About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2011
>>
[2011] ZALCCT 61
|
|
South African Police Services v Safety and Security Sectoral Bargaining Council and Others (C 118/07) [2011] ZALCCT 61 (26 August 2011)
Reportable
Of
interest to other judges
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 118/07
In
the matter between:
SOUTH
AFRICAN POLICE SERVICES
Applicant
and
SAFETY
AND SECURITY
SECTORAL
BARGAINING COUNCIL First respondent
U
BULBRING N.O.
Second
respondent
PJ
VAN DEN BERG
Third
respondent
Heard:
23 August 2011
Delivered:
26 August 2011
Summary:
Review - constructive dismissal.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The third respondent in this application, Petrus Johannes van den
Berg (“the employee”) was a dog handler in the
South
African Police Services (“SAPS”), the applicant. He had
about 14 years’ experience as a dog handler and
was
particularly attached to the dog that was assigned to him, Storm.
The employee had worked with Storm for a number of years
and they
had become particularly attached to each other when the events
leading to this application unfolded.
[2]
The employee resigned from SAPS on 18 July 2005. He referred a
constructive dismissal dispute to the Safety and Security Sectoral
Bargaining Council (“the Bargaining Council"), the first
respondent The second respondent, who is a panellist of the
Bargaining Council, Ms Ursula Bulbring (“the arbitrator")
found that he had been constructively dismissed and that
the
dismissal was unfair. She took into account, however, that he was
partly to blame for the disintegration of the relationship
between
the parties and ordered SAPS to pay him only four months'
compensation,
[3]
SAPS seeks to have the arbitration award reviewed and set aside.
Background
facts
[4]
The facts are comprehensively covered in the arbitration award,
spanning no fewer than 38 pages. I shall summarise them briefly.
[5]
In November 2004, after an unsatisfactory evaluation of the dog,
Storm, that was entrusted to the employee’s care, Storm’s
work certificate was withdrawn. That led to conflict between the
employee and some senior members of SAPS.
[6]
In March 2005, the employee, together with other dog handlers,
raised a grievance about the conduct of their commander at
the
Hermanus Dog Unit, one Vermeulen, On the day after a heated meeting
with the senior commissioner of SAPS in the Western Cape,
Ganief
Daniels, Daniels transferred the employee to an administrative
position - without Storm - in Zweiihle, the township adjacent
to
Hermanus.
[7]
The employee was booked off for stress and anxiety. While he was at
home, he received a letter from SAPS, instructing him
to hand over
the "state's property”, including Storm. The employee
lodged a grievance and referred an unfair labour
practice dispute to
the Bargaining Council.
[8]
The employee's legal advisor at the time, Adv Johann Nortje,
interceded on his behalf, Nortje agreed with Daniels that the
employee should be placed at the Gordon’s Bay dog unit, with
Storm, on a temporary basis for three months.
[9]
However, Vermeulen - who had to facilitate the transport to Gordon’s
Bay - did not do so, with the result that the employee
did not
report for duty in Gordon’s Bay at the appointed time. Daniels
then again instructed the employee to report for
duty at Zwelihle
without Storm.
[10]
Nortje subsequently met with a deputy to Daniels, one Adonis. The
aim of the meeting was to explore the placement of the
employee and
Storm at another dog unit. It was agreed to arrange a further
meeting with Deputy Provincial Commissioner Schooling.
This was
meant to be a step 4 meeting in the grievance procedure. However,
SAPS cancelled the meeting.
[11]
Nortje sent two emails to Daniels and Adonis asking for a decision
on the placement of the employee and Storm. They did not
respond.
[12]
The employee then brought an urgent application to this Court
1
,
praying for an order to compel SAPS to follow the grievance process
in an attempt to place him back into the dog handler post
in
Hermanus; not to separate Storm from him; and not to victimize him.
[13]
The parties reached a settlement agreement that was made an order of
court, In terms of that order, the employee and Storm
would report
to the Worcester dog unit pending the outcome of the dispute
scheduled for arbitration. That arbitration was scheduled
to take
place before panellist Bill Maritz on 8 July 2005.
[14]]
Whilst consulting with his legal representative, Nortje, on 7 July
2005, the employee learnt that SAPS planned to call nine
witnesses
to the arbitration. He became despondent and emotional, as he
foresaw that SAPS - with endless resources funded by
the taxpayer -
would drag the dispute out in a war of attrition that would deplete
him financially and emotionally. He was stationed
in Worcester at
this stage and Storm was housed in the SPCA kennels in less than
optimal conditions in a small kennel, instead
of at the employee’s
house. His wife was working in Somerset West and they hardly saw
each other.
[15]
The employee instructed his legal advisor to approach Daniels again
with a request for a permanent placement at the Worcester
dog unit.
Nortje spoke to Daniels telephonically at about 21:00 on 7 July.
Daniels agreed that it would be in everyone’s
best interest to
facilitate such a transfer and undertook to do his best to support
it. He also approved two weeks' leave for
the employee to arrange
his and his wife‘s relocation to Worcester. Daniels was the
second highest ranking SAPS official
in the Western Cape after the
Provincial Commissioner, Mzwandile Petros, in his own words at the
arbitration* after Cronje requested
the employee’s permanent
transfer to Worcester, Daniels said, “I never had a problem
because once again, pointing
out to you, showing my willingness all
the time, to settle this particular matter... I would support this
particular project."
[16]
On the understanding that he would be relocated - with Storm - to
Worcester permanently, the employee withdrew his grievance
at the
arbitration on the morning of 8 July 2005.
[17]
On 17 July 2005, an article appeared in
Rapport
newspaper,
headed
“Superhond
agter tralies”,
with a photograph of Storm kept behind a wire fence in a kennel, The
next day, 18 July, SAPS sent the employee a letter informing
him to
report to Zwelihle and to return Storm. Daniels confirmed in his
evidence that this decision was motivated by
the
Rapport
article.
[18]
Upon receiving this letter, the employee realised that his intended
permanent transfer to Worcester was not going to happen
and that
Storm would be removed from him. He applied to SAPS to buy Storm.
The request was declined. On 22 July 2005 he tendered
his
resignation. He then referred the constructive dismissal dispute
that led to the arbitration forming the subject matter of
this
review application to the Bargaining Council-
The
legal framework and the appropriate test
[19]
I recently had occasion to review the case law on constructive
dismissal and the appropriate test on review.
2
I can do no better than to repeat those views
verbatim.
[20]
In those cases, I considered the
dictum
of the Labour Appeal Court in
SA
Rugby Players Association
&
others
v SA Rugby (Pty) Ltd & others
3
Although the court in that case had to consider s 186(1)(b) of the
LRA
4
,
it dealt with It as a species of constructive dismissal and held as
follows:
5
“
The
issue that was before the Commissioner was whether there had been a
dismissal or not, It is an issue that goes to the jurisdiction
of
the CCMA. The significance of establishing whether there was a
dismissal or not is to determine whether the CCMA had jurisdiction
to entertain the dispjte. It follows that if there was no dismissal,
then the CCMA had no jurisdiction to entertain a dispute
in terms of
section 191 of the Act.
"The
CCMA is a creature of statute and is not a court of law. As a
general rule, it cannot decide its own jurisdiction. It
can only
make a ruling for convenience. Whether it has jurisdiction or not in
a particular matter is a matter to be decided by
the Labour
Court....
“
The
question before the court a quo was whether on the facts of the
case, a dismissal had taken place. The question was not whether
the
finding of the Commissioner that they had been a dismissal of three
players was justifiable, rational or reasonable. The
issue was
simply whether objectively speaking, the facts which would give the
CCMA jurisdiction to entertain the dispute existed.
If such facts
did not exist, the CCMA had no jurisdiction, irrespective of its
findings to the contrary."
[21]
Section 192 of the LRA provides that;
"(1)
In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2)
If the existence of the dismissal is established, the employer must
prove that the dismissal is fair/'
[22]
In most unfair dismissal cases, the existence of the dismissal is
common cause and the enquiry at arbitration - or on review
by the
Labour Court - is whether the dismissal was fair; and whether the
finding of the arbitrator in this regard was reasonable.
[23]
In the case of an alleged constructive dismissal in terms of section
186 (1)(e)
7
though, the prior question is whether there was a dismissal. The
onus is on the employee to prove that his resignation amounted
to a
dismissal. In order to decide whether there was a dismissal, the
commissioner has to investigate the full merits of the
case. Only
then can the commissioner decide if there was a dismissal as
defined. If so, the commissioner must still decide whether
it was
fair. If not, though, the CCMA did not have jurisdiction in the
first place, even though the Commissioner can only make
that finding
ex
post
facto.
[24]
As I pointed out in
Asara
and in
Western
Cape Department of Transport,
I am bound by the authority in
SA
Rugby.
6
This court also applied the dictum in
SA
Rugby
in the subsequent case - heard post
Sidumo
- of
Member
of the Executive Council
,
Department
of Health, Eastern Cape v Odendaal
<&
others.
7
In
that case, dealing with a constructive dismissal, Basson J
explicitly held that the question of whether a dismissal had taken
place goes to jurisdiction and that the review test as laid down in
Sidumo
does not find application in reviewing a jurisdictional ruling.
[25]
The test I have to apply in dealing with the review of the finding
on constructive dismissal, therefore, is not whether the
conclusion
reached by the Commissioner was so unreasonable that no commissioner
could have come to the same conclusion, as set
out in
Sidumo
,
but whether the Commissioner correctly found that Mr van den Berg
had been dismissed.
[26]
Section 186(1)(e) of the LRA defines a constructive dismissal. The
section states that;
“
Dismissal
means that -
(e)
an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable
for the employee'
1
.
[27]
The test for determining whether or not an employee was
constructively dismissed was set out in
Pretoria
Society for the Care of the Retarded v Loots.
8
Although
that case was decided under the 1956 LRA, the principles remain the
same. In
Loots
,
the court held that --
“
the
enquiry
[is]
whether the [employer], 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
the employer and employee. It is not necessary to show that
the
employer intended any repudiation of a contract: the court’s
function is to look at the employer's conduct as a whole
and
determine whether...its effect, judged reasonably and sensibly is
such that the employee cannot be expected to put up with
it".
[28]
The court held
9
further that when an employee resigns or terminates the contract of
employment as a result of constructive dismissal, such employee
is
in fact indicating that the situation has become so unbearable that
the employee cannot fulfil his/her duties. The employee
is in effect
saying that he or she would have carried on working indefinitely had
the unbearable situation not been created.
He does so on the basis
that he does not believe that the employer will ever reform or
abandon the pattern of creating an unbearable
work environment. If
he is wrong in this assumption and the employer proves that his/her
fears were unfounded, then he has not
been constructively dismissed
and his/her conduct proves that he has in fact resigned.
[29]
The Constitutional Court recently remarked in
Strategic
Liquor Services v Mvumbi NO & others
10
that the test for constructive dismissal does not require that the
employee have no choice but to resign, but only that the employer
should have made continued employment intolerable.
[30]
In
Eagleton
& Others v You Asked Services (Pty) Ltd
11
this Court considered the three requirements that an employee must
prove in order to claim constructive dismissal. These requirements
are that:
22.1.
the employee terminated the contract of employment;
22.2.
continued employment had become intolerable for the employee; and
22.3.
the employer must have made continued employment intolerable.
[31]
In
Chabeli
v Commission for Conciliation, Mediation and Arbitration &
others
12
the court held that in order to prove a constructive dismissal, the
employee has to show that the employer had made the continued
employment relationship intolerable and that, objectively assessed,
the conditions at the workplace has become so intolerable
that he
had no option but to terminate the employment relationship.
13
As I recently stated in
Value
Logistics (Pty) Ltd v Basson
&
others
14
,
I doubt that this strict test survives the formulation by the
Constitutional Court in
Strategic
Liquor Sen/ices (supra).
[32]
The test remains, though, that the conduct of the employer must be
judged objectively,
15
[33]
I also have regard to the recent
dictum
of the Labour Appeal Court in
Jordaan
v CCMA
16
,
where the court cited with approval its earlier decision in
Old
Mutual Group Schemes v Dreyer
17
where Conradie JA said:
"Buitendien
sou so
f
n
werknemer wat uit die bloute bedank dit gewoonlik moeilik vind om
£
n
hof t© oortuig dat hy werklik konstruktief ontslaan is. Die
bewyslas rus op die werknemer... Die bewyslas is nie ‘n
ligte
een nie.., Dit is nie vir 'n werknemer maklik om aan te toon dat ‘n
werkgewer die voorsetting van sy diens ongithoudbaar
gemaak het nie,
Hy kan horn nie maar net op frustrasies en irritasies verlaat en hom
bekla oor reSls wat vir alle werknemers
geld, maar hom nie aanstaan
nie. Net soo$ ontslag is 'n
gedwonge
bedanking ‘n allerlaaste opsie. Dit is 'n uitweg wat ‘n
werknemer nie mag volg terwyl daar nog ander uitweS
is nie.”
And
Davis JA continued:
“
This
dictum represents a salutary caution that constructive dismissal is
not for the asking. With an employment relationship,
considerable
levels of irritation, frustration and tension inevitably occur over
a long period. None of these problems suffice
to justify
constructive dismissal. An employee, such as appellant, must provide
evidence to justify that the relationship has
indeed become so
intolerable that no reasonable option, save for termination is
available to her.”
[34]
In
Murray
v Minister of Defence
18
-- cited with approval by the Constitutional Court in
Strategic
Liquor Services
-- the Supreme Court of Appeal emphasised that --
“
the
mere fact that an employee resigns because work has become
intolerable does not by itself make for constructive dismissal.
For
one thing, the employer may not have control over what makes
conditions intolerable. So the critical circumstance must have
been
of the employer's making. But even if the employer is responsible,
it may not be to blame. There are many things an employer
may fairly
and reasonable do that make an employee's position intolerable. More
is needed: the employer must be culpably responsible
In some way for
the intolerable conditions: the conduct must have lacked ‘reasonable
and proper cause’."
Application
of the law to the facts
[35]
The arbitrator noted, after a lengthy exposition of the evidence,
that this was “not simply a case of the employer
making
employment intolerable. Van den Berg was also part of the problem".
She found that the employee contributed to the
breakdown of the
relationship, especially his disrespect and arrogance towards a
superior officer when Storm was tested in 2004.
It is for this
reason that she ultimately awarded the employee only four months'
compensation, despite her eventual finding that
there was
nevertheless a constructive dismissal. This appears to me to be a
reasonable finding that cannot be interfered with
on review.
[36]
It is common cause that the employee resigned. The arbitrator thus
had to find whether his employment was intolerable; and
if so,
whether the employer was to blame.
[37]
As I have stated, the arbitrator concluded that the employee was
partly to blame, at least in the initial phase around the
testing of
Storm. That finding is supported by the evidence,
[38]
The arbitrator then analysed the further events, though, and
concluded that SAPS made continued employment intolerable. In
coming
to this conclusion, she took into account the following factors:
(a)
Daniels’s transfer of the employee to Zwelihle on 16 March
2005 could only be described as punishment. !t meant that
he could
not work with his dog; in fact, he could not work as a dog handler
at all.
(b)
After having been booked off sick, the employee was transferred to
Gordon's Bay; yet Vermeulen frustrated the transfer. He
was upset by
the employee’s complaints “and wanted to make his life
as difficult as possible”.
(c)
The Gordon’s Bay transfer was withdrawn in error and too
hastily, SAPS then transferred the employee back to Zwelihle
and not
to Hermanus.
(d)
The action that gave rise to the resignation was Daniels’s not
following through on his good faith undertaking to Nortj6
that he
would support the employee's permanent transfer to Worcester.
[39]
This summary of events that ultimately made continued employment
intolerable is consistent with the evidence and cannot be
faulted.
The employee followed the prescribed internal procedures. His
internal grievance was not addressed. He referred a dispute
to the
Bargaining Council. He withdrew that at the last minute, on the
understanding that it had been resolved to the mutual
satisfaction
of the parties. But it was not to be. The letter of 18 July 2005,
instructing him to report to Zwelihle despite
everything that had
gone before, was understandably the last straw.
[40]
I agree with the arbitrator’s finding that SAPS was primarily
responsible for making the continued employment relationship
intolerable; and, in the words of the SCA in
Murray
,
it was culpably responsible. I noted earlier that, in
Strategic
Liquor Services v Mvumbi NO
&
others
19
,
the Constitutional Court stated that the test for constructive
dismissal does not require that the employee have no choice but
to
resign, but only that the employer should have made continued
employment intolerable. That was the case here.
[41]
With regard to the remedy, the arbitrator quite properly took into
account the employee’s own role in the deterioration
of the
relationship. In that context, compensation equivalent to four
months’ remuneration only is not unreasonable.
[42]
The further finding that the dismissal was unfair is also supported
by the evidence.
[43]
The award is not reviewable.
Costs
[44]
This matter has dragged on for six years. SAPS was not faced with a
turbulent employee that it had to reinstate against its
wishes; all
it had to do was to pay him four months' salary. It is not stated on
the papers what the employee earned at the time,
but the amount
owing to him is far less than the legal costs expended by SAPS and
the State Attorney, who saw fit to brief counsel
in both the
arbitration and in these proceedings. These costs, bearing no
relation to the award they seek to review, appeared
to be of little
concern to them; one might cynically ascribe that to the fact that
it is paid by the taxpayer The arbitration
award was a reasonable
one* It is difficult not to form the view that SAPS was fighting a
war of attrition, funded by the taxpayer,
against a single,
unemployed individual who does not have the same resources. SAPS’s
internal legal advisor, Jacobus van
der Westhuizen, stated before
the commencement of the unfair labour practice proceedings in 2005
already that SAPS would take
any adverse outcome on review; those
words proved prophetic.
[45]
In law and fairness, costs should follow the result.
Order
[46]
The
review application is dismissed with costs.
A
J Steenkamp
Judge
APPEARANCES:
APPLICANT: J
van der Schyff
Instructed
by the State Attorney, Cape Town.
THIRD
RESPONDENT: A Heyns
Instructed
by Wynand du Plessis, Bellvilie.
1
Case
number C 392/2005,
2
See
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and others
(C 272/2010, Labour Court, Cape Town, 24 August 2011; and
Western
Cape Department of Transport and Public Works v Fritz N.O. and
others
(C 846/2008. Labour Court, Cape Town, 26 August 2011),
3
(2008)
29
ILJ
2218 (LAC).
4
Section
186(l)(b) provides that dismissal means that-“an employee
reasonably expected the employer to renew a fixed-term
contract of
employment on the same or similar terms but the employer offered to
renew it on less favourable terms, or did not
renew it."
5
At
paras [39] -[41],
6
Supra
7
(2009)
30
ILJ
2093 (LC) para [6].
8
1997)
18
ILJ
981 (LAC) at page 985. See also
Woods
v
WM
Car Services (Peterborough)
(1981)
HR 347
at 350,
9
at
page 984.
10
(2009)
30
ILJ
1626 (CC);
[2009] 9 BLLR 847
(CC) at para [4].
11
(2009}
30 ILJ 320 (LC) at para 22.
12
(2010)
31 ILJ 1343 (LC).
13
(2010)
31 ILJ 1343 (LC) at para 17. See also Sapp/
Kraft
(Pty) Ltd t/a Tugela Mill v Majake NO &
Others
(1998)
19 ILJ 1240 (LC) and
Secunda
Supermarket CC
t/a
Secunda
Spar&
another
v
Dreyer NO &
others
(1998)
19 ILJ 1584 (LC);
[1998] 10 BLLR 1062
(LC).
14
Case
no C1025/09 (Labour Court, Cape Town, 26 May 2011).
15
Smithkline
Beech'am (Pty) Ltd v CCMA
(2000) 21 ILJ 988 (LC) 997B;
Kruger
v CCMA & Another
[2002] 11 BLLR 1081
(LC) 1Q85D;
Lubbe
v ABSA Bank Bpk
(1998]
12 BLLR 1224
(LAC) para 8;
Mafomane
v Rustenburg Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) para 49,1.
16
[2010]
12 BLLR 1235 (LAC) 1239 B-E.
17
(1999) 20
ILJ
2030 (LAC) 2036.
18
(2008)
29 ILJ 1369 (SCA) at para 13. The position of the SCA was confirmed
in the case of
Daymon
Worldwide SA Inc v Commission for Conciliation, Mediation and
Arbitration & others
(2009)
30
ILJ
675 (LC) at paras 27 and 40.
19
(2009)
30
ILJ
1526 (CC);
[2009] 9 BLLR 847
(CC) at para [4]