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[2010] ZALCJHB 21
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Fakude v Spoornet and Others (JR1327/06) [2010] ZALCJHB 21 (9 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR1327/06
In
the matter between:
STANLEY
JABULANI
FAKUDE
A
pplicant
and
SPOORNET
1
st
Respondent
THE
DIRECTOR OF TRANSNET
BARGAINING
COUCIL
2
nd
Respondent
ARBITRATOR
L. DREYER
N.O.
3
rd
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application by the applicant in
terms of which the applicant seeks to have the award issued by
the third respondent
under case number BC Fakude/ SP (APS) MP 9242
and dated 15 April 2006 reviewed and set aside.
Background facts
[2]
The applicant was prior to his dismissal
employed as a security officer of the first respondent (the
respondent) at the Durban branch.[
3]
After working for the respondent for a
period of over ten years the applicant applied for a position of the
depot manager during
July 2002. He was successful in his application
and was appointed a deport manager for the Natal Region and
responsible for the
Natal Coast Region.
[4]
On the 9
th
October 2007, the applicant received a letter from the respondent,
which reads as follows:
“
As
discussed with you, Safety and Internal Investigation however
required the services of Depot Managers (Junior Managers) at
Ladysmith
and Nelspruit.
It would be
appreciated if you advise whether you are prepared to relocate to one
of these positions. Please note that if two or
more applications are
received for the same (including Durban), LIFO would be used as the
criteria to decide who would be placed
at which centre.
Should you be prepared
to relocate the following relocation assistance will be available to
you.......
If you are not
prepared to relocate and you fail to secure placement in an
alternative position elsewhere in Spoornet or Transnet,
consideration
will be given to the termination of your services by means of a
package by mutual consent.
You are requested to
advice the Manager (Human Resources), Ms Lesego Ramutloa of your
decision in writing, by not later than 24
October 2003.”
[5]
The applicant respondent as follows:
“
I
responded by the letter dated 14 October 2003...as follow:
“
After
careful consideration I have decided that I am not prepared to
relocate to either Nelspruit or Ladysmith. However, I am prepared
to
accept my current position as Depot Manager in Durban as per my
original appointment letter. Furthermore, no new structure has
been
communicated to me prior to me receiving the said letter from my
Executive Manager, except the
proposal
that was presented to me on 10 September 2003.”
[6]
In the light of the applicant having
indicated that he was unable to relocate, the respondent indicated
its intention to terminate
the employment of the applicant as of the
1
st
February 2004. On receipt of this letter the applicant changed his
view regarding relocating. He indicated that he was willing
to
relocate to Nelspruit as of the 1
st
April.
[7]
The applicant says that on arrival at
Nelspruit, he found that he had not been allocated support staff and
office furniture. He
also had difficulties with finding cheaper
accommodation. He stayed in a hotel for 4(four) months and therefore
he was told to
find his own accommodation. He had difficulties in
finding accommodation resulting in him having to stay in his vehicle.
He informed
his superiors about this problem but no support or
assistance was received from them.
[8]
On 4 June 2004, the applicant addressed a
letter to the respondents head office and stated the following:
“
I
am very disappointed with the way I have been treated from time to
time of Spoornet restructuring in Asset Protection till the
date of
my redeployment at Nelspruit
I have raised this
issue with my HR Manager, Lesego Ramutloa in the presence of my union
representative, which it was explained
that the new structure
required me to be relocated to this new post.
The relocation has
affected my health and my family life severely as I am currently
under medication. To rub salt into the wound,
I find myself in a new
job that I am like a redundant person.
My position in
Nelspruit is very frustrating and seeks to undermine my position as
the Manager. Currently I don’t have an
office and support staff
since the new structure has been approached.
I
appeal for your urgent intervention by office in this matter as every
means to address this matter to my authorities has been
in vain.”
[9]
The applicant addressed another letter to
one of his seniors on 6 October 2004 wherein he stated the following:
“
I
would like to put this matter to rest I have move my furniture from
Durban to Johannesburg with my own coast. Where is the company
have
promise to move the furniture to even the person have be appointed to
but to me it was not appointment it was re-allocation
without my will
I was forced to make the decision at short time and I want to remind
your whilst I was in hospital. I was serve
with dismissal package.
That shows there was a reason that was not know to me. Because all
that my family was put on the dilemmas
as to what is tomorrow hold
for them and myself.
Depression
stress as resulted of the attitude have change sickness come in as
body and the mind was not strong.....
I
never received a reply to this letter.”
[10]
The applicant was during January 2005,
hospitalised due to depression. It would appear on his return to work
after his leave, he
was allowed to employ temporary employees as
support staff but furniture was still not made available. He was told
to find furniture
on his own and had to look for furniture from the
premises of the respondent. However the employment of temporary staff
was stopped
few months thereafter because their posts had not been
approved.
[11]
The other complaint of the applicant is
that he was treated with arrogance by one of his subordinates. He
formulated a charge against
that employee and requested the
respondent to convene a disciplinary hearing but nothing came out of
that request.
[12]
The applicant says that although he did not
want to resign, he resigned on 12 October 2005. After submitting his
resignation he
was offered a position which he refused because he no
longer had faith in the respondent.
Grounds for review
[13]
The applicant attacks the arbitration award
on the following grounds that:
“
The
conclusion is neither justifiable nor rational;
The findings are
inconsistent with the submissions made;
The arbitrator ignored
the material evidence presented before him.
The arbitrator
committed gross irregularities.”
[14]
The arbitrator in his analysis and
evaluation of arguments says the following:
“
It
should be clear from the above that there are three requirements for
constructive dismissal to be established. 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 have been the employee’s
employer who had
made continued employment intolerable. All these three 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. Thus, there is no constructive
dismissal if an
employee terminates the contract of employment without the other two
requirements present. There is also no constructive
dismissal if an
employee terminates the contract of employment because he cannot
stand working in a particular workplace or for
a certain company and
that is not due to any conduct on the part of the employer.
The fact that
Nelspruit and all the ramifications of his relocation to Nelspruit
did not suit the applicant cannot be attributed
to any conduct on the
part of the respondent.”
Principles governing
constructive dismissal
[15]
One of the elements of the definition of
dismissal in terms of s 186 (1) (e) is that:
“
(e)
an employee terminated a contract of employment with or without
notice because the employer made continued employment
intolerable for
the employee.”
[16]
It is trite that in a constructive
dismissal claim the onus rest with the employee to show the existence
of dismissal. In determining
the existence of a dismissal the first
factual enquiry is to determine whether or not in resigning the
employee had the intention
to terminate his or her employment
contract or put differently, such resignation was induced by the
conduct of the employer. The
factual enquiry into the intention of
the employee revolves in a sense around the issue of, but for the
unbearable or interolerable
conditions or environment created by the
employer the employee would not have resigned. Failure by the
employee to discharge his
or her onus on the balance of probabilities
would deprive the court or the CCMA, the jurisdiction to entertain
the alleged unfair
dismissal dispute. See
Jooste
v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC)
.
[17]
In the case where the employee discharges
his or her onus of showing that the resignation does not represent an
intention to terminate
the employment relationship, then the next
inquiry is to determine whether or not the dismissal was
constructive.
[18]
An objective assessment is conducted in the
determination of whether or not the dismissal was constructive. The
enquiry at this
stage entails a determination of whether or not the
facts, objectively evaluated, reveals that it cannot be expected of
the employee
to have continued with the employment relationship
because of the conduct of the employer. The conduct of the employer
is assessed
in its totality including the circumstances surrounding
the resignation. It has to be noted that the enquiry goes beyond the
conditions
at work being intolerable but includes whether or not on
the facts of the case it can be said that the employer behaved in a
deliberate
manner to induce the resignation by the employee.
See
Grogan “Workplace Law” (9
th
Edition) page 152
. In other words an
employee claiming constructive dismissal must show that the
circumstances that made employment intolerable,
is the making of the
employer and it was because of those circumstances that he or she had
to resign. Put differently, the employee
in a constructive dismissal
claim must establish the nexus between the conduct of the employer
which created the intolerable circumstances
and his or her
resignation. See
Mafomane v Rustenburg
Platinum Mines (ltd) (200) 3
10 BLLR 999
(LC)
.
Evaluation
[19]
It is common cause that the key issue which
was before the commissioner in this matter was whether the
resignation by the applicant
amounted to constructive dismissal as
contemplated by s 186 (1) (e), of the LRA.
[20]
It seems to me that the key complainant of
the applicant is that the commissionerfound that there was
constructive dismissal
despite having found that he should be
re-employed at Isando. In this respect the applicant says the
following:
“
During
the conclusion of the hearing, the arbitrator made a finding in my
favour that I must be re-employed at the Isando branch
of the First
Respondent because a vacancy existed in Isando. A finding was thus
already made during the hearing. However, in the
Arbitration Award,
the Arbitrator found that no constructive dismissal took place.”
[21]
In her response to the above the commissioner says the following:
“
In
respect of Points 9.19 and 11.1.4 in the Applicant’s Notice of
Application: No ruling was made that the Applicant should
be
reemployed at Isando. I merely enquired into the existence of
suitable vacant post in an attempt to possibly conciliate the
matter
as I am entitled to in terms of Section 138 (3) of the Labour
Relations Act.”
[22]
It is clear from the above that the
commissioner does not deny having raised with the parties the
possibility of re-employing the
applicant at Isando. The commissioner
is indeed correct that she was entitled even during the arbitration
proceedings to try and
test the possibility of mutually acceptable
settlement for the parties. This the commissioner can do at any stage
of the arbitration
proceedings. Paragraph 9.19 of the applicants
founding affidavit reads as follows:
“
At
the end of the Arbitration hearing, responding to a question of the
Arbitrator, Mr N Naidu, stated that there was currently one
vacancy
in Isando. The
Arbitrator then
ruled that the Applicant must be re-employed in this
vacant post
.
Mr N Naidu then responded by
saying the post is not available. My response to that was that this
was the exact reason why I did
not trust or believe the First
Respondent anymore
.”
[23]
It is quite clear that even the applicant
himself did not belief that the commissioner in transversing the
possibility of resolving
the dispute by way of consensus was
rendering a final determination of the dispute.
[24]
I am of the view that even if it was to be
found that the commissioner did make a finding in relation to the
re-employment of the
applicant in Isando this would have amounted to
a mistake of law. The question that then arises is whether such a
mistake would
have amounted to gross irregularity. In my view
the answer has to be in the negative.
[25]
It is trite law that for a mistake of law
or facts to constitute a gross irregularity, it must be of such a
nature that it can be
said that the applicant was denied a fair
hearing or the commissioner failed to deal with the issues which had
been put before
him or her.
[26]
It is also clear that if the commissioner
regarded this as finding upon his conclusion was to be based on
whether or not she would
have proceeded with the determination of the
matter. She proceeded after making what I regard as a suggestion to
the respondent
to make findings on the evidence and the material
which was properly presented before her and finally issued an award.
[27]
I now proceed to deal with whether or not
the applicant has made out a case justifying interference with the
arbitration award.
I will in doing so apply the test of a reasonable
decision maker test as enunciated in the case of
Sidumo
v Rustenburg Platinum Mines Ltd
2008 (2) SA 2405
(CC).
[28]
In my view the conclusion reached by the
commissioner cannot be said to be unreasonable. It is clear from the
reading of the arbitration
award that after setting in details the
evidence and the submissions of the representatives of both parties
the commissioner correctly
came to the conclusion that the evidence
presented by the applicant did not discharge the onus of showing that
the resignation
by the applicant amounted to a constructive
dismissal. In arriving at this conclusion the commissioner took into
account all the
relevant facts and the circumstances that led to the
resignation of the applicant.
[29]
It is apparent from the reading of the
arbitration award and summary of the notes taken during the
arbitration proceedings that
the applicant’s complaint
concerned his transfer from Durban to Nelspruit. This combined with
the unsatisfactory circumstances
he found himself on arrival in
Nelspruit made him to resign.
[30]
Although the applicant sought in his papers
to show that there was no need for the respondent to restructure its
Durban offices
which was staffed by three managers, the facts suggest
otherwise. His own version indicates that at some point the three of
them
were consulted by the respondent and arising from that
consultation they made a proposal, which was rejected by the
respondent.
It is not suppressing that the respondent rejected their
proposal because in his own words the proposal was that the three of
them
must remain in their positions and be responsible for “the
3 divisions as previous”, a situation which the respondent
had
already indicated, did not serve its operational needs.
[31]
The transfer of the applicant as I see it
occurred in the context of avoiding his possible retrenchment. The
transfer to Nelspruit
was part of an alternative to dismissal for
operational requirements. Had he not taken the transfer he would in
terms of the letter
of 9
th
October 2003 from the respondent been dismissed. This is the hush
reality which was faced by both parties which was avoided by
the
applicant finally accepting the transfer.
[32]
The second respondent filed a notice
indicating that it does not maintain a record of the arbitration
proceedings conducted under
its auspices. It is important to note
that the arbitration hearing itself was conducted under the auspices
of the private dispute
resolution institution. The applicant did not
dispute or challenge the veracity of these notes.
[33]
The notes which are fairly detailed in
certain respect tell a full story as to what the underlying and
objective reason for the
resignation of the applicant was. It was not
because the respondent had made his continued employment intolerable.
It cannot be
denied, as the commissioner herself noted, the work
environment at Nelspruit was an ideal.
[34]
The employee was asked during cross
examination whether he had experienced a hostile conduct on the put
of the respondent. His answer
tells the full story behind his
resignation. He answered “yes, I was transferred against my
will”.
[35]
After the above answer the reason for his
resignation was then read to him. And when asked as to when did the
reasons mentioned
in his letter of resignation became of such a
nature that it made the continued employment relationship intolerable
the applicant
responded as follows:
“
Since
I was transferred to Nelspruit.”
[36]
The view that the resignation of the
applicant was due to his transfer is further supported by the
communication between him and
Mr Naidu, immediately after his
resignation. Mr Naidu addressed a letter to the applicant 5 days
after his resignation. The letter
which is quoted in the
commissioner’s arbitration award reads as follows:
“
Dare
Stanley,
I have perused your
letter below and as discussed with you I felt that we should do
everything to try and assist you if it is all
possible. I have looked
at your situation and have decided to put a proposal for your
comments.
You sub depot office
is situated at Witbank and this area forms part of Spoornet’s
critical line and it is proposed that you
be relocated to Witbank.
The advantages are
that you will be at the heart of the coal operations and will suit
you as it is less than one hour’s drive
from JHB.
Please consider and
give me your feedback.”
[37]
The applicant response which is also quoted in the arbitration award,
reads as follows:
“
I
have read your response carefully and communicated to my wife, and
concluded that I must uphold my resignation as requested and
I have
noticed that you have try to resolve the issue of staying away from
my family but I will stand by my decision to save my
marriage. I hope
you will accept my explanation.”
[38]
It is also important in the context of the
above observation to note the nature of the dispute which the
applicant had referred
to the second respondent. The nature of the
dispute is stated in the notice which was filed by the second
respondent and the relevant
parts therefore reads as follows:
“
Sir
DECLARATION OF
DISPUTE: MR SJ FAKUDE NO CDQ 036C: GRADE: MANAGER 610 (KRUGER LOURENS
– MOELETSI): VERSUS SPOORNET, (ASSET
PROTECTION SERVICES)
MPUMALANGA REGION –Quote- (“A LOT OF PRESSURE WAS PUT ON
ME BY MY EMPLOYER TO ACCEPT A TRANSFER
AGAINST MY WILL. THIS PRESSURE
MADE CONTINUED EMPLOYMENT IMPOSSIBLE FOR ME AND I HAD NO OPTION THAN
TO RESIGN”).”
[39]
In the light of the above, I am of the view
that there is no basis to interfere with the arbitration award issued
by the commissioner.
Whilst I accept and so does the commissioner,
that the circumstances under which he worked were not conducive, the
applicant has
failed to show that the first respondent deliberately
created those circumstances and his resignation was as a result
thereof.
It is very clear that the applicant was unhappy with his
transfer and facts on the balance of probabilities support the view
that,
that was in fact the reason for his resignation.
[40]
Turning to issue of costs, s 162 of the LRA
provides that costs must be granted based on the dictates of both law
and fairness.
The applicant indicated that the reasons why his
attorneys were not present was because he could not afford to pay
their fees.
For this reason I do not belief that it would be proper
to allow costs to follow the result.
[41]
In the premises the following order is
made:
1.
The applicant’s application to review
the arbitration award issued on the 15
th
April 2006, is dismissed.
2.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
1
st
November 2010
Date
of Judgment :
9
th
December 2010
Appearances
For
the Applicant:
Mr S J Fakude (the applicant appeared in person
For
the Respondent: Mr M
Ramotlou of Maserumule Inc Attorneys