the Applicant
was aggrieved by the fact that the outcome was not
sent to him first and directly, but that he was copied in on the
finding and
he said that he did not recognise that he was being
informed of the finding. Ms Tredoux then indicated that in her letter
of 19
December 2018, she indicated the outcome to him, but he still
wanted to resign. She testified that: “
I
asked him if Marna, the chairperson of the step 3 wrote the finding
directly to you, would that have made a difference? And he
said no,
it does not make a difference, I must please proceed to process his
resignation”.
[59]
In cross-examination, much was made of the
fact that the policy prescribes that “
the
municipal manager or his or her nominee shall inform the employee in
writing of the outcome of the hearing
”.
Ms Tredoux explained that the communication about the outcome must be
under the hand of the City Manager or the nominee.
She explained that
a nominee is “
somebody that is
requested by the City Manager to do a specific task or communicate
something specifically. It is different from
a delegation”.
[60]
It was the Applicant’s case that the
outcome of the step 3 hearing was not directed to him and therefore
he did not get the
outcome. Ms Tredoux responded that:
‘
when
he met with me on 18 December, we discussed the outcome. So whether
it was addressed to him or not, he was aware of the outcome.
In my
letter to him on 19 December, I quoted the outcome to him… And
then also in the meeting of 9 January, according to
my notes we
discussed this process. So to say that he was not informed of the
outcome is not correct. The nominee of the City Manager
will have to
testify as to the process and who was informed and when, but the fact
of the matter remains, Mr Mothupi was informed,
if then at the latest
on 18 December when we met.’
[61]
The Applicant disputed that the meeting of
18 December 2018 took place, but Ms Tredoux explained that he had
initiated the invitation
for the meeting, which he requested and
which invitation she had merely accepted.
[62]
Ms Dunkle-Kock, the Respondent’s
group head legal and secretariat services, testified that she was the
chairperson of the
Applicant’s step 3 grievance hearing, which
was held on 23 November 2018. At the hearing, the Applicant’s
main complaint
was the working environment between himself and Mr
Shingange and his desired solution was for all his functions and
delegations
to be reinstated. He informed Ms Dunkle-Kock that some of
his responsibilities were taken away. She recommended that the
Applicant’s
delegations and responsibilities must be returned
to him and with regard to the conflict between him and Mr Shingange,
that the
parties be referred to the employee wellness unit for a
reconciliatory process to be initiated, which process was suspended
pending
Mr Shingange’s suspension.
[63]
Ms Dunkle-Kock explained that the normal
practice was that all the functions of the secretariat were done by
the human resources
department (HR) and after she had issued the
outcome of the step 3 grievance hearing, she gave it back to HR and
they would distribute
it and she assumed that it was subsequently
brought to the Applicant’s attention. Her understanding of the
policy is not
that she was required to physically hand the outcome of
the grievance hearing to the Applicant, furthermore, her workload
would
not allow for such a requirement and it was never the practice
followed in the Municipality. The practice was always that once she
had finished the outcome, it was handed to the HR representative and
they dealt with the further distribution of the outcome.
[64]
In cross-examination it was put to Ms
Dunkle-Kock that the Applicant’s case is that there was never a
step 3 grievance process
and everything regarding that process was
“…
slates of hands. It is a
trick to confuse all of us to believe that there was a stage 3”.
Ms Dunkle-Kock vehemently disagreed
with the proposition and testified that she had listened to the
Applicant and granted him the
outcome that he sought.
[65]
It is evident from the cross-examination
that the Applicant’s focus was on the non-compliance with
certain clauses in the
Respondent’s policy. Like the other
evidence presented, very little was presented to show how the
non-compliance with clauses
of the policy made the employment
relationship unbearable to the extent that the Applicant had to
resort to resignation. Had the
dispute been one about procedural
unfairness in dealing with a grievance and non-compliance with the
prescripts of the applicable
policy, the evidence would have assisted
the presiding arbitrator in deciding the issue of procedural
compliance. However, the
case to be decided was one of constructive
dismissal and it is evident from the evidence adduced that the
Applicant’s focus
during the arbitration proceedings was on
procedural non-compliance with the applicable policy and little was
adduced to discharge
the Applicant’s onus in a case of
constructive dismissal. The proposition was that the Applicant would
not have resigned
if he had received the outcome of the grievance
hearing that was in his favour. That may be so, but it does not speak
to an unbearable
working relationship.
[66]
The Respondent’s last witness was Mr
Ratsiene. The transcribed record is incomplete and contains only part
of his cross-examination
and re-examination. The portion of the
record available shows that he was cross-examined on the secondment
policy and procedure
as well as the policy and procedure to be
followed in the event of a grievance. Once again, the dispute was one
of constructive
dismissal and it appears as if the Applicant had lost
sight of what the issues were to be presented, proved and decided in
a case
of constructive dismissal.
Analysis of the
arbitrator’s findings and grounds for review
[67]
The arbitrator recorded that the issue to
be decided was whether there was a dismissal and if so, she must
determine the fairness
thereof. In her analysis of the evidence, the
arbitrator recorded that the onus was on the Applicant in his
constructive dismissal
dispute to show that he was dismissed.
[68]
The
arbitrator also referred to
Solid
Doors (Pty) Ltd v Commissioner Theron and others
[3]
as
authority for the three requirements that must be present before it
could be said that a constructive dismissal has been established.
All
three requirements must exist and be established before it could be
found that an employee was constructively dismissed and
absent any
one of them, constructive dismissal had not been established.
[69]
In respect of the first requirement, it was
common cause that the Applicant had terminated his employment with
the Respondent. The
arbitrator moved to consider the second and third
requirements and ultimately found that the Applicant failed to
discharge the
onus to prove the second requirement and as such, she
found that there was no dismissal and that the First Respondent
lacked jurisdiction
to adjudicate the dispute.
[70]
The Applicant raised several grounds for
review which I will deal with
infra
.
[71]
Before considering the merits of the
Applicant’s case, it is necessary to set out the principles and
the legal test to be
considered and applied in constructive dismissal
cases.
Constructive
dismissal: the legal principles
[72]
Section
186(1)(e) of the Labour Relations Act
[4]
(LRA) defines a constructive dismissal to mean that an employee
terminated a contract of employment with or without notice because
the employer made continued employment intolerable.
[73]
Where an employee claims constructive
dismissal, the onus is on the employee to prove that the resignation
was not voluntary and
that it was not their intention to terminate
the employment relationship. Once the employee discharges the onus,
the conduct of
the employer must be assessed, and the question is
whether the employee could reasonably have been expected to put up
with the
conduct of the employer.
[74]
The
Court has previously considered that an employee who claims
constructive dismissal must prove that:
[5]
1.
He or she terminated the contract of
employment;
2.
continued employment became intolerable for
the employee;
3.
the employer must have made continued
employment intolerable.
[75]
I will deal with these requirements in
turn.
The employee
terminated the contract of employment
[76]
The
Labour Appeal Court
[6]
(LAC)
made it clear that employees claiming constructive dismissal must
prove that they, and not their employer, terminated the
contract of
employment.
[77]
The resignation must also not be for a
voluntary reason such as to take up alternative employment, to access
pension benefits or
for some or other reason motivated by personal
circumstances.
[78]
In
Pretoria
Society for the Care of the Retarded v Loots
[7]
(Pretoria Society),
the
LAC held that when an employee resigns as a result of constructive
dismissal, the employee, is in fact, indicating that the
situation
has become so unbearable that the employee cannot work. Effectively,
the employee is saying that he or she would have
carried on working
indefinitely had the unbearable situation not been created. The
employee resigns because he or she does not
believe that the employer
will ever reform or abandon the pattern of creating an unbearable
work environment. If this assumption
was wrong and the employer
proves that the employee’s fears were unfounded, there was no
constructive dismissal but in fact
a resignation.
[79]
In
Strategic
Liquor Services v Mvumbi N O and others
[8]
(
Strategic
Liquor Services
)
,
the
Constitutional Court held that the test for constructive dismissal
does not require that the employee have no choice but to
resign, but
only that the employer should have made continued employment
intolerable.
[80]
This moved away from the position that in a
constructive dismissal case, the employee had no other choice or
option but to resign.
[81]
In
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
[9]
(
Asara
)
,
the
Court expressed the view that it was doubtful that the strict test,
namely that employment should be so intolerable that the
employee had
no option but to terminate the employment relationship, would survive
the Constitutional Court formulation in
Strategic
Liquor Services.
[82]
In
Asara,
the
Court considered the authorities and held that where a reasonable
alternative to resignation exists, it cannot be said that
the
employer has made continued employment intolerable for the employee.
[83]
In my view, the position is this: the
employee needs not to establish that he or she had no choice but to
resign. Where the employee
resigns and claims that he or she was
constructively dismissed, the test is whether a reasonable
alternative to resignation existed.
Continued employment
became intolerable for the employee
[84]
In
Pretoria
Society,
the Court held that the
employee must satisfy the Court that at the time of the termination
of the contract, he or she was under
the genuine impression that the
employer behaved in a manner that rendered the relationship
intolerable and would continue to do
so.
[85]
The operative word is ‘intolerable’.
[86]
The
courts have confirmed that the use of the word ‘intolerable’
means that there is an onerous burden on the employee
and the
employee is required to show that continued employment would be
objectively unbearable. Intolerability is not established
by the
employee’s say-so, perception or state of mind. What is
relevant is the conduct of the employer viewed in an objective
sense.
[10]
[87]
The
test remains that the conduct of the employer must be judged
objectively.
[11]
The
subjective apprehensions of an employee cannot be a final determinant
of the issue. In
Smithkline
Beecham (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others
[12]
(
Smithkline
)
,
the
Court held that it would be unfair to an employer to allow the
subjective perceptions of an employee of its conduct, particularly
when those perceptions turn out to be incorrect, to be the
determining factor in penalizing the employer with the penalties
imposed
by the LRA.
The employer must have
made continued employment intolerable
[88]
The third requirement to prove a
constructive dismissal is that the circumstances that led to the
employee’s resignation,
must have been brought about by the
employer. This means that the employer must have performed actions
which created the intolerable
circumstances.
[89]
In
Pretoria
Society,
the LAC held that
the
enquiry is whether the employer, 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 reasonably and sensibly is such that the employee
cannot be expected to put up with it.
[90]
In
Murray
v Minister of Defence,
[13]
the
Supreme Court of Appeal (SCA)
accepted
that there are many things an employer may fairly and reasonably do
that make an employee’s position intolerable.
However, the SCA
confirmed that the employer must be culpably responsible in some way
for the intolerable conditions. It held 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”.’
[91]
In
Jordaan
v Commission for Conciliation, Mediation and Arbitration and
others
[14]
,
the
LAC approved a salutary caution that constructive dismissal is not
for the asking and held that:
‘
With
an employment relationship, considerable levels of irritation,
frustration and tension inevitably occur over a long period.
None of
these problems suffice to justify constructive dismissal.’
[92]
The employer therefore must be culpably
responsible for the intolerable conditions. In my view, this touches
on another important
and relevant aspect namely whether the employer
was aware of the alleged intolerable conditions and was afforded an
opportunity
to address and rectify it.
[93]
In
Smithkline,
the Court held that where an employee
could reasonably have lodged a grievance regarding the cause of the
unhappiness but failed
to do so before resigning, such employee may
find it hard to persuade the court or an arbitrator that he or she
had to resign.
The Court emphasized that if the employee is too
impatient to await the outcome of the employer’s attempts to
find a solution
to the perceived intolerable situation, and resigns,
constructive dismissal is almost always out of the question.
[94]
In
Kruger
v Commission for Conciliation, Mediation and Arbitration and
another
[15]
(
Kruger
)
,
the
employee did not follow a grievance procedure as she believed that
the grievance procedure was no longer an option. The Court
found that
employees
should not second guess the outcome of lodging a complaint in terms
of the employer's grievance procedure, especially
not where the
employee is contemplating resignation coupled with an allegation of
constructive dismissal and such employee had
never raised the issue
with the employer before. The Court held that:
‘…
when
there are remedies available to an employee which had not been
exhausted, as in this case, the employee has not discharged
the onus
of proving that she was constructively dismissed. ... An employee may
not choose constructive dismissal while other options
are available.
The court's function is to look at the employer's conduct as a whole
and to determine whether its effect, judged
reasonably and sensibly,
is such that the employee could not have been expected to put up with
it.’
[16]
[95]
The judgment in
Kruger
supports the notion that an employee
cannot resign and claim constructive dismissal while other options
are available. As I already
alluded to, the test is whether a
reasonable alternative existed.
[96]
In
Albany
Bakeries Ltd v Van Wyk and others
[17]
(Albany Bakeries),
the
LAC effectively took the view that an employee should make use of
alternative remedies. This would obviously include an internal
grievance procedure. The Court held that:
‘
[28]
How will an employee ever prove that if he has not adopted other
suitable remedies available to him? It is, firstly,
also desirable
that any solution falling short of resignation be attempted as it
preserves the working relationship, which is clearly
what both
parties presumably desire. Secondly, from the very concept of
intolerability one must conclude that it does not exist
if there is a
practical or legal solution to the allegedly oppressive conduct.
Finally, it might well smack of opportunism for
an employee to leave
when he alleges that life is intolerable but there is a perfectly
legitimate avenue open to alleviate his
distress and solve his
problem.
[29] As is clear
from the remarks of Conradie JA an employee should make use of a
grievance procedure. Such a grievance procedure
exists and was
annexure B in bundle A of the documents in the arbitration. It
provides for a discussion of a problem with an immediate
superior
with the assistance of a representative. If the employee is not
satisfied with that, there is a further step that may
be taken to the
next level of management. The procedure even provides for an enquiry
to be held for the purpose of clarifying the
issues.’
[97]
It is in this context that the arbitrator’s
findings stand to be determined.
The arbitrator’s
findings
[98]
The arbitrator considered the second
requirement, namely that continued employment became intolerable, in
view of the Applicant’s
evidence that the Respondent made
continued employment unbearable after failing to resolve an issue
that was pending for more than
a year.
[99]
The arbitrator recorded that the step 2
grievance outcome resolved that the Applicant and Mr Shingange
explore the option of addressing
their personality issues amicably or
find an alternative placement, using the secondment or transfer
policy if the relationship
was found to be irrevocably broken. The
Applicant had completed a transfer form, requiring to be transferred
to the shared services
department. The transfer was not recommended
or implemented pending the finalisation of a collective agreement on
the microstructure,
to be concluded with the unions. In the
alternative, the Applicant was offered secondment in June 2018. This
was intended to be
temporary relief to the Applicant, but he declined
the offer without providing a reasonable explanation and his response
did not
assist the parties to resolve the dispute or to explore
alternatives. The arbitrator found that it was evident from the
Applicant’s
submissions that his mind was only set on being
transferred to a particular department, other than a secondment.
[100]
In July 2018, Mr Shingange was suspended
and the Applicant lodged a step 3 grievance. The Applicant’s
case was that he wanted
the Respondent to reinstate his functions.
[101]
The arbitrator found that after the
Respondent convened the step 3 grievance meeting in November 2018,
the outcome was not issued
timeously, in compliance with the
applicable policy.
[102]
The Applicant resigned in December 2018 and
he indicated that there was a delay in finalising his grievance. The
arbitrator found
that the policy sets out timelines within which the
outcome is to be issued to an employee, but even where there was
non-compliance
with the timeframes, the Applicant was not left
without a remedy. He was well vested with the Respondent’s
policies and the
arbitrator found that the Applicant played along, in
the hope that he would be transferred.
[103]
The arbitrator found that, after Mr
Shingange’s suspension and after realising that his request for
a transfer was not favourably
considered, the Applicant could not
positively engage the Respondent with the view to resolve his issues,
because Mr Shingange,
as the cause of his unbearable working
conditions, was no longer a threat to his job security. The outcome
of the step 3 grievance
was that the Applicant’s functions and
delegations were reinstated.
[104]
The arbitrator considered the fact that the
Applicant disputed that he was not aware of the outcome of the step 3
grievance but
found that by the Applicant’s own admission, he
had seen the outcome of the step 3 grievance meeting. She found that
the
Applicant was reasonably aware of the outcome, he could have
retracted his resignation, more so since he was still employed by the
Respondent.
[105]
The arbitrator concluded that the working
relationship was not entirely broken down. Furthermore, clause
13.4.5. of the main collective
agreement provides that if the
grievance has not been resolved to the satisfaction of the aggrieved
party, that party may refer
a dispute/grievance to the council for
adjudication. The arbitrator found that the Applicant was well aware
of his rights and there
was no reason provided as to why he could not
follow the provisions of the collective agreement to address his
concerns.
[106]
Referring to
Albany
Bakeries
as authority, the arbitrator
concluded that the Applicant should have made use of alternative
remedies – his issues could
have been resolved by referring a
dispute to the bargaining council (without resignation) and he failed
to discharge the onus to
show that his working conditions were made
unbearable by the Respondent, leading to his resignation.
Applying the law to
the facts
[107]
It is common cause that the Applicant
resigned and what remained for the arbitrator to consider, was
whether the employment relationship
was made intolerable by the
Respondent.
[108]
The Applicant bore the onus to prove all
the elements of constructive dismissal to succeed with his claim - he
had to prove that
he terminated the contract of employment, that
continued employment became intolerable and that it was the employer
that made continued
employment intolerable.
[109]
The arbitrator found that the Applicant was
unable to prove that his working conditions were made unbearable by
the Respondent.
[110]
I already alluded to the question to be
decided: did the arbitrator correctly find that the Applicant was not
constructively dismissed?
[111]
The Applicant filed a founding affidavit
wherein he stated that the arbitration award constituted a gross
irregularity and was flawed
because the arbitrator did not consider
the evidence that was before her, she recorded evidence that was not
part of the record
and she “
brought
in arguments that were never arguments of the parties
”.
He subsequently filed a supplementary affidavit consisting of 71
pages wherein he not only supplemented his grounds for
review but
repeated the contents of his founding affidavit and unnecessarily
inserted an extensive background to his case (37 pages),
the facts of
which were already captured in and were evident from the lengthy
transcribed record (575 pages), which was placed
before this Court.
[112]
The Applicant raised issues with respect to
irregularities which do not constitute proper grounds for review, and
I do not deem
it necessary in a review application to deal with all
the issues raised by the Applicant. It is important to emphasize that
the
application remains one of review and this Court must apply the
relevant principles and decide the application accordingly. This
is
not an appeal and this Court should be mindful of the difference and
to the extent that the Applicant’s complaints are
akin to
grounds for appeal, they cannot be considered on review.
[113]
The Applicant complained that the
Respondent did not comply with the grievance policy. I already
alluded to this complaint
supra –
it has no bearing on the question of
whether the Applicant discharged the onus to show that continued
employment became unbearable
and intolerable and that no reasonable
alternative to resignation existed.
[114]
In
Albany
Bakeries,
the LAC held that
any
solution falling short of resignation be attempted as it preserves
the working relationship. Further, that from the very concept
of
intolerability one must conclude that it does not exist if there is a
practical or legal solution to the allegedly oppressive
conduct and
that it might smack of opportunism for an employee to leave when he
alleges that life is intolerable but there is a
perfectly legitimate
avenue open to alleviate his distress and solve his problem.
[115]
The Respondent’s grievance procedure
provides for a 3-step process. When the three steps have been
exhausted and in the event
that the grievance was not resolved to the
satisfaction of the aggrieved party, it may be referred to the Mayor
or the bargaining
council for adjudication, after having declared a
dispute.
In casu,
the
Applicant lodged a formal grievance against Mr Shingange in August
2017, which was a step 2 grievance. The outcome was given
on 29
August 2017 by Mr Mayur but it was not implemented for the reasons
fully dealt with
supra.
[116]
In May 2018 the Applicant lodged a new
grievance, which was treated as a step 3 grievance. The desired
outcome was for all his functions
and delegations, as per his job
description, to be reinstated with immediate effect.
[117]
On 4 June 2018, Ms Tredoux, the new GSO,
advised the Applicant regarding the step 2 grievance that as the
Respondent was in the
process of finalising the microstructure, it
could not implement the outcome, but that pending the final
placements being done,
the Applicant would be seconded, as an interim
measure, to another region and that the hearing of the step 3
grievance would be
scheduled.
[118]
The Applicant rejected the offer of being
seconded, without providing any reasons.
[119]
The step 3 grievance hearing was held in
November 2018 and the outcome granted the Applicant the outcome he
wanted.
[120]
The Applicant resigned in December 2018 and
in his letter of resignation he stated that “
I
apologise for not being able to wait for the outcome of my grievance
which in any way was delayed deliberately and I cannot continue
to
work under unbearable conditions”.
[121]
In my view, there was no reason for the
Applicant to resign because the step 3 grievance process was in his
favour and granted him
his desired outcome. Alternatively, in the
event he was not satisfied with the outcome, he had other avenues
available to him,
as an employee of the Respondent.
[122]
The grievance process was delayed, but to
some extent, there were reasons for that, which seemed to have been
accepted by the Applicant
– he was willing to wait for the
microstructure to be approved and implemented etcetera. The step 3
grievance hearing was
held in November 2018 and the outcome was made
available in December 2018. Although the Applicant took a pedantic
approach to try
and convince the arbitrator that he was not informed
about the outcome, as per the prescripts of the policy, it was
evident that
the outcome came to his attention and that he was aware
of it. The Applicant chose to ignore the outcome due to his fixation
on
the provisions of the policy and the fact that the chairperson did
not inform him personally about the outcome. This however does
not
take away the fact that the outcome came to his attention and that a
reasonable person cannot claim not to be aware of the
outcome, albeit
that it was not communicated in the prescribed manner.
[123]
Although it might be so that the Applicant
found the grievance process and the delay frustrating, the question
to consider is, in
an objective sense, whether it caused his
continued employment with the Respondent to be intolerable.
[124]
Intolerability is not established by the
employee’s say-so, perception or state of mind, but it is the
conduct of the employer
viewed in an objective sense.
[125]
Instead of affording the Respondent an
opportunity to address the issues, the Applicant resigned.
[126]
The Courts made it clear that an employer
should be made aware of the alleged intolerable conditions and be
afforded an opportunity
to address and rectify them. An employee
cannot merely resign and claim constructive dismissal while other
options are available
and as I already alluded to the test is whether
a reasonable alternative existed. An employee cannot resign without
affording the
employer an opportunity to rectify the causes of his or
her complaints and successfully claim constructive dismissal.
[127]
There was a perfectly legitimate avenue
open to solve the Applicant’s problem, but instead, he
resigned.
[128]
In
Pretoria
Society,
the LAC held that
the
enquiry is whether the employer, 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. The court's function is to look
at the
employer's conduct as a whole and determine whether its effect,
judged reasonably and sensibly is such that the employee
cannot be
expected to put up with it.
[129]
The fact that the Respondent granted the
Applicant the outcome he desired, cannot constitute unbearable or
intolerable conditions,
nor can the fact that the process was
delayed. More is indeed needed to constitute unbearable or
intolerable working conditions
–
the
court's function is to look at the employer's conduct as a whole and
determine whether its effect, judged reasonably and sensibly
is such
that the employee cannot be expected to put up with it.
[130]
Objectively viewed, the Applicant failed to
make out a case that his employment became intolerable or unbearable
to an extent that
he could not be expected to put up with it.
[131]
The Applicant raised an issue about the
fact that the Respondent failed to call Mr Shingange as a witness.
According to him Mr Shingange
“
played
a role in the direction of the grievance process even in absentia. He
had super-powers”.
Again, the
complaint loses sight of the fact that the onus was on the Applicant
to establish the three requirements in his constructive
dismissal
case. The onus was not on the Respondent and its failure to call a
witness is of no moment and could not have had any
bearing on the
Applicant’s case and the onus he had to discharge.
[132]
The Applicant sought different outcomes in
his step 2 and step 3 grievances – in step 2 he sought to be
transferred to another
department and in step 3 he sought to remain
in his position and for all his delegations and functions, as per his
post, to be
restored. The relief or the outcomes sought were mutually
exclusive.
[133]
The step 2 grievance process which had the
possibility of a transfer or secondment, was overtaken by a step 3
process, with an outcome
that granted the Applicant the relief that
he required as a solution. This renders the relief sought by the
Applicant in this application
problematic – he seeks to be
reinstated retrospectively to his position, from the date of
resignation, and for the Respondent
to comply with the outcome of
step 2 of the grievance process and for him to be transferred to
another department.
[134]
It seems that the Applicant seeks to
dictate to the Respondent the outcome and the only outcome that would
be acceptable to him,
is a transfer and he wants this Court on review
to grant him what he wanted but could not get through an internal
grievance process.
[135]
In my view, considering the facts presented
and the evidence that was before the arbitrator, she was correct to
find that the Applicant
could not satisfy the requirements to
establish constructive dismissal.
[136]
The application for review has to fail.
Costs
[137]
The last issue to be
decided is the issue of costs.
[138]
In so far as costs are concerned, this
Court has a broad discretion in terms of section 162 of the LRA to
make orders for costs
according to the requirements of the law and
fairness.
[139]
The requirement of law has been interpreted
to mean that the costs would follow the result. In considering
fairness, the conduct
of the parties should be taken into account and
mala fides
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order.
[140]
In
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[18]
,
the
Constitutional Court confirmed that the rule that costs follow the
result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court to have their disputes dealt
with and,
on the other hand, allowing those parties to bring to this Court (or
oppose) cases that should not have been brought
to Court (or opposed)
in the first place.
[141]
Mr Phathela for the Respondent submitted
that a cost order in favour of the Respondent should be made as there
was no constructive
dismissal and the Respondent had to incur
unnecessary costs to defend this unmeritorious application.
[142]
Mr Mkhize for the Applicant argued that the
Applicant was entitled to a punitive cost order as the matter is old,
the Applicant
was aggrieved and the Respondent was not interested in
resolving the issues.
[143]
This is a matter where this Court has to
strike a balance.
[144]
The generally accepted purpose of awarding
costs is to indemnify the successful litigant for the expense he or
she has been put
through by having been unjustly compelled to
initiate or defend litigation.
[145]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[19]
it was emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[146]
A cost order is a method of ensuring that
decisions to litigate in this Court are taken with due consideration
of the law and the
prospects of success.
[147]
In my view, this is a case where a cost
order is warranted. This is more so as the Applicant was legally
represented and did not
approach this Court as an unrepresented
layperson. The Applicant has filed a review application which had no
merit. This application
compelled the Respondent to oppose it and the
Respondent is entitled to the cost incurred in doing so –
minding the fact
that
the costs incurred by
the Respondent are paid from public funds. The ratepayers of the
municipality should not be burdened to pay
the costs of defending
meritless applications and the Respondent’s funds should rather
be utilized to deliver services and
to fulfil its mandate.
[148]
This Court is ordinarily reluctant to make
orders for costs against individual litigants, for whom the prospect
of an adverse costs
order may serve to inhibit the exercise of what
they perceive as their rights. This is however not an immutable or
inflexible rule.
[149]
F
airness dictates
that the Respondent cannot be expected to endure enormous costs
defending meritless litigation. I am alive to the
fact that the
Applicant is an individual, but I cannot ignore the fact that he
ultimately initiated a review application without
merit and that he
was legally represented throughout the proceedings. So too the fact
that the Applicant was also seeking a cost
order against the
Respondent.
[150]
In the present circumstances, the interests
of justice require that the Applicant pays at least a portion of the
Respondent’s
costs. In my view, a sum equivalent to 25% of the
Respondent’s costs will best serve those interests.
[151]
In the premises, I make the following
order:
Order
1.
The application for review is dismissed;
2.
The Applicant is to pay the Third
Respondent’s costs, limited to 25% of the taxed costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Mr N Mkhize from Mkhize Attorneys
For the Third
Respondent: Advocate
M C Phathela
Instructed
by:
Rambevha Morobane Attorneys
[1]
[2007]
ZACC 22
; (2007) 28 ILJ 2405 (CC) at para 78 - 79.
[2]
SA
Rugby (Pty) Ltd v SA Rugby Player’s Association & another
[2008] ZALAC 3
; (2008) 29 ILJ 2218 (LAC);
Member
of the Executive Council, Department of Health, Eastern Cape v
Odendaal & others
[2008] ZALC 161
; (2009) 30 ILJ 2093 (LC);
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
[2011] ZALCCT 21; (2012) 33 ILJ 363 (LC),
Majatladi
v Metropolitan Health Risk Management & others
(2013) 34 ILJ 3282 (LC).
[3]
[2004]
ZALAC 14
; (2004) 25 ILJ 2337 (LAC) (
Solid
Doors
).
[4]
Act
66 of 1995, as amended.
[5]
Eagleton
& others v You Asked Services (Pty) Ltd
[2008] ZALC 102
; (2009) 30 ILJ 320 (LC) at para 22.
[6]
Solid
Doors supra
.
[7]
(1997)
18 ILJ 981 (LAC).
[8]
[2009]
ZACC 17
; (2009) 30 ILJ 1526 (CC) at par 4.
[9]
Asara
supra
.
[10]
A
Van Niekerk, N Smit, MA Christianson et al, ‘
Law
@Work
’,
4
th
ed. (LexisNexis) at p 247.
[11]
Smithkline
Beecham (Pty) Ltd v CCMA & others
(2000)
21 ILJ 988 (LC).
[12]
Ibid.
[13]
[2008]
ZASCA 44
;
(2008)
29 ILJ 1369 (S
CA)
at para 13.
[14]
[2010]
ZALAC 10
; (2010) 31 ILJ 2331 (LAC) at 2336D.
[15]
(2002)
23 ILJ 2069 (LC),
(2002) 11 BLLR 1081
(LC).
[16]
Ibid
at para 14.
[17]
(2005)
26 ILJ 2142 (LAC) at paras 28 – 29.
[18]
[2018]
ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.
[19]
(2012)
33 ILJ 2117 (LC) at para 176.