About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 113
|
|
Western Cape Education Department v Gordon (CA 11/13) [2014] ZALAC 113 (26 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no: CA 11/13
In
the matter between:
THE
WESTERN CAPE EDUCATION DEPARTMENT
Appellant
and
THE
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
CRAIG
BOSCH
N.O
Second
Respondent
JULIAN
GORDON
Third Respondent
Heard:
12 March 2014
Delivered:
26 June 2014
Summary:
Review application – Constructive dismissal – employee
applying for temporary incapacity leave and early ill-health
retirement- employer failing to process both applications- employer
applying leave without pay- and deducting employee salary-
employee
resigning- commissioner finding employer conduct rendering employment
relationship intolerable and ordering re-instatement.
Remedy-
consideration of fairness in granting remedy- re-instatement uncommon
for constructive dismissal- employee showing undisputed
evidence
circumstances prevailing at the time of seeking re-instatement
different to those at the time of his resignation- Labour
Court
Judgment upheld- appeal dismissed with costs.
Coram:
Davis JA Molemela
et
Sutherland AJJA
JUDGMENT
MOLEMELA
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court (Steenkamp
J), dismissing an application brought by the appellant
to review an
award of the second respondent, acting under the auspices of the
first respondent, in which the second respondent
(“the
commissioner”) found that the third respondent (“Mr
Gordon”) was constructively dismissed by the
appellant and
ordered that he be re-instated. The appeal is brought with leave of
the Labour Court.
Background
facts
[2]
Mr Gordon was employed in the public service from 1986 and later
occupied the position of a Deputy Director: Personnel Management.
He
reported to a certain Mr Elliot, who was the Human Resources (HR)
Director. Mr Gordon suffered a heart attack in July 2006.
He
recovered but after a while started experiencing anxiety attacks. He
was eventually diagnosed with post-traumatic stress disorder
and
clinical depression.
[3]
Mr Gordon returned to work on 8 January 2007. He struggled to cope
and was “booked off-sick” from mid-February 2007.
He was
hospitalised on 27 March 2007. He requested that he be granted an
ill-health retirement. He was advised to submit an affidavit.
On 2
June 2007, he duly submitted an affidavit in support of his
application for ill-health retirement and also applied for temporary
incapacity leave. He handed his application and supporting documents
over to Mr Elliot, who undertook to personally attend to Mr
Gordon’s
application. On Mr Gordon’s request, Mr Elliot undertook to see
to it that the form was duly signed by two
witnesses. Mr Gordon
thereafter submitted medical certificates on a monthly basis as proof
of his inability to work.
[4]
Mr Daniels took over from Mr Elliot as HR Director. In September
2008, Mr Daniels visited Mr Gordon at his home and made enquiries
pertaining to his illness and his return to the workplace. Mr Gordon
informed him that he had still not heard anything from the
appellant
regarding his application for ill-health retirement and temporary
incapacity leave.
[5]
On 3 December 2008, Mr Gordon received a letter from the appellant
acknowledging receipt of medical certificates covering the
period up
to 30 September 2008 but pointing out that no medical certificates
had been submitted since that date. Mr Gordon was
instructed to
report for duty immediately upon receipt of the letter of 3 December
2008. He submitted medical certificates in respect
of the period 1
October 2008 to 3 December 2008. On 19 December 2008, Mr Gordon sent
the appellant a letter urging the finalisation
of his application for
ill- health retirement and temporary incapacity leave.
[6]
On 8 February 2009, Mr Gordon received a letter from the appellant
notifying him that he would be regarded as having absconded
if he did
not resume his duties by 9 February 2009. Mr Gordon duly resumed his
duties on 9 February 2009.
[7]
In April/May 2009, Mr Gordon received a letter from the appellant’s
Mr Wilkinson, indicating,
inter alia
that his application for
temporary incapacity leave that had been submitted in 2007 had not
been processed because the application
form had not been signed by
two witnesses. He was asked to re-submit the form in question. On 11
June 2009, he referred a grievance
to the appellant and also alluded
to the mysterious disappearance of his application for temporary
incapacity leave. The application
form re-surfaced in his office more
or less on 3 July 2009, when it was slipped underneath his door in
his absence. Mr Gordon stated
that he could only re-submit his
application on 07 August 2009.
[8]
What had transpired in the meantime was that on 26 June 2009, the
appellant had sent Mr Gordon a letter notifying him that as
a result
of his failure to re-submit his temporary incapacity leave, the
appellant had decided to grant leave without pay in respect
of his
absence from work for the period 31 July 2006 to 06 February 2009. On
2 July 2009, Mr Gordon received a letter from the
appellant informing
him that, in terms of section 38 of the Public Service Act of 1994,
the appellant was going to recover from
his salary a total sum of
R753 352.02, which was the total amount paid to him when he was
absent from work. He was advised
that the aforesaid amount would be
deducted from his salary at the rate of R 12 000 per month. He
realised that after all deductions,
he would be left with a net
income of R2 159 per month.
[9]
Mr Gordon contacted the appellant and requested it to place a
moratorium on the deductions pending consideration of his application
for temporary incapacity leave. He lodged another grievance. He did
not receive any response. He tendered his resignation on 1
July 2009.
A grievance meeting was held on 3 July 2009 between Mr Gordon, Mr
Daniels and a Mr Faker. He was given two options:
(i) he could
proceed with his resignation, or (ii) he could retract it. In the
event of him choosing the latter option, Mr Daniels
would assist him
with his application for ill-health retirement. He was further
advised that irrespective of the option he chose,
Mr Daniels and Mr
Faker would approach the Head of Department regarding the appellant’s
decision to apply a policy of leave
without pay in respect of his
absence from work and the resultant deductions. Mr Gordon retracted
his resignation on 29 July 2009.
[10]
On 4 August 2009, Mr Gordon sent an e-mail to the appellant enquiring
whether a decision had been made regarding the refund
of the amount
of R12 000.00 that had already been deducted from his salary at
the end of July 2009. Surprisingly, despite
his retraction of his
resignation, he was told to convey his election in respect of the two
options offered to him in the grievance
meeting of 3 July 2009. He
responded in an e-mail dated 7 August 2009 in which he pointed out
that the option he had selected was
obvious. He
inter alia
stated as follows:
‘
I
believe that enough time has passed for the WCED (appellant) to
exercise its rights, either way, and to make a decision as to
whether
the money deducted will be repaid or not. In our conversation last
Friday afternoon, you indicated to me that this matter
will be
resolved within 72 hours (and that has long since passed)...
In
order for me to make further decisions around my relationship with
the WCED, I would urge you to conclude this matter by this
coming
Tuesday, failing which I will be forced to resign.’
[11]
At the end of August 2009, the appellant deducted another instalment
of R12 000.00. Another grievance meeting was held on 1
September
2009. After a discussion, Mr Daniels and Mr Faker gave Mr Gordon an
agreement and asked him to sign it so as to authorise
them to obtain
a mandate from the Head of the Department. Mr Gordon kept on phoning
them to enquire about the matter. Mr Daniels
informed him that they
had still not obtained a mandate from the Head of the Appellant’s
department. On 30 September 2009,
Mr Gordon submitted his letter of
resignation.
[12]
On 30 October, he referred the dispute to the relevant bargaining
council (first respondent). The arbitration award was handed
down on
14 March 2012. The arbitrator found that Mr Gordon was constructively
dismissed and that his dismissal was unfair. He ordered
that Mr
Gordon be reinstated. The appellant applied for a review of the
arbitration award but the Labour Court dismissed the application
on
the basis that the commissioner had correctly found that Mr Gordon’s
resignation amounts to a constructive dismissal.
Labour
Court proceedings
[13]
The appellant brought an application to review and set aside the
commissioner’s award in terms of section 145 of the
Labour
Relations Act.
[1]
The deponent
to the founding affidavit alleged that the commissioner had committed
misconduct in relation to his duties and had
reached a conclusion
that a reasonable decision-maker could not reach. It was contended
that the commissioner erred on the facts
when he found that Mr Gordon
was constructively dismissed. The appellant further argued that the
commissioner ought to have found
that Mr Gordon was not dismissed but
chose to resign voluntarily and that his dismissal could not be
attributed to the appellant’s
conduct. With regards to the
remedy granted by the commissioner, the appellant’s proposition
was that the commissioner erred
by ordering re-instatement despite Mr
Gordon’s averment that the employment relationship had become
intolerable. According
to the appellant, the remedy granted flouted
the provisions of section 193(2)(b) of the LRA.
[2]
[14]
The Labour Court reasoned that, although it seemed anomalous that Mr
Gordon sought re-instatement despite having claimed that
the
appellant had made the working relationship intolerable, the evidence
established that the appellant had, objectively speaking,
made a
continued working relationship intolerable for the employee. The
Labour Court found that the employee’s desire to
be reinstated
was not destructive of the finding that the employment relationship
was, at the time of the employee’s resignation,
intolerable.
The Labour Court concluded that the Commissioner’s findings
were not so unreasonable as to warrant interference
therewith.
The
applicable review test
[15]
The following dictum in the case of
Herholdt
v Nedbank Ltd,
[3]
aptly summarises the legal position applicable to reviews brought in
terms of section 145(2)(a) of the LRA and requires no further
elaboration.
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material
errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.’
The
appeal
[16]
The appeal turns on three issues. Firstly, whether Mr Gordon’s
resignation constituted a constructive dismissal as contemplated
in
section 186(1)(e) of the LRA. Secondly, in the event that it does
constitute such a dismissal, whether the appellant had conducted
itself in such a manner that it was to blame for the intolerable
relationship. Thirdly, whether the remedy of reinstatement was
appropriate given Mr Gordon’s assertion that the appellant had
made the employment relationship intolerable.
Evaluation
of arguments
[17]
The appellant argued that the Labour Court erred when it concluded
that Mr Gordon was constructively dismissed and that his
dismissal
was unfair, given that he resigned twice and in both instances his
resignation occurred when the appellant was in the
midst of attending
to his respective grievances.
[18]
It was further contended on behalf of the appellant that the real
reason for Mr Gordon’s resignation was not that the
appellant
made the employment relationship intolerable but rather that he
wanted to avoid deductions from his salary entirely and
claim his
pension benefits. The appellant submitted that the latter contention
was bolstered by the fact that Mr Gordon had approached
the appellant
and asked for re-instatement after his pension benefits were paid to
him. The appellant contended that the inescapable
inference that can
be drawn from the fact that the third respondent subsequently
petitioned the department for re-appointment is
that the employment
situation was, at the time of Mr Gordon’s resignation, not
sufficiently intolerable. The appellant further
contended that the
appellant, as a government employer was entitled to recover any
monies owed to it from an employees’ salary.
The facts
demonstrated, so the argument went, that the appellant had reasonable
cause to deduct the over-payment in salary and
the fact that Mr
Gordon disagreed with whether the appellant could lawfully deduct the
monies was inconsequential to the enquiry
whether the appellant had
reasonable and proper cause to do what it did.
[19] In terms of section
186(1)(e) of the LRA, dismissal means that “an employee
terminated a contract of employment with
or without notice because
the employer made continued employment intolerable for the employee”.
It is clear from the provisions
of this section that in any
proceedings concerning any unfair dismissal dispute, the employee
must establish the existence of the
dismissal if this is placed in
dispute. In the case of
SA
Rugby Player Association and Others v SA Rugby (Pty) Ltd; SA Rugby
Players Association,
[4]
the
following was stated in relation to a dismissal in terms of section
186(1)(b) of the LRA:-
‘
[39]
The issue that was before the commissioner was whether there had been
a dismissal or not.
It
is an issue that goes to the jurisdiction of the CCMA.
The significance of establishing whether there was a dismissal or not
is to determine whether the CCMA had jurisdiction to entertain
the
dispute. It follows that if there was no dismissal, then the CCMA had
no jurisdiction to entertain the dispute in terms of
section 191 of
the Act.
[40
]
The CCMA is a creature of statute and is not a court of law. As a
general rule, it cannot decide its own jurisdiction. It can
only make
a ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the
Labour Court...
[41]
The question before the
Court a quo
was whether on the facts
of the case a dismissal had taken place.
The question was not
whether the finding of the commissioner that there had been a
dismissal of the three players was justifiable,
rational or
reasonable. The issue was simply whether objectively speaking, the
facts which would give the CCMA jurisdiction to
entertain the dispute
existed.
If such facts did not exist the CCMA had no jurisdiction
irrespective of its finding to the contrary.’ (My
emphasis)
[20]
In terms of section 192(1) of the LRA, it is clear that where an
employee asserts that he/she resigns because the employer
made the
employment relationship intolerable, the employee bears the
onus
of proving that the employer indeed made the employment relationship
intolerable. In the case of
Murray
v
Minister of Defence,
[5]
the
Supreme Court of Appeal described this
onus
in the following terms:
‘
These
cases have established that the onus rests on the employee to prove
that the resignation constituted a constructive dismissal:
in other
words, the employee must prove that the resignation was not
voluntary, and that it was not intended to terminate the employment
relationship. Once this is established, the enquiry is whether the
employer (irrespective of any intention to repudiate the contract
of
employment) had without reasonable and proper cause conducted itself
in a manner calculated or likely to destroy or seriously
damage the
relationship of confidence and trust with the employee.
Looking
at the employer’s conduct as a whole and in its cumulative
impact, the courts have asked whether its effect, judged
reasonably
and sensibly, was such that the employee could not be expected to put
up with it.
It deserves
emphasis that the mere fact that an employee resigns because work has
become intolerable does not by itself make for
constructive
dismissal. For one thing, the employer may not have control over what
makes conditions intolerable. So the critical
circumstances must have
been of the employer’s making. But even if the employer may be
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 in the conduct
must (in the formulation
the courts have adopted) lacked ‘reasonable
and proper cause’. (My emphasis)
[21]
In
Jordaan
v CCMA and Others,
[6]
this Court, referring to
Sappi
Kraft (Pty) Ltd, t/a Tugela Mall v Majaka N.O
and
Others,
confirmed
the two-steps approach to constructive dismissal disputes. It held
that an employee who leaves employment bears the
onus
of showing that the employer effectively dismissed the employee by
making his/her continued employment intolerable. Once this is
established, it then has to be established whether the dismissal was
unfair.
[22]
In determining whether an employee has proven that the employer made
continued employment intolerable, the employer’s
conduct must
be considered as a whole in order to make an objective determination
of whether the employer made the employment relationship
so
intolerable as to warrant its termination. In doing so, it must be
borne in mind that the test for constructive dismissal does
not
require that the employee should not have the choice but to resign,
but only that the employer should have made continued employment
intolerable.
[7]
[23]
An important consideration in this case, as correctly stated by the
Labour Court, is that Mr Gordon’s evidence relating
to the
circumstances he viewed as intolerable is largely uncontroverted.
There is no doubt that such circumstances were of the
appellant’s
making. The facts of this case are straightforward and clearly show
that the appellant’s senior employees
were wholly responsible
for the intolerable conditions with which Mr Gordon had to contend.
Although it was argued on behalf of
the appellant that it always
wanted to help Mr Gordon, the evidence adduced is inconsistent with
this submission.
[24]
The exchange at page 195 Vol. 3 of the record is significant.
‘
Presiding
officer
: I am not
interested in Mr Fry’s mandate, what I am interested in is why
you wanted to go back. You [are] telling me that
this is intolerable
so much so that you had to resign. A little while later you go back
and say please take me back. Now really
how intolerable could it have
been if you want to go back, do you understanding my dilemma.
Julian
John Gordon:
I understand
your dilemma.
Presiding
officer
: I need to make a
finding on whether you are in an intolerable situation.
Julian
John Gordon
:
An
organisation is made up of people, it is not an organ that exists in
a vacuum, it is made up of people and the actions of people
within
that organisation. I have known the organisation for a long time,
what happened to me in and to many others due to the [inaudible]
process not being administered properly, was not the norm within the
organisation. In fact I was asked by Mr Daniels to facilitate
a
session where we…[inaudible] in terms of …[inaudible]
within the department to handle the process, just thinking
about that
made me extremely fearful and stressful because it is a stressful
thing to contemplate how are we going to deal with
this without me
projecting what is happening to me.
Presiding
officer:
Okay, why is it
not intolerable how you left because you said at the time it was
intolerable and you went home and thought about
it for a week. Then
you sent them a letter saying, please take me back. It is actually
not so intolerable after all, is that not
what you are saying?
Julian
John Gordon:
I am not
saying it was not intolerable then. I am saying I believe that they
will not introduce those back if I should be re-appointed
within the WCED and they without a court order deduct leave without
pay from me to the value of 700 000.00 and I would again be
in a
dispute with the employer.
Presiding
officer:
But precisely, so
you think that is not … [inaudible]
Julian
Gordon:
I believe that they
will not introduce the same intolerable situation.
Presiding
officer:
So you think it
would not be intolerable when you go back and the whole thing is not
going to re-emerge? That they are not going
to insist on taking R750
00.00 they wanted from you. You think that is just going to go away
because that is the intolerability
as I understand it. That is the
essence of it, apart from the way that they [inaudible] the process
which I understand you [inaudible]
your complaint. The real problem
was they wanted to deduct R12 000.00. You think that also not going
to reinstate when you came
back to work for them?
Julian
John Gordon:
They wanted to
re-surface it within the context of this offer and I agree with the
Department. I would pay it back.
Presiding
officer:
You would pay it
back?
Julian
John Gordon:
I agree with
them, I disagree that they are entitled to it.
Presiding
officer:
So it is not
intolerable to pay the money back. Is that what you are saying?
Julian
John Gordon:
It would have
been intolerable. It would have been still difficult.... It would
have been a difficult matter for me to pay something
that I know was
not due to the department in the first place.”(sic).
[25]
This exchange also shows that the commissioner was alive to the fact
that Mr Gordon had, subsequent to his resignation, sent
a letter
asking for his job back. The commissioner clearly applied his mind to
this aspect of the evidence.
[26]
The appellant made much of the fact that Mr Gordon had, after his
resignation, written a letter to the appellant asking for
his job
back. This must be considered in its proper context, for his letter
was only authored on 19
October
2011, a good two years after Mr Gordon’s resignation. A desire
to be reinstated does not, without more, serve as proof
that the
employee did not regard the employment relationship as intolerable at
the time of the resignation. The employee’s
perceptions of the
intolerable conditions must be tested against the circumstances that
prevailed at the time of resignation. A
change in circumstances after
the employee’s resignation is therefore a significant factor in
the equation. I shall return
later to this aspect.
[27]
In the letter in question, Mr Gordon stated that he had always
regarded himself as a friend of the appellant, that he was a
valuable
asset to the appellant, that his health had improved and that he
would like to work for the appellant. The appellant contended
that
the letter in question is critical to the assessment whether, in
substance, Mr Gordon’s workplace environment was intolerable
and if so, whether the intolerability was caused by the appellant. I
can find nothing in the letter that seems to suggest that
Mr Gordon
did not at the time of his resignation perceive the working
relationship to be intolerable. Put differently, the contents
of his
letter in no way negate the existence of intolerable conditions and
how he perceived the employer’s conduct towards
him at the time
of his resignation. As pointed out in the
Murray
judgment, the
enquiry is whether the employer had, without reasonable and proper
cause, conducted itself in a manner calculated
or likely to destroy
or seriously damage the relationship of trust and confidence with the
employee.
[28]
The uncontroverted evidence in this matter clearly shows that from
June 2009, Mr Gordon did his part to address the issues
confronting
him, but constantly had to contend with an uncaring attitude from the
appellant’s senior officials. They were
unsympathetic despite
their awareness of his vulnerabilities arising from his illness. It
is evident from the Code of Good Practice
in Schedule 8 to the LRA
that an employee is entitled to a fair process when his application
for incapacity, whether temporary
or permanent, is considered. Mr
Gordon’s application for temporary incapacity was not processed
for two years simply because
one of the appellant’s officials
had not procured the signatures of witnesses despite his promise that
he and his secretary
would sign as witnesses. This state of affairs
persisted despite the numerous enquiries Mr Gordon regularly directed
to the officials
of the appellant regarding the progress of his
application. If the application had been processed timeously and Mr
Gordon had then
been notified of the outcome, he would not have been
faced with a situation whereby the rejection of his application
resulted in
him having to repay amounts paid to him as remuneration
over a period of almost two years.
[29] While section 38 of
the Public Service Act, 1994, permits the recovery of any overpayment
made to an employee and permits the
accounting officer of the
relevant government department to determine the instalments in terms
of which the overpayment can be
liquidated, the exercise of such a
power must be effected reasonably. The need for the accounting
officer to act reasonably is
implicit in the purpose of the section
read as a whole. Section 38(1) provides for the recovery of an
overpayment of remuneration
which, being money which has been
improperly paid from public funds, must be recovered. However,
section 38(2) (b) which empowers
the accounting officer to recover
the monies, expressly provides that he or she make a decision as to
the quantum of the instalments
to be paid by the employee to
discharge the debt so owing. That power clearly envisages that the
amounts to be deducted from the
employee’s salary should take
account of the need to repay and the ability of the employee to
discharge the debt as expeditiously
as possible. For this reason, a
determination in terms of which the deduction amounts to 80% of an
employee’s salary over
a long period of time can hardly be
considered to be reasonable under the circumstances. To make matters
worse, the appellant continued
to deduct an amount equivalent to 80%
of Mr Gordon’s salary even after he had re-submitted his
temporary incapacity application
forms. His request for a moratorium
on deductions fell on deaf ears. An 80% reduction in income has the
potential to cause any
employee stress. It is thus not surprising
that Mr Gordon ended up unable to service his debts to an extent that
this state of
affairs, to his embarrassment, came to the attention of
his secretary due to his creditors phoning him at work.
[30]
Mr Daniels was the HR Director and can thus be expected to be
reasonably conversant with all the necessary procedures applicable
in
the public service, yet he dragged his feet in addressing Mr Gordon’s
problems. He seemed content in merely informing
him that the problem
was being escalated to the head of the department. Both Mr Daniels
and Mr Faker displayed no urgency in seeking
the intervention of the
appellant’s head of the department. The appellant went on to
deduct another instalment equivalent
to 80% of Mr Gordon’s
salary, despite the fact that he had already lodged a grievance. His
enquiry on this issue was met
with the same response he had received
a month previously: that the matter would be escalated to the head of
the department. Mr
Gordon’s evidence to the effect that the
latter deduction was the proverbial last straw that broke the camel’s
back
is perfectly understandable, under the circumstances.
[31]
I agree with the Labour Court’s observation that the
culmination of events in this case is analogous to the situation
in
the case of
Murray
v Minister of Defence.
[8]
The
following remarks made by the court in the Murray case (
supra
)
[9]
apply equally to the facts of the case at hand: “The
plaintiff’s subjective condition of suspicion, demoralization
and depression, which was evident to those dealing with him, was
materially relevant to how fairness required the navy to deal
with
him”. In this matter too, fairness dictated that the appellant
should have taken the same considerations into account.
Unfortunately
this did not happen. Looking at the appellant’s conduct as a
whole and its cumulative impact, I am satisfied
that its effect,
judged reasonably, was such that Mr Gordon could not be expected to
put up with it. The Labour Court correctly
described the attitude
displayed by the appellant’s officials as obtuse.
[32]
The appellant’s attempt to create the impression that Mr
Gordon’s resignation was prompted purely by financial
gain is
clearly not consonant with the totality of evidence. .Mr Gordon was
cross-examined extensively on why he wanted to be re-instated
into
what he had previously described as an intolerable working
environment. He remained steadfast that the financial aspect “was
a crucial part of it but it was not the only part”. He
categorically stated that he believed that the workplace environment
would be different in that he would, upon his return, not be
subjected to deductions or if he was, he would repay a reasonable
amount monthly. He also testified that the appellant had since
formalised its processes and the Labour Relations department of
the
appellant was jointly involved with HR in such matters, so he
anticipated that the issue would be better handled after his
re-instatement. He also testified that he had also recovered
psychologically and would be better equipped to work than he was
previously.
[33]
The Labour Court demonstrated its awareness of the
onus
and
the approach applicable in respect of the dismissals in terms of
section 186(1)(e) of the LRA and correctly found that Mr Gordon
had
established his dismissal. Having made this finding, the Labour Court
then went on to investigate whether the commissioner’s
finding
that the dismissal was unfair was an unreasonable conclusion. The
Labour Court properly considered all the evidence adduced
at the
arbitration proceedings and found that the employer had not shown
that there was a fair reason for the dismissal. In my
view, the
circumstances of the case show that there is a causal nexus between
the conduct of the appellant towards Mr Gordon and
his resignation.
Expressed differently, the appellant was to blame for creating the
intolerable conditions of which Mr Gordon complained.
The Labour
Court duly took into account that the arbitrator was faced with only
Mr Gordon’s version and correctly concluded
that in the absence
of any evidence to the contrary the arbitrator’s finding in
respect of reinstatement was not unreasonable.
[34]
At first blush, the granting of the remedy of re-instatement in
constructive dismissal disputes may seem to be an anomaly,
considering that the basis for the termination of the employment
contract is that the employer made the continuation of an employment
relationship intolerable. However, such a remedy is not always
incongruous with the provisions of section 193(2)(b) of the LRA.
The
fact that an employee resigns on the grounds that the employer made
the employment relationship intolerable for him/her should
not,
without more, serve as a bar to re-instatement. It seems to me that
what is of the essence is the stage at which intolerability
occurs.
An employee that avers that he/she was constructively dismissed must
prove that
at the time of termination of the employment contract
he/she was genuinely under the impression that the employer had
rendered the continuation of the employment relationship intolerable.
If such an employee subsequently seeks the remedy of reinstatement,
then such an employee must show that the intolerable circumstances
that prevailed at the time of termination of the employment contract
are no longer extant. In a matter like the present, where
the
employee has placed facts showing that the circumstances prevailing
at the time of seeking re-instatement are different to
those at the
time of his/her resignation and the employer has chosen not to refute
them, then the notion of fairness dictates that
the employee’s
uncontested evidence be accepted and that he/she be re-instated into
his/her position. It follows that there
is no merit in the
appellant’s proposition that Mr Gordon’s desire to be
re-instated served as proof that he did not
regard the employment
relationship as sufficiently intolerable.
[35]
Having considered all the circumstances, I am satisfied that the
Labour Court has not erred in any way. The commissioner in
his award
demonstrated a clear understanding of the two-stage approach
applicable to constructive dismissal cases and correctly
found that
the appellant had established his dismissal. The Labour Court was
correct in finding that, objectively speaking, the
facts before the
commissioner established Mr Gordon’s dismissal and that the
commissioner’s decision pertaining to
the fairness of the
dismissal was one that a reasonable decision-maker could reach. The
Labour Court correctly dismissed the application
for review. The
appeal thus falls to be dismissed. There is no reason to depart from
the general rule that costs should follow
the result.
Order
[36]
In the result, I make the following order:
1.
The appeal is dismissed with costs.
Molemela
AJA
I
concur
Davis
JA
I
concur
Sutherland
AJA
APPEARANCES:
FOR
THE APPELLANTS:
Advocate T J Golden
Instructed by State
Attorney Cape Town
FOR
THE THIRD RESPONDENT:
In person
[1]
Act 66 of 1995.
[2]
Section 193(2) of the LRA provides
that “the Labour Court or the arbitrator must require the
employer to re-instate or re-employ
the employee unless- (a)
the employee does not wish to be reinstated or re-employed; (b) the
circumstances surrounding the dismissal
are such that a continued
employment relationship would be intolerable; (c) it is not
reasonably practicable for the employer
to reinstate or re-employ
the employee; or the dismissal is only unfair because the employer
did not follow a fair procedure.”
[3]
(2013) 34 ILJ 2795 (SCA) at para 25.
[4]
(2008) 29 ILJ 2218 (LAC) at para
39-41.
[5]
(2008) 29 ILJ 1369 (SCA) at para 12.
[6]
(2010) 31 ILJ 2331
(LAC).
[7]
Strategic Liquor Services v Mvumbi
NO
2010 (2) SA 92
at para 4
[8]
(2009) 3 SA 130 (SCA).
[9]
Supra
at para [59]