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[2012] ZALCJHB 141
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Maoka v GPSSBC and Others (JR2450/10) [2012] ZALCJHB 141 (24 January 2012)
1
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case No: JR2450/10
In the matter between:
MAOKA PULE VICEROY
HILLARY
..........................................................
Applicant
and
GPSSBC
........................................................................................
First
Respondent
THULANI AKIM NO
..................................................................
Second
Respondent
DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
..........................................
Third
Respondent
Heard: 21 December
2011
Delivered: 24 January
2012
______________________________________________________________
Judgment
BRUINDERS AJ
The subject matter of
this judgment is an award by the second respondent (the arbitrator)
dated 5 September 2010. He was appointed
by the first respondent
(the bargaining council) to arbitrate a dispute referred by the
applicant (the employee). The dispute
concerned the alleged
constructive dismissal by third respondent (the employer) of the
employee.
The employee was
promoted to the post of Director Administrative Secretary in the
Justice Ministry in January 1999. According
to the employee, he was
constructively dismissed when he resigned on 12 September 2008. He
says that he resigned because the
employer had made his continued
employment intolerable by transferring him to, a position for which
there was no post and then
transferring him twice to posts that were
not vacant, such that he was compelled to resign.
The arbitrator found
that the employee had failed to discharge his onus of proving on a
balance of probabilities that his resignation
amounted to a
constructive dismissal. That is because it was undisputed that the
employee had already referred - to another arbitrator
- a dispute
claiming that his transfers were unfair. That arbitrator found, on 5
August 2009, that the transfers amounted to
an unfair labour
practice. He ordered the employer to pay to the employee the
allowance he would have been paid, had he not been
transferred. The
arbitrator found that the fairness of the transfers had been decided
in the first arbitration. Consequently,
the transfers could not be
relied on for the constructive dismissal claim in the second
arbitration. That is why the arbitrator
in the second arbitration,
which is the subject of the review before me, dismissed the
constructive dismissal claim.
Much was made by both
parties in the review before me of the application of the
res
judicata
rule. The employee contended that he was entitled to
rely on the same facts for his unfair labour practice claim in the
first
arbitration and for his constructive dismissal claim in the
second. The employer, on the other hand, contended that the fairness
of the transfers is the same question for consideration in both
arbitrations. Because the question before him had already been
decided in the first arbitration, the arbitrator in the second
arbitration was correct to dismiss the constructive dismissal
claim.
On
reflection, it is not necessary to decide whether
res
judicata
or
issue estoppel apply to the second arbitration award. I have
assumed, in favour of the employee, that they do not, as
consideration
of the merits of the employee’s case seems
appropriate and just. Consequently, counsel were asked to address me
on the
merits of the constructive dismissal claim. On the facts, I
am not persuaded that the resignation in this case amounts to a
constructive
dismissal. My reasons for this finding follow.
The
employee did not resign because his employer had made his situation
at work so intolerable that he could no longer work there
- which is
the only basis for success in a constructive dismissal claim.
1
The facts are that the
applicant resigned twice. The first time, he resigned on 5 May 2008
with effect from 30 June 2008. He retracted
that resignation when,
on 30 June 2008, he was offered the post of Director or Manager of
the Johannesburg Magistrate’s
Court. He took up that post. He
began working in that post after acceptance of the offer, and did so
until his second resignation.
On 30 July 2008, he
sought an agreed termination by offering to resign with effect from
31 July 2008; i.e. he sought an agreed
reduction in his notice
period. It is clear from his e-mail giving notice of resignation
that his reason for resigning was that
he refused to accept the
failure of the department to increase his remuneration as demanded.
He was unhappy that his appointment
in the Johannesburg post was at
the same salary as he had received before appointment in that post.
The employer did not
agree to a reduction of his notice period, or to termination.
Instead, on 14 August 2008, it made an offer
to the employee with
two options. The first, was that he remain a permanent employee in
the post of Manager at the Johannesburg
Magistrate’s Court
until that post was filled, and that he would be paid a travelling
allowance. The second, was that he
be appointed for one year in the
post of Court Manager at the Johannesburg Magistrate’s Court,
but at an increased salary.
He attempted,
unsuccessfully, to negotiate an increase in the second offer of
increased remuneration. On 12 September 2008, he
resigned for the
second time with effect from 30 September 2008. In his e-mail of 12
September, he gave as the reason for his
resignation, the reason
proffered in his memorandum of 18 August 2008.
In
that memorandum, he explained why he sought an increase in the
increased offer of remuneration by the employer in its second
option; i.e. he was prepared to work in the Johannesburg post for
one year with an increase in remuneration. But he
sought an
additional increase of R4000, 00 per month, on the basis that. He
travelled to work in Johannesburg from Pretoria. An increase
of
R4000,00 per month, the employee said, would cover what he called
“travel and subsistence payments”.
Significantly, the
memorandum does not say anything about the employer having made life
in his new post (in which he had already
started) so intolerable
that he was compelled to leave. On the contrary, the memorandum is a
clear example of an attempt at negotiating
a better remuneration
package. That attempt was ultimately unsuccessful.
What is clear from the
facts is that the employee resigned because he could not get the
employer to agree to the salary he demanded
during negotiations. Put
differently, he would have continued working for the employer, had
it agreed to his counter-proposal.
The employer had not
made life unbearable at the workplace in Johannesburg. It had simply
refused to agree to his counter-proposal,
having itself offered to
increase his salary. An employer and employee may bargain or
negotiate salary increases. Neither is
compelled in law or fairness
to accede to the salary demands of the other. Refusing to accede to
a salary increase demand is
legitimate conduct in the employment
landscape. The fact that the employee here found the refusal of his
counter-proposal for
a salary increase unpalatable, does not make
his employment intolerable.
At best for him, he
resigned because he did not succeed in obtaining his salary demand
in salary negotiations. He did not resign
because - without
reasonable justification - the employer had made his life so
unbearable at the workplace that it damaged or
was likely to damage
the relationship of trust and confidence between the parties, such
that the employee could not be expected
to put up with it. Only in
these circumstances, would he have been entitled to resign.
Although the arbitrator
found – on a different basis – that the employee’s
resignation did not amount to a constructive
dismissal, he was
correct that the resignation did not amount to a constructive
dismissal. There is no reason to set aside the
award. Consequently,
the review application must fail.
It is not necessary to
decide whether the arbitrator was correct that the matter was
res
judicata
- which is the basis on which the employee seeks to
review the award. In the circumstances, it would not be fair to
award costs
against the employee.
Consequently, the order
made is the following:
The application to
review and set aside the arbitration award (PSGA 1173-08/09, 5
September 2010) is dismissed;
There is no order as to
costs.
__________________
T J BRUINDERS AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
APPLICANT
: F. A
Boda
Instructed by:
Mashobane Attorneys
RESPONDENT:
D. T
Skosana
Instructed
by
: State Attorney – Mr. E. Erasmus
1
Pretoria
Society for the Care of the Retarded v Loots
(1997) 18
ILJ
981 (LAC) at 983- 985