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[2014] ZALCCT 53
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Metropolitan Health Risk Management v Majatladi and Others (CA15/2013) [2014] ZALCCT 53 (16 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
Case no: CA15/2013
DATE: 16 OCTOBER 2014
Reportable
In the matter between:
METROPOLITAN HEALTH RISK
MANAGEMENT
....................................
Appellant
And
MALEBO
MAJATLADI
...................................................................
First
Respondent
KAREN KLEINOT
N.O
..............................................................
Second
Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
.................................................
Third
Respondent
Heard: 09 September 2014
Delivered: 16 October 2014
Summary: Constructive dismissal-
Employee refusing to continue working in temporary position after
expiry of agreement- Employer
suspending employee and holding
disciplinary hearing- employee found guilty on some of the charges.
Employee continuing refusing
to work in temporary position - employer
subjecting employee to second disciplinary hearing on charges for
which employee was previously
found not guilty - employee resigning.
Labour Court finding employer’s conduct rendering employment
relationship intolerable.-
Appeal - no exceptional circumstances
justifying second disciplinary hearing- evidence showing employer
pressurising employee for
refusing to work in temporary position-
employee’s resignation attributed to employer- employer
rendering employment relationship
intolerable- employee
constructively dismissed- Labour Court’s judgment upheld –
appeal dismissed with costs.
Coram: Davis JA, Hlophe
et
DLODLO AJJA
JUDGMENT
DAVIS JA
Introduction
[1]
This
is an appeal against a decision of the court
a
quo
which upheld an application to review the second respondent’s
decision that the first respondent had not been constructively
dismissed by the appellant.
Factual Background
[2]
Much
of the factual narrative is common cause and can be summarised
briefly as follows: First respondent was appointed as a medical
advisor in the Qualsa Business Unit of the appellant. In November
2011, a senior manager in another business unit, the Government
Employees Medical Scheme Business Unit (‘GEMS BU’)
resigned. This unit was appellant’s biggest business unit,
earning annual revenue of approximately R 22 m. Appellant was keen to
consider the first respondent as the successor to manage
this unit.
While a recruitment process was still in place, appellant asked first
respondent to act in that position. She agreed
and she was seconded
to an acting post with effect from 15 November 2011. Of significance
was the contract letter that she signed
on 16 November 2011 which
reads:
‘
Dear
Malebo
We
hereby confirm you temporary appointment to the position of Head
Advisory Services in the Clinical Services Department, Admin
Business
Unit from 15 November 2011 to 31 January 2012.’
The
letter then continues:
‘
In
recognition of the additional responsibilities you will assume in
this capacity, you will be paid a taxable acting allowance
of R 10,
000 per month which will be incorporated into your monthly salary.
Your
willingness to undertake these additional responsibilities is much
appreciated and we wish you success in taking up this challenge.
Please
sign in the space provided below indicating your acceptance and
understanding of the offer and conditions associated with
it.’
[3]
First
respondent signed this contract which was also signed by the senior
human resources business partner of appellant Dr Nathan
Pillay.
[4]
Before
this temporary contract expired, first respondent informed appellant
that she was not prepared to continue acting in the
temporary post
after the expiry of the contract. On 28 January 2012, she sent
appellant an email advising of her intention to return
to her
previous position as medical advisor in the Metropolitan Health Risk
Management Business Unit from effect from 1 February
2012. She also
obtained approval from her superior in that business unit to take
annual leave from 1 February 2012.
[5]
On 1
February 2012, first respondent was called to a meeting with her
superiors in GEMS BU, Dr Safwan Desai, the Human Resources
Manager
for the unit and Kaya Gobinca. Again the first respondent confirmed
that she was not willing to continue acting in the
post. On 3
February 2012, while she was on annual leave, Dr Pillay sent her an
email in which he cancelled her leave for February
2012 and informed
her that she had to report to Dr Desai on Monday 6 February 2012.
[6]
To
this, first respondent replied in an email: “As you are aware
that my period in the GEMS Business Unit ended on 31 January
2012 and
I have not extended my acting period contract.” A meeting did
take place on 6 February 2012 at which Drs Desai and
Pillay sought to
persuade first respondent to continue in her acting position.
According to first respondent, another human resources
manager, Ms
Bongi Safile, informed first respondent that if she did not sign a
fresh temporary contract she would be fired. First
respondent was
steadfast in her position and confirmed that she was not willing to
act beyond the three month period to which she
had agreed in terms of
the temporary contract. On the same day, Dr Pillay suspended the
first respondent. He addressed a letter
to her informing her of
immediate suspension and that she would be called to a disciplinary
inquiry at a date that would be communicated
to her. The letter then
said the following: “This suspension is based on your refusal
to obey a reasonable instructing relating
to an acting role as HIV
Advisory Service within the GEMS BU”.
[7]
On 9
February 2012, first respondent lodged a grievance pertaining to her
suspension and the proposed disciplinary action. She did
not receive
a response thereto and again wrote to a superior, Dr Thoko Potelwa,
on 16 February 2012. This time she received a response
which reads
thus:
‘
We
acknowledge receipt of the grievance letter lodged on the 9
th
and the 16
th
of February 2012. In terms of the MHG grievance procedure you
will be invited to attend a formal grievance discussion, in
an
attempt to resolve your grievance.
Kindly
note, you will be contacted by no later than Monday the 20
th
of February, to notify you of the date of the above mentioned
meeting.’
[8]
In a
further letter on 22 February 2012 Dr Potelwa wrote as follows:
‘
In
relation to your suspension, our labour laws allow an employer to
suspend an employee. In your instance, the aforementioned suspension
precedes a formal disciplinary hearing which my opinion is in fact a
formal process which should be conducted fairly, and which
will
provide you with an opportunity to respond to the allegations made
against you. This process should, after taking its course
satisfy you
of the need or reason for the actual suspension.
In
relation to the pending disciplinary enquiry, this was initiated by
the GENS business unit, for reasons known to the unit.
As
your previous line manager I do not have the full facts to this
matter. The presiding chairperson will need to assess
the
evidence presented at the enquiry and make a finding based thereon.
As discussed yesterday, the disciplinary process
is separate from the
grievance process and I suggest that it be treated as such the
disciplinary enquiry will be the appropriate
forum to state your case
and to refute this facts presented by the initiator.’
[9]
Eventually
on 24 February 2012, a disciplinary hearing took place. The charges
which were brought against the first respondent were
set out in a
letter written by Mr Rizwan Salasa on 20 February 2012:
‘
You
will be called to answer allegations on the following charges:
CHARGES
Charge
1: GROSS INSUBORDINATION
In
that you refused to obey a reasonable instruction from the company to
continue acting in the capacity of HOD: Clinical Advisory
Services in
the GEMS Business Unit as of 1 February 201.
Charge
2: CONDUCT UNBECOMING
The
company take a dim view of the manner in which you have conducted
yourself. In respect of the above matter and views your
conduct
as unbecoming of a person with your status and position within the
company.’
[10]
At
the end of the hearing, the chairperson found that first respondent
had not committed the misconduct as contained in Charge 1
but found
her guilty of Charge 2. Pursuant to this finding, he imposed a
sanction of a final written warning. On 1 March 2012,
first
respondent appealed against the outcome of this hearing and thus the
imposition of a final written warning. On 5 March 2012,
first
respondent met with the senior human relations business partner, Mr
Trevor Damons, who agreed that first respondent could
escalate her
grievance to the chief executive officer of appellant, Mr Blum Khan.
[11]
In
the interim, on 7 March 2012, appellant’s human resources
executive Ms Odette Ramsingh issued an instruction to the first
respondent to report for duty to Dr Desai and to continue acting in
the position of HOD – Clinical Advisory Services “
until
the position has been filled and are required to hand – over
period as been successfully completed.”
Ramsingh then
warned first respondent that “
should
you not adhere to this reasonable and lawful instruction, the company
reserves its rights to take disciplinary action against
you”.
[12]
First
respondent was booked off sick on 8 to 30 March 2012. During this
period, appellant appointed Dr Anuschka Coovadia to the
vacant
position of HOD – Clinical Advisory Services with effect from 1
April 2012. The first respondent only became aware
of this
appointment when she arrived back at work on 2 April 2012. When she
reported for duty at her permanent post, she was suspended
again and
told to attend a second disciplinary hearing three days later on 5
April 2012. In this letter the following was said:
‘
The
suspension is due to you intentionally and deliberately refusing to
obey a reasonable and lawful instruction, issued to you
by the head
of Human resources on 7 March 2012, duly mandated by the CEO of
Metropolitan Health, that you report for duty in the
position of HOD:
Clinical Advisory Services in the Managed Care (GEMS) Department on
2
nd
April 2012 at 08h00.
’
[13]
Notwithstanding
that the temporary position had now been filled permanently,
appellant formally charged first respondent. The charges
are
contained in a letter on 2 April 2012, this letter having been
written by Mr Trevor Damons. To the extent that it is relevant,
the
letter reads as follows:
‘
You
will be called to answer allegations on the following charges:
GROSS
INSUBORDINATION
In
that you intentionally and deliberately refused to obey a reasonable
and lawful instruction, issued to you by the Head of Human
Resources
on 7 March 2012, duly mandated by the CEO of Metropolitan Health that
you report for duty in the position of HOD: Clinical
Advisory
Services in the Managed Care (GEMS) department on 2
nd
April 2012 at 08h00
.
[14]
First
respondent responded to this letter by way of a detailed letter
entitled “Continued Harassment and Victimisation”.
Of particular relevance is the following paragraph:
‘
As
indicated in my earlier letter to you, this instruction under the
guise of operational requirements is not reasonable or valid.
In fact
the Company is unlawfully forcing me to accept a demand under the
threat of being disciplined. Stemming from your conduct
it is
apparent that the Company has always sought to harass and victimize
me to a point of no return. Your conduct in this matter
continues to
show me that you no longer wish to continue an employment
relationship with me. In fact your conduct has created a
hostile and
intolerable environment in the workplace.’
[15]
On
the same day 3 April 2012, Mr Khan responded to first respondent’s
earlier grievance. His letter read as follows:
‘
The
grievance communication received via Email on the 14
th
March 2012 refers. Your grievance relates to you unhappiness
with the outcome of the formal grievance process which Dr Thoko
Potelwa communicated to you on 22 February 2012.
Upon
the perusal of all of the documentation it is my view that the
Company has conducted itself fairly in relation to suspension
and
subsequent disciplinary enquiry.
In
the light of the above, I uphold the decision as communicated to you
on 22 February 2012 by Dr Thoko Potelwa.’
[16]
Pursuant
thereto, on 04 April 2012 appellant advised first respondent that the
disciplinary enquiry would proceed on the following
day. She
immediately resigned. She claimed that there had been a constructive
dismissal. After an arbitration hearing, the second
respondent
disagreed and found that the first respondent had been the “
author
of her own fate given her intransigence about position (and that)
there is thus no causal connection between the work environment
and
Dr Majatladi’s resignation”
.
The court
a quo
[17]
Steenkamp
J found that the charges brought at the second hearing were the same
as the charges in the first hearing and of which
the first respondent
had not been found guilty of “gross insubordination”. The
learned judge considered that it would
have been advisable for the
first respondent to have participated in the second disciplinary
hearing and to have raised her concerns
yet again. However, he held
that the present dispute as one of those exceptional cases where the
hearing would have been so obviously
unfair that it amounted “to
the proverbial straw that broke the camel’s back”. The
employment situation had become
so intolerable over the previous
months, as the appellant repeatedly sought to pressurise first
respondent to continue in the acting
position. Hence, it could not be
held against the first respondent that she had not attended the
second hearing. Accordingly, he
found that appellant was responsible
for making the continued working relationship intolerable as it
charged the first respondent
with the same charge on two separate
occasions and had made the continued employment relationship so
intolerable that a finding
of a constructive dismissal was justified.
In the circumstances, he awarded compensation in the amount of six
months’ salary
to the first respondent.
Appellant’s case
[18]
Mr
Rautenbach, who appeared on behalf of the appellant, submitted that
the inquiry in the present case turned on the following:
whether in
all the circumstances which pertained on 4 April 2012 when first
respondent resigned, she in good faith could reasonably
have
perceived that the employer’s refusal to withdraw the
disciplinary proceedings and uplift the suspension made her continued
employment intolerable. In his view, the reason why first respondent
had been called to a disciplinary hearing at the beginning
of April
2012 was because of the appellant’s complaint that she had
refused to assist the newly appointed head of the GEMS
Unit, Dr
Coovadia, by way of a proper hand – over of the post in which
she has acted.
[19]
Mr
Rautenbach submitted further that there was no evidence by first
respondent that she did not understand the instruction given
to her
to assist in the hand – over. In this connection, he referred
to the disciplinary hearing and the following passage
of evidence:
‘
Mr
N van Zyl: Now, would I be correct, Dr Majatladi, that this was the
essence of the task which your employer required you to
fulfil, with
effect from the 2
nd
of April and which you refused to do?
Dr
M Majatladi: ‘This’ being what exactly?
Mr
N van Zyl: To assist in the handover of the post which you had filled
on a temporary basis when, is it, I forget now the lady’s
name,
is it Govadia (sic)?
Dr
M Majatladi: That’s right
Mr
N van Zyl: When Govadia was appointed?
Dr
M Majatladi: The letter has clearly stated.
Mr
N van Zyl: Right. And that was the role which you refused to fulfil.
Dr
M Majatladi: I refused to fulfil that role.
Mr
N van Zyl: Right. Now, this was why the company initiated
disciplinary action against you. Not so?
Dr
M Majatladi: The company initiated disciplinary action because I
refused to obey that instruction.
Mr
N van Zyl: That’s right.
Dr
M Majatladi: And because they wanted me to fulfil it despite somebody
being appointed in that role.’
[20]
In Mr
Rautenbach’s view, she understood the charges that had been
brought against her and furthermore appreciated that she
had a
contractual duty to render the assistance to a newly appointed
colleague to ensure that the latter understood the portfolio
and
could therefore deliver a quality service to a primary client of
appellant.
[21]
Viewed
accordingly, Mr Rautenbach submitted there was no case which the
first respondent had made out which justified her allegation
of
constructive dismissal. In this regard, he referred to the approach
set out by Nicolson JA
in
Pretoria Society for the Care of the Retarded v Loots:
[1]
‘
The
enquiry then becomes whether the appellant, 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 employer and employee. It is not necessary
to show that
the employer intended any repudiation of the contract; the court’s
function is to look at the employer’s
conduct as a whole and
determined whether it is such that its effect, judged reasonably and
sensibly, is such that the employee
cannot be expected to put up with
it. I am also of the view that the conduct of the parties has
to be looked at as a whole
and its cumulative impact assessed.’
In
his view, appellant’s conduct did not fall within the scope of
this
dictum
.
Evaluation
[22]
In
the
Loots
decision,
Nicholson JA also said that when an employee “
‘
proves
the creation of the unbearable work environment she is entitled to
say that by doing so the employer is repudiating the contract
and she
has a choice either to stand by the contract or accept the
repudiation when the contract comes to an end.”
[2]
[23]
Mr
Rautenbach conceded that, were two charges to have been the same,
then the act of charging the first respondent a second time
on the
same charge would have been a major factor in favour of justifying
the first respondent’s case of constructive dismissal.
It was a
wise concession. In
BMW
(South Africa) (Pty) Ltd v Van der Walt,
[3]
this Court considered the employer’s entitlement to subject an
employee to more than one disciplinary enquiry on the same
charge.
Conradie JA, with whom Nicholson JA concurred, appeared to take the
view that fairness alone would be the yardstick to
determine whether
a second disciplinary enquiry may be conducted against an
employee.
[4]
He held that it would probably not be considered to be fair to
hold more than one disciplinary enquiry, save in rather exceptional
circumstances. The learned judge of appeal then explained what he
meant by “rather exceptional circumstances” when
he
referred to a situation whereby the employer acted
bona
fide
throughout the proceedings but the employee had concealed what he had
done so that only after the first disciplinary hearing had
been
conducted and completed had the full import of the deception been
appreciated and understood at the time of the first hearing.
[24]
Zondo
AJP (as he then was) adopted an even stricter approach to this
question, in finding that the correct test must take account
of the
interests of the employer as well as the employee and balance them
within the context of labour law. It would amount to
an unfair labour
practice, were a second enquiry to take place.
[5]
However, Zondo AJP did not rule out an alternative approach to the
question which was similar to that adopted by the majority,
which is
that an employer could prove exceptional circumstances before
justifying a dismissal of an employer on the base of the
second
disciplinary enquiry.
[25]
It
appears to me that, given the kind of exceptional circumstances
envisaged by Conradie JA, where the first disciplinary enquiry
could
never have arrived at a fair decision for want of fraudulent
non-disclosure by the employee, a second disciplinary enquiry
in
which the hearing was fully informed of all the facts would be
justified. But that is not the case which confronts this Court
in the
present dispute.
[26]
Presumably,
because the two letters which charged the first respondent, the first
on 20 February 2012 and the almost identical letter
of 3 April 2012,
contained the same charges, the appellant was constrained to argue
that a different charge had, in effect, been
brought against the fist
respondent, that is a charge of failing to facilitate the hand –
over. For this proposition, Mr
Rautenbach referred to a small portion
of the cross-examination of first respondent which I have reproduced
earlier in this judgment.
But the fact remains that the charge
brought on 2 April 2012 was in an almost identical form to that which
formed the subject of
the first disciplinary hearing and, in terms of
which first respondent was acquitted on the charge of gross
insubordination.
[27]
It
follows that it would be profoundly unfair to charge an employee
twice for the same offence and then when a manifest error is
raised,
for the employer to seek to alter the very case which formed the
basis of the charge which was invoked to summons the employee
to a
disciplinary hearing.
[28]
However,
this is not the only difficulty which confronts the appellant. The
record indicates clearly that the appellant was dissatisfied
with the
result of the first disciplinary proceeding. Its representatives
improperly approached the chair of the hearing and requested
that he
reissue the instruction which formed the basis of the charge on which
she had been acquitted. The transcript of the proceedings
which took
place on 24 February 2012, reveals that Mr van Deventer, the
chairperson, was approached by Mr Rizwan Salasa, the human
resources
industrial relations compliance officer who argued, notwithstanding
the acquittal on gross insubordination, that it was
still open to the
appellant to reissue the instruction. As Mr Ackerman, who appeared on
behalf of the first respondent, correctly
observed this constituted
grossly unfair and improper conduct. It clearly indicated that the
appellant was prepared to continue
to coerce first respondent in
order to ensure that she continued in the temporary position which
she had refused to occupy and
on which refusal she had not been
convicted of a charge of gross insubordination. Shortly thereafter,
on 7 March 2012, Ms Ramsingh
again instructed first respondent to
return to this position, a further indication of appellant’s
coercion.
[29]
In
summary, there was a pattern of harassment of the first respondent
which took place after the hearing and accordingly it is hardly
surprising that this pattern of harassment culminated in a second
charge on the very same issue on which the first respondent had
not
been found guilty.
[30]
It
is this pattern of events which requires careful scrutiny in order to
determine whether constructive dismissal has taken place.
In this
connection, Cameron JA (as he then was) in
Murray
v Minister of Defence
[6]
cautioned that resignation because work has become intolerable does
not in itself justify a decision that constructive dismissal
has
taken place. The key question is whether the conditions, which are
intolerable, had been of the employer’s making and
whether the
employer is to be blamed therefore. In short as Cameron JA put it
“the employer must be culpably responsible
in some way for the
intolerable conditions: the conduct must (in the formulation the
Courts have adopted) have lacked “reasonable
and proper cause”.
Culpability does not mean that the employer must have wanted or
intended to get rid of the employee, though
in many instances of
constructive dismissal that is the case”
.
[31]
When
the factual narrative in this case is examined from the time that the
first respondent indicated that she was not willing to
continue in
the temporary post beyond the three month period to which she had
agreed in terms of the temporary contract, she was
subjected to
increasing pressure from the appellant. Even when a charge of gross
insubordination in February 2012 was not upheld,
the appellant
continued to ratchet up the pressure on the first respondent after
she continued to refuse and to which she was entitled
to refuse to
continue to act, given that she made it clear from the commencement
that she was only prepared to entertain the temporary
post for a
three month period.
[32]
The
conditions which gave rise to her resignation were of the appellant’s
making and for which the appellant must be held
to be culpable.
Therefore the conduct of the appellant did amount to making the
continued employment relationship intolerable and
it follows that
first respondent’s resignation amounted to a constructive
dismissal.
[33]
For
all of these reasons therefore, the appeal is dismissed with costs.
Davis
JA
Hlophe
AJA and Dlodlo AJA concur
APPEARANCES:
FOR THE APPELLANT: Mr F. Rautenbach
Instructed by: Louis van Zyl Attorneys
FOR THE RESPONDENT: Mr L. Ackerman
Instructed by: Bowman Gilfillan Inc.
[1]
[1997] 6 BLLR 721
(LAC) at 725A-C.
[2]
at 724G-H
[3]
[2000] 2 BLLR 121
(LAC).
[4]
At para 12.
[5]
See
paras
33-35.
[6]
2009 (3) SA 130
(SCA) at para 13.