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[2013] ZALCCT 5
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Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others (C 360/2012) [2013] ZALCCT 5; [2013] 8 BLLR 834 (LC); (2013) 34 ILJ 2960 (LC) (18 March 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Case
no: C 360/2012
In the matter between:
WESTERN CAPE EDUCATION DEPARTMENT
Applicant
and
GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL
First Respondent
CRAIG BOSCH N.O.
Second Respondent
JULIAN JOHN GORDON
Third Respondent
Heard
:
20 February 2013
Delivered
:
18 March 2013
Summary:
Review – constructive dismissal – whether
order for reinstatement incompatible with constructive dismissal.
JUDGMENT
STEENKAMP J
Introduction
Is an order for reinstatement incompatible with a finding of
constructive dismissal?
That is the fascinating conundrum that arises in this application
for review.
1
The third respondent, Mr Julian Gordon (the employee) resigned. He
claimed constructive dismissal. The arbitrator, Mr Craig Bosch
(the
second respondent) agreed. The arbitrator also found that the
dismissal was unfair. But he went further – he ordered
the
applicant (the Department) to reinstate the employee. The Department
seeks to have that award reviewed and set aside.
The review application raises the question whether an order for
reinstatement is competent, given that the employee resigned
because
“the employer made continued employment intolerable” for
him in terms of s 186(1)(e) of the LRA; and section
193(2)(a)
requires an arbitrator to reinstate an employee who has been
unfairly dismissed unless “the circumstances surrounding
the
dismissal are such that a continued employment relationship would be
intolerable”. It also raises a prior question:
If the employee
at arbitration seeks reinstatement, can it be said that his
continued employment was intolerable in the first
place, or does it
beg the question?
Background facts
The employee (Gordon) has been employed in the Public Service for
more than 23 years since 1986. At the time relevant to this
dispute
he occupied the position of deputy director: personnel management in
the Department.
The employee had a heart attack in July 2006. He recovered, but was
subsequently diagnosed with post-traumatic stress disorder
and
clinical depression. He was booked off sick from mid-February 2007
and was hospitalised on 27 March 2007. In June 2007 he
applied for
ill-health retirement. On 2 June 2007 he also applied for temporary
incapacity leave. He gave the relevant documents
to the then human
resources director, Mr Gerald Elliott, to whom he reported. There
were no witnesses available and Elliott undertook
that he (Elliott)
and his secretary would sign as witnesses. They did not do so.
Almost two years later, in May 2009, the Department
told Gordon that
his application for temporary incapacity leave had not been
considered because it had not been signed by two
witnesses.
In the meantime, Mr Norman Daniels took over as HR director from
Elliott. Gordon continued submitting medical certificates on
a
monthly basis between June 2007 and September 2008 while he was
still recuperating at home. Daniels visited him at home in
September
2008 and they discussed a possible return to work. Gordon indicated
that he had not yet recovered fully and that he
was still waiting to
hear regarding his application for ill-health retirement.
On 3 December 2008, the Department sent Gordon a letter informing
him that his medical certificates did not cover his absence
after
September 2008 and that he would be regarded as having been away
from work without authorisation as of 1 October 2008.
The Department
instructed him to report for duty immediately. Gordon did not do so,
but he submitted medical certificates for
the period October through
December 2008. He also telephoned the Department and he was told
that Elliott was handling his applications
for ill-health retirement
and temporary incapacity leave.
On 19 December 2008 Gordon sent the Department a letter urging it to
finalise his applications for ill-health retirement and
temporary
incapacity leave. The Department only responded on 8 February 2009,
and then only to tell him that he would be considered
as having
‘absconded’ as of 9 February 2009. He returned to work.
In May 2009 Gordon received a letter from the Department advising
him that his application for temporary incapacity leave (submitted
in July 2007) had not been signed by two witnesses, and that he
should resubmit it. He did so on 7 August 2009. (He ascribed
the
further delay on his part to the fact that he had not fully
recovered and that the documents disappeared from his office.
Someone pushed it under his door on or around 3 July 2009 again).
In the meantime, on 26 June 2009, the Department sent Gordon a
letter telling him that, because he had not responded to the request
to resubmit his application for temporary incapacity leave, the
Department would institute ‘leave without pay’ for
the
period between 31 July 2006 and 6 February 2009, when he was absent
from the workplace. On 2 July 2009 the Department informed
him that
it would recover R 12 000 per month from his monthly salary of R 23
150, 48 , in order to recover an amount of R 753 352,
02 that
had been paid to him in his absence. These deductions, ostensibly in
terms of section 38 of the Public Service Act of
1994, would leave
him with an income of R 2 159 per month.
When he was informed of the deductions, Gordon contacted the
Department and asked it to place a moratorium on the deductions
pending his application for temporary incapacity leave. He did not
get a response. He then tendered his resignation. He also
filed a
grievance and a grievance meeting was held on 3 July 2009 between
him, Daniels and a Mr Faker. They gave him two options:
he could
proceed with his resignation; alternatively, he could retract his
resignation and Daniels would assist him with his
application for
ill-health retirement and would approach the head of education
regarding his unpaid leave and the deductions.
Gordon elected to
retract his resignation, and did so on 29 July 2009.
On 4 August 2009 Gordon sent an email to the Department asking
whether a decision had been made regarding the repayment of the
R 12
000 which had been deducted from his salary in July 2009.
Surprisingly, he was told that he had to inform the Department
which
of the two options discussed in the grievance meeting of 3 July 2009
he had selected. As he had clearly elected to retract
his
resignation, as he had done on 29 July 2009, Gordon responded in an
email dated 7 August 2009, in which he pointed out that
it was
obvious that that was the option he had elected. He added:
“
I
believe that enough time has passed for the WCED to exercise its
rights, either way, and to make a decision as to whether the
monies
deducted will be repaid or not. In our conversation last Friday
afternoon, you indicated to me that this matter will be
resolved
within 72 hours (and that has long since passed)…
In order for me to make further
decisions around my relation with the WCED, I would urge you to
conclude this matter by this coming
Tuesday, failing which I will be
forced to resign.”
There was another grievance meeting on 1 September 2009. Daniels and
Faker gave Gordon an agreement he could sign in order for
his
superiors to get a mandate from the head of education. Daniels told
him at the end of September that they still had no mandate
from the
head of education. Gordon resigned again in September 2009. Although
his letter of resignation is dated 1 September
2009, the
Department’s Jason Fry states in his founding affidavit in
these proceedings that Gordon submitted the letter
of resignation on
30 September 2009.
Gordon referred a constructive dismissal dispute to the Bargaining
Council (the first respondent) on 30 October 2009. The arbitration
award was handed down on 14 March 2012. The arbitrator found that
Gordon had been constructively dismissed; that the dismissal
was
unfair; and that he should be reinstated.
Evaluation / Analysis
I shall consider the application for review under the following
headings:
the applicable test;
whether the employee was dismissed; and
if so, what was the appropriate remedy?
At the hearing of this matter, I also ruled
in limine
that
the late filing of the review application be condoned.
The applicable test
As Ms
Golden
argued for the applicant, the appropriate test
on review in considering whether a constructive dismissal occurred
is that set
out in
Asara Wine Estate & Hotel (Pty) Ltd v Van
Rooyen & others:
2
it is not the test set out in
Sidumo
3
,
i.e. whether the conclusion reached by the Commissioner was so
unreasonable that no Commissioner could have come to the same
conclusion, but whether the Commissioner correctly found that the
employee had been constructively dismissed.
That is so because the question goes to jurisdiction, i.e. whether
the employee was dismissed. However, once it has been found
that
there was a dismissal and that the dismissal was fair, it seems to
me that the question of remedy remains to be assessed
at the hand of
the
Sidumo
test. Where the arbitrator came to the conclusion,
as it did in this case, that the employee should be reinstated, the
court on
review will have to consider whether the conclusion was one
that a reasonable Commissioner could have come to.
Was the employee dismissed?
The first question to be considered, then, is whether the
Commissioner correctly found that the employee had been dismissed.
It is trite that the onus in this regard was on the employee. The
Commissioner correctly summarised the applicable legal principles
with reference to
Asara
4
:
“
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.
The Constitutional Court
recently remarked in
Strategic Liquor Services v Mvumbi NO &
others
5
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.”
The arbitrator took into account the following factors:
The employee submitted an application for temporary incapacity
leave on 2 June 2007. He gave it to Elliott, who assured him
that
he (Elliott) and his secretary would sign as witnesses. Elliott did
not fulfil this undertaking. Almost two years later,
the
documentation was returned to the employee, and it appeared that it
had not been processed because the witnesses had not
signed.
The documentation then disappeared from the employee’s office
only to be returned on 3 July 2009. He submitted his revised
application in August 2009.
Prior to that (on 26 June 2009) the Department informed the
employee that significant periods of his absence from work were
to
be regarded as unpaid leave and (on 2 July 2009) that he would have
to repay the remuneration he had received for those
periods. The
unilateral deductions to be made by the Department would leave him
with very little to survive on.
Nothing was done about the employee’s application for
temporary incapacity leave for almost two years. When the
application
was returned to him it was for reasons of a simple
administrative nature that should have been detected very early on
in the
application process and could have been easily rectified.
The amount of the monthly deductions was excessive, despite the
fact that section 38 of the Public Service Act gives the relevant
official a discretion in this regard. There was no attempt to warn
the employee of how much he would be paying each month,
or to
listen to any input he might have.
The arbitrator came to the conclusion that the circumstances that
the employee was placed in were objectively intolerable. He
found
that the intolerable situation was of the Department’s making
and likely to damage or destroy the trust relationship;
and that the
Department was culpable
6
in that it could have resolved the application for temporary
incapacity leave far quicker and could have provided for lower
instalments. After the first meeting to resolve his grievance,
Gordon clearly elected to retract his resignation in the belief
that
Daniels and Faker would take up the cudgels for him; Daniels’s
evidence that Gordon did not indicate which option
he had elected,
was patently untrue. And after Gordon had made this election,
nothing happened.
On the facts of this case, I must agree with the arbitrator that the
employee’s resignation does amount to a constructive
dismissal. The culmination of events is analogous to the situation
in
Murray
7
.
The employee did his part to address the issues confronting him,
but was met with inaction or a downright obtuse attitude at every
turn (such as the Department not processing his claim for two years
because its own official had not procured the signatures
of
witnesses as he had undertaken to do). The employee resigned as a
last resort; and even when he did so, and at arbitration,
he made it
clear that he would have continued working for the Department but
for the unbearable situation it had created.
8
It does seem anomalous that the employee seeks reinstatement when he
claims that the Department had made the working relationship
intolerable; as the arbitrator pointed out, this is, on the face of
it, destructive of a claim for unfair dismissal.
Section 186(1)(e) of the LRA defines a constructive dismissal thus:
“
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.”
And section 193(2)(b) requires
an arbitrator to reinstate and unfairly dismissed employee unless –
“
the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable.”
These two provisions appear to be mutually exclusive. How can an
employee claim that his continued employment was intolerable,
yet
ask to be reinstated into that very position? As I said at the
outset, it appears to beg the question.
However, the arbitrator – after having debated this issue at
some length with Gordon, as is apparent from the record –
had
to accept Gordon’s evidence that he would not be subjected to
the same circumstances that prevailed before he resigned.
Gordon
testified that he would, upon his return, either not be subjected to
deductions; or if he was, he would be able to repay
a reasonable
monthly amount. He has also recovered psychologically and is thus
far better equipped to work than he was previously.
Although the employee did not establish a clear basis for this
evidence, the problem facing the arbitrator and this court is
that
the Department’s witnesses did nothing to refute it. On that
basis, the arbitrator applied his mind to the uncontradicted
evidence before him and came to the conclusion that the employment
circumstances had become intolerable at the time of the employee’s
resignation in September 2009; but that they were no longer
intolerable at the time that he sought reinstatement in March 2012.
Based on the evidence before the arbitrator, I must agree with him.
The evidence established that the Department had, objectively
speaking, made a continued working relationship intolerable for the
employee at the time of his resignation; and his desire to
be
reinstated some 2 ½ years later is not destructive of that
finding.
Was the dismissal unfair?
The arbitrator correctly pointed out that he still needed to enquire
whether the dismissal was nevertheless unfair.
9
The arbitrator found that the Department had not established any
fair reason for the dismissal, whether for misconduct, incapacity
or
operational requirements. In those circumstances, I cannot interfere
with his finding that the dismissal was unfair.
The appropriate remedy
As I have set out in the preliminary discussion of the appropriate
test, it appears to me that, once an unfair dismissal has
been
established, the appropriate remedy imposed by the arbitrator is
still subject to the review test set out in
Sidumo
.
The arbitrator has a wide discretion in this regard. It is the
arbitrator’s sense of fairness that must prevail. In this
case, the arbitrator correctly pointed out that section 193 of the
LRA prescribes reinstatement as the primary remedy for unfair
dismissal. He considered the effect of section 193(2)(b) and
stressed the reference in that subsection to “the
circumstances
surrounding the dismissal.” He came to the
conclusion that those circumstances at the time of the arbitration
were not
the same as the circumstances that led to the employee’s
resignation in September 2009. Those were not the same circumstances
(on the employee’s evidence) into which he would be
reinstated; therefore, the arbitrator found, retrospective
reinstatement
remained the appropriate remedy.
Based on the uncontested evidence before him, that finding by the
arbitrator was not unreasonable. He carefully considered the
implications of sections 193(2)(b) and 186(1)(e). On the facts of
the case before him, the apparent contradiction occasioned
by an
order for reinstatement disappeared.
Conclusion
The arbitrator’s eventual conclusion was not so unreasonable
that no reasonable arbitrator could have come to the same
conclusion. It is not open to review. Neither is his initial finding
that the employee had been constructively dismissed. On
the evidence
before him, that was the correct finding.
The conclusion that I have arrived at is limited to the very
specific and unusual circumstances of this case. It is due, mainly,
to the Department’s failure to gainsay the evidence of the
employee that the circumstances at the workplace had changed
and
that, should he be reinstated, the circumstances would no longer be
intolerable. The arbitrator was faced with only the employee’s
version in this regard. In the absence of any evidence to the
contrary, the conclusion he arrived at was a reasonable one. It
would only be in highly unusual circumstances that a similar
conclusion and remedy would be justified.
The employee represented himself. A costs order is not appropriate.
Order
The application is dismissed.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
T J Golden
Instructed by the State
Attorney.
THIRD RESPONDENT:
In person.
1
In
terms of s 145 of the Labour Relations Act 66 of 1995 (the LRA).
2
(2012)
33
ILJ
363 (LC) para [30].
3
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007)
28
ILJ
2405 (CC).
4
Supra
para [26] – [27].
5
2010
(2) 92 SA (CC) para [4].
6
Thus
satisfying the test formulated in
Murray v Minister of Defence
2009 (3) SA 130
(SCA); (2008) 29
ILJ
1369 (SCA) para [13].
7
Supra
.
8
Cf
Pretoria Society for the Care of the Retarded v Loots
(1997)
18
ILJ
981 (LAC) at 984.
9
Asara
(supra)
para [37];
Eagleton v You Asked Services (Pty) Ltd
(2009) 30
ILJ
320 (LC) para [35].