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[2015] ZALCJHB 241
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Armaments Corporation of South Africa Ltd v Nowosenetz NO and Others (JR1579/11) [2015] ZALCJHB 241 (5 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no
:
JR1579/11
In
the matter between:
ARMAMENTS CORPORATION OF
SOUTH AFRICA LTD
Applicant
and
LAWRENCE NOWOSENETZ N.O.
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
Second Respondent
SOLIDARITY obo B.J.E. VAN TONDER
Third Respondent
HEARD:
16 January and 14 February 2014
DELIVERED:
5 August 2015
Constructive
dismissal – persistent unfair treatment may give rise to claim
for constructive dismissal – probative value
of evidence,
failing to lodge and exhaust grievance procedure and long delay in
lodging grievance may militate against the granting
of such relief.
Constructive
dismissal – determination whether dismissal constitutes
constructive dismissal in terms of section 186(1)(e)
of LRA 1995 -
comprising of two-stage approach: (1) first-stage, onus on employee
who resigns or leaves to prove that continued
employment made
intolerable by employer’s conduct, (2) second-stage, onus on
employer to show that dismissal not unfair.
Constructive
dismissal – two stages of constructive dismissal not
independent stages – facts which are relevant to first-stage
may also be relevant to second-stage – there may be cases where
facts relating to first-stage are determinative of outcome
of
second-stage – whether or not this is so is a matter of fact
and no general principle can or should be laid down.
Commission
for Conciliation Mediation and Arbitration – Test on review of
constructive dismissal – (1) review of first-stage
of
constructive dismissal is whether facts establish jurisdiction, (2)
review of second-stage of constructive dismissal is reasonableness.
JUDGMENT
RAM, A J
Introduction
[1]
This is the second time that the applicant seeks to review and set
aside the arbitration award of the Commission for Conciliation,
Mediation and Arbitration (“the Commission”).
[2]
The first time van Niekerk J reviewed and set aside the arbitration
award of Commissioner J.C.B. Schoeman N.O. of the Commission
and
ordered that the matter be referred back to the Commission for a
fresh determination of the third respondent’s member’s
constructive dismissal referral, without any rehearing of evidence
and on the basis of the transcribed record of proceedings (“the
transcript”).
[1]
[3]
The rehearing was heard by the first respondent, namely, Lawrence
Nowosenetz N.O. (“the commissioner”) who
issued an
arbitration award dated 26 May 2011 (“award”) finding
that the third respondent’s member was dismissed
as
contemplated in terms of section 186(1)(e) of
Labour Relations Act,
No. 66 of 1995
, as amended (“the Act”) and his dismissal
was unfair.
[4]
The applicant seeks to review and set aside the award of the
commissioner on the basis that the third respondent’s member
failed to prove that he was constructively dismissed in terms of
section 186(1)(e)
of the Act.
The evidence in the transcript
[5]
The third respondent’s member testified at the arbitration
proceedings. He relied on the evidence of a number of employees
of
the applicant. They are, Mr Pierre Meiring (“Mr Meiring”)
who is a Senior Manager in the Acquisition Department,
Ms Ingrid
Crossley (“Ms Crossley”) who is a Process Assurer, Dr
Johann Viljoen (“Dr Viljoen”) who is a
Manager in the
Quality and IT Department and Mr Mercer Johan Potgieter (“Mr
Potgieter”) who is a Manager Technical
in the Division Systems
Engineering in the Acquisitions Department. The applicant also relied
on the evidence of two of its employees,
namely, Mr Sipho Johannes
Mkwanazi (“Mr Mkwanazi”) who acted as Acting General
Manager for the year 2005/2006 and its
Acting General Manager,
Quality and IT, namely, Mr Mike Mathibe (“Mr Mathibe”).
[6]
The third respondent’s member testified in chief that he was 18
years and 11 months in the employment of the applicant
when he
resigned and claimed constructive dismissal on 5 October 2008. He was
well qualified and has a number of qualifications,
a doctorate
inclusive.
[2]
At the time he resigned, he occupied the position of Senior Manager:
Quality Engineering Services which is a division of the applicant’s
Quality and IT Department.
[7]
The primary function of the third respondent’s member’s
department was quality engineering which he described as
conducting
program baseline audits which “refer to major acquisition
programs”. This was the core business of the applicant.
His
main duty was to oversee the integrity and quality of the work
performed by the Acquisition Department. His department also
had a
watchdog function as they had to evaluate the quality of the work
performed by the other departments.
[8]
The third respondent’s member also testified that in 2004 his
department was given the additional responsibility to ensure
that all
multi-source contracting processes was performed in such a way that
it could not be disputed afterwards. This was called
process
assurance.
[9]
The third respondent’s member based his constructive dismissal
referral on events that occurred during the years 2004
to 2007. He
testified that he started to experience problems in 2004 which he
described to be at first fairly minor and thereafter
escalated when
there were lots of changes in the positions of the applicant’s
general management and acting managers. Prior
to that he was content.
[10]
The third respondent’s member divided his constructive
dismissal claim into three grounds, namely, manipulation of his
and
his subordinates’ performance contracts
[3]
and management abnormalities, measurement of performance contracts
and inhibiting or interfering with his role in appointing personnel.
[11]
The third respondent’s member claimed that both his and his
subordinates’ scores were changed for the year 2005/2006
by the
then Acting General Manager, namely Mr Mkwanazi. For the year
2006/2007, the Acting General Manager, Quality and IT, namely,
Mr
Mathibe threatened to change his score and placed targets that both
he and his subordinates would not be able to achieve and
for the year
2007/2008 no performance contract was agreed on. He also testified
that without a performance contract it was impossible
for him to
manage his department. His other grounds were that his complaints
were not answered, a report was changed without his
and his
subordinate, namely, Ms Crossley’s, permission and signed on
their behalves, his grievance which he lodged in September
2007 was
not attended to and delayed. He was escorted out of the applicant’s
premises when he resigned.
[12]
The third respondent’s member contended under cross-examination
that he was forced to appoint staff who could not perform
the work
and prevented from appointing those who could. The recruitment
process ran from 2002. The Chief Executive Officer (“the
CEO”)
threatened to discipline him if he did not appoint staff and he could
not be blamed if he could not find suitable candidates
who had the
qualifications or met the requirements. The staff or candidates he
referred to were black people (“affirmative
action candidate/s”
or “affirmative action appointee/s”). To the question
that none of his subordinates lodged
formal complaints, he contended
that they did. He also contended that he did not just resign but made
a proposal for an amicable
settlement, the confidentially of which
Messrs Mkwanazi and Mathibe breached by discussing it with the
Acquisition Department.
[13]
Mr Meiring testified that he was one of the architects of the
performance management system. It was irregular for Mr Mkwanazi
to
change the scores of the third respondent’s member after the
performance contracts were already entered into. He testified
that it
was “criminal fraud” for Mr Mkwanazi to request that Mr
Mathibe change the Pilatus report and that it was highly
illegal. He
was one of the original employees who designed the tender process.
The tender process could not be changed because
of the amount of
money involved. To the third respondent’s member’s
statement that Mr Mathibe told the third
respondent’s
member and another employee, namely, Ms Nomsa Mcgina (“Ms
Mcgina”) to leave out certain clauses
and what effect that
would have if it was not communicated by the Board to Mr Mathibe in
writing, he answered that “the correct
process for any change
to any practice would be for the [applicant’s] management board
(“the Board”)
[4]
or the owner of the practice, which would be the general manager of
that … who owns that practice to formally instruct whoever
he
holds accountable for that practice to review and update the
practice.”
[5]
[14]
Mr Meiring confirmed under cross-examination that Mr Mkwanazi could
change the performance scores by instruction to the
Human
Resources Administrator. He, however, contended it was irregular to
do so without consulting the concerned employee. To the
question that
he contended that changes were made to the Pilatus report prepared by
Ms Crossley in her absence and that it was
“criminal”, he
answered that he had “no idea of the details.” He stated
that the Board had no power to
reject the Pilatus report but could
send it back. He could not refute that a General of the client gave
an instruction to ignore
the prescribed criteria (“the
criteria”) and that Dr Viljoen got a letter of consent from the
General to do so.
[15] Ms Crossley testified that for the year 2005/6 her
scores were changed. The Pilatus report was changed without her
consent.
The Acting Manager, namely, Dr Viljoen signed it without her
consent. She also testified that affirmative action appointees were
either unqualified or inexperienced which lowered standards with the
result the third respondent’s member spent more time
monitoring
them.
[16]
Ms Crossley contended under cross-examination that she holds a BA
Ed.
[6]
with 19 years experience whereas the qualifications to be appointed
as a Process Assurer was a BSC degree or an engineering degree
(preferably an Honours degree with 13 years experience which was
lowered to 7 years and required a “matured person”
[7]
with experience in the defence industry). She did not have the
requisite qualifications but contended that the third respondent’s
member took her experience into account. She also contended that she
wrote the quality assurance examination once whereas Ms Mcgina
who
had the requisite qualifications had written the examination twice
and had still not passed. Mr Mkwanazi changed her performance
scores
and “if [she] think about it, it affected [her] salary
increase…[as it] was lower obviously...”
[8]
and her performance bonus. She did not lodge a grievance but reported
it to the third respondent’s member. She could not
refute that
a General of the client agreed to ignore the criteria in the Pilatus
report, but contended that it was irregular as
it happened after the
fact. Insofar as the tender process was concerned, she contended that
she indicated that there were discrepancies,
“however [she]
probably concluded that the process was transparent and fair.”
[9]
Further, she did not “think there was any necessity on their
part to change the report unilaterally.”
[10]
[17] Dr Viljoen testified that he acted in the third
respondent’s member’s position. Messrs Mkwanazi and
Mathibe made
changes to the Pilatus report. He signed the report in
good faith because his manager asked him to sign it but did not
understand
it. To the questions whether there was a practice or if he
knew of one that stipulated that he could not sign on behalf of Ms
Crossley
and that the changes made by Messrs Makwanazi and Mathibe
were not authorised and were extremely irregular, he answered that he
was not aware of one and would not have signed the Pilatus report if
there was such a practice, respectively.
[18] Mr Potgieter testified that the CEO and Messrs
Mkwanazi and Mathibe interfered with the third respondent’s
member’s
managerial functions. The third respondent’s
member’s grievance was not heard within the time periods. The
applicant
did not follow its own grievance procedure. The grievance
procedure was an employee’s last resort and the next step was a
referral to the Commission. It was irregular for the third
respondent’s member to be escorted out of the applicant’s
premises.
[19] Mr Potgieter conceded under cross-examination that
it was not possible to deal with the third respondent’s
member’s
grievance whilst Mr Mathibe was overseas. In
re-examination, he testified that should the Board make a decision to
change a practice,
the procedure was to register the decision with
the applicant’s document management section “ADM”
and thereafter
the change “goes through the procedure of the
committees and comes back to the Board.” The failure of Mr
Mathibe to
follow such procedure placed a question mark on the “sort
of services” that the third respondent’s division
rendered
at the applicant especially the Acquisition Department.
[20] Mr Mkwanazi testified that he changed the scores of
the third respondent’s member and his subordinates because he
did
not agree with the scores which the third respondent’s
member allocated to himself and his subordinates. He contended that
the third respondent’s member used a different criteria to
assess himself and his subordinates and in so doing over assessed
himself and his subordinates. Had the third respondent’s member
and his subordinates not been content, they should have followed
the
grievance procedure. He did not deem the changing of the scores of
the employees to be unreasonable.
[21]
Mr Mkwanazi also testified that although he was given the instruction
to appoint Mr Peeters,
[11]
he did not do so as he still required the approval of the CEO. He
instructed the third respondent’s member to lower the job
requirements because in most cases in the applicant’s industry
it was very rare to find a candidate who met the job requirements
completely, so he asked the third respondent’s member to
address such gaps by means of training or development programmes
which would enable the candidate to meet the job requirements. By
doing this, he did not deem it to be a lowering of standards.
[22] Mr Mkwanazi contended under cross-examination that
he changed the scores of the third respondent’s member and his
subordinates
on the basis of the evidence that was placed before him.
He contended that if there was other information, then the third
respondent’s
member could have stopped the meeting and produced
such information. To his statement that the third respondent’s
member
did not comply with the computerised client feedback system,
it was put to him that there was no such system, to which he
contended
that what he meant was that there was a number of ways in
doing a client survey. He contended that before he changed the
scores,
he asked the third respondent’s member for evidence.
[23] Mr Mkwanazi denied under cross-examination that Mr
Meiring was the architect of the performance management system and
went
on to contend that he found it strange that the third
respondent’s member and other senior managers did not complain
or lodge
grievances about the scores he changed at the time when he
did so and the third respondent’s member had only done so after
three years had passed.
[24]
Mr Mkwanazi also contended under cross-examination that it was the
targets that were contracted and not the scores. He explained
that
the third respondent’s member allocated to himself and his
subordinates scores of over 100% which was above the target.
A 100%
was an acceptable standard and the disagreement arose in respect of
the extent of over performance. Insofar as appointments
were
concerned, he contended that he argued with the third respondent’s
member to appoint candidates who had less experience
but were
qualified and referred to Ms Crossley who was appointed but was not
an engineer. Insofar as the Pilatus report being submitted
without Ms
Crossley agreeing to the changes made thereto and Dr Viljoen signing
on her behalf, he contended that she was “off
sick” and
to the question that it was submitted to the Board as if she was the
author thereof, he answered that it was “pp’d”.
[12]
He maintained that a meeting was held in respect of the scores he
changed and another with the senior managers to explain the way
forward with the new balance scorecard.
[25] Mr Mathibe testified that he changed the criteria
of the third respondent’s member and his subordinates in that
the targets
that were previously agreed upon were easily achievable.
However, that for the year 2006/7 he gave the third respondent’s
member the benefit of the doubt. They did not reach agreement on the
criteria for the year 2007/8. He was not obliged to accept
what the
third respondent’s member wanted. If an employee was not
content with the changes made to his or her performance
contract,
they could follow the grievance procedure or even embark on “strike”
action. To the question that the 2007/8
performance contract was
never concluded and whether it was possible for the third
respondent’s member to execute his duties
without it, he
answered that it was possible because the performance contract was
just a formal mechanism between two parties who
knew exactly what
needed to be done and who knew “most of the work.”
[26] Mr Mathibe also testified that the third
respondent’s member had not appointed affirmative action
candidates and had
delayed in doing so for a number of years. Insofar
as such candidates had not met the requirements, he testified that in
the applicant’s
industry it was difficult to find a suitable
candidate because it was unique and an external candidate would have
to be developed
in order to meet the requirements.
[27]
To the changes that were made to the Pilatus report, Mr Mathibe
testified that the Board was not content with the report and
a
meeting was held with all concerned and everyone agreed to change the
report. They got approval from the Board to change the
report. They
did not force anyone to sign the report after the changes were made.
They were all under pressure. Insofar as not
attending to the third
respondent’s member’s grievance timeously, he testified
that he was about to leave for official
business overseas and needed
the grievance to be translated from Afrikaans to English.
[13]
When he returned he addressed the third respondent’s member’s
grievance. He expected the third respondent’s member
to exhaust
the grievance procedure instead of resigning. He briefed the CEO
about the grievance meeting held with the third respondent’s
member and because the third respondent’s member was aggrieved
coupled with the nature of the projects embarked on by the
applicant,
the third respondent’s member became a security risk and he
advised the CEO to accept the third respondent’s
member’s
resignation and that he serve his notice at home.
[28]
Mr Mathibe contended under cross-examination that the final decision
in respect of the performance contracts rested with him.
Insofar as
the third respondent’s member’s testimony that the terms
and conditions of the 2007/8 performance contract
were not
achievable, he contended that the third respondent’s member
should not have refused the task from the outset but
waited until the
end of the period or during the review stage show why it was not
possible to achieve. He disputed that Mr Meiring
was an authority on
performance management. To the question that the third respondent’s
member requested early retirement,
he contended that he did not see
the urgency thereof and everyone have “issues” but it did
“not mean that the
person must resign” or retire. To the
question that he had not answered the third respondent’s
member’s grievance,
he contended that the third respondent’s
member was part of his management team who knew he was going away. He
admitted that
the day after the grievance meeting, the third
respondent’s member resigned. He did not agree that the third
respondent’s
member was escorted out the applicant’s
premises like a criminal and contended that the third respondent’s
member was
a security risk who was exposed to top secrets and
confidential information.
[29] Mr Mathibe also contended under cross-examination
that the third respondent’s member and his subordinates could
still
do their work without performance contracts as they still had
their job descriptions and the third respondent’s member did
the same work daily. He contended that the practice that the third
respondent’s member did not want to change was approved
by the
Board and the third respondent’s member’s successor
recommended the change. At this stage of his testimony,
it is
noteworthy to mention that the third respondent’s member’s
representative placed on record that it was not disputed
that the
Board may accept a change in practice but that certain procedures had
to be followed to do so.
[30] Mr Mathibe maintained under cross-examination that
the timeframe that the third respondent’s member took in not
making
appointments was unacceptable. To the question that it could
not be expected of the third respondent’s member to lower the
requirements of candidates who came to work in his division as that
would mean that the quality of work would be downgraded, he
answered
that everybody in the employment of the applicant knew that the
applicant was unique in that it was difficult to find
an external
candidate who would meet the requirements a 100%, so those candidates
with potential should be employed and trained
to meet the
requirements. To the question that the third respondent’s
member could not be faulted in that he was an expert
in his field who
tried to find candidates whom he found did not have potential, he
answered that the new senior manager (who I
understand to be the
third respondent’s member’s successor) had already made
the necessary appointments with candidates
who had the right
qualifications and experience.
[31] Insofar as the Pilatus report was concerned, Mr
Mathibe contended under cross-examination that as a General Manager
he was
the accounting officer of the department and could make
changes to it. Insofar as Dr Viljoen did not have the authority to
sign
on behalf of the third respondent’s member and Ms
Crossley, he contended it could be done under delegations of
authority.
To the question that the changes to the report made the
third respondent’s member’s employment intolerable, he
answered
that such deduction could not be made as the third
respondent’s member was not at work but overseas when the
changes were
made to the report.
Evaluation of the evidence and applicant’s
grounds of review
[32] The commissioner found that the applicant dismissed
third respondent’s member as contemplated in terms of section
186(1)(e)
of the Act.
[33]
The Act codified constructive dismissal in terms of section 186(1)(e)
thereof and defined it as follows:
‘
an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee’.
[34]
This Court has followed a two-stage approach in determining whether
there has been a constructive dismissal. In
Pretoria
Society For The Care Of Retarded v Loots
[14]
the Labour Appeal Court set out the two-stage approach as
follows:
‘
In
this matter the respondent in her letter accepts the constructive
dismissal of the appellant and seeks compensation. Where the
employee
seeks compensation the court looks at whether the employee was
constructively dismissed. A part of that enquiry may well
be whether
the employee’s evidence should be believed or whether the
employer’s evidence, which is to the effect that
she actually
resigned, should carry the day.
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 the
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
determine 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’.
[35]
In
Murray
v Minister of Defence
,
[15]
the Supreme Court of Appeal with reference to previous decisions of
this Court confirmed the two-stage approach which applied to
a
constructive dismissal referral as follows:
‘…
These
cases have established that the onus rests on the employee to prove
that the resignation constituted a constructive dismissal;
in other
words, the employee must prove that the resignation was not
voluntary, and that it was not intended to terminate the employment
relationship. Once this is established, the inquiry is whether the
employer (irrespective of any intention to repudiate the contract
of
employment) had, without reasonable and proper cause, conducted
itself in a manner calculated or likely to destroy or seriously
damage the relationship of confidence and trust with the employee.
Looking at the employer’s conduct as a whole and in its
cumulative impact, the courts have asked in such cases whether its
effect, judged reasonably and sensibly, was such that the employee
could not be expected to put up with it’.
[36]
I interpret the two-stage approach of a constructive dismissal
referral to mean that the employee must present evidence to
the
commissioner to establish that her or his employer made her or his
employment intolerable (that is, she or he has not resigned).
Should
it be established that the employee resigned, the inquiry is at an
end. However, once it is established that she or he has
not resigned,
then the Commission has jurisdiction to entertain her or his
constructive dismissal referral. This is sometimes referred
to as a
jurisdictional issue. This does not mean that the matter is at an end
once this first-stage of a constructive dismissal
referral is
established, the second-stage thereof is for the employer to show
that the dismissal was not unfair. In
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and Others
,
[16]
it was held with regard the two stages of a constructive dismissal
referral that:
‘
The
two stages … are however not independent stages. They are two
stages in the same journey and the facts which are relevant
in regard
to the first stage may also be relevant in regard to the second
stage. Moreover there may well be cases where the facts
relating to
the first stage are determinative of the outcome of the second stage.
Whether or not this is so is however a matter
of fact and no general
principle can or should be laid down’.
[37]
Mr Hulley who appeared on behalf of the applicant during argument
handed up three judgments of this Court which he requested
that I
consider when giving my judgment. The first was
Distinctive
Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre
(Motor Industry Bargaining Council) and Others
[17]
in which case he acted as an acting judge of this court, the second
is
Conti
Print CC v Commission for Conciliation, Mediation and Arbitration and
Others
[18]
and the third is
Majatladi
v Metropolitan Health Risk Management and Others
.
[19]
[38]
In the
Distinctive
Choice
judgment Hulley AJ as he then was found that the test on review of a
constructive dismissal referral was not one of reasonableness
but of
jurisdiction. In the
Conti
Print
judgment, Naidoo AJ found that the test on review of a constructive
dismissal referral was not one of jurisdiction but whether
the
employee established a claim or not. In the
Majatladi
judgment, Steenkamp J found that the test on review of a constructive
dismissal referral was not one of reasonableness but whether
the
commissioner was right or wrong in finding there was no dismissal.
[39]
Mr Hulley as such contends that the test on review of a constructive
dismissal referral is whether the Commission has jurisdiction.
Mr
Hulley’s judgment has recognised an issue that needs
consideration by this Court insofar as what test or tests on review
apply in assessing each of the two stages of a constructive dismissal
referral. Mr Hulley’s judgment as well the other two
judgments
are incorrect in that they failed to take into account the two-stage
approach of a constructive dismissal referral in
deciding what test
of review apply to each of those stages in a review application of an
award of such referral. My view is that
the jurisdictional test only
apply to the review of the first-stage of a constructive dismissal
referral but not the second-stage
thereof. The second-stage thereof
requires the employer to show that the dismissal was not unfair. The
test for jurisdiction cannot
apply to the second-stage as well.
Insofar as the
Conti
Print
judgment is concerned, this judgment held that the Commission’s
jurisdiction is derived from section 186(1)(e) of the Act.
This view
is correct only insofar as the Commission has the power to hear a
constructive dismissal referral, but is incorrect in
assuming that
the Commission has jurisdiction for this reason alone as the employee
still bears the onus of proving that she or
he has made out a case
for constructive dismissal in terms of section 186(1)(e) of the Act
which means that the employee must present
evidence to the
commissioner to establish the jurisdiction of the Commission to hear
her or his constructive dismissal referral.
In the
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd; SA Rugby Pty Ltd v SARPU and Another
[20]
the Labour Appeal Court held that the test on review of a
jurisdictional issue is whether the facts establish jurisdiction, not
whether the commissioner’s ruling was rational (“the
jurisdictional test” or “jurisdictional ground of
review”). Insofar as the
Majatladi
judgment
is concerned, this judgment also did not take into account the
two-stage approach of a constructive dismissal referral
and is
incorrect in finding that the test for jurisdiction only applied. I
deal with the test which apply to the second-stage of
a constructive
dismissal referral below. I am of the view for reasons
aforementioned, the judgments handed to me by Mr Hulley obfuscate
the
appropriate tests on review of an award involving a constructive
dismissal referral.
[40]
Insofar as the first-stage of a constructive dismissal referral
requires the employee to prove that her or his employment was
made
intolerable and not a voluntary resignation, it is my view that the
applicable test for review of this stage is the jurisdictional
tests
as enunciated in the
SARPA
judgment
which I have already mentioned above.
[21]
This case involved the question whether there was a reasonable
expectation to renew the fixed-term contracts of employment of rugby
players. The distinguishing factor of a referral involving a
reasonable expectation to renew a fixed-term contract of employment
and that of a constructive dismissal referral is that it does not
involve the second-stage of a constructive dismissal referral.
Having
regard to the
Sappi
Kraft
judgment which held that the two stages of a constructive dismissal
referral are not independent stages,
[22]
it is still necessary for me to mention that should it be decided
that an employee has not made out a case in respect of the
first-stage
of a constructive dismissal referral, she or he will be
able to launch a review application on the jurisdictional ground of
review
(subject to her or him making out a case for such relief) as
such finding is final and definitive against her or him at that
stage.
[41]
Should the commissioner not find against the employee in respect of
the first-stage of a constructive dismissal referral which
means the
employee had been successful in proving that the Commission has
jurisdiction, the commissioner must consider the second-stage
thereof. The employer bears the onus of proving the second-stage
thereof and must show that the dismissal was not unfair. It should
also be noted that the employee may also be unsucesssful at the
second-stage of the constructive dismissal referral (though
successful
at the first-stage thereof) or that the employer may be
successful at second-stage thereof. It is my view that the
second-stage
of a constructive dismissal referral which deals with
the fairness or unfairness of the dismissal can only be assessed on
review
by this Court in terms of the test of reasonableness as
enunciated in
Sidumo
and Another v Rustenburg Platinum Mines (Pty) Ltd and Others
.
[23]
This means that should the second-stage of a constructive dismissal
referral become the subject of a review application then the
test on
review for both the parties is reasonableness with the jurisdictional
ground of review also available to the employer in
respect of the
first-stage of a constructive dismissal referral as it is only once
both the stages of a constructive dismissal
referral is determined
against the employer is the constructive dismissal referral finally
determined against the employer.
[42]
Insofar as the test of resonableness being the appropriate test for
the review of the second-stage of a constructive dismissal
referral,
authority can be found in decisions of the Labour Appeal Court. The
Labour Appeal Court in the decision of
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council and Others,
[24]
offer assistance as to the appropriate test of review for the
second-stage of a constructive dismissal referral. In this case,
the
Labour Appeal Court referred to the
SARPA
judgment only insofar as the onus rest on the employee to establish
the existence of the dismissal and held that in respect of
the
two-stage approach of a constructive dismissal referral that the
employee bore the onus to prove that the employer effectively
dismissed her or him by making her or his continued employment
intolerable and after evaluating the evidence that was before the
commissioner went on to find that:
‘
Having
considered all the circumstances, … the Labour Court has not
erred in any way. The commissioner in his award demonstrated
a clear
understanding of the two-stage approach to constructive dismissal
cases and correctly found that the appellant had established
his
dismissal. The Labour Court was correct in finding that, objectively
speaking, the facts before the commissioner established
[the
employee’s] dismissal and that the commissioner’s
decision pertaining to fairness was one that a reasonable
decision-maker
could reach. The Labour Court correctly dismissed the
application for review…’.
[25]
[My emphasis.]
The
Labour Appeal Court as such recognised that the appropriate test for
review in determining whether a commissioner correctly
applied the
two-stage approach was the reasonable decision-maker test as
enunciated in the
Sidumo
judgment. This also appears to be the approach that was applied in
the Labour Appeal Court in
Miladys,
A Division Of Mr Price Group Ltd v Naidoo and Others
[26]
in respect of the rational and justifiability test which was replaced
by the test of reasonableness as enunciated in the
Sidumo
judgment. However, in my view both decisions of the Labour Appeal
Court are still incorrect insofar as failing to distinguish between
the appropriate tests of review which applied to each of the two
stages of a constructive dismissal referral which I have set out
above.
[43] has made his employment intolerable. In doing so, I
do not consider myself bound by the findings of fact of the
commissioner
as he had before him only the record of proceedings. I
am as such in the same position as he was in making a factual
finding.
[44] Insofar as the first-stage of a constructive
dismissal referral is concerned, I proceed to determine whether the
third respondent’s
member had resigned. This, I do by examining
the conduct of the parties as a whole and its cumulative impact. An
important consideration
is the applicant’s contention that the
third respondent’s member was not constructively dismissed. Of
equal importance
is the third respondent’s member’s
reliance on conduct that occurred during the years 2004 to 2007 to
jusitify his
constructive dismissal referral.
[45]
In my view, the third respondent’s member’s reliance on
the conduct that occurred during 2004 to 2007, does not
give rise to
a claim for constructive dismissal. One of the reasons being that he
only instituted his grievance in September 2007.
In respect of Mr
Mkwanazi changing his scores for the year 2005/6, he also relied on
his subordinates complaints to justify his
claim yet they also did
not lodge grievances. Ms Crossley’s testimony needs special
mention in particular it appeared from
my perusal of the transcript
that when Mr Mkwanazi changed her performance scores that it did not
cause much concern to her. I
draw this inference from the manner in
which she expressed herself at the arbitration hearing.
[27]
Also had that really affected her, she would have lodged a grievance
which she did not do. I also infer with reference to
all his
other subordinates that had it affected them, they would have
challenged their changed scores by following the applicant’s
grievance procedure which they also did not do. In coming to this
finding, I take into account that Mr Meiring confirmed under
cross-examination that Mr Mkwanazi could change the performance
scores through the Human Resources Administrator by using his
instruction and Mr Mkwanazi contended that before he did so he
consulted with senior management in respect thereof. I deal with
the
other reasons why third respondent’s constructive dismissal
referral cannot succeed below.
[46] Insofar as Mr Mathibe wanted to change the scores
of third respondent’s member and his subordinates for the year
2006/7,
this did not happen. In my view Mr Mathibe could have done so
had there been a reason for him to do so. Had this been of concern
to
them then they should have also lodged grievances which they did not
again do. In coming to this finding, I take into account
that both
Messrs Mkwanazi and Mathibe disputed that Mr Meiring was one of the
architects of the performance management system and
an authority on
the performance contracts, respectively and maintained that they
could change the scores. This was also confirmed
by Mr Meiring
although only in respect of Mr Mkwanazi.
[47] Insofar as the third respondent’s member and
his subordinates did not have performance contracts for the year
2007/8,
this appears from my perusal of the transcript to be as a
result of the third respondent’s member and Mr Mathibe not
being
able to reach agreement on the terms and conditions thereof. I
find that Mr Mathibe was not obliged to accept the terms and
conditions
of the Third Respondent’s member and his
subordinates. I also find that if there was no agreement or as
contended by the
third respondent’s member that Mr Mathibe
wanted to include terms that he would not have been able to meet then
he and his
subordinates should before claiming that to be the
position have at least attempted to meet the target set instead of
questioning
it from the outset. In not doing so, the Third
Respondent’s member only lodged his grievance shortly before he
resigned and
his subordinates did not do so at all.
[48] Insofar as the Pilatus report being changed. I find
that it was not done unilaterally or with the intention to commit
fraud.
At least Ms Crossley was informed of the changes that were
required. She should have objected from the outset to the changes
made.
When Dr Viljoen signed on her and the third respondent’s
member’s behalves, neither did he nor did Messrs Mkwanazi and
Mathibe commit fraud as both she and the third respondent’s
member were on sick leave and leave, respectively. I base my
finding
on the following evidence:
[48.1] Mr Meiring admitted that he did not know what
changes were made to the Pilatus report yet he stated it was
“criminal.”
He also could not refute that a General of
the client gave instructions to ignore the criteria and Dr
Viljoen got a letter
of consent from the General to do so. I find it
unacceptable that he would testify on matters he has no knowledge of.
[48.2] Ms Crossley could also not refute that when
changes were made to the Pilatus report, it was made with the consent
of the
client (a General in
casu
) and that it was made in
writing. On the contrary, she in fact conceded that the process was
fair and transparent and that Messrs
Mkwanazi and Mathibe did not
change the Pilatus report unilaterally. I find that her testimony
does not support the third respondent’s
member’s
constructive dismissal referral.
[48.3] Dr Viljoen by reason of his insight and ability
could have judged for himself whether he was committing fraud. The
fact that
he signed the report in my view was indicative that he felt
he was not doing anything wrong. I as such find it unacceptable for
a
person in the position of Dr Viljoen to sign the Pilatus report and
later say that if he knew there was a practice of not signing
on
behalf of others, he would have not done so.
[48.4] The third respondent’s member’s
representative herself placed it on record during the
cross-examination of Mr
Mathibe that the Board may accept a change in
practice but that certain procedures had to be followed to do so.
[49] On the whole, I am of the view that it is apparent
from the third respondent’s member’s evidence as well as
that
of his witnesses that they were not content with the new
management style and changes that were effected and/or to be effected
in the work place. In particular, he was not comfortable with changes
that needed to be made in respect of addressing employment
equity in
the applicant’s workplace. Insofar as being pressurised into
making affirmative action appointments, I find that
in line with the
evidence in the transcript that the third respondent’s member
was duty bound to find such candidates, employ
and train them which
he did not want to do. I base my finding on the testimony of Ms
Crossley who testified that the affirmative
action appointees were
inexperienced or unqualified and the third respondent’s member
had to spend time mentoring or redoing
their work, yet she also
appeared not to have met the requirements of a Process Assurer. My
finding is further based on her justification
that she wrote the
quality assurance examination once and Ms Mcgina who had the
requisite qualifications had to write the examination
twice and had
still not passed and that the third respondent’s member took
her long years into account, all of which are
indicative that the
third respondent’s member was not willing to accept change in
the workplace.
[50] I accept that the third respondent’s member’s
grievance was not finalised within the time periods to do so. I,
however, take into account that Mr Potgieter conceded under
cross-examination that it was not possible to deal with the third
respondent’s
member’s grievance whilst Mr Mathibe was
overseas. This supports Mr Mathibe’s contention that the third
respondent’s
member knew that he was going overseas. I find
that the third respondent’s member had not once before that
lodged a grievance
yet he did so when Mr Mathibe was about to leave
for overseas, all of which militates against a finding that the third
respondent’s
member was constructively dismissed.
[51] I find Mr Mkwanazi’s testimony unsatisfactory
insofar as the third respondent’s member did not comply with
the
computerised client feedback system when there was no such system
and when cross-examined on it, he stated that what he meant was
that
there was a number of ways in doing a client survey. This
notwithstanding, he maintained that before he changed the scores,
he
asked the third respondent’s member about the scores. Although
this was placed in dispute by the third respondent’s
member’s
representative, I find of significance, his testimony that the third
respondent’s member and other senior
managers did not complain
or lodge grievances about the scores he changed at the time when he
did so and the third respondent’s
member only did so after
three years had passed.
[52]
It may be that Mr Mathibe could have been incorrect in his testimony
that it was the third respondent’s member who walked
out of the
grievance meeting and that it was Mr Mathibe who had ended the
meeting as Mr Mathibe testified that the meeting started
at 14h00 and
it was 17h00 and it was his obligation to pick up his children. I
also accept that he at first contended that Dr Viljoen
made the
changes to the Pilatus report and when challenged under
cross-examination that Dr Viljoen disputed that he did so, he
contended that it did not matter and that it was he in consultation
with Mr Mkwanazi who authorised the changes. I, however do
not deem
these factors as decisive on whether the third respondent’s
member had made out a case for constructive dismissal.
Of
significance to me is the fact that Mr Mathibe did not change the
scores for the year 2006/2007 and when there was an impasse
reached
in respect of the performance contract for the year 2007/2008, he was
not obliged to accept the third respondent’s
member terms and
conditions. Insofar as the third respondent’s member being
escorted out of the premises, I find that it
is highly unlikely that
the third respondent’s member would have caused harm to the
applicant while serving his notice at
the applicant, however, there
was nothing untoward in doing so as the third respondent’s
member had already resigned and
the applicant was at liberty to have
the third respondent’s member serve his notice at home or even
pay him his salary in
lieu
thereof.
[53]
Insofar as the CEO had not testifed at the arbitration hearing and
the commissioner finding that reference to him constitute
hearsay
evidence, my finding is that it was the third respondent’s
member who contended that the CEO threatened to discipline
him if
appointments were not made and the third respondent’s member
and Ms Crossley’s own testimonies serve as conclusive
proof
that the third respondent’s member did not make the necessary
appointments and that he did not want to do so.
[28]
Insofar as the commissioner finding that members of the Board did not
testify and reference to them as also constituting hearsay
evidence,
my finding as already mentioned above is that Messrs Mkwanazi and
Mathibe could not have committed fraud in that Mr Meiring
could not
testify on the changes made to the Pilatus report and Ms Crossley
herself confirmed that it was not so.
[29]
I find that the testimonies of the third respondent’s member
and his witnesses made it unnecessary for the applicant to call
the
CEO and members of the Board as witnesses even if the applicant had
not called them to testify as witnesses or intended not
to call them
at all.
[54] The objective facts do not support the third
respondent’s member’s constructive dismissal referral.
[55] In the circumstances, I make the following order:
[55.1] The arbitration award issued by the the
commissioner under case number GAPT 9155-07 dated 26 May 2011 is
reviewed and set
aside.
[55.2] The arbitration award is substituted with the
following order:
[55.2.1] the third respondent’s member was not
constructively dismissed.
[55.2.2] the third respondent’s member resigned
from the employment of the applicant.
[55.2.3] the commission lacked jurisdiction to entertain
the third respondent’s member’s constructive dismissal
referral.
[55.3] there is no order as to costs.
____________________
Ram AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the
applicant:
Advocate G.I. Hulley SC
Instructed
by:
Maserumule Inc.
For the third respondent’s member:
Advocate P.H.Kirstein
Instructed by:
Serfontein Viljoen & Swart
[1]
The
parties did not address me
on
the first review application.
[2]
He has a
BAC, a BAC Honours, a MSC (Engineering Management), a DSC (Physics).
[3]
I understand this to be the balance score card system.
[4]
I note that the witnesses of both the third respondent’s
member and applicant refer to the applicant’s Board as the
Board or Management Board and assume that they are referring to one
and the same body of the applicant.
[5]
I quoted
this answer as it appear in the transcript..
[6]
I
interpret this to mean she holds a Bachelor of Education.
[7]
She
described a “matured person” to be a person who had not
recently left university.
[8]
[My emphasis].
[9]
[My
emphasis].
[10]
I interpret the word “necessity” to be a typographical
error and the words expressed by Ms Crossley to mean that
there was
no intention on behalf of Messrs Mkwanazi and Mathibe to change the
Pilatus report unilaterally.
[11]
He
appeared to be a highly qualified candidate from a non-designated
group.
[12]
The
abbreviation “pp” is the shortened form of the Latin
phrase “per procurationem” which means “through
the agency of” or “by proxy”. This abbreviation
appears to be now often used when signing a letter or document
on
someone else’s behalf and often taken to mean “on behalf
of”.
[13]
He
testified that he did not understand Afrikaans.
[14]
[1997] 6
BLLR 721
(LAC) at page 724I to 725D.
[15]
[2008] ZASCA 44
;
[2008] 6 BLLR 513
(SCA) at para12.
[16]
(1998) 19
ILJ
1240 (LC) at para 38.
[17]
(2013) 34
ILJ
3184 (LC).
[18]
(2013) 34
ILJ
3169 (LC).
[19]
(2013)
34
ILJ
3282 (LC).
[20]
[2008] 9 BLLR 845 (LAC).
[21]
P
aragraph
39 above.
[22]
Paragraph 36 above.
[23]
[2007] 12 BLLR 1097
(CC).
[24]
[2014] 10 BLLR 987
(LAC) at para 35.
[25]
See also
Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC).
[26]
[2002] 9 BLLR 808 (LAC).
[27]
I has highlighted this part of her evidence in paragraph 16 above.
[28]
Paragarph 49 above.
[29]
Paragraph 48 above.