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[2014] ZALAC 70
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Metropolitan Health Risk Management v Majatladi and Others (CA15/2013) [2014] ZALAC 70; [2015] 3 BLLR 276 (LAC); (2015) 36 ILJ 958 (LAC) (16 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA15/2013
In the matter between:
METROPOLITAN HEALTH
RISK
MANAGEMENT
Appellant
and
MALEBO
MAJATLADI
First Respondent
KAREN KLEINOT
N.O Second
Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Third
Respondent
Heard:
09 September 2014
Delivered:
16 October 2014
Summary: Constructive
dismissal- Employee refusing to continue working in temporary
position after expiry of agreement- Employer
suspending employee and
holding disciplinary hearing- employee found guilty on some of the
charges. Employee continuing refusing
to work in temporary position -
employer subjecting employee to second disciplinary hearing on
charges for which employee was previously
found not guilty - employee
resigning. Labour Court finding employer’s conduct rendering
employment relationship intolerable.-
Appeal - no exceptional
circumstances justifying second disciplinary hearing- evidence
showing employer pressurising employee for
refusing to work in
temporary position- employee’s resignation attributed to
employer- employer rendering employment relationship
intolerable-
employee constructively dismissed- Labour Court’s judgment
upheld – appeal dismissed with costs.
Coram: Davis JA,
Hlophe
et
DLODLO AJJA
JUDGMENT
DAVIS JA
Introduction
[1]
This is an appeal against a decision of the
court
a quo
which upheld an application to review the second respondent’s
decision that the first respondent had not been constructively
dismissed by the appellant.
Factual Background
[2]
Much of the factual narrative is common
cause and can be summarised briefly as follows: First respondent was
appointed as a medical
advisor in the Qualsa Business Unit of the
appellant. In November 2011, a senior manager in another business
unit, the Government
Employees Medical Scheme Business Unit (‘GEMS
BU’) resigned. This unit was appellant’s biggest business
unit,
earning annual revenue of approximately R 22 m. Appellant was
keen to consider the first respondent as the successor to manage this
unit. While a recruitment process was still in place, appellant asked
first respondent to act in that position. She agreed and
she was
seconded to an acting post with effect from 15 November 2011. Of
significance was the contract letter that she signed on
16 November
2011 which reads:
‘
Dear
Malebo
We hereby confirm you
temporary appointment to the position of Head Advisory Services in
the Clinical Services Department, Admin
Business Unit from 15
November 2011 to 31 January 2012.’
The letter then
continues:
‘
In
recognition of the additional responsibilities you will assume in
this capacity, you will be paid a taxable acting allowance
of R 10,
000 per month which will be incorporated into your monthly salary.
Your willingness to
undertake these additional responsibilities is much appreciated and
we wish you success in taking up this challenge.
Please sign in the space
provided below indicating your acceptance and understanding of the
offer and conditions associated with
it.’
[3]
First respondent signed this contract which
was also signed by the senior human resources business partner of
appellant Dr Nathan
Pillay.
[4]
Before this temporary contract expired,
first respondent informed appellant that she was not prepared to
continue acting in the
temporary post after the expiry of the
contract. On 28 January 2012, she sent appellant an email advising of
her intention to return
to her previous position as medical advisor
in the Metropolitan Health Risk Management Business Unit from effect
from 1 February
2012. She also obtained approval from her superior in
that business unit to take annual leave from 1 February 2012.
[5]
On 1 February 2012, first respondent was
called to a meeting with her superiors in GEMS BU, Dr Safwan Desai,
the Human Resources
Manager for the unit and Kaya Gobinca. Again the
first respondent confirmed that she was not willing to continue
acting in the
post. On 3 February 2012, while she was on annual
leave, Dr Pillay sent her an email in which he cancelled her leave
for February
2012 and informed her that she had to report to Dr Desai
on Monday 6 February 2012.
[6]
To this, first respondent replied in an
email: “As you are aware that my period in the GEMS Business
Unit ended on 31 January
2012 and I have not extended my acting
period contract.” A meeting did take place on 6 February 2012
at which Drs Desai and
Pillay sought to persuade first respondent to
continue in her acting position. According to first respondent,
another human resources
manager, Ms Bongi Safile, informed first
respondent that if she did not sign a fresh temporary contract she
would be fired. First
respondent was steadfast in her position and
confirmed that she was not willing to act beyond the three month
period to which she
had agreed in terms of the temporary contract. On
the same day, Dr Pillay suspended the first respondent. He addressed
a letter
to her informing her of immediate suspension and that she
would be called to a disciplinary inquiry at a date that would be
communicated
to her. The letter then said the following: “This
suspension is based on your refusal to obey a reasonable instructing
relating
to an acting role as HIV Advisory Service within the GEMS
BU”.
[7]
On 9 February 2012, first respondent lodged
a grievance pertaining to her suspension and the proposed
disciplinary action. She did
not receive a response thereto and again
wrote to a superior, Dr Thoko Potelwa, on 16 February 2012. This time
she received a response
which reads thus:
‘
We
acknowledge receipt of the grievance letter lodged on the 9
th
and the 16
th
of February 2012. In terms of the MHG grievance procedure you
will be invited to attend a formal grievance discussion, in
an
attempt to resolve your grievance.
Kindly note, you will be
contacted by no later than Monday the 20
th
of February, to
notify you of the date of the above mentioned meeting.’
[8]
In a further letter on 22 February 2012 Dr
Potelwa wrote as follows:
‘
In
relation to your suspension, our labour laws allow an employer to
suspend an employee. In your instance, the aforementioned suspension
precedes a formal disciplinary hearing which my opinion is in fact a
formal process which should be conducted fairly, and which
will
provide you with an opportunity to respond to the allegations made
against you. This process should, after taking its course
satisfy you
of the need or reason for the actual suspension.
In relation to the
pending disciplinary enquiry, this was initiated by the GENS business
unit, for reasons known to the unit.
As your previous
line manager I do not have the full facts to this matter. The
presiding chairperson will need to assess
the evidence presented at
the enquiry and make a finding based thereon. As discussed
yesterday, the disciplinary process
is separate from the grievance
process and I suggest that it be treated as such the
disciplinary enquiry will be the appropriate
forum to state your case
and to refute this facts presented by the initiator.’
[9]
Eventually on 24 February 2012, a
disciplinary hearing took place. The charges which were brought
against the first respondent were
set out in a letter written by Mr
Rizwan Salasa on 20 February 2012:
‘
You
will be called to answer allegations on the following charges:
CHARGES
Charge 1: GROSS
INSUBORDINATION
In that you refused to
obey a reasonable instruction from the company to continue acting in
the capacity of HOD: Clinical Advisory
Services in the GEMS Business
Unit as of 1 February 201.
Charge 2: CONDUCT
UNBECOMING
The company take a dim
view of the manner in which you have conducted yourself. In
respect of the above matter and views your
conduct as unbecoming of a
person with your status and position within the company.’
[10]
At the end of the hearing, the chairperson
found that first respondent had not committed the misconduct as
contained in Charge 1
but found her guilty of Charge 2. Pursuant to
this finding, he imposed a sanction of a final written warning. On 1
March 2012,
first respondent appealed against the outcome of this
hearing and thus the imposition of a final written warning. On 5
March 2012,
first respondent met with the senior human relations
business partner, Mr Trevor Damons, who agreed that first respondent
could
escalate her grievance to the chief executive officer of
appellant, Mr Blum Khan.
[11]
In the interim, on 7 March 2012,
appellant’s human resources executive Ms Odette Ramsingh issued
an instruction to the first
respondent to report for duty to Dr Desai
and to continue acting in the position of HOD – Clinical
Advisory Services “
until the position
has been filled and are required to hand – over period as been
successfully completed.”
Ramsingh
then warned first respondent that “
should
you not adhere to this reasonable and lawful instruction, the company
reserves its rights to take disciplinary action against
you”.
[12]
First respondent was booked off sick on 8
to 30 March 2012. During this period, appellant appointed Dr Anuschka
Coovadia to the
vacant position of HOD – Clinical Advisory
Services with effect from 1 April 2012. The first respondent only
became aware
of this appointment when she arrived back at work on 2
April 2012. When she reported for duty at her permanent post, she was
suspended
again and told to attend a second disciplinary hearing
three days later on 5 April 2012. In this letter the following was
said:
‘
The
suspension is due to you intentionally and deliberately refusing to
obey a reasonable and lawful instruction, issued to you
by the head
of Human resources on 7 March 2012, duly mandated by the CEO of
Metropolitan Health, that you report for duty in the
position of HOD:
Clinical Advisory Services in the Managed Care (GEMS) Department on
2
nd
April 2012 at 08h00.
’
[13]
Notwithstanding that the temporary position
had now been filled permanently, appellant formally charged first
respondent. The charges
are contained in a letter on 2 April 2012,
this letter having been written by Mr Trevor Damons. To the extent
that it is relevant,
the letter reads as follows:
‘
You
will be called to answer allegations on the following charges:
GROSS INSUBORDINATION
In
that you intentionally and deliberately refused to obey a reasonable
and lawful instruction, issued to you by the Head of Human
Resources
on 7 March 2012, duly mandated by the CEO of Metropolitan Health that
you report for duty in the position of HOD: Clinical
Advisory
Services in the Managed Care (GEMS) department on 2
nd
April 2012 at 08h00
.
[14]
First respondent responded to this letter
by way of a detailed letter entitled “Continued Harassment and
Victimisation”.
Of particular relevance is the following
paragraph:
‘
As
indicated in my earlier letter to you, this instruction under the
guise of operational requirements is not reasonable or valid.
In fact
the Company is unlawfully forcing me to accept a demand under the
threat of being disciplined. Stemming from your conduct
it is
apparent that the Company has always sought to harass and victimize
me to a point of no return. Your conduct in this matter
continues to
show me that you no longer wish to continue an employment
relationship with me. In fact your conduct has created a
hostile and
intolerable environment in the workplace.’
[15]
On the same day 3 April 2012, Mr Khan
responded to first respondent’s earlier grievance. His letter
read as follows:
‘
The
grievance communication received via Email on the 14
th
March 2012 refers. Your grievance relates to you unhappiness
with the outcome of the formal grievance process which Dr Thoko
Potelwa communicated to you on 22 February 2012.
Upon the perusal of all
of the documentation it is my view that the Company has conducted
itself fairly in relation to suspension
and subsequent disciplinary
enquiry.
In the light of the
above, I uphold the decision as communicated to you on 22 February
2012 by Dr Thoko Potelwa.’
[16]
Pursuant thereto, on 04 April 2012
appellant advised first respondent that the disciplinary enquiry
would proceed on the following
day. She immediately resigned. She
claimed that there had been a constructive dismissal. After an
arbitration hearing, the second
respondent disagreed and found that
the first respondent had been the “
author
of her own fate given her intransigence about position (and that)
there is thus no causal connection between the work environment
and
Dr Majatladi’s resignation”
.
The court
a quo
[17]
Steenkamp J found that the charges brought
at the second hearing were the same as the charges in the first
hearing and of which
the first respondent had not been found guilty
of “gross insubordination”. The learned judge considered
that it would
have been advisable for the first respondent to have
participated in the second disciplinary hearing and to have raised
her concerns
yet again. However, he held that the present dispute as
one of those exceptional cases where the hearing would have been so
obviously
unfair that it amounted “to the proverbial straw that
broke the camel’s back”. The employment situation had
become
so intolerable over the previous months, as the appellant
repeatedly sought to pressurise first respondent to continue in the
acting
position. Hence, it could not be held against the first
respondent that she had not attended the second hearing. Accordingly,
he
found that appellant was responsible for making the continued
working relationship intolerable as it charged the first respondent
with the same charge on two separate occasions and had made the
continued employment relationship so intolerable that a finding
of a
constructive dismissal was justified. In the circumstances, he
awarded compensation in the amount of six months’ salary
to the
first respondent.
Appellant’s
case
[18]
Mr Rautenbach, who appeared on behalf of
the appellant, submitted that the inquiry in the present case turned
on the following:
whether in all the circumstances which pertained on
4 April 2012 when first respondent resigned, she in good faith could
reasonably
have perceived that the employer’s refusal to
withdraw the disciplinary proceedings and uplift the suspension made
her continued
employment intolerable. In his view, the reason why
first respondent had been called to a disciplinary hearing at the
beginning
of April 2012 was because of the appellant’s
complaint that she had refused to assist the newly appointed head of
the GEMS
Unit, Dr Coovadia, by way of a proper hand – over of
the post in which she has acted.
[19]
Mr Rautenbach submitted further that there
was no evidence by first respondent that she did not understand the
instruction given
to her to assist in the hand – over. In this
connection, he referred to the disciplinary hearing and the following
passage
of evidence:
‘
Mr
N van Zyl: Now, would I be correct, Dr Majatladi, that this
was the essence of the task which your employer required you
to
fulfil, with effect from the 2
nd
of April and which you refused to do?
Dr M Majatladi: ‘This’
being what exactly?
Mr N van Zyl:
To assist in the handover of the post which you had filled on a
temporary basis when, is it, I forget
now the lady’s name, is
it Govadia (sic)?
Dr M Majatladi: That’s
right
Mr N van
Zyl:
When Govadia was appointed?
Dr M Majatladi: The
letter has clearly stated.
Mr N van
Zyl:
Right. And that was
the role which you refused to fulfil.
Dr M Majatladi: I refused
to fulfil that role.
Mr N van Zyl:
Right. Now, this was why the company initiated disciplinary action
against you. Not so?
Dr M Majatladi: The
company initiated disciplinary action because I refused to obey that
instruction.
Mr N van
Zyl:
That’s right.
Dr M Majatladi: And
because they wanted me to fulfil it despite somebody being appointed
in that role.’
[20]
In Mr Rautenbach’s view, she
understood the charges that had been brought against her and
furthermore appreciated that she
had a contractual duty to render the
assistance to a newly appointed colleague to ensure that the latter
understood the portfolio
and could therefore deliver a quality
service to a primary client of appellant.
[21]
Viewed
accordingly, Mr Rautenbach submitted there was no case which the
first respondent had made out which justified her allegation
of
constructive dismissal. In this regard, he referred to the approach
set out by Nicolson JA
in
Pretoria Society for the Care of the Retarded v Loots:
[1]
‘
The
enquiry then becomes whether the appellant, 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 employer and employee. It is not necessary
to show that
the employer intended any repudiation of the contract; the court’s
function is to look at the employer’s
conduct as a whole and
determined whether it is such that its effect, judged reasonably and
sensibly, is such that the employee
cannot be expected to put up with
it. I am also of the view that the conduct of the parties has
to be looked at as a whole
and its cumulative impact assessed.’
In
his view, appellant’s conduct did not fall within the scope of
this
dictum
.
Evaluation
[22]
In
the
Loots
decision,
Nicholson JA also said that when an employee “
‘
proves
the creation of the unbearable work environment she is entitled to
say that by doing so the employer is repudiating the contract
and she
has a choice either to stand by the contract or accept the
repudiation when the contract comes to an end.”
[2]
[23]
Mr
Rautenbach conceded that, were two charges to have been the same,
then the act of charging the first respondent a second time
on the
same charge would have been a major factor in favour of justifying
the first respondent’s case of constructive dismissal.
It was a
wise concession. In
BMW
(South Africa) (Pty) Ltd v Van der Walt,
[3]
this Court considered the employer’s entitlement to subject an
employee to more than one disciplinary enquiry on the same
charge.
Conradie JA, with whom Nicholson JA concurred, appeared to take the
view that fairness alone would be the yardstick to
determine whether
a second disciplinary enquiry may be conducted against an
employee.
[4]
He held that
it would probably not be considered to be fair to hold more than one
disciplinary enquiry, save in rather exceptional
circumstances. The
learned judge of appeal then explained what he meant by “rather
exceptional circumstances” when
he referred to a situation
whereby the employer acted
bona
fide
throughout the proceedings but the employee had concealed what he had
done so that only after the first disciplinary hearing had
been
conducted and completed had the full import of the deception been
appreciated and understood at the time of the first hearing.
[24]
Zondo
AJP (as he then was) adopted an even stricter approach to this
question, in finding that the correct test must take account
of the
interests of the employer as well as the employee and balance them
within the context of labour law. It would amount to
an unfair labour
practice, were a second enquiry to take place.
[5]
However, Zondo AJP did not rule out an alternative approach to the
question which was similar to that adopted by the majority,
which is
that an employer could prove exceptional circumstances before
justifying a dismissal of an employer on the base of the
second
disciplinary enquiry.
[25]
It appears to me that, given the kind of
exceptional circumstances envisaged by Conradie JA, where the first
disciplinary enquiry
could never have arrived at a fair decision for
want of fraudulent non-disclosure by the employee, a second
disciplinary enquiry
in which the hearing was fully informed of all
the facts would be justified. But that is not the case which
confronts this Court
in the present dispute.
[26]
Presumably, because the two letters which
charged the first respondent, the first on 20 February 2012 and the
almost identical letter
of 3 April 2012, contained the same charges,
the appellant was constrained to argue that a different charge had,
in effect, been
brought against the fist respondent, that is a charge
of failing to facilitate the hand – over. For this proposition,
Mr
Rautenbach referred to a small portion of the cross-examination of
first respondent which I have reproduced earlier in this judgment.
But the fact remains that the charge brought on 2 April 2012 was in
an almost identical form to that which formed the subject of
the
first disciplinary hearing and, in terms of which first respondent
was acquitted on the charge of gross insubordination.
[27]
It follows that it would be profoundly
unfair to charge an employee twice for the same offence and then when
a manifest error is
raised, for the employer to seek to alter the
very case which formed the basis of the charge which was invoked to
summons the employee
to a disciplinary hearing.
[28]
However, this is not the only difficulty
which confronts the appellant. The record indicates clearly that the
appellant was dissatisfied
with the result of the first disciplinary
proceeding. Its representatives improperly approached the chair of
the hearing and requested
that he reissue the instruction which
formed the basis of the charge on which she had been acquitted. The
transcript of the proceedings
which took place on 24 February 2012,
reveals that Mr van Deventer, the chairperson, was approached by Mr
Rizwan Salasa, the human
resources industrial relations compliance
officer who argued, notwithstanding the acquittal on gross
insubordination, that it was
still open to the appellant to reissue
the instruction. As Mr Ackerman, who appeared on behalf of the first
respondent, correctly
observed this constituted grossly unfair and
improper conduct. It clearly indicated that the appellant was
prepared to continue
to coerce first respondent in order to ensure
that she continued in the temporary position which she had refused to
occupy and
on which refusal she had not been convicted of a charge of
gross insubordination. Shortly thereafter, on 7 March 2012, Ms
Ramsingh
again instructed first respondent to return to this
position, a further indication of appellant’s coercion.
[29]
In summary, there was a pattern of
harassment of the first respondent which took place after the hearing
and accordingly it is hardly
surprising that this pattern of
harassment culminated in a second charge on the very same issue on
which the first respondent had
not been found guilty.
[30]
It
is this pattern of events which requires careful scrutiny in order to
determine whether constructive dismissal has taken place.
In this
connection, Cameron JA (as he then was) in
Murray
v Minister of Defence
[6]
cautioned that resignation because work has become intolerable does
not in itself justify a decision that constructive dismissal
has
taken place. The key question is whether the conditions, which are
intolerable, had been of the employer’s making and
whether the
employer is to be blamed therefore. In short as Cameron JA put it
“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”.
Culpability does not mean that the employer must have wanted or
intended to get rid of the employee, though
in many instances of
constructive dismissal that is the case”.
[31]
When the factual narrative in this case is
examined from the time that the first respondent indicated that she
was not willing to
continue in the temporary post beyond the three
month period to which she had agreed in terms of the temporary
contract, she was
subjected to increasing pressure from the
appellant. Even when a charge of gross insubordination in February
2012 was not upheld,
the appellant continued to ratchet up the
pressure on the first respondent after she continued to refuse and to
which she was entitled
to refuse to continue to act, given that she
made it clear from the commencement that she was only prepared to
entertain the temporary
post for a three month period.
[32]
The conditions which gave rise to her
resignation were of the appellant’s making and for which the
appellant must be held
to be culpable. Therefore the conduct of the
appellant did amount to making the continued employment relationship
intolerable and
it follows that first respondent’s resignation
amounted to a constructive dismissal.
[33]
For all of these reasons therefore, the
appeal is dismissed with costs.
______________
Davis JA
Hlophe AJA and Dlodlo
AJA concur
APPEARANCES:
FOR THE
APPELLANT:
Mr F. Rautenbach
Instructed
by:
Louis van Zyl Attorneys
FOR THE
RESPONDENT:
Mr L. Ackerman
Instructed
by:
Bowman Gilfillan Inc.
[1]
[1997]
6 BLLR 721
(LAC) at 725A-C.
[2]
at
724G-H
[3]
[2000]
2 BLLR 121 (LAC).
[4]
At para 12.
[5]
See
paras
33-35.
[6]
2009
(3) SA 130
(SCA) at para 13.