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[2015] ZALCJHB 335
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Mapengo v Commission for Conciliation Mediation and Arbitration and Others (JR362/2014) [2015] ZALCJHB 335 (30 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
Number JR362/2014
In
the matter between:
KENNETH
MAPENGO
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONR
THEMBEKILE NSIBANYONI
Second Respondent
BLA-
LEGAL EDUCATION
TRUST
Third Respondent
Date
heard: 21 April 2014
Delivered:
30 September 2015
JUDGMENT
RABKIN-NAICKER
J
[1] In this unopposed
review application, the applicant seeks the setting aside of an award
under case number GAJB 1149-13 in which
the second respondent (the
Commissioner) found that the applicant had failed to prove he was
constructively dismissed.
[2] The applicant was
appointed as director of the Legal Education Trust Centre (the
Centre) of the Black Lawyers Association (BLA)
on the 7 February
2012. He had been head hunted for the position by Advocate Motimele
SC (Motimele), the Chairperson of the Board
of Trustees of the
Centre. According to the Applicant at the arbitration it was only
during 2012, after he was tasked to register
the current members of
the board of trustees that he realised that in terms of the Trust
Deed, the Director of the Centre is required
to be an admitted
attorney or advocate.
[3] It is further
recorded in the Award that it was applicant’s evidence that he
had told Motimele about his discovery and
that the latter had brushed
it aside and stated that the matter was going to be addressed by a
member of the Board and the instruction
was to amend the Deed of
Trust by removing the requirement from the Deed of Trust. He was
therefore surprised to be summoned to
an impromptu meeting of the
Board where Motimele questioned him about his academic qualifications
in the presence of other Board
members. He felt shocked and utterly
betrayed by the conduct of Motimele, and pressurized to resign. At
this point he decided to
resign from his employ.
[4] The Award records
that it was put to the applicant under cross examination:
“
[4.1.16]…..that
the Members of the Board in an extended Exco meeting requested the
academic qualifications of the applicant
and had given him an
extension to submit his qualifications the following day. It was
further pointed out that the applicant will
be suspended pending the
investigation of his qualification. It was at this point that the
applicant chose to resign from his employment.
The applicant stated
that he was pressurized to resign and decided to resign.
[4.1.17]
It was put to the applicant that he was offered an alternative
position since he was not an admitted
attorney. Furthermore Motimele
offered to make an urgent application in the High Court for the
applicant to be admitted as an Advocate.
It was at this stage that
the applicant admitted to not having an LLB.
[4.1.18]
The applicant stated that he was aware that Molimele wanted to get
rid of him and decided to resign
because he ‘did not want more
blood on the floor’, a saying he inherited from Motimele.
[4.1.19]
It was put to the applicant that at the time he resigned, he had
indicated that he will serve a notice
period up until the 21
st
December 2012 when the Centre closed for the summer vacation. The
applicant stated that he decided not to serve his notice period
because when he returned to work on 12 December 2012, he did not have
access to the respondent’s systems.”
[5]
The applicant has brought his review application in reliance on the
grounds set out in section 145 and the “reasonableness
test”.
However the issue before this court is whether on the facts of the
case a dismissal had taken place. This approach
and the law in
respect of constructive dismissal cases was recently dealt with in
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council & others
[1]
by the LAC as follows:
“
[19]
In terms of s 186(1)(e) of the LRA, dismissal means that 'an employee
terminated a contract of employment with or without
notice because
the employer made continued employment intolerable for the employee'.
It is clear from the provisions of this section
that in any
proceedings concerning any unfair dismissal dispute, the employee
must establish the existence of the dismissal if
this is placed in
dispute. In the case of
SA Rugby Players
Association & others v SA Rugby (Pty) Ltd & others; SA Rugby
(Pty) Ltd v SA Rugby Players Association Union
& another
,
the following was stated in relation to a dismissal in terms of s
186(1)(b) of the LRA:
“
[39]
The issue that was before the commissioner was whether there had been
a dismissal or not. It is an issue that goes
to the jurisdiction of
the CCMA. The significance of establishing whether there was a
dismissal or not is to determine whether
the CCMA had jurisdiction to
entertain the dispute. It follows that if there was no dismissal,
then the CCMA had no jurisdiction
to entertain the dispute in terms
of s 191 of the Act.
[40] 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. …
[41]
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.”
[20] In
terms of s 192(1) of the LRA, it is clear that where an employee
asserts that he/she resigned because the employer
made the employment
relationship intolerable, the employee bears the
onus of proving that the employer indeed
made the employment
relationship intolerable. In the case of
Murray v Minister of
Defence
, the Supreme Court of Appeal described this onus in the
following terms:
'[12] …
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 enquiry 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 whether its effect, judged reasonably and
sensibly, was
such that the employee could not be expected to put up
with it.
[13] It
deserves emphasis that the mere fact that an employee resigns because
work has become intolerable does not
by itself make for constructive
dismissal. For one thing, the employer may not have control over what
makes conditions intolerable.
So the critical circumstances ''must
have been of the employer's making''. But even if the employer may be
responsible, it may
not be to blame. There are many things an
employer may fairly and reasonably do that may make an
employee's position
intolerable. More is needed: 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".'
[21] In
Jordaan v CCMA & others
, this court, referring to
Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others
(1998) 19 ILJ 1240 (LC), confirmed the two-step approach
to constructive dismissal disputes. It held that an employee
who
leaves employment bears the onus of showing that the employer
effectively dismissed the employee by making his/her continued
employment intolerable. Once this is established, it then has to be
established whether the dismissal was unfair.
[22] In
determining whether an employee has proven that the employer made
continued employment intolerable, the employer's
conduct must be
considered as a whole in order to make an objective determination of
whether the employer made the employment relationship
so intolerable
as to warrant its termination. In doing so, it must be borne in
mind that the test for constructive dismissal
does not require that
the employee should not have the choice but to resign, but only that
the employer should have made continued
employment intolerable.”
[6]
I note that the approach taken in
Murray
v Minister of Defence
2009 (3) SA 130
(SCA); (2008) 29 ILJ 1369 (SCA) was considered and
applied in
Metropolitan
Health Risk Management v Majatladi & others
[2]
i.e. that the conduct of the employer must lack reasonable and
proper cause is the key question to address and not just whether
the
work situation had become intolerable.
[7] In respect of the
issue of culpability of the employer herein, I note that the
Chairperson of the Board of Trustees, Advocate
Motimele SC did not
give evidence at the arbitration. Thus the testimony of the applicant
in respect of having informed Motimele
of the problem of the Trust
Deed requiring an admitted attorney or advocate, and the alleged
assurances he received from Motimele
that the Deed would be amended
could not be disputed by direct evidence. Neither could his evidence
that he never represented to
Motimele that he was an admitted
attorney be disputed. The querying of the applicant’s status
arose after the President of
the BLA communicated to Motimele that he
could not find applicant’s name in the list of admitted
attorneys.
[8] It was undisputed
that the applicant reported directly to Motimele during his tenure
and that Motimele had recruited him. Further
the only witness for the
centre, member of the Board and Attorney, Ms Mbhele confirmed in her
testimony that applicant had been
interviewed by Motimele and that
the applicant’s CV had been in the personnel file but not
copies of his qualifications.
The CV, she confirmed did not say that
applicant was an admitted attorney. She stated under
cross-examination: “That it doesn’t
say that, but on face
value, when one looks at it, it gives a person an impression that he
might be an admitted attorney.”
She further stated that
Motimele thought he was admitted based on the fact that the CV
recorded that he was a ‘legal assistant’
at a firm of
attorneys, and because of the duties listed under this title, “it
could be believed that he was a Professional
Assistant, that would
mean an admitted Attorney.”
[9] It was applicant’s
evidence that he had brought copies of his qualifications and the
said CV to the interview with Motimele.
At the arbitration the
applicant testified as follows when asked why he resigned:
“
I
think let me start by saying that I worked very closely with the
Chairperson of the Board and at all times I will engage with
him in
terms of what needed to be done at the Centre and I don’t
recall doing anything without engaging with the Chairman
of the Board
at all times. When these allegations during that meeting and when
these allegations that were levelled during the
meeting of the 11
th
were presented to me in the manner that it was presented to me, and
it became very clear that the person that I will engage with
directly
on matters of running the Centre had now changed a tune in terms of
what we have been discussion, specifically the issue
of the
admission. It came as a complete shock to me to say how can a person
who has given me so much undertaking on numerous occasions
that that
issue is not an issue, that he is working on amending the Deed of
Trust and suddenly today turn around and says to me
I can’t be
there beyond that day. So it became apparent to me that clearly the
person that I need to rely on in terms of
all the issues that affects
me at work has now turned against me and he turns against me in the
presence of other Board members,
him being the final arbiter on the
issues if I had to take any grievance, him being the final arbiter,
being the Chairperson of
the Board, I could not have gone to any
other person if there were issues I was not happy with there. “
[10] He
further testified that: “I worked closely with him on all of
these issues and for him to dump me the way
he dumped me at the
eleventh hour or the last minute I still find I can’t
comprehend why he did that, except to say that
maybe perhaps he was
saving his own skin. The Board might have raised questions in the
last Board meeting but I think I was made
a sacrificial lamb…..Now
if a person who has brought you there, who knows exactly where you
come from, who knows you in
and out, who you are working with for
almost 10 months, suddenly has a change of heart in terms of your
professional relationship,
I then realised that that is the end of
the road for me. That even if I stayed there, with all the other
allegations that they
would have levelled against me, there was no
way that he was going to hear me out.”
[11] The
minutes of the Exco Meeting held on 11 December 2012 at which the
applicant resigned, which were part of the
record before the
Commissioner
inter alia
record as follows:
“
6.
The Director was asked what his academic
qualifications were. He informed the Board members that he graduated
with B.IURIS in 1994 at the University of Durban Westville. He served
articles with AK MIA for two years soon after he completed
his degree
in 1994. He was not sure if his articles were registered with the Law
Society. He could not remember if he signed a
contract of articles.
All he could remember was that he served articles for two years and
he was doing all the work that other
Candidate Attorneys were doing
at AK MIA.
7.
The Director was informed that the BLA President informed the
Chairperson that he is unable to trace
the name of the Director on
the roll of Admitted Attorneys in all Provincial Law Societies. The
Director informed the meeting that
he is not an admitted Attorney and
that he never created an impression that he was admitted as such. He
was asked if he was aware
that the Director at the Centre must be an
admitted attorney or Advocate. He said he is aware of the provisions
of the Trust Deed
and that he became aware of the Provisions of the
Trust Deed a few months after his appointment.
8.
He was informed that the Centre is planning to revive Legal Aid
Clinics and the only way that can materialise
is when the Director is
an Admitted Attorney or Advocate. After demanding from the Director
proof of his qualifications and noted
it was in contrast of the Trust
Deed, further taking note of his lack of qualifications as insinuated
by the Director, Exco communicated
a resolution to relieve Mr Mapengo
of his position pending finalisation of an in-depth investigation
into his qualifications. It
was mentioned during the meeting that the
Board might look into appointing him as one of the Programme
Directors. The Director
declined the offer.
9.
The Director said that he would prefer to have this matter resolved
with less blood on the floor,
and offered to resign with immediate
effect. The resignation was accepted by Exco on behalf of the Board.
The Director mentioned
that he is prepared to stay until the last
working day of the month of December, being the 21
st
December.”
[12] In her
analysis of the evidence before her the Commissioner essentially
found:
10.1
that the evidence of Mbhele was more credible that that of applicant
and thus the Commissioner did not accept that Molimele
knew that he
was not an admitted attorney;
[3]
10.2 that objectively
without an LLB (which would have allowed him to be admitted as an
advocate) or being an admitted attorney
he was ‘prohibited’
from being Director in terms of the Trust Deed;
10.3 that the applicant,
on the credible evidence of Mbhele refused an alternative position
and opted to resign.
[13] The
Commissioner concludes her analysis by recording as follows:
“
It
is therefore difficult in these circumstances to see how the conduct
of the respondent resulted in the applicant resigning and
claiming he
was constructively dismissed. The applicant in his own evidence
stated that he did represent at the CCMA and should
therefore be
aware of what constructive dismissal entails. The applicant instead
of resigning at a whim, should have engaged the
respondent and even
lodged a grievance against the respondent. He therefore failed to
exhaust all mechanism available to him. His
resignation was therefore
premature.
Based on the above, the
applicant had failed to prove that she (sic) was constructively
dismissed.”
Evaluation
[14] The
minutes of the meeting of 11 December 2012 do not reflect that
applicant was offered a position but that the
Board may look into
doing so. This was in a context in which the applicant was ‘relieved
of his position’ as Director
at the meeting, pending an in
depth investigation into his qualifications. What is clear from these
minutes is that the decision
to revive Legal Aid Clinics could only
materialise if applicant was an admitted attorney or had an LLB so
that he could pursue
admission as an advocate. The Commissioner makes
no mention of the issue of the decision regarding the Legal Aid
Clinics (which
was communicated to applicant at the Exco meeting),
which it is evident, precipitated the query as to whether the
applicant
was an admitted attorney. Given the fact that applicant did
not represent he was either an admitted attorney or had an LLB at the
board meeting, it was a foregone conclusion that he was not going be
able to continue as director.
[15] The
contents of the applicant’s CV did not represent him as an
admitted attorney or as holding an LLB. It
is highly improbable that
any person who had achieved admission as an attorney would omit this
information on their CV. It is not
credible in my view that Motimele
could have been misled by the CV in the way suggested by Mbhele. The
fact that Motimele did not
give evidence at the arbitration should
properly give rise to a negative inference. Even though the applicant
bore the onus of
proving that his resignation amounted to a
constructive dismissal, the evidence that he gave that he was assured
by Motimele that
his non admittance could be dealt with by an
amendment to the Trust Deed, was evidence that deserved rebuttal.
[16]
Prima
facie
, on applicant’s evidence, he was faced with a shock
‘changing of the goal posts’ at the meeting of the 11th
of
December. He found himself questioned as to his credentials by the
person who had headhunted him , recommended his appointment,
had been
given his CV, and had assured him his lack of admission could be
sorted out by an amendment to the Trust Deed. Without
any evidence in
rebuttal by Motimele at the arbitration, these facts prima facie
established that applicant was placed in an intolerable
position.
[17]
I therefore find that on the all the facts before the Commissioner,
the applicant proved that there was a dismissal
and that the
dismissal arose due to the conduct of the employer, i.e. due to a
situation in which the conduct of the employer compels
the
termination by the employee.
[4]
[16]
In my judgment therefore the Commissioner should have found that the
applicant had proved that he was dismissed.
Once this is
established, a second stage must be applied and this concerns an
evaluation of whether the dismissal was unfair. In
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others
[5]
,
the court said:
“
[38]
The two stages that I have set out above 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.”
[17] Given my
finding that a dismissal took place, it follows that the award stands
to be set aside. Substitution of
the award would entail this court
deciding on the second stage of the enquiry i.e. on whether the
dismissal was fair or not. In
my view this would be better determined
at arbitration before a new commissioner, who would consider the
second stage of the enquiry,
in which the employer bears the onus, on
evidence before her. I therefore make the following order:
Order
1.
The applicant was dismissed by the third respondent.
2.
The Award under Case number GAJB 1149-13 is reviewed and set aside.
3.
The matter is remitted to the CCMA to be heard by a Commissioner
other than second respondent who
shall determine whether the
dismissal of the applicant was unfair.
________________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
:
For the Applicant: Adv
Mvuyo Ndziba
Instructed
by: KNT Attorneys
[1]
(2014)
35 ILJ 3360 (LAC)
[2]
(2015)
36 ILJ 958 (LAC) at paras 30-32
[3]
Mbhele
had testified under cross-examination that at a meeting of BLA
members in Mpumalanga, Motimele introduced the applicant
as an
admitted attorney and he did not contradict this version.
[4]
Jordaan
v Commission for Conciliation, Mediation & Arbitration &
others
(2010) 31 ILJ 2331 (LAC)
At 2335
[5]
(1998)
19 ILJ 1240 (LC)