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[2014] ZALAC 120
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Maoka v General Public Service Sectoral Bargaining Council and Others (JA14/2012) [2014] ZALAC 120 (12 June 2014)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Case no: JA14/2012
In
the matter between:
MAOKA,
PULE VICEROY HILLARY
Appellant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
THULANI
AKIM N.O.
Second Respondent
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Third Respondent
Heard:
09 May 2013
Delivered:
12 June 2014
Summary:
Constructive dismissal- employee bearing the
onus
to prove
that resignation due to employer making continued employment
intolerable- employee transferred to various vacant posts-
arbitrator
finding that employee not constructively dismissed. Evidence showing
that the true reason for employee resigning was
disagreement on
remuneration- Labour Court correct in upholding arbitration award-
Appeal dismissed.
Coram:
Waglay JP, Molemela and Francis AJJA
JUDGMENT
FRANCIS
J
Introduction
[1]
The
appellant who was employed by the third respondent - the Department
of Justice and Constitutional Development (the department),
resigned
on 12 September 2008 and referred a constructive dismissal dispute to
the first respondent – the General Public
Service Sectoral
Bargaining Council (the bargaining council). He alleged that the
department had made his continued employment
intolerable by
transferring him to a position for which there was no post and then
transferred him twice to posts that were not
vacant, which compelled
him to resign. The second respondent (the arbitrator) was appointed
as an arbitrator. He issued an award
and found that the appellant had
failed to prove that he was dismissed and dismissed his referral with
no order as to costs.
[2]
The
appellant brought a review application to set aside the arbitration
award.
[3]
The
application was dismissed by Bruinders AJ on 24 January 2012 on the
basis that the appellant had failed to prove that he was
dismissed
but had resigned after the department had failed to offer him an
increased salary. The court found that although the
arbitrator had
found on a different basis that the appellant’s resignation did
not amount to a constructive dismissal, he
was correct that his
resignation did not amount to a constructive dismissal.
[4]
The
appeal before us is with leave of the court
a
quo
.
The arbitration proceedings
[5]
It is
common cause that the appellant was employed by the third respondent
on 1 July 1991 to 30 September 2008. He commenced employment
as a
public prosecutor on 1 July 1991 until 1999 when he was promoted to
the position of a senior public prosecutor. In January
2005, he was
promoted to the position of Director: Administrative Secretary:
Ministry. This position was advertised internally
and externally at a
salary scale of R427 497.00 per annum. He had negotiated the
salary scale increase to R488 154.00
per annum before he
accepted the post. His duties included doing sessional duties in Cape
Town about four times a year. In addition
to his salary, he was
entitled to receive about R3 100 per month for a Personal
Non-Pensionable Allowance (PNPA allowance)
and to receive sessional
allowances for sessional duties in terms of Public Service Sectoral
Bargaining Council (PSSBC) Resolution
3 of 1999. A written agreement
of employment was signed between the parties on 13 January 2005.
[6]
The
appellant served as a Director: Administrative Secretary: Ministry
from 1 February 2005 to 30 September 2006. In March 2006,
the third
respondent seconded a Ms Ncongwane to the appellant’s unit as a
deputy director. In September 2006, the department
notified the
appellant that he was transferred to the position of Director: Court
Efficiency Services in the court services branch
with effect from 1
October 2006 even though there was no such vacant post. In the
result, although the appellant was transferred,
he retained his title
of Director: Administrative Secretary: Ministry. The effect of this
transfer was that the appellant did not
have sessional duties
anymore, which resulted in the third respondent not only stopping the
payment of his PNPA allowance in August
2007 but also demanded that
he refund the PNPA allowance that he had received after the 2006
transfer. The appellant initiated
negotiations with the third
respondent about making up for the financial loss caused by the
transfer. Ms Sejosengwe supported by
Ms Modise, advocate Jiyane, Ms
Gomm and Dr De Wee who are all senior employees of the third
respondent endeavoured to create a
post for the appellant. The
Director General rejected the recommendation without furnishing
reasons. The appellant thus continued
to occupy the post of Director:
Administrative Secretary: Ministry although he no longer served as
such until 30 November 2007.
[7]
In
November 2006, the third respondent advertised the appellant’s
post. In July 2007, the third respondent interviewed candidates
to be
appointed to the appellant’s post of Director: Administrative
Secretary: Ministry. In September 2007, the third respondent
notified
the appellant that he was transferred to the Chief Directorate
Programme Co-ordination and Court Services with effect
from 1 October
2007. There was no such vacant post when he was transferred. He
lodged a grievance with the third respondent which
failed to respond
to it within the prescribed time frames. He then referred the matter
to conciliation and arbitration.
[8]
On 5
December 2007, the appellant received notification from the third
respondent that he was temporarily relocated to the position
of
Director: Business Operation with effect from 1 December 2007. In
December 2007, the third respondent drew a memorandum dated
11
December 2007 motivating that Ms GG Ncongwane should fill the
appellant’s post of Director: Administrative Secretary:
Ministry. In December 2007, the appellant referred a dispute for
conciliation. The recommendation was approved by the Director
General
and the Minister in January 2008. In February 2008, the third
respondent offered the aforesaid post to Ms Ncongwane who
accepted
it.
[9]
The
appellant tendered his resignation in June 2008. In June 2008, the
third respondent through its Director General notified him
in a
letter dated 30 June 2008 that he was absorbed into the post of
Director: Court Manager Johannesburg Magistrate’s Court.
He
refused the offer because he wanted the issue of the salary to be
discussed first. He later agreed to accept the offer because
the
issue of the salary package would be discussed after his acceptance
of the offer. After he had accepted the offer, the parties
entered
into negotiations around his salary. They could not agree about the
salary scale. He tendered his resignation in September
2008 which was
accepted by the third respondent. He referred a constructive
dismissal dispute to the first respondent for conciliation
and
arbitration. The matter was arbitrated by the arbitrator.
[10]
During
cross-examination, the appellant conceded that the issue relating to
his transfer that occurred in September 2006 to December
2007, was
dealt with in the unfair labour practice award and that the remedy
was in his favour and was granted arrear allowances.
He agreed that
the offer of court manager was similar to the one that was offered to
him in February 2008 and June 2008 and that
he had accepted that
position until June 2008 and had reported at the regional head. He
conceded further that his exit interview
document indicates that he
resigned because of an unfair labour practice. He did not pursue the
unfair labour practice dispute
at the bargaining council because it
was clear that the third respondent was not willing to resolve his
concerns because despite
the fact that he had referred the dispute of
an unfair labour practice before, the third respondent continued with
the transfer
and after he had resigned, he decided to lodge a
dispute. He resigned because he wanted to redress the wrongs that
were done to
him. He did not know that the unfair labour practice
route at the bargaining council was still open to him before he could
resign
because it was the first time that he had become involved in
such issues. He agreed that he had obtained advice before he
resigned.
His dispute arose on 12 September 2008 when he resigned. He
conceded that the third respondent had made two options and he chose
option 2 but that he wanted his salary to be pushed up. The third
respondent considered his proposal and the Director General decided
to put him on a personal notch which he did not accept. The third
respondent withdrew the offer of the absorption to the court
manager
post and the allowances. He regarded himself as Director: Court
Manager Johannesburg Magistrate’s Court. He conceded
that his
complaint was not about the withdrawal of the permanent post but
about his employment becoming unbearable with effect
from March 2006
to 12 September 2008. It was part of his concern that he was
incurring financial loss particularly from the Ministry
position. He
served his resignation on 6 June 2008 and on 11 June 2008, he was
advised that that post of Director: Court Manager
Johannesburg
Magistrate’s Court was abolished. He did not want to continue
to work in an acting post. The offer was made
in February 2008 and
was withdrawn on 11 June 2008. He accepted the offer and it was
thereafter withdrawn or abolished. He conceded
that he had a verbal
agreement with the Director General but not in terms of the service
regulations.
[11]
The
third respondent called Vuso Shabalala as its witness. He testified
that he became a Director General on 29 June 2008. He was
involved in
the issue of the appellant’s employment. The Director General
brought it to his attention that the permanent
absorption of the
appellant as Director: Court Manager Johannesburg Magistrate’s
Court was made in early February 2008. The
director general requested
him to handle the absorption of the appellant. He was aware that the
appellant had accepted the offer.
Two options were provided to the
appellant after he had indicated that he expected a salary increase.
He thereafter tendered his
resignation after the third respondent did
not accept his proposal.
The arbitration award
[12]
The
arbitrator was required to determine whether the appellant’s
resignation constituted a constructive dismissal in terms
of the
Labour Relations Act 66 of 1995 (the LRA). He said that it was common
cause that he had tendered his resignation on 12 September
2008 and
that the appellant had said that it constituted constructive
dismissal. The appellant had said that the circumstances
which led to
his resignation occurred from 2006 to 2007 i.e. transfer issues. The
third respondent argued that the transfer issues
that occurred during
2006 to 2007 were resolved and finalised after the appellant had
lodged a dispute about an unfair labour practice
relating to the
Ministry post and subsequent transfers. The arbitrator said that the
third respondent’s version was probable
in that it was common
cause that the appellant had lodged the grievance at the workplace
about the issue of being transferred.
It was further common cause
that the third respondent failed to deal with that issue and after
that he had referred the dispute
to the Council for Conciliation and
Arbitration. The appellant had conceded during cross-examination that
the issue relating to
the transfer that happened between September
2006 to December 2007 was dealt in an arbitration award which was in
his favour.
[13]
The
arbitrator said that the appellant’s version clearly showed
that the issue relating to the transfer was resolved by means
on an
arbitration outcome issued on 5 August 2009. The appellant could not
rely on the circumstances that occurred in September
2006 to December
2007 which were dealt with and resolved. This meant that his
conviction and apprehension which drove him to resign
on 12 September
2008 no longer existed
,
since
he had resigned on 6 June 2008 before the outcome of the arbitration
award was issued
The
appellant could in that referral have limited the arbitrator to grant
him the relief he sought that he be taken back to his
Ministry
position. The appellant was not happy about how this matter was
resolved and repeated this issue as grounds of his referral
in his
constructive dismissal referral. He testified during
cross-examination that he resigned on September 2008 because he
wanted
to redress the wrongs that were done to him. The arbitrator
said that the evidence showed that the appellant was under a genuine
impression that when he resigned, he would be able to address the
issue which was not dealt with satisfactorily in terms of the
arbitration outcome.
[14]
The
arbitrator said that it was common cause that the appellant sought
reinstatement alternatively compensation. The relief on its
own cast
a light that it was improbable that the appellant had believed that
there was no point in continuing with the employment
relationship
when he resigned in September 2008 despite the fact that he was aware
that the post was abolished. The arbitrator
said that as a result of
this, it was not necessary for him to deal with the issue of the
offer of absorption to Director: Court
Manager Johannesburg
Magistrate’s Court post because it was the appellant’s
evidence and argument that the continued
circumstances occurred from
2006 to 2007 that made his condition of employment intolerable. The
issue of the permanent post started
after 2007 i.e. on 1 February
2008 to September 2008. He found that the appellant had failed to
discharge on a balance of probabilities
that he was dismissed
constructively. His referral was dismissed with no order as to costs.
The decision of the court
a quo
[15]
The
appellant felt aggrieved with the arbitration award and brought a
review in the court
a
quo
.
He sought that the arbitration award to be reviewed and set aside on
several grounds. It is not necessary to repeat those grounds
of
review.
[16]
The
court
a
quo
said that much was made by both parties in the review before him of
the application of the
res
judicata
rule.
The appellant contended that he was entitled to rely on the same
facts for his unfair labour practice claim in the first arbitration
and for his constructive dismissal claim in the second referral. The
department, on the other hand, contended that the fairness
of the
transfers is the same question for consideration in both
arbitrations. Because the question before him had already been
decided in the first arbitration, he said that the arbitrator in the
second arbitration was correct to dismiss the constructive
dismissal
claim. The court said that on reflection, it was not necessary to
decide whether
res
judicata
or
issue estoppel applied to the second arbitration award. It had
assumed, in favour of the appellant that they did not, as a
consideration
of the merits of his case, seemed appropriate and just.
The court invited counsel to address him on the merits of the
constructive
dismissal claim. The court said that on the facts it was
not persuaded that the resignation amounted to constructive
dismissal.
[17]
The
court said that the appellant did not resign because his employer had
made his situation at work so intolerable that he could
no longer
work there which was the only basis for success in a constructive
dismissal claim. He resigned because he could not get
the third
respondent to agree to the salary he had demanded during
negotiations. He would have continued working for the third
respondent had it agreed to his counter-proposal. The third
respondent did not make his life unbearable at the workplace in
Johannesburg.
It had simply refused to agree to his counter-proposal,
having itself offered to increase his salary. The fact that the
appellant
found the refusal of his counter-proposal for a salary
increase unpalatable, did not make his employment intolerable. At
best,
for him, he resigned because he did not succeed in obtaining
his salary demand in salary negotiations. He did not resign because,
without reasonable justification, the third respondent had made his
life so unbearable at the workplace that it damaged or was
likely to
damage the relationship of trust and confidence between the parties,
such that the appellant could not be expected to
put up with it. The
court said that he would have been entitled to resign in those
circumstances.
[18]
The
court said that although the arbitrator found on a different basis
that the employee’s resignation did not amount to a
constructive dismissal, he was correct that the resignation did not
amount to a constructive dismissal. There was therefore no
reason to
set aside the award and that the review application had to fail. The
court said that it was not necessary to decide whether
the arbitrator
was correct that the matter was
res
judicata
–
which was the basis on which the appellant sought to review the
award. The court said that it would in the circumstances
not be fair
to award costs against the appellant. The review application was
dismissed with no order as to costs.
On appeal
[19]
The
appellant contended that the first issue to be decided is whether the
award which was the subject matter of review before the
court
a
quo
should
have been set aside because of process related irregularities more
particularly a material failure to consider evidence.
Secondly
whether this Court should re-determine the matter and uphold the
appellant’s constructive dismissal claim which
the appellant
submitted it should.
[20]
The
appellant submitted that the court
a
quo
erred in upholding the award for reasons different to those advanced
by the commissioner. Secondly, the court
a
quo
’s
approach to testing whether there was proof of a constructive
dismissal was too narrow. The court erred by not giving sufficient
weight to the appellant’s submission that in terms of the
decision in
Murray
v Minister of Defence,
[1]
a
broader approach was warranted. Based upon the evidence as a whole,
the appellant had satisfied the test of constructive dismissal.
[21]
It
was further contended that the
court
a quo
erred
in dismissing the review application by relying on grounds other than
those relied upon by the arbitrator for his finding.
The arbitrator
had found that the issue was
res
judicata
and
accordingly dismissed the referral. The court found that it was not
necessary to deal with the issue of
res
judicata
and
found that the appellant had resigned because the parties could not
reach an agreement on the salary.
Analysis of the facts and arguments
raised
[22]
There
is only one test for reviews brought in terms of the LRA which is the
test laid in the majority judgment of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[2]
The test on review is whether the award was one that a reasonable
decision-maker could not reach.
[23]
The
arbitrator and the court
a
quo
dismissed
the referral for different reasons. They both found that the
appellant had failed to prove that he was constructively
dismissed.
The court
a
quo
considered the material that was placed before the arbitrator and
found that the decision was reasonable for different reasons.
The
court
a
quo
followed
the approach endorsed in
Fidelity
Cash Management Service v CCMA and Others.
[3]
The approach adopted by the court
a
quo
was
correct and the first ground of appeal therefore fails.
[24]
The
second ground of appeal is that the court
a
quo
’s
approach to testing whether there was proof of a constructive
dismissal was too narrow and not the wide one in
Murray
.
This is simply not correct. There is only one test that needs to be
applied when dealing with constructive dismissals. The test
used in
the
Murray
matter
is the same test that has been used by the Labour Court and the
Labour Appeal Court over the years. This is based on the
provisions
of section 186(1)(e) of the LRA.
[25]
The
crucial question to be determined in this appeal is whether the
appellant has proven that his resignation amounts to a dismissal
in
terms of section 186(1)(e) of the LRA which provides as follows:
‘
Dismissal
means that an employee terminated a contract of employment with or
without notice because the employer made continued
employment
intolerable for the employee.’
[26]
The
appellant bears the
onus
to prove that he terminated his contract because his employer had
made his continued employment intolerable. The facts are not
much in
dispute. The appellant is a lawyer by profession. He had been a state
prosecutor for a number of years and eventually occupied
the position
of Director. He was in dispute with the department about his position
with the department. He referred an unfair labour
practice dispute
which was subsequently resolved in his favour. He finally resigned
from the department which accepted his second
letter of resignation.
He then proceeded to refer a constructive dismissal dispute to the
bargaining council contending that the
department had made his
continued employment intolerable. The arbitrator found against him,
so did the
court
a quo
too.
The court
a
quo
found
that dismissal of the appellant did not amount to constructive
dismissal. It found that based on the material that served
before the
arbitrator he had failed to prove so. The court
a
quo
arrived at the same conclusion for different reasons.
[27]
It is
clear from the common cause facts and the various correspondence
between the appellant and officials of the third respondent
why he
had resigned. Nowhere does he state that he resigned because the
employer had made his continued employment intolerable.
It is common
cause that he was transferred to various vacant posts. He was unhappy
with this and referred an unfair labour practice
dispute to the
bargaining council. In a letter dated 5 May 2008, he gave no reason
why he was resigning with effect from 1 July
2008 and said that his
last working day would be 30 June 2008. The Director General
responded to his letter with a letter dated
29 June 2008 and informed
him that he had decided to absorb him into the post of Director:
Court Manager Johannesburg Magistrate’s
Court which was at the
level of Director at his then current level. He was informed that it
was a lateral transfer and should he
find the transfer acceptable, he
had to report to the regional head through the departmental
structures. His current remuneration
would remain the same. He was
requested to indicate whether the above was in order. He indicated on
30 June 2008 that he accepted
the transfer and withdrew his
resignation.
[28]
The appellant sent Mr
Shabalala an email and dealt with the history of his matter and the
previous positions that he had occupied
.
It is
not necessary to repeat what is stated in the email save to point out
that nowhere in the email does he complain that his
employer had made
his continued employment unbearable. He dealt with the
counter-offers. From the contents of the aforesaid email
he resigned
because he was not placed on a higher notch which had financial
implications for him. In a letter dated 14 August 2008,
the Director
General in response to the appellant’s resignation offered him
two counter-offers of employment. The first option
was for him to
remain a permanent employee and to act in the post of Director: Court
Manager Johannesburg Magistrate’s Court
until the post was
filled on a permanent basis. The department undertook to reimburse
him in respect of his travelling expenses
from Pretoria to
Johannesburg and back during the period of his acting appointment.
The second option was for him to be appointed
on a contract basis for
a period of one year as Director: Court Manager Johannesburg
Magistrate’s Court on a salary package
of R599 346.00 per
annum. If he accepted this option, the salary package would not be
renegotiated during the forthcoming
twelve months. He was required to
indicate which option he was accepting.
[29]
The
appellant responded in a letter or memorandum dated 18 August 2008
and stated that the purpose was to obtain approval of the
Director
General to appoint him on a contract basis for a period of one year
as Director: Court Manager Johannesburg Magistrate’s
Court on a
salary package of R626 538 per annum with effect from 1 July
2008. He raised concerns regarding the remuneration
package offered
by the Director General and stated that he had accepted the offer
made in the letter dated the 29
th
June 2008 on condition that his salary package would be reviewed to
cover his transport costs between Pretoria and Johannesburg
that he
would have incurred as a result of the transfer. He then proceeded to
deal with his motivation which is not necessary to
repeat save to
indicate that he said that the ideal position would be to relocate to
Johannesburg; however, the current economic
situation in the country
had made it difficult for him to sell his house. He recommended that
the Director General approved his
appointment on a contract basis for
one year as a Director: Court Manager: Johannesburg Magistrate’s
Court on a salary package
of R626 538 per annum with effect from
the 1 July 2008.
[30]
The
Deputy Director General sent the appellant an email dated 4 September
2008 requesting that he,
inter
alia,
indicated
who he was reporting to at national office and was requested to sign
and indicate whether he accepted the last absorption
offer to him. He
responded in an email dated 6 September 2008 and stated,
inter
alia,
what
he had been doing and stated that he was executing his duties at the
Johannesburg Magistrate’s Court and would continue
to do so
until they have come to a final understanding/agreement. He said that
he would respond to the final offer from the department
on or before
12 September 2008.
[31]
In a
letter dated 12 September 2008, the appellant stated that he had
considered the final offer of employment and had decided not
to
remain in the employ of the department as stated in his memorandum
dated 18 August 2008. He said that his last working day would
be 30
September 2008. The third respondent responded to his letter with its
on 17 September 2008 and said that it had tried to
accommodate him in
terms of the absorption but were constrained by considerations of
equity and the relevant prescripts relating
to remuneration. His
resignation was accepted and that his last day of service was 30
September 2008. The appellant completed a
Staff Statistics: Staff
Losses form on 26 September 2008 and stated that the reason for the
staff loss is “Nature of Work;
Poor progress/promotions
prospects; Inconvenience with Transfer and Abolition of position,
reorganisation or rearrangement and
Unfair Labour Practice”.
[32]
It is
clear, viewed objectively, that the true reason for the appellant
leaving his employ is stated in his letter dated 12 September
2008
read with the memorandum of 18 August 2008, which clearly show that
his main concern was his salary. The position that he
was absorbed
into was still on a Director level salary but he was not happy with
the salary that he was being paid. It is also
worth noting that
although he raised a concern about being supernumerary to the
department, he opted for an option of a fixed term
employment of just
one year in exchange for a higher salary. The reasons advanced in his
referral and that he gave at the arbitration
hearing were an
afterthought. He had attempted to make out a case for constructive
dismissal when that was clearly not the case.
As correctly stated by
the court
a
quo
,
it is also clear that if his proposal for a higher salary had been
accepted, he would not have resigned. He said that his financial
position would lead to unbearable conditions of employment. He had
acknowledged that if he moved to Johannesburg, his financial
situation would be different but he could not sell his house at the
time.
[33]
He
explained in that memorandum why he sought an increase in the
increased offer of remuneration by the third respondent in its
second
option. He sought an additional increase of R4000.00 per month, on
the basis that he travelled to work in Johannesburg from
Pretoria.
The memorandum said nothing about the third respondent having made
life in his new post (in which he had already started)
so intolerable
that he was compelled to leave. On the contrary, the memorandum is a
clear example of an attempt at negotiating
a better remuneration
package. That attempt was ultimately unsuccessful.
[34]
The
court
a
quo
did
not err when he found that the true reason for the appellant
resigning was a disagreement on the remuneration which was based
on
the evidence that was placed before the arbitrator. In my view, the
arbitrator should have taken into account the facts that
were
referred to him in the first referral in dealing with the issue of
constructive dismissal but his failure to do so, however,
did not
render his decision susceptible to review. He still arrived at a
decision which a reasonable arbitrator could have arrived
at. The
court
a
quo
did not err in dismissing the appellant’s review application.
He failed to prove that he resigned because the employer had
made his
continued employment intolerable.
[35]
The
appeal stands to be dismissed.
[36]
I do
not believe that this is a matter where costs should follow the
result.
[37]
In
the circumstances, the following order is made:
37.1 The appeal is dismissed.
37.2 There is no order as to costs.
Francis
AJA
Acting
Judge of the Labour Appeal Court
I
concur
Waglay JP
Judge
President of the Labour Appeal Court
I
concur
Molemela AJA
Acting
Judge of the Labour Appeal Court
APPEARANCES:
FOR
THE APPELLANT:
Advocate F A Boda
Instructed by Mashobane Attorneys
FOR THIRD RESPONDENT:
Advocate N Cassim SC with Advocate D T Skosana
Instructed by State Attorney
[1]
[2008] 6 (BLLR)
513 (SCA).
[2]
2008 (2) SA 24
(CC).
[3]
(2008) 29
ILJ
964 (LAC) at para 102.