About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2019
>>
[2019] ZALAC 55
|
|
Solidarity obo Van Tonder v Armanents Corporation of South Africa (SOC) Limited and Others (JA76/2016) [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC) (8 March 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA76/2016
In
the matter between:
SOLIDARITY
OBO DR BJE VAN TONDER
Appellant
and
ArmAMENTS
CORPORATION OF SOUTH
AFRICA
(SOC) LIMITED
First
Respondent
L
NOWOSENETZ
N.O Second
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
19 February 2019
Delivered:
08 March 2019
Summary:
Constructive dismissal – employee resigning after filing a
grievance in respect of the performance contract outputs
and the
appointment of staff and referred dispute to the CCMA –t
he
review standard is correctness not reasonableness - as the issue is
one going to jurisdiction – applicant must show that
the
decision was objectively wrong. If found that there was no dismissal,
CCMA not having jurisdiction -
principle
related to constructive dismissal restated –
Held
that employment must objectively have been rendered intolerable in
the sense that no reasonable employee could be expected
to put up
with the conduct of the employer. Further that the employee must
subjectively have found the conduct to be intolerable.
Evidence
proving that employee prematurely resigned prior to exhausting
grievance procedures – court finding that there was
a tense and
awkward clash over authority but that these issues did not
objectively attained the level of intolerability - the problem
then
became one of compatibility at senior management level which in
common to any workplace - Labour Court correct in its conclusion
that
there was no dismissal in terms of section 186 of the LRA and that
the CCMA accordingly lacked jurisdiction. Appeal dismissed.
Coram:
Waglay JP, Murphy and Savage AJJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against the judgment of the Labour Court (Ram AJ)
holding that the
appellant, Dr BJE van Tonder, was not constructively
dismissed by the first respondent (“Armscor”).
[2]
At the time of the termination of his employment, the appellant had
been employed
for approximately 19 years and held the position of
Senior Manager: Quality Engineering Services. On 5 October 2007, he
tendered
his resignation and subsequently referred a dispute to the
Commission for Conciliation Mediation and Arbitration (“the
CCMA”)
claiming that he had been constructively dismissed. He
thus alleged that he had terminated his contract of employment
because the
employer had made his continued employment
intolerable.
[1]
[3]
On 10 November 2008,
the CCMA
handed down an arbitration award in the appellant’s favour and
ordered Armscor to pay him compensation in the amount
of R441 162.
Armscor took the matter on review to the
Labour Court. On 28 October 2010, Van Niekerk J set aside the award,
remitted it to the
CCMA for a fresh determination by another
commissioner on the transcribed record of the arbitration
proceedings.
[4]
The matter was determined by the second respondent (“the
commissioner”)
who issued a second arbitration award on 26 May
2011, holding that the appellant was indeed constructively dismissed
and ordering
Armscor to pay compensation in the amount of R594 996.
[5]
Armscor took the second award on review to the Labour Court
culminating in the judgment
of Ram AJ that is the subject-matter of
this appeal. The learned acting judge correctly applied the test
confirmed in
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council and Others
.
[2]
An applicant seeking review of a finding of constructive dismissal
must show that the decision was objectively wrong. The review
standard is correctness not reasonableness - as the issue is one
going to jurisdiction.
[3]
Ram AJ
held that the appellant was not constructively dismissed but resigned
from his employment with the consequence that the
CCMA lacked
jurisdiction to entertain the dismissal referral.
[6]
The appellant has consistently maintained that his employment had
become intolerable
for three reasons, compelling him to tender his
resignation. They related to firstly, the changing of performance
scores and the
negotiation of performance requirements; secondly,
alleged interference in the appellant’s division; and thirdly,
inhibiting
or interfering with the appointment of personnel.
[7]
As stated, the appellant was employed as
Senior Manager: Quality Engineering
Services. His department had a "watchdog" function and was
required to evaluate the
quality of work done by other departments
and to ensure that all contracting processes were compliant.
[8]
The appellant’s first grievance arose in the context of
performance management.
The evidence regarding this matter was poorly
presented in the arbitration proceedings. However, it is possible to
glean from the
somewhat garbled testimony that there was a
performance assessment system which involved a measure of self-
assessment and scoring.
The scores of the assessment were used for
the purpose of determining bonuses for the appellant and the members
of his department.
In 2004/2005, the appellant and his team scored in
the region of 110%, reflecting excellent performance exceeding
expectations.
[9]
The 2004/2005 scores were altered and lowered to 102% by Mr. Sipho
Mkwanazi, the acting
general manager of the Quality and IT
Department. The appellant was aggrieved by this as he believed that
Mkwanazi did not have
the authority to make the changes. However,
neither the appellant nor any member of his team lodged a grievance
regarding this
matter. At the time of his resignation, some two years
later, the issue had faded in significance and at most persisted as a
rankling
historic gripe.
[10]
After this, Mkwanazi was transferred to another department. The
appellant successfully negotiated
the performance contract for the
next year (2005/2006) with his new acting general manager, Mr Kaduka
and, in his words, the "employment
situation became tolerable
again" until the end of September 2006 when Mr Kaduka stopped
acting in the position.
[11]
In September 2006, Mr Matibe became the Acting General Manager of
Quality and IT and the appellant
was required to negotiate a new
performance contract with him. The negotiations did not go well.
According to the appellant, Matibe
kept on postponing meetings and
there were differences about the scores and the 2007/2008 performance
requirements. This resulted
in the performance contract not being
finalised by midway in the year in question. The appellant was much
frustrated by the experience
- though it appears in this instance
that the scores were not in fact changed.
[12]
The appellant’s main concern was that Matibe wanted
unacceptable requirements or outputs
as part of the performance
contract, such as requiring equity appointments to be finalised
within unrealistic time frames.
[13]
The appellant ultimately took up the issue with Mr Potgieter in the
human resources department
in an e-mail sent on 2 August 2007. The
relevant part of it reads:
‘
I
request your assistance to be able to reach agreement with the Acting
GM: Quality and IT Department on performance contract for
2007-8
(balanced scorecard) on outputs required from me and my team members.
Following
my formal proposal for a performance contract several changes and
additions were made by the Acting GM. Questions and
concerns about
the required items introduced to my performance contract were raised
in several emails, as well as during a 35-minute
discussion with my
Acting GM on 24 July 2007. The meeting had been scheduled for the
previous week and was then cancelled…After
some discussions
during which my concerns were raised, none of my proposals for the
way forward were accepted. The Acting GM closed
the meeting after 35
minutes with the words: “I think we’re done”.
Unresolved
concerns include:
-
Outputs to be contracted require inputs
beyond my control.
-
Problems related to high level adherence
to plans where the internal clients determine the content and
scheduling for reviews. Notwithstanding
major management effort over
the past few years, credible plans or the execution of tasks as
scheduled could not be achieved.
-
Outputs vaguely defined which can only
be subjectively judged and where the contracted party cannot judge or
manage progress toward
attaining contracted output.
-
Requirements for and structuring of
outputs which are not in accordance with the Performance Management
practice.
-
Outputs and calculations for final
results which cannot by the Performance Management system and
probably will lead to unexpected
calculation problems and misleading
results.
-
Outputs dependent on unknown and
undefined standards.
-
Unreasonable expectations to act in a
way which would intrude on other departments areas of responsibility
(This has happened recently).
-
Deviations from prior decisions on the
way forward with respect to performance management in Armscor to
ensure fair results and
prevent disputes.
Your
assistance to resolve these matters in the interest of Armscor e.g.
by conforming to standards which Armscor is internally
and externally
committed to will be appreciated.”
[14]
Mr Potgieter replied on 13 August 2007 as follows:
‘
I
have discussed the matter with Mr Matibe. He has indicated that he
considers the issue at this stage as an internal issue and
thinks
that the presence of the HR One Stopper should be enough to resolve
it. In the case of not resolving the matter satisfactorily
to the
satisfaction of all parties, then any party will have the right to
take it to the next level, at which point we will most
probably be
involved.
I
sincerely hope that you find a way to resolve the differences in the
spirit in which the Performance Management Practice was written.’
[15]
The performance contract-issue was not resolved to the satisfaction
of the appellant. Without
a formal performance contract, the
appellant’s work and output could not be defined or assessed.
The appellant testified
at the arbitration hearing that he had
reached breaking-point. He said:
‘
But
yes, this was the point I would say what-waterskeidings point, where
it was quite clear that there was a breakdown in relations,
that I
was not trusted, nothing that I proposed was accepted – well
nothing (inaudible) … the important problems which
I tried to
resolve in the performance contract were not accepted, my concerns
were ignored and I could not continue this way in
the department
because there is – I am being managed against something which
is vague or which I do not agree with and cannot
do.’
[16]
The second issue that the appellant maintained rendered his
employment intolerable was unwarranted
interference in the work of
his division. He again referred to historical issues. He complained
about subordinates in 2005 being
asked to write reports in which he
had an interest but could make no input. Likewise, he was aggrieved
by Matibe addressing disciplinary
issues with one of his team members
directly.
[17]
The appellant was most aggrieved by the altering of a report of one
of his team members. The
exact date of this event is not clear. Ms.
Ingrid Crossley (one of the appellant's subordinates) was the author
of the so-called
Pilatus report pertaining to an acquisition.
Mkwanazi (at that stage working in the acquisitions department and a
“client”)
wanted changes and additions to the report.
While the appellant and Crossley were on leave, Mkwanazi approached
Matibe for an electronic
copy of the report, changed it by inserting
a statement (two sentences) that may have misrepresented information
and then submitted
it to the board. The appellant and Crossley were
unhappy with these changes which they did not approve but for which
they could
be responsible. The record does not disclose (for reasons
of confidentiality) the exact nature and content of the amendments to
the report.
[18]
The third complaint of intolerability related to the appointment of
new staff to the appellant’s
division. The appellant (as Senior
Manager) was tasked to define the job requirements or specifications
of any position. The human
resources department would then advertise
the vacancies, shortlist and interview potential candidates. The
problem of ensuring
demographic representivity was the issue that led
to conflict.
[19]
The appointment of a Chief Process Assurer was a particular source of
tension.
In August
2004, Mr Oosthuizen, the then General Manager of the Quality
Department, instructed Mkwanazi to appoint a white candidate,
Mr
Peters, while he, Oosthuizen, was on leave. Mkwanazi apparently
refused to do so and the appellant formally objected. It is
not
entirely clear what happened regarding this appointment, but tension
around appointments clearly persisted. The appellant made
various
attempts to get Peters appointed but did not succeed. The position
was advertised several times during 2005-2006.
[20]
In 2004- 2005, the appellant agreed (reluctantly) to transfer a black
candidate, Mr Molotse,
to his division after the CEO instructed him
to appoint at least three people of which one must be black. Molotse
was transferred
to the appellant's department although he did not
meet all the job requirements. The appellant was not happy with this.
[21]
On 1 August 2005, the appellant addressed a memorandum to Mr Pieter
van Dyk, the then Acting
General Manager of the Quality Department.
In his memorandum, he complained that he had “no capacity to
mentor anymore appointees
not fulfilling all the requirements for the
position of Chief Process Assurer” and that this was due mainly
to the failure
“during August / September 2004 to allow QES to
appoint a candidate fully meeting the job requirements”. He
complained
further that “HR should support and not prescribe to
us as Senior Managers, as we are responsible for the management of
our
divisions and not HR” and that “I cannot see the
problem in motivating a properly selected candidate on merit for an
important position such as this to the CEO”. Management
insisted that the appointment of a suitable affirmative action
candidate
was to form part of his performance contract.
[22]
The matter came to a head in mid-2007, at about the same time the
appellant was in dispute with
Matibe about his performance contract.
The appellant provided Matibe with a report about his failed attempts
to find suitable black
candidates. The appellant was then summoned by
Mr Thomo, the CEO, and was accused of dragging his feet with
appointments and was
threatened with disciplinary action and possible
re-organisation of his division. This was something of a “final
straw”
for the appellant.
[23]
On 27 August 2007, the appellant addressed the following letter to
Matibe:
‘
After
careful consideration of Armscor’s best interests as well as my
personal work situation, I came to the conclusion that
it would be to
the interest of both parties if an amicable parting of our ways can
be effected.
I
am therefore now prepared to consider an offer from Armscor including
early retirement – depending on the terms and conditions
included in such an offer. I request that it will be taken into
account that I have the commitment to the lifelong caring for my
disabled son and therefore had the intention up to now to continue my
employment within Armscor until age 65.’
[24]
The appellant testified that he was no longer able to do his job but
that he wished to resolve
his unhappiness with the employer before
lodging any formal complaint or grievance. He viewed his employment
as having broken down
and summarised his perception of the situation
as follows:
‘
It
is obvious that they do not want me here, I cannot do my job, I have
not got the people, I cannot have proper performance contracts,
I
cannot apply my service level agreement, they are interfering in my
division and taking all this together I said it is not going
to work,
there is no trust in me, I am attacked, I am threatened, I am
intimidated, it is not going to work, let us get this employment
situation, try to resolve it and then even though, as I mentioned
here, in my personal situation it is definitely a problem but
I said
my family said they are going to kill you so I decided to propose
page 130.’
[25]
His reference to “page 130” is to the letter of 27 August
2007.
[26]
Various meetings and negotiations then took place in which the
request for early retirement was
considered. In the final analysis,
they came to nought, except that the publication of the appellant’s
request among the
staff added to the appellant’s sense of
grievance in that he saw it as a breach of confidentiality.
[27]
At a departmental meeting on 11 September 2007, the appellant was
requested to provide additional
motivation for his proposal. The
appellant prepared a letter dated 14 September 2007 and transmitted
it by e-mail to Matibe on
17 September 2007. The appellant received
no feedback in response to this letter and perceived that management
was not genuinely
considering his request to take early retirement.
Three days later he submitted a grievance dated 20 September 2007 in
terms of
Armscor’s grievance procedure.
[28]
The grievance was a lengthy document written in Afrikaans. It focused
primarily on the three
areas of concern and frustration subsequently
raised by the appellant in the CCMA proceedings. In summary, the
appellant alleged
inter alia
: i) unilateral non-compliance
with prescribed managerial practice by Mkwanazi; ii) interference,
disempowering and misconception
of reporting guidelines and
delegations; iii) non-compliance with contractual performance
assessment; iv) victimisation, false
accusations and extortion; v)
compromising of the appellant’s and his department’s
professionalism and integrity; and
vi) other procedural and
substantive unfairness. For reasons that will become apparent
presently, it is not necessary to examine
the appellant’s
allegations in any detail. He, in any event, narrowed the scope of
his complaints in the CCMA arbitration
proceedings as set out earlier
in this judgment.
[29]
The appellant concluded his written grievance as follows:
‘
Ek
het reeds by verskeie geleenthede aan mnr Matibe gestel dat ek
skeiding van weë tans as die enigste oplossing vir die huidige
onmoontlike situasie wat vir my geskep is deur Krygkor se bestuur se
optrede sien en dat ek 'n redelike voorstel vir vriendskaplike
skeiding (severance) sou verkies wat vervroegde aftrede insluit (die
saak sloer nou reeds sedert 27 Augustus).
Die
huidige ontwikkelinge (en optrede en gebrek aan tydige optrede deur
Krygkor bestuur) is besig om die skade wat ek en my gesin
in vele
opsigte ly te vererger in omvang en te laat toeneem en te laat
verdiep. ... Op hierdie stadium van die griewe proses behoort
dit nog
haalbaar te wees om op 'n gepaste onderhandelde remedie ooreen te kan
kom. ... Ek herhaal ten slotte weer soos aangedui
in my memorandum
aan mnr Matibe op 27 Augustus 2007 dat 'n vriendskaplike skeiding van
weë waarskynlik in die beste belang
van Krygkor en myself is en
dat dit bereik kan word deur 'n skeidingsooreenkoms met billike
bepalings vir my aan te bied wat vervroegde
aftrede insluit, wat ek
kan oorweeg. ... Ek behou die reg voor om indien hierdie proses nie
binne die minimum tyd afgehandel en
tot finaliteit gebring kan word
en bevestig word in 'n wedersyds ooreenkome skriftelike ooreenkoms
nie, volgende stappe te neem
ooreenkomstig wettige optredes,
werkswyses en eise wat vir my regtens beskikbaar is.’
[30]
Armscor’s grievance procedure defines a grievance as “any
dissatisfaction or feeling
of injustice which an employee may have
which arises out of and in the course of the performance of his or
her work, which is brought
to the attention of Management”.
Clause 6 of the grievance procedure deals with general principles.
The relevant part of
it reads:
‘
6.1
The parties agree that it is in their mutual interest to observe a
formal procedure for raising
and resolving grievances without
prejudicing the employment conditions of employees.
6.2
Grievances will be handled as close to the division of the
complainant as possible, i.e.
by the most immediate superior, before
being referred to a higher authority
6.3
Grievances should be resolved as soon as possible and in any case
within set time limits
at each level of authority. However,
circumstances beyond the control of Management may make an extension
of these times necessary.
Should this be the case a mutually agreed
time will be arranged with the complainant(s).’
[31]
Clause 7 of the grievance procedure prescribes the steps in the
procedure for grievances. It
sets out five distinct steps. Step 1
provides that the complainant must approach his or her immediate
superior in order to submit
a written grievance and to discuss it.
The immediate superior must attempt to resolve the grievance within
two working days. If
the immediate supervisor fails to resolve the
grievance to the complainant’s satisfaction, the complainant
proceeds to Step
2 by submitting a written grievance to the first
line manager setting out the facts and the desired solution. Efforts
must be made
to resolve the grievance within five working days. If
not resolved to the complainant’s satisfaction, the line
manager should
note this and hand the grievance to the next level of
management. The applicable manager shall convene a grievance
committee meeting,
ideally within five working days to resolve
grievance (Step 3). The committee shall be comprised of the
applicable manager, the
complainant, his/her representative and a
representative of the human resources department. The committee has
the right to call
witnesses. If the Step 3 meeting fails to resolve
the grievance, and the complainant wants to take the matter further,
the relevant
facts must be noted in writing and in-house conciliation
(Step 4) must be attempted by the next level of management. In the
event
of a grievance not being resolved in Steps 1-4, it may be dealt
with in Step 5 “in terms of the statutory Dispute Settlement
Procedure, i.e. CCMA or Labour Court, as the case may be.”
[32]
The appellant’s superior, Matibe, was therefore required in
terms of Step 1 of the grievance
procedure to consider the grievance
and hold a meeting with him within two days. That was not possible
because Matibe was due to
depart on a trip to Germany and Sweden and
would only return on 29 September 2007. Moreover, Matibe was not
proficient in Afrikaans
and needed to translate the grievance into
English to understand it. The appellant insisted on his right to
submit his grievance
in his mother tongue.
[33]
On 4 October 2007, Matibe met with the appellant in a grievance
meeting. A representative from
human resources was present and the
appellant was represented by Mr Mecer Potgieter. The appellant
initially was reluctant to attend
the meeting because he was not
given sufficient indication of its scope and purpose; he had to be
coaxed by his shop steward to
do so.
[34]
The grievance meeting was lengthy. The appellant testified that
nothing was resolved. He believed
that the other participants were
dragging out the process and the facilitator was biased. He was also
of the view that Mr. Thomo,
the CEO, and Mkwanazi ought to have been
present. He perceived their absence as an indication that management
did not want to resolve
his grievance and that there was no
reasonable prospect of any progress. The meeting ultimately
deadlocked. A further meeting was
arranged to resolve the matter. In
his evidence in chief, the appellant then said:
‘
I
went and I said I would consider my options, I slept over that and on
the next morning I decided I had – they are forcing
me out of
this organisation, they do not want me here, they do not want to
resolve the problem, they do not try, they do not follow
the
procedures, I asked for independents to assist with this, nothing was
taken into consideration or accepted…everything
was just
disregarded.’
[35]
The appellant resigned the following day, 5 October 2007. The letter
of resignation sets out
the appellant’s grievances. After
referring to his prior service, he stated:
‘
This
situation has changed drastically after a few incidents with Mr.
Matibe, Mr. Mkwanazi and Mr. Thomo (the CEO). These incidents
amounted to harassment, and are detailed in a grievance I have laid
against these three gentlemen.
My
grievance was not properly dealt with in terms of the Armscor
grievance practice, even after the problem was stated and the
grievance escalated to Mr. Thomo’s level. I regard this as
unacceptable, and as a clear indication that my line manager and
his
superior do not wish to attempt to resolve this matter, even though I
was willing to find an amicable solution for which I
even attended a
so-called “grievance meeting” which arrangements were
fraught with bias and irregularities.’
[36]
The appellant went on in the letter to discuss the Armscor grievance
procedure and alleged that
the requirements therein were “blatantly
disregarded at almost every step of the way – both procedurally
and substantively.”
He does not precisely set out how that was
so. Close analysis indicates that he was aggrieved by the fact that
Step 1 had not taken
place within two days of his lodging the
grievance. Thus, he stated:
‘
The
eventual first attempt by my line management to react to the
grievance only happened on the thirteenth day of the grievance
and
only by way of an Outlook meeting request on 2 October for 4 October
2007, blatantly disregarding my rights as the person lodging
the
grievance as inter alia explicitly stated in the Grievance Practice.’
[37]
After discussing the events at the meeting of 4 October 2007, he
concluded:
‘
The
only conclusion which could be reached after what happened and after
the so-called “grievance meeting” of 4 October
2007, is
that there was no honest attempt by my line management (up to the
CEO) to move towards a fair resolution of the grievance…
Given
the circumstances and the unacceptable and irregular way in which my
situation was managed, I cannot have any trust in the
bona fides of
management or the fairness of any future process arranged or
dominated by Armscor in my case anymore.
It
is therefore with deep regret that I find myself forced to resign
notwithstanding likely damages to the interests of my family
(which
includes a disabled son) and probable hardships, away from the
unbearable situation in Armscor created by my line management.
I
wish to state clearly that I reserve all of my rights of recourse in
terms of legislation and common law and that I regard myself
as
having been forced to resign. I also would like to point out that I
now have no other option than to follow the route as stated
in
paragraph 7.5 of the Grievance Practice…to urgently have this
matter “dealt with in terms of the statutory Dispute
Settlement
Procedure i.e. CCMA or Labour Court.’
[38]
It appears thus that the appellant was well acquainted with Armscor’s
grievance procedure
and acted consciously with it in mind.
[39]
As
stated at the outset,
the
question for determination is whether the appellant was in fact
dismissed. The existence of a “
dismissal
”
is a jurisdictional fact necessary for the CCMA to determine the
dispute by way of arbitration. If the jurisdictional fact
is absent,
the CCMA is not entitled to arbitrate the matter
.
[4]
Section
186(1)(e) of the LRA essentially defines a constructive dismissal as
an employee terminating his or her contract of employment
because the
employer made continued employment intolerable. The word
“intolerable” implies a situation that is more
than can
be tolerated or endured; or insufferable. It is something which is
simply too great to bear, not to be put up with or
beyond the limits
of tolerance.
[39]
The relevant principles were stated many years ago in
Pretoria
Society for the Care of the Retarded v Loots
[5]
as
follows:
‘
When
an employee resigns or terminates the contract as a result of
constructive dismissal such employee is in fact indicating that
the
situation has become so unbearable that the employee cannot fulfil
what is the employee's most important function, namely to
work. The
employee is in effect saying that he or she would have carried on
working indefinitely had the unbearable situation not
been created.
She does so on the basis that she does not believe that the employer
will ever reform or abandon the pattern of creating
an unbearable
work environment. If she is wrong in this assumption and the
employer proves that her fears were unfounded
then she has not been
constructively dismissed and her conduct proves that she has in fact
resigned.’
[40]
Thus, employment must objectively have been rendered intolerable in
the sense that no reasonable
employee could be expected to put up
with the conduct of the employer.
[6]
At
the same time, the employee must subjectively have found the conduct
to be intolerable. In
National
Health Laboratory Service v Yona and Others
[7]
,
this Court held:
‘
[A]
constructive dismissal occurs when an employee resigns from
employment under circumstances where he or she would not have
resigned
but for the unfair conduct on the part of the employer
towards the employee, which rendered continued employment intolerable
for
the employee…. The test for proving a constructive
dismissal is an objective one. The conduct of the employer towards
the
employee and the cumulative impact thereof must be such that,
viewed objectively, the employee could not reasonably be expected
to
cope with it. Resignation must have been a reasonable step for the
employee to take in the circumstances.’
[41]
In
Albany
Bakeries Limited v Van Wyk and Others
[8]
this
Court emphasised the importance of an employee exhausting reasonable
alternatives to resignation. It stated:
‘
How
will an employee ever prove that [the employment had been made
intolerable] 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.’
[42]
The appellant’s various grievances arose over a three-year
period. They reflect that he
was experiencing difficulty in having
his way at work. He believed that he knew what was best for Armscor,
that his superiors did
not and that they acted without due regard to
prescribed rules, procedures and practices. This left him indignant
and frustrated.
He subjectively found the situation to be
intolerable. That is however not enough. The authorities just cited
make it clear that
the situation must be intolerable objectively.
Armscor submits that at both a subjective and objective level the
continued employment
relationship had not become intolerable.
[43]
The appellant’s claim of intolerability mostly related to
events that transpired in 2004,
2005 and 2006. He acknowledged during
his testimony that the previous complaints (regarding issues in 2004,
2005 and 2006) had
fallen away because his situation had “
become
tolerable again
”. It was only in April 2007 that he began
experiencing similar problems, but this time with different
personnel. He filed
a grievance in September 2007 when he was not
getting his way with the performance contract outputs and the
appointment of staff.
No doubt there was a tense and awkward clash
over authority and the requirements of Armscor. However, it is more
than doubtful
that a dispute regarding these admittedly sensitive
issues objectively attained the level of intolerability. The
appellant evidently
struggled to yield to the different perspective
advanced by his superiors. The problem then became one of
compatibility at senior
management level. When he could not get his
way, he proposed early retirement as a settlement to resolve the
impasse. When his
proposals were not accepted, he lodged a grievance.
[44]
It may be that the appellant had a legitimate complaint about the
performance outputs and appointments
to his division. But such
matters occur often and are run of the mill points of difference or
tension in any workplace. Grievance
procedures exist for that very
purpose. They are the compulsory means of resolving conflict over run
of the mill disagreements
between subordinates and their superiors. A
proper application of the grievance procedure aims at testing the
legitimacy of any
difference of opinion and through conciliation
hopes to find workable remedial solutions.
[45]
Armscor contends that the appellant through his conduct undermined
the proper resolution of his
grievance. First, he submitted his
grievance in Afrikaans, well-knowing that Matibe was not sufficiently
au fait
with Afrikaans. Despite his evincing a high level of
comprehension of English in his prior correspondence, the appellant
rejected
Matibe’s request for him to translate it. In addition,
he insisted that the dispute had to be resolved within the prescribed
two-day period when it was clear that it was not reasonable to expect
Matibe to do so as he was about to take a trip out of the
country. He
ignored the provision in clause 6.3 of the grievance procedure that
extensions of time may be reasonably justified
by the circumstances.
In his indignant view, the non-compliance with the two-day
requirement was a “blatant disregard”
of his rights
causing him to lose confidence in the internal processes. Moreover,
he acknowledged that he had to be coaxed by Mr
Potgieter to attend
the grievance meeting in the first place. When the matter was
postponed to continue the meeting, he tendered
his resignation rather
than attend.
[46]
In our view, there is merit in Armscor’s submission. The
appellant in effect resigned before
the grievance procedure
progressed beyond the first step. Moreover, in terms of the grievance
procedure, there was no obligation
on Thomo or Mkwanazi to be in
attendance at the Step 1 grievance meeting. But most importantly,
even if there were merit in his
assertion that he justifiably had no
confidence in the internal grievance process, his letter of
resignation indicates that he
was aware of Step 5 of the process
which required him to refer the grievance to the CCMA. He resigned
before he invoked that remedy.
The appellant was too hasty in his
decision to resign. His conviction in the merit of his cause, fuelled
by his obvious outrage
and indignation, may well have been misplaced.
His assumption that his superiors’ views about the performance
contract outputs
and appointments were wrong or unacceptable needed
to be objectively tested and there was a legitimate, prescribed
remedy available
for that very purpose, which he opted not to pursue.
In the circumstances, his resignation was petulant, premature and
ill-considered.
In the premises, it cannot be concluded that he was
constructively dismissed.
[47]
Therefore, the Labour Court did not err in its conclusion that there
was no dismissal in terms
of section 186 of the LRA and that the CCMA
accordingly lacked jurisdiction. The appeal cannot succeed. This is
not a case in which
the appellant should be mulcted in costs. He
reasonably sought a determination of his rights, after many years of
service, and
having secured two arbitration awards in his favour.
[48]
In the premises, the appeal is dismissed.
_______________
JR
Murphy
Acting
Judge of Appeal
I
agree
____________________
B
Waglay
Judge
President
I
agree
____________________
K
Savage
Acting
Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT:
W Bekker
Instructed
by Serfontein Viljoen & Swart Attorneys
FOR
THE FIRST RESPONDENT:
G I Hulley
Instructed
by: N O Mamabolo Attorneys
[1]
As contemplated in section 186(1)(e) of the Labour Relations Act 66
of 1995 (“the LRA”).
[2]
[2014]
10 BLLR 987
LAC at para 19 read with para 35 (and in
SA
Rugby Players' Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v Sarpu and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
LAC at para 41).
[3]
Solid
Doors (Pty) Ltd v Commissioner Theron and Others
2004 (25) ILJ 2337 LAC at para 29.
[4]
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and Another
(2008) 29
ILJ
2218 (LAC) at paras 40-41. .
[5]
(1997) 18 ILJ 981 (LAC).
[6]
Lubbe v
ABSA Bank Beperk
[1998] 12 BLLR 1224
(LAC), at para 8;
Smith
Kline Beecham (Pty) Limited v Commission for Conciliation, Mediation
and Arbitration and Others
(2000)
21 ILJ 988 (LC).
[7]
(2015)
36 ILJ 2259 (LAC).
[8]
2005 (26) ILJ 2142 (LAC) at 2150C – E.