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[2011] ZALCJHB 156
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Moripe v General Public Service Sectoral Bargaining Council and Others (JR 662/2010) [2011] ZALCJHB 156 (24 June 2011)
Rabone Moripe v The General
Public Service Sectoral Bargaining Council, Adv. A. Sirkhot,
Department of Home Affairs CASE NO: JR
662/2010-Review Application-
Constructive Dismissal. 23 June 2011
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CaseNo: JR662/10
In the matter between:
RABONE MORIPE
...............................................................................
Applicant
And
THE GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
....................................
1
st
Respondent
ADV. A. SIRKHOT
.....................................................................
2
nd
Respondent
DERPATMENT OF HOME AFFAIRS
.....................................
3
rd
Respondent
JUDGMENT
CAWE AJ
Introduction
[1]
This is an opposed review application in
terms of which the applicant seeks an order reviewing and setting
aside an arbitration
award issued by the Second Respondent (“the
Commissioner”), under case Number PSGA 67/08/09, and
substitution with
an order to the effect that he was constructively
dismissed by the third Respondent.
Background Facts
[2]
The Applicant was appointed
Deputy Director, by the third Respondent in January 1999. He was to
head the third Respondent’s
Anti-Corruption Unit.
[3] Around December 2001, the Sub-Directorate,
Anti-Corruption Unit and another Department collapsed and a new
section was formed
called the Security Service and Ethical conduct.
The Director of this section resigned and the then Director General,
Billy Masethla,
instructed the Applicant and Strobos, Deputy
Director, to be co-responsible for the management of the Directorate
until the post
was suitably filled. The acting appointment of the
Applicant was terminated in June 2002. In May 2002, the Applicant was
accused
of misconduct by Strobos and provided with an opportunity to
respond to the allegations of misconduct within 5 days. The Applicant
responded by denying the allegations made by Strobos. That was the
second instance that the Applicant was threatened with disciplinary
action and nothing happened. Around June 2002, Masethla left the
employ of the Respondent and Lambinon was appointed as Acting
Director General. During the tenure of Masethla, it was agreed to
send officials on training courses in July 2002.
[4] The Applicant took the officers on the training
course but was instructed, by Lambinon, to withdraw them. This led to
the Applicant
being charged with 157 counts of misconduct and was
only found guilty on two. The sanction was that he would forfeit his
salary
for one month. He appealed the sanction. The sanction was
never imposed although the Applicant had not received a response to
his
appeal.
[5] The Applicant remained in the employ of the third
Respondent until April 2004. On the 23 December 2003, a letter was
received
from National Intelligence Agency regarding the Applicant’s
negative security clearance (A49-53) as a result of which the
Applicant was placed on special leave. On 19
th
May 2006
the Applicant received a letter from the Respondent requesting
reasons why his services should not be terminated. The
matter was
resolved. There was a proposal that the Applicant be placed on level
14 subject to a security clearance.
[6] The Applicant returned to work on the 16
th
October 2006. His version is that he was not provided with any
position or duties. This led him to refer a dispute but he later
withdrew this “ as it was defective”.
[7] On the 14
th
May 2007, the Applicant
received a letter of placement but did not accept this promotion as
it was below level 14.
[8] The Applicant then tendered his resignation and this
was accepted by the Director General. He served his notice period
from
1
st
March to 31
st
March 2008.
[9] The Applicant referred a constructive dismissal
dispute, to the Bargaining Council, in terms of Section 186(e) of the
Labour
Relations Act. The matter was scheduled for arbitration before
the second Respondent. There were several issues put forward by the
Applicant. The Applicant believed that the Respondent had created an
adverse situation at the workplace in order to make his continued
employment intolerable. He sets out the situation as follows:
“
a)
that
the Respondent had levelled charges against him and did not pursue
the allegations made against him and had ignored his appeal;
b) not being afforded the roles and responsibilities
in terms of his contract of employment and in breach of his
employment as the
security manager;
c) being placed at a demoted level of a Deputy
Director, communications department despite having been appointed as
security manager;
d) Being denied to be a security manager as a result
of unattested allegations of intimidation and victimisation;
e) Being put on unfair special leave;
f) Having his office locked;
g) Persistently being ignored by the Director
General.”
[10] The Commissioner found that the Applicant had not
been constructively dismissed. In his analysis of evidence and
argument,
he, the Commissioner states the following;
“
I find it disconcerting
that the Applicant had never utilised the Respondent’s internal
grievance procedure to address his
issues with the Respondent. I
regard this omission as a fatal flaw on the part of the Applicant.
The Applicant was faced with options
as alternatives to tendering his
resignation, he could have allowed the Respondent to terminate his
employment in terms of Section
17(h) of the Public Service Act which
the Applicant has conceded in heads of argument would have been
irregular as the Respondent
must institute a disciplinary inquiry
which would have given the Applicant the opportunity to be heard. The
Applicant could alternatively
have declared a grievance regarding his
placement to the position of Deputy Director, Internal
Communication.”
[11] The Commissioner went further and stated that since
the Applicant seemed to be very aggrieved by not being placed at
level
14, as he desired and maybe deserved, he should have utilised
the internal grievance procedure, falling which, declared an Unfair
Labour Practice on the basis of demotion. The Commissioner
accordingly found that the conduct of the Respondent under the
circumstances
was not unreasonable nor does it constitute conduct
which made continued employment intolerable for the Applicant.
[12] Before one deals with whether the Applicant has
convincingly set out a case for review, it is important to deal with
whether
there was constructive dismissal of the Applicant by the
Respondent or not. The Commissioner found that the Applicant was not
constructively
dismissed. I agree with the conclusion of the
Commissioner as the Applicant did not discharge the onus placed upon
him to prove
on a balance of probabilities that continued employment
with the third respondent was intolerable. In
Mafomane v
Rusternburg Platinum Mines ltd(2003)
10 BLLR 999(LC)
at page
1013D,
Tregrove AJ concluded as follows:
“
The conclusion that the
question whether the employee’s continued employment has become
intolerable in that he or she cannot
“ reasonably be required
to endure it, must be made from the perspective of a reasonable
person in the shoes of the employee,
obviously does not mean that the
employee’s own views must prevail. The test remains an
objective one. The idiosyncrasies
of the particular employee are not
the benchmark. The assessment must be made from the perspective of a
reasonable person in the
shoes of the employee, that is, from the
perspective of a reasonable person with the same background, life
experience and position.”
[13] I hold the views that the incidents that are cited
by the Applicant as having led him to resign from the employ of the
third
Respondent are not so grave as to have rendered the employment
relationship intolerable for the Applicant. At the Arbitration the
third Respondent offered reasonable explanation for actions taken by
itself against the Applicant. Each time the Applicant raised
a
complaint a decision was taken that favoured him, even in
circumstances where there did not appear to be any justification
therefor,
one gets the sense that there was a determined effort to
resolve whatever issues Applicant had with his superiors . I am left
with
the feeling that the Applicant was unduly sensitive and
uncooperative with his superiors.
The grounds for Review
[12] In his Heads of Argument the Applicant sets out his
reasons for moving the instant review proceedings. These are
contained
in 21 paragraphs of the Heads. I will not deal with them
individually but collectively. These grounds or reasons for review
deal
with the Applicant’s perception that the Arbitrator/
Commissioner failed to attach sufficient weight to particular
evidence.
He also details how the Commissioner made several mistakes
of fact regarding numerous written communication between the
Applicant
and his employer. These mistakes of fact do not go to the
real issue of the Commissioner misdirecting himself to the existence
of a constructive dismissal.
[13] The Constitutional Court in
Sidumo and Another v
Rustenburg Platinum Mines
(2007) 12 BLLR 1097(CC)
,
held that the
test for review of an Arbitration Award is to determine whether the
conclusion reached by the Commissioners is one
which a reasonable
decision maker could not reach. The grounds for review as set out by
the Applicant do not reveal how the Commissioner
failed to apply his
mind or exceeded his mandate in finding that the Applicant was not
constructively dismissed. What is set out
by the Applicant would be
applicable in an appeal as it deals with factors that could or should
only be dealt with in an appeal.
Conclusion
[16] The arbitrator, in the award, dealt extensively
with the evidence of all witnesses, including that of the Applicant.
He had
regard for every detail that was brought to his attention at
the arbitration. In his analysis he sets out very comprehensively why
he finds that the Applicant was not constructively dismissed. The
award illustrates that the Commissioner applied his mind to the
evidence before him.
[17] I, therefore, of the view that the Applicant has
not made out a case that would warrant the interference with the
Commissioner’s
award.
[18] For these reasons, I make the following order:
1. The Application is dismissed
2. There is no order as to costs
______________
Cawe N
Acting Judge of the Labour Court
Appearances:
For the Applicant: In person
For the Respondent: Adv. Gwala
Instructed by: The State Attorney
Date of hearing: 27 May 2011
Date of Judgment: 24 June 2011