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[2013] ZALCJHB 48
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South African Municipal Workers Union obo Hlonipho v South African Local Government Bargaining Council and Others (JR 2159/09) [2013] ZALCJHB 48 (22 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
O
f interest to other judges
case no:
JR 2159/09
In the matter between:
SAMWU obo HLONIPHO MM
Applicant
and
SALGBC
First Respondent
MATLALA
N.O
Second Respondent
EKURHULENI METRO
Third Respondent
Heard
:
29
January
2013
Delivered
:
22
March 2013
Summary:
Review of a jurisdictional
ruling where the second respondent dismissed the applicant’s
claim on the basis that the applicant
failed to establish the
existence of a dismissal
judgment
MOSHOANA,
AJ
Introduction
[1] This
is an application to review and set aside
an award issued by the second respondent acting under the auspices of
the first respondent.
[2] The
second respondent found that Hlonipho
failed to establish the existence of a dismissal and dismissed her
claim with costs.
Background facts
[3]
During 1996, Hlonipho was employed as a Head of the Health Department
of the defunct Alberton Municipality. Following the amalgamation
of
the various municipalities in the region to form the third
respondent, Hlonipho was deployed to manage the HIV and AIDS unit
of
the third respondent.
[4]
Following decisions of the Local Labour Forum, Hlonipho was not
satisfied with her working conditions and lodged a grievance
against
Dr Mashazi and Mrs. Botha. Hlonipho lodged a grievance on 10 July
2007 alleging victimization and intimidation into agreeing
with
changes that are still being sorted out by the office of DCM Mr.
Sibeko. This grievance was not resolved internally and was
referred
to the Bargaining Council. On 3 September 2007, Hlonipho completed an
internal form indicating that she requested to take
an early
retirement. Both Dr Mashazi and Mrs. Botha signed the form. On 4
September 2007, Hlonipho sought to withdraw the early
retirement
form. Botha sought to escalate the request to the Executive Director
and requested the personal outstanding matters
raised by Hlonipho.
Hlonipho obliged. With no response, Hlonipho continued with her
normal duties.
[5] On 25
September 2007, the due date for salaries, Hlonipho was not paid a
salary. She was advised that her request to withdraw
her application
was not approved. On 4 October 2007, Dr Mashazi formally informed
Hlonipho that her withdrawal was turned down.
Instead her request was
upheld for early retirement. She attempted to meet with the relevant
officials in order to discuss the
withdrawal but to no avail. On 6
October 2007, she found her office locked. She also received a letter
confirming that her last
day of work was 28 September 2007 and that
she should return the properties of the third respondent and removed
her personal belongings
from the office.
[6] She
referred a dispute of alleged unfair dismissal to the first
respondent. At arbitration, the third respondent challenged
the
jurisdiction of the first respondent. On 18 February 2009,
Commissioner Serero issued a ruling to the effect that the first
respondent had jurisdiction to entertain the dispute.
[7] On 23
March 2009, the dispute was again enrolled for arbitration. There the
second respondent was to decide whether the third
respondent’s
refusal to accept the withdrawal of Hlonipho’s application for
early retirement constituted a dismissal.
If he finds that there was
dismissal, then he must determine the fairness thereof. Having
listened to evidence, he came to the
conclusion that Hlonipho was not
dismissed. Aggrieved thereby, the applicant launched this application
on behalf of Hlonipho The
application is duly opposed by the third
respondent
Evaluation
[8] The question whether an employee has been
dismissed is a jurisdictional fact. In other words if there is no
dismissal as a fact,
the first respondent had no arbitral powers in
terms of the LRA. Generally speaking a public authority is obliged to
determine
the scope of its own powers before it can act. In doing so
it cannot finally determine its competence, because if it wrongly
decided
that it had jurisdiction, its decision may be reviewed on
objectively justiciable grounds. The determination of the existence
of
a jurisdictional fact is left to the public authority to
determine. The nature and the extent of judicial review will depend
on
whether the determination was left to its subjective discretion in
terms of the empowering statute or whether the determination
had to
be made on the objective grounds. See
SACCAWU
v Specialty Stores Ltd
.
1
[9] In SACCAWU, the LAC found that where the
public authority has decided that a state of affairs existed, the
question is whether,
the repository of power decided that it did
subjectively. In the matter before me, the repository of power-second
respondent decided
that the state of affairs did not exist. In that
regard it is necessary for this court to enquire whether,
objectively, dismissal
existed. (See
Pinetown
Town Council v President of the Industrial Court and others
2
quoted with approval in
Shell
SA Energy (Pty) Ltd v NBCCI
case number
JA 42/10 delivered on 12 December 2012.
Was Hlonipho dismissed on the objective facts
?
[10] In determining this question sight out not be
lost that this court is exercising review powers and is not having
the same benefit
as the second respondent. It deals w
ith
the matter on the basis of
assessing
objective facts for itself to decide whether the second respondent
was wrong or right in concluding that the jurisdictional
fact exist
or not. The same material properly placed before the second
respondent will guide the court.
[11] In terms of section 192 of the LRA, the onus
to establish whether a dismissal existed lies on an employee. In this
case, it
was the duty of Hlonipho to establish by way
of
evidence whether she was dismissed. Dismissal as a fact ought to
exist before the power to enquire into its fairness. Section
186
provides a meaning of dismissal. There are six instances where it
could be found that dismissal occurred within the meaning
of the
section. Those are, 1 when the employer overtly terminate a contract
of employment, 2 when an employee reasonably expects
renewal and it
does not happen, 3 when an employer refuses resumption of work after
maternity leave, 4 when an employer refuses
to re-employ another, 5
when an employee terminated because of intolerable employment
(constructive dismissal) and 6 when employee
terminated after
transfer with less favourable conditions.
[12] In
the matter before me, there is a contention that the first instance
occurred alternatively the fourth instance-constructive
dismissal.
Starting with the first instance, I must be able to find that the
third respondent overtly terminated the employment
contract or not.
The contention of the applicant being that Hlonipho having being
allowed to work until 4 October 2007, she was
dismissed when her
office was locked and was told to return the properties of the third
respondent. In that manner, so the contention
went, Hlonipho was
dismissed.
[13] This
contention seems to be oblivious of what happened on 3 September
2007. On this day, Hlonipho signed a form, which was
titled:
‘Resignation/Termination Form. The reason she provided for
resignation was retirement. The effect of this in law
is that she was
herself terminating her employment. A resignation is a unilateral act
and it requires no acceptance by the employer.
In such instances,
where an employee resigns, there is no dismissal.
[14] The
question that remains is whether Hlonipho resigned voluntarily or
not? That brings into the picture the fourth instance
referred to
above. The objective facts suggest amongst others that the reason for
resignation was mentioned by Hlonipho as retirement.
On the
termination form she repeated the reason twice. Firstly by putting a
cross on a particular block and writing the reason
on a column
requiring the reason for resignation. On 4 September 2007, when she
sought to withdraw, she did not attempt to give
any other reason for
her resignation. Her evidence at arbitration on this score was as
follows: ‘On that, the previous days
there was so much pressure
I had attended meetings where, meetings with staff members that I
felt I lacked authority over because
they now had to deal with
operational issues, to deal with the executive director, deal with
the member of mayoral committee and
I really felt really, really felt
hurt and I just felt like I wanted to go and also made me feel so bad
was that my issues were
not addressed instead of them being addressed
things were continuing in a way that was affecting me emotionally. I
had discussed
these issues with my children at home and they felt
that it is affecting my health; my health status and my children
insisted that
I should continue with the case. When I left home I was
going to contact the union so that we can proceed with the follow-up
of
the cases but when I got to the office and that morning I got an
email from the office of the director Ms. Botha, and I just lost
it.
I downloaded a form and just said I cannot handle it anymore. I
filled the form, took it to her office very early in the morning
and
requested her to sign for me.’
[15] From
her evidence above, it is apparent that what made her to ‘loose
it’ was the email from Ms. Botha. There is
no evidence pointed
to me where that email occured and what says that made Hlonipho to
loose it. However her evidence in this application
is that: ‘On
or about 3 September 2007 after I discovered that Mrs. Botha had
addressed staff in my absence about the details
of my grievances and
the fact that certain of my responsibilities had been removed from me
and handed to one of my subordinates,
I became extremely upset and
emotional and felt that I could no longer handle my working
situation. As a result, I completed an
internal form indicating that
I wished to take early retirement. I took the form to both Mrs. Botha
and Dr Mashazi who both signed
the form.’
[16] From
this evidence, she decided to complete the form because of her
discovery that her grievance was discussed and that responsibilities
were removed. In her cross-examination at arbitration she testified
that for her refusal to accept her withdrawal amounts to a
dismissal.
She confirmed that the resignation form referred to P62 in the
record, terminated the employment relationship.
[17] On
the other hand the evidence of Botha at arbitration was that she just
handed the form on the day unexpectedly. She was not
challenged on
this score.
[18] It
is patently clear to me that Hlonipho overreacted and was not
constructively dismissed. In any event her case was not that
she was
but her case was that refusal to accept a withdrawal amounts to
dismissal. In terms of section 186, it does not. For a
dismissal to
obtain in the fourth instance referred to above, the employer must
make continued employment intolerable for the employee.
The test is
an objective one. This is not a resignation in the heat of a moment.
Hlonipho took time to download the form; completed
it and hand
delivered it to Mrs. Botha. This in my view was a calculated move
given her own evidence that there were unresolved
issues.
[19] In
the circumstances I accept that Hlonipho on the objective facts was
not constructively dismissed within the meaning of section
186. I
cannot accept that the actions of the third respondent refusing her
access to her office and ordering her to return the
possessions
amounted to a dismissal. At that time, Hlonipho herself had
terminated the employment relationship. The fact that,
whilst her
attempt to withdraw her resignation was being considered, she
continued with her work does not detract from the fact
that she
terminated her employment. As proof that the third respondent did not
recognise her reporting as a normal one she was
not paid on the
payday.
Order
[20] In the results, I make the following order:
1. The application for review is dismissed with costs.
_______________________
Moshoana, AJ
Acting
Judge of the Labour Court of South
Africa
APPEARANCES:
For the Applicant:
Advocate
FA Boda
Instructed by
: Cheadle Thompson & Haysom,
Braamfontein
For the
Third Respondent: Attorney S Masina of Tshiqi Zebediela Incorporated,
Kempton park
1
[1998]
4 BLLR 352
(LAC).
2
1984
(3) SA 173
(N)