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[2014] ZALCJHB 220
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Solidarity obo Van Vuuren v Lekwa Local Municipality and Others (JR2791/08) [2014] ZALCJHB 220 (19 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 2791/08
In
the matter between:
SOLIDARITY
OBO MJJ VAN
VUUREN APPLICANT
AND
LEKWA LOCAL
MUNICIPALITY
FIRST
RESPONDENT
THE COMMISSION FOR
CONCILIATION,
SECOND
RESPONDENT
MEDIATION AND
ARBITRATION
COMMISSIONER
RONALD MAUDU NO.
THIRD
RESPONDENT
Heard:
17 December 2013
Delivered:
19 June 2014
JUDGMENT
Nkutha AJ
Introduction
[1]
Solidarity
[“applicant”]
on behalf of Mr Van Vuuren [“Van
Vuuren”]
seeks an order reviewing and
setting aside the arbitration award issued by Mr R Maudu
[“commissioner”] on 17 August
2008 under case number
PM2971-07. In that arbitration award, the commissioner found
that the applicant failed to prove that
Van
Vuuren
was constructively dismissed.
[2]
This application was opposed only by the
first respondent.
Background facts
[3]
Van Vuuren had been in the employ of the
first respondent since 1986 and at the time of his resignation he was
the Manager: Secretariat.
His immediate supervisor was the Executive
Manager: Corporate Services, Mr Maimela.
[4]
According to the applicant, in October 2006
the respondent took away some of Van Vuuren’s duties and
authority over the staff
members reporting to him without any
consultation. Van Vuuren wrote plethora of memoranda to the first
respondent wherein he complained
about the changes in his job content
and functions; and the overall work flow systems in his unit.
[5]
The first respondent, on the other hand,
submitted that it responded to most of these memoranda and several
staff meetings were
also held in an attempt to resolve the issues
that had been raised by Van Vuuren. The said issues affected all
staff members in
Van Vururen’s unit. Maimela testified these
issues were subsequently resolved in a meeting between himself, the
Municipal
Manager and Van Vuuren and this evidence was never disputed
by the applicant.
[6]
The last complaint memorandum from Van
Vuuren was served on the first respondent on 30 March 2007 and he
went on leave thereafter.
On 4 April 2007, the first respondent sent
one of its employees, Mr Mazibuko, to Van Vuuren’s home to
serve him with a letter
of suspension. According to Mazibuko’s
evidence, he did not find the Van Vuuren on the day in question and
had to return
the next day. On 5 April 2007 Van Vurren was at home
but refused to receive the said letter of suspension.
[7]
Conversely, the applicant’s evidence
was that Van Vurren was not at home on 5 April 2007 but when he came
back, he found his
daughter crying and terrified because there was a
traffic officer who came to deliver a letter. He went to work and
found his office
locked. Without inquiring about the reason for his
office to be locked, he just filled a sick leave form since he was
booked off
sick until 13 April 2007. Whilst at home, he thought about
the possible reasons for his office to be locked and thereafter
decided
to tender his resignation on 13 April 2007.
Grounds for Review
[8]
The applicant contended that the
arbitration award was reviewable based on the grounds summarised as
follows, in that the commissioner:
8.1
failed to apply his mind to the relevant evidence, being the
cumulative effect of the grievance;
and
8.2
exceeded his powers or committed an irregularity in the conduct of
the arbitration hearing.
Legal Principles
and Analysis
[9]
It
is incumbent upon the Court to establish whether or not there is a
prima
facie
case to interfere with the arbitration award on review. Section 145
of
Labour Relation Act 66 of 1995 as amended [“LRA”]
provides limited grounds for review and is suffused by the
constitutional
standard of reasonableness.
[1]
In essence, the applicant must show that the decision reached by the
Commission for Conciliation, Mediation and Arbitration [“CCMA”]
commissioner is one which a reasonable decision maker could not
reach.
[2]
[10]
In
terms of section 186(1)(e) of the LRA a constructive dismissal occurs
when “an employee terminated a contract of employment
with or
without notice because the employer made continued employment
intolerable for the employee.” This definition, therefore,
presupposes a situation where the termination of employment is
involuntary as
the
employer behaved in a deliberately oppressive manner that left the
employee with no option but to resign in order to protect
his or her
interests.
[3]
[11]
Commissioners
are therefore enjoined by section 186(1)(e) of the LRA to enquire
whether there had been a dismissal or not, which
is an issue that
goes to the jurisdiction of the CCMA. However, that inquiry is
different from the one whether or not the CCMA
has jurisdiction to
entertain a dispute. In
Hickman
v Tsatsimpe NO,
[4]
the Court held that the standard of review established by
Sidumo
which poses the enquiry as to whether the decision reached by a
commissioner is one that a reasonable decision maker could not
reach,
is not applicable in the context of an enquiry into the CCMA’s
jurisdiction, and in particular whether a dismissal
in terms of
section 186(1)(e) has happened or not.
[12]
In
S.A.
Rugby Players’ Association (SARPA) and Others v S.A. Rugby
(Pty) Limited and Others; S.A. Rugby (Pty) Limited v SARPU
and
Another
,
[5]
the LAC formulated the test for the enquiry concisely as follows:
“
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....This means that, in the context of this case, the CCMA may
not grant itself jurisdiction which it does not have. Nor may
it
deprive itself of jurisdiction by making a wrong finding that it
lacks jurisdiction which it actually has. There is, however,
nothing
wrong with the CCMA enquiring whether it has jurisdiction in a
particular matter provided it is understood that it does
so for
purposes of convenience and not because its decision on such an issue
is binding in law on the parties...
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 there had been a dismissal of the 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 finding to the
contrary.”
[13]
Accordingly,
the test I need to apply 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 Van Vuuren had been
dismissed.
[6]
In doing so, it is necessary for me to determine whether the
respondent had been dismissed within the meaning of section
186(1)(e).
[14]
In
Solid
Doors (Pty) Limited v Commissioner Veron and Others
,
[7]
the LAC held as follows:
“
...
there are three requirements for constructive dismissal to be
established. The first is that the employee must have terminated
the
contract of employment. The second is that the reason for termination
of the contract must be that continued employment has
become
intolerable for the employee. The third is that it must have been the
employee’s employer who made continued employment
intolerable.
All these three requirements must be present for it to be said that a
constructive dismissal has been established.
If one of them is
absent, constructive dismissal is not established.”
[15]
The
Constitutional Court, in
Strategic
Liquor Services v Mvumbi NO and Others,
[8]
held that the test for constructive dismissal does not require that
the employee should have no choice but to resign, but only
that the
employer should have made continued employment intolerable.
[16]
Davis
JA, dealing with the intolerability of the continued relationship in
Jordaan
v Commissioner for Conciliation, Mediation and Arbitration and
Others,
[9]
stated that:
“
This
dictum represents a salutary caution that contractive dismissal is
not for 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 intolerable that no reasonable
option, save termination
is available to her.
”
[Emphasis added]
[17]
While
in
Old
Mutual Group Schemes v Dreyer and Another
,
[10]
the Court held that the mere holding of a disciplinary enquiry does
not amount to duress entitling the employees to bypass the
internal
appeal processes. The Court found that the employees’
contention that the internal processes would have been futile
to
appeal was without foundation.
[18]
Where
an employee could reasonably be expected to invoke a grievance
procedure, the resignation will not be regarded as a constructive
dismissal. In this regard, resignation ought to be an action of “the
last resort”.
[11]
Put differently, the employee must prove that he/she had no
opportunity to take up the dispute with other levels of management.
[19]
In
the context of the above legal canons, it is clear that the Court’s
function is to look at the employer’s conduct
as a whole and
determine whether its effect, judged reasonably and sensibly, was
such that the employee could not be expected to
put up with it. The
collective impact, in its totality, of the conduct of both parties
stands to be assed as well.
[12]
Application of
Legal Principles
[20]
The omphalos of Van Vurren’s
complaint was that the first respondent removed certain of his duties
and as a result he was
placed in a position where he did not know
what his job description entailed and was left with threats of
disciplinary hearing
for poor performance.
[21]
However,
it was the first respondent’s evidence that there were attempts
to attend to Van Vruuren’s complaints in several
meetings, both
informal and formal. In fact, Maimela testified that there was a
particular meeting held with Van Vuuren, the Municipal
Manager and
himself wherein the said concerns were amicably resolved.
[13]
It was only when the complaints did not stop after all the attempts
that Van Vuuren was reminded of his job description as his
complaints
were channelled at monitoring performance of his supervisor in
derelict of his own duties. Van Vuuren, himself conceded
that he was
never subjected to any poor performance inquiry.
[22]
Other
than the memoranda of complaints that had been submitted over a
period of a year, Van Vuuren never lodged a formal grievance
in
accordance with the South African Local Government Bargaining Council
[“SALGBC”] Grievance Procedure Collective
Bargaining
[“Grievance Procedure”]. In terms of clause 2.1.1 of the
Grievance Procedure, the aggrieved employee must
lodge his grievance
with his immediate supervisor in writing and on the prescribed form.
If the grievance is not resolved to the
satisfaction of the aggrieved
employee after the third step with the Municipal Manager, the
grievance may be referred to the SALGBC
for adjudication.
[14]
[23]
In the memorandum dated 12 March 2007, Van
Vuuren writes, in response to his supervisor’s memorandum,
that:
“
4.
Even though I communicate with you in memorandums you don’t
reply to most of the urgent matters
contained
in the relevant memorandums but only to what suits you.
5.
Will it serve any purpose to visit your office and to discuss
problems as far as inter alia agendas of meetings are concerned
if
you don’t reply to the problems I have identified in writing
herein?”
[15]
[24]
It
can be deduced from above that Van Vuuren shunned every serious
attempt to resolve his complaints through his intransigent attitude.
Nonetheless, in a staff meeting of 13 March 2007, which was also
attended by Van Vuuren, all the issues that were the crux of his
complaints were discussed.
[16]
[25]
There is no evidence of what triggered Van
Vuuren’s memorandum of 30 March 2007, which lodges a grievance.
But on his own
version, Van Vuuren’s was on annual leave from
30 March to 5 April 2007 and on sick leave from 5 to 13 April 2007.
It is
inconceivable that Van Vuuren’s expected the first
respondent to attend to the said grievance in his absence and when it
had been lodged in flagrant breach of the Grievance Procedure.
[26]
It would seem that Van Vuuren’s
subsequent moves were informed by the first respondent’s letter
of suspension delivered
at his home on 5 April 2007. Even though Van
Vuuren disputed having received the said letter, it remains
undisputed that there
was an attempt to serve him.
[27]
Ultimately,
Van Vuuren attributed his decision to resign to the first
respondent’s decision to lock his office, a fact he
discovered
on 5 April 2007 before he went on sick leave. Maimela testified that
Van Vuuren’s office was locked simply because
there was an
investigation conducted against him and hence he was placed on
precautionary suspension. Van Vuuren conceded that
he never asked his
supervisor for the reasons for locking his office but on 13 March
2007, he day he was supposed to return to
work, he tendered his
resignation without voicing his complaint about the locking his door.
[17]
[28]
In line with
Old
Mutual Group Schemes,
Van Vuuren’s
suspension and the subsequent locking of his office did not amount to
duress the would entitle him to bypass
the internal Grievance
Procedure. Indeed, I agree with the commissioner that Van Vuuren had
enough time to consider and explore
all possible options at his
disposal before deciding to resign. He could have escalated his
grievance to the Municipal Manager,
alternatively referred it to the
SALGBC in terms of the Grievance Procure.
[29]
On consideration of the evidence as a
whole, I am persuaded that the applicant failed dismally to prove a
case of constructive dismissal.
Therefore, the commissioner correctly
applied his mind to the evidence before him and found that Van Vuuren
had resigned out of
his own making; as such no constructive dismissal
ever took place.
Costs
[30]
There is no reason to depart from the usual
rule that costs follow the result in respect of the applicant. The
applicant ought to
have better advised Van Vuuren not to institute
these proceedings or at least withdraw the application especially in
the light
of the fact that no replying affidavit had been filed which
in a sense meant that the allegations contained in the first
respondent’s
answering affidavit remain unchallenged.
Order
[31]
In the premises, I make the following
order:
1.
Condonation for the late filing of the applicant’s written
submissions
is granted; and
2.
The application is dismissed with costs.
_______________________
Nkutha AJ
Acting Judge of the
Labour Court of South Africa
Appearances
For the Applicant:
Solidarity Trade Union
For
the First Respondents: A Mosam
[1]
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC) at para108.
[2]
Above
n 1 at para 107 to 109.
[3]
John
Grogan
Workplace
Law,
9th
ed, (2007) Juta , at 115.
[4]
[2012]
5 BLLR 493
(LC) at para 6.
[5]
(2008) 29 ILJ 2218 (LAC) at paras 40 and 41.
[6]
Asara
Wine Estate and Hotel (Pty) Limited v J.C. Van Rooyen and Others
(2012)
33 ILJ 363 (LC) at para 23.
[7]
(2004)
25 ILJ 2337 (LAC) at para 28.
[8]
(2009)
30 ILJ 1526 (CC) at para 4.
[9]
(2010)
31 ILJ 2331 (LAC) at 2335.
[10]
(1999)
20 ILJ 2030 (LAC),
[11]
Lubbe
v ABSA Bank BPK
[1998]
12 BLLR 1224 (LAC).
[12]
Marsland
v New Way Motor and Diesel Engineering
(2009)
30 ILJ 169 (LC) at 188G.
[13]
Transit
of the proceedings page 365 lines 1to 20; page 357 lines 1 to 11.
[14]
See
clause 2.3.4 of the Grievance Procedure.
[15]
See
page
61 of the record.
[16]
See page 73 to 67 of the record for the agenda and the minutes of
the said meeting.
[17]
Lubbe
,
above n11.