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[2009] ZALCJHB 54
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Gqokoma v Commission for Conciliation, Mediation and Arbitration and Others (JR442/08) [2009] ZALCJHB 54 (29 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No.: JR442/08
REPORTABLE/
NOT REPORTABLE
In
the matter between:
ATWELL
DANIEL GQOKOMA
Applicant
And
COMMISSIONER
FOR
CONCILLIATION,
First
Respondent
MEDIATION
AND ARBITRATION
P
J VAN DER
MERWE
Second
Respondent
DEPARTMENT
OF
FOREIGN
Third
Respondent
AFFAIRS
HEARD
ON:
29 September 2009
JUDGMENT
BY:
C.J. MUSI, A
DELIVERED
ON:
27
November 2009
[1]
This is an application to review and set aside a ruling made by the
second respondent (the Commissioner) in terms of which the
applicants’ claim was dismissed. The third respondent also
applies for condonation for the late filing of its opposing
affidavit.
[2]
I propose to deal with the issue of condonation before dealing with
the merits of this matter.
[3]
The third respondent’s opposing affidavit was supposed to have
been filed on 5 December 2008. It was delivered to the
applicant on
22 December 2008. It was 11 days late. The third respondent’s
explanation for the delaying is that the applicant
sought original
documents wish were more than 11 years old. Although documentary
records are normally kept for five years it was
endeavoured to trace
these documents. The applicant for condonation is not opposed.
[4]
The delay is not inordinately long. Although the explanation given is
not convincing it is acceptable. The third respondent
has good
prospects of success. There is no prejudice. This matter is clearly
of importance to both parties and might even have
far reaching
consequences in respect of other ex employees of the third
respondent. Condonation is therefore granted for the late
filing of
the opposing affidavit.
[5]
The applicant referred an unfair dismissal dispute to the first
respondent (the Commissioner for Conciliation, Mediation and
Arbitration (CCMA)). He alleged that he was constructively dismissed
by the third respondent (the Department of Foreign Affairs).
His
request for a voluntary severance package (VSP) was approved by the
third respondent with effect from 1 April 1997. The notice
period
commenced, on 1 March 1997. He requested the CCMA to annul the VSP
and order his reinstatement. The conciliation proceedings
were
conducted on 7 January 2008 in the absence of the third respondent.
On 14 January 2008 the commissioner published his ruling
wherein he
dismissed the applicant’s claim.
[6]
The applicant was employed by the Department of Foreign Affairs of
the Ciskei from 1 July 1984 to 30 November 1994. As part
of the
integration process whereby the former “Independent States”
viz Transkei, Bophuthatswana, Venda and Ciskei (TBVC
States) were
integrated into the Republic of South Africa he was transferred to
the Department of Foreign Affairs (the Department)
Pretoria with
effect from 1 December 1994. He was a director in the Directorate for
Regional Economic Organisation until 31 March
1997.
[7]
As a result of the rationalisation process within the Department, he
and at least 7(seven) other directors were offered posts
of deputy –
director which was one rank lower than the posts that they were in.
These demotions were not confined to directors.
Deputy Directors,
assistance directors, senior state accountants and assistant state
accountant were also demoted as part of the
rationalisation process.
The applicant alleges that only ex – TBVC employees in the
Department were targeted. They were unfairly
demoted and some of his
colleagues were unfairly dismissed. He also stated that when a
colleague, Pitzer, was posted to the South
African Embassy in Canada
another official was recruited to perform Pitzer’s duties
whilst he was over looked. He therefore
remained idle in the work
place.
[8]
He applied for a voluntary severance package in terms of an agreement
between employee organisations in the Public Service,
Bargaining
Council and the Department of Public Service and Administration. On 1
April 1997 he was advised by the Department that
his request for a
VSP was approved from 1 April 1997. He received benefits as
prescribed by circular 10/12/26 dated 22 May 1996
issued by the
Department of Public service and Administration.
[9]
The applicant applied for reinstatement by letter dated 30 November
1998. On 3 February 1999 the Department respondent as follows
to his
application:
“
2.
The Department of Public Service and Administration has indicated in
its circulation Minutes 10/12/26 dated 22 May 1996
that
officials who have indentified themselves for the voluntary severance
package and terminated their services under this provision
shall not
be re – appointed in the Public Service Act, 1994.
3. It
is regretted that your request could not be considered in view of the
above mentioned prescripts…”
[10]
On 12 February 2002 the applicant lodged a complaint at the Human
Rights Commission, The Human Rights Commission responded
by
inter
alia
stating that :
“
Your
complaint, on proper analyses relates to constructive dismissal by
your employer. It is therefore our considered opinion that
your
complaint would be more effective and expeditiously dealt with by the
CCMA…”
[11]
The applicant referred the dispute to the General Public Service
Sectoral Bargaining Council and different CCMA offices without
success. It was ultimately allocated to the commissioner (first
respondent) to deal with.
[12]
The commissioner found that the CCMA does not have jurisdiction to
ignore, annul or amend the agreement that existing between
the
Department of Public Service and Administration and employee
organisations in the Chamber of the Public Service Bargaining
Council
at the time of the voluntary termination of the services of the
applicant.
[13]
The applicant launched a multi pronged attack on this finding. He
contends, firstly that the ruling should not have been made
in the
Department’s favour because it absented itself from the
proceedings, secondly that the commissioner did not sufficiently
consider the primary issue viz constructive dismissal and lastly that
the commissioner erred in not finding that he should have
been
reappointed. He attached numerous
annexures
to his papers without drawing the Department’s attention
thereto in his founding affidavit. That is impermissible. The
founding
affidavit should make reference to the
annexures
attached thereto. See
PORT
NOLLOTH MUNICIPALITY v XHALISA
and OTHERS; LUWALALA and OTHERS v PORT NOLLOTH MUNICIPALITY
1991 (3)
SA 98
(C) at 111.
The applicant is
a lay person, who conducts his own case. There is no objection by the
Department. There is also no prejudice to
the Department. I will
accordingly have regard to all the material placed before me by the
applicant.
[14]
The applicant’s contention that the absence of the Department
during the conciliation proceedings entitles him to an
order or award
in his favour is misplaced. A commissioner is duty bound to have
regard to all the facts placed before him/her before
making a
decision in any matter. Even where one party is in default the
commissioner must still consider whether he/ she is in
law entitled
to give the relief sought. There is a well – thumbed body of
precedent of this court to the effect that commissioners
are obliged
to ask themselves whether they have the necessary jurisdiction to
entertain disputes referred to the CCMA. See
Polokwane
Local Municipality v
SALGBC & Others
[2008] ZALC 29
;
(2008) 8 BLLR 783(LC)
at paragraph 13,
Northern
Cape Provincial Administration v Hambidge NO & Others
(1999)
7 BLLR 698
(LC) at paragraph 8.
[15]
The pivotal question before the commissioner was whether there was a
dismissal. The commissioner found that there was no dismissal
because
the applicant on his own initiative identified himself for voluntary
termination of his service. I can find no fault with
the
commissioner’s reasoning.
[16]
It is clear that circular 10/12/26 was addressed to heads of all
departments/provincial administrations/office of provincial
service
commissions. It was not limited to the Department nor was it limited
to ex TBVC officials in the department. This was a
special initiative
whereby serving officials were afforded the option to request that
their services be terminated on a voluntary
basis. Annexure A to
circular 10/12/26 reads as follows:
“
Special
initiative whereby serving officials are afforded the option to
request that services be terminated on a voluntary basis
and a
prescribed special severance package be paid.”
Special
severance packages were to be paid to those officials whose
applications were approved.
[17]
The applicant admits that he applied for a voluntary severance
package. He admits that his application or request was approved
and
that he was subsequently paid benefits in terms of the policy
governing voluntary severance packages.
[18]
The applicant alleges that he took the decision to exit from the
public service but that the VSP was the only method used to
permit
anyone to leave the public service. This cannot be true. As the
department stated in its opposing affidavit, the applicant
always had
the right to resign. He always had the right to unilaterally
terminate his employment contract. Which he did not do.
[19]
The applicant was a senior official. He chose to request that he be
given a voluntary severance package. There is no evidence
of any
pressure being exerted on him by the employer. There is also no
evidence of an ultimatum from the employer. His request
was
considered and approved by the Department. When it was approved, an
agreement came into existence between the applicant and
the
Department. In terms of that agreement he voluntarily terminated his
service; in return he received substantial benefits. The
employment
contract of the applicant was terminated by agreement. There was
therefore no dismissal. That being the case the CCMA
had no
jurisdiction to entertain the matter.
[20]
The applicant presented a very gaunt case to establish constructive
dismissal.
[21]
Constructive dismissal means that an employee terminated a contract
of employment with or without notice because the employer
made
continued employment intolerable for the employee – See
section
186
(1) (e) of the
Labour Relations Act 66 of 1995
.
[22]
In Solid Doors (PTY) LTD v Theron NO and Others
at
paragraph 28 and the following was said
“
It
should be clear from the above that there are three requirements for
constructive dismissal to requirements for constructive
dismissal to
establish. The first is that the employee must have terminated the
contract of employment. The second is that the
reason for termination
of the contract must be that continued employment has become
intolerable for the employee. The third is
that it must be the
employee’s employer who had made continued employment
intolerable. All these requirements must be present
for it to be said
that a constructive dismissal has been established. If one of them is
absent constructive dismissal is not established.
This, there is no
constructive dismissal if an employee terminates the contract of
employment without the two other requirements
present...
[29]
Having established what the requirements are for a constructive
dismissal, it is necessary to make the observation at this
stage of
the judgement that the question whether the employee was
constructively dismissed or not is a jurisdictional fact that
–
even on review – must be established objectively. That is so
because if there is no constructive dismissal –
the CCMA would
not have jurisdiction to arbitrate. A tribunal such as the CCMA
cannot give itself jurisdiction by wrongly finding
that a state of
affairs necessary to give it jurisdiction exists when such state of
affairs does not exist… The question
in a case such as this
one - even on review – is simply whether or not the employee
was constructively dismissed.”
[23]
The applicant did not terminate his employment contract. He applied
for permission to terminate it by agreement. The termination
of the
contract only took effect when his request was approved by the
Department. The applicant could not surmount the hurdle of
showing
that he terminated the employment contract. That being the case there
was no constructive dismissal and the CCMA had no
jurisdiction to
entertain the dispute.
[24]
It is therefore not necessary to deal with the applicant’s
perception of why he says the employer made the work environment
intolerable.
[25]
The commissioner correctly in my view did not consider the refusal to
reemploy the applicant. The applicant had no right to
be reinstated.
In fact paragraph 29(a) of annexure A to circular 10/12/26
specifically states that:
“
Candidates
who identify themselves for voluntary termination of service under
this provision –
“
a)
Shall not be reappointed in the Public Service in terms of the
provision of the Public Service
Act, 1994 and
b)
Relinquish any claims to benefits payable
under any other provision of the Public Service Act,1994, Public
Service Staff Code or
any other act, regulations or prescripts”
[26]
Paragraph 2 (a) of annexure A was a term of the agreement between the
applicant and the Department. He accepted that term when
he requested
the VSP. The commissioner was correct in finding that the CCMA does
not have jurisdiction to amend annul or vary the
express conditions
agreed to between the parties. His application for reinstatement was
in any event dealt with in terms of the
prescripts prevailing at the
time. Whether the effective date of termination was 1 March 1997 or 1
April 1997 was also not for
the commissioner to consider and decide.
Likewise the refusal by the Department to give him his original
request for VSP application
was not for the commissioner to consider
and pronounce upon. If the applicant wants information that is or
supposed to be held
by the Department he has other remedies. The
Department in any event stated that the documents could not be traced
because they
are more than eleven years old. He referred a
constructive dismissal dispute and that is what the commissioner had
to decide, which
he did.
[27]
I am of the view that no order as to costs should be made in this
matter. A costs order against the applicant would, in the
light of
the circumstances of this case, not be fair.
[28]
In the circumstances the following order is made:
a)
The application is dismissed.
b)
No order as to costs is made.
__________________
C.J.
MUSI, AJ
On
behalf of the Applicant:
In person
On
behalf of the Respondent:
Adv F M M Snyman
Instructed
by State Attorney