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[2016] ZALCJHB 36
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Nokeng Tsa Taemane Municipality v Louw (JR384/2010) [2016] ZALCJHB 36 (21 January 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
No.: JR 384/2010
In the matter between:
NOKENG TSA TAEMANE
MUNICIPALITY
Applicant
and
DAVID LOUW
Respondent
Delivered:
21 January 2016 (In Chambers)
RULING:
APPLICATION FOR LEAVE TO APPEAL
SNIDER AJ
[1]
The first ground of appeal in this matter relates to my finding in
relation to a condonation application brought by the first
respondent
herein relating to the late filing of the record in the matter. In
terms of section 173(1) of the Labour Relations Act
[1]
(‘the LRA”) subject to the constitution and despite any
other law, the Labour Appeal Court has exclusive jurisdiction
to hear
and determine all appeals against the
final
judgments and the
final
orders of the Labour Court. (My underlining). An order in respect of
a condonation application is clearly not such a judgment or
order.
[2]
[2]
Accordingly, the applicant cannot be granted leave to appeal on this
ground.
[3] The
applicant for leave to appeal takes issue with my interpretation of
the letter in response to which the first respondent
in the
application for leave to appeal resigned. For the sake of convenience
the wording is repeated –
‘
Our
client’s further instructions are that in the event of your
client not tendering his resignation aforesaid the disciplinary
will
go ahead in full force. Then, and in that event our client considers
to proceed to institute criminal proceedings against
your client and
/ or bringing civil action to recover whatever financial loses your
client has caused our client or both action.
Accordingly and against
the set out above client therefore rejects your client’s
offer’.
[4] I
cannot but continue to be of the view that the contents of the above
paragraph are a threat and that the first respondent
legitimately had
no reasonable option but to resign from his employment given this
very real threat. This is simply not the typical
situation where an
employee resigns in the face of a disciplinary enquiry. The letter
and its contents cannot just be wished away
by the applicant. The
threat of making a criminal complaint and/or instituting civil
proceedings is a serious one; especially when
it is blatantly used to
secure a resignation.
[5] A
reasonable person would, objectively, be materially concerned with
being threatened in this matter.
[6] The
juxtaposition of the resignation and the threat is clearly what
offends. The applicant was not simply making its position
known; that
is a wrong interpretation of the letter.
[7] If
this were the case, the information would have been provided in
isolation, alternatively the applicant would simply have
gone ahead
with the criminal or civil suits.
[7]
Effectively the applicant was,
inter alia
, offering to not
report what it apparently regarded as a crime, in return for the
first respondent’s resignation. This, to
my mind, is wholly
unacceptable conduct. It is distasteful and would have had a
significant impact on the reasonable person in
the position of the
first respondent.
[8] I
cannot come to the conclusion that the first respondent deliberately
waited until 12 October 2008. I do not understand what
impact this
could have on the matter.
[9] I am
of the view that the award of three months compensation is a fair
reflection of the facts of the matter.
[10] In
respect of costs I am of the view that having made such a threat
against one of its employees which led to this litigation
the,
applicant is liable for the costs.
[11] The
fact that the applicant was prepared to extract a resignation on the
back of a threat of a civil suit and / or criminal
prosecution, in
the mind of the first respondent, could not have boded well in
relation to the disciplinary proceedings.
[12] It
is quite clear from the letter that the applicant was prepared to
take measures beyond the disciplinary enquiry to ensure
the
applicant’s departure. He therefore could objectively have
harboured concerns about the fairness of the disciplinary
process.
[13]
I disagree entirely that the first respondent “
did
not lead one shred of evidence to support his claim of constructive
dismissal”
as
contended by the application. The applicant makes reference to the
transcript of the proceedings.
[3]
I refer the applicant to another section of the transcript that
clearly constitutes such evidence.
[4]
[14] The
threat made by the applicant was not an idle one and demonstrated a
definite attitude and intention on the part of the
applicant. To
suggest that it is a reasonable alternative for an employee to carry
on in an employment relationship with an employer
who is willing to
conduct itself in this way is incorrect. There was simply no
reasonable alternative to resignation. To continue
in his employment
would have exposed him, on the strength of the threat made, whether
legitimately on the part of the applicant
or not, to the risk of
being criminally investigated and civilly sued. This is not a
tolerable situation that an employee should
be exposed to.
[15] The
applicant has, with respect, misconstrued the judgment. The question
is not whether the applicant had a legitimate criminal
complaint or
valid civil cause of action against the first respondent. The threat
was made quite independently of the existence
of same. It is in these
circumstances that the first respondent perceived a level of
malevolence and foul play on the part of the
applicant which caused
him to resign.
[16] I
remain of the view that any reasonable person would harbour a
legitimate fear of a criminal complaint being laid against
him and /
or a civil suit being brought against him.
[17] Our
law reports are replete with instances of people who are falsely
accused and wrongly sued.
[18] It
is a reasonable and legitimate fear in the circumstances.
[19] The
applicant makes the submission, in favour of the application for
leave to appeal, that the first respondent resigned because
he sought
to avoid possible criminal or civil lawsuits. This is exactly the
issue. The fear of such conduct was engendered in him
by applicant’s
letter.
[20]
As far as the chronology of the matter is concerned, there was no
untoward conduct of the part of the first respondent. I refer
in this
regard to my judgment in the matter
[5]
the long delay set out therein, and the fact that the applicant
alleged his constructive dismissal on the same day as the applicant’s
letter, containing the threat, was received.
[21] In
light of the above, I am of the view that there is no reasonable
prospect that another court may come to a different decision.
[22]
Accordingly, I make the following order –
1.1.
The application for leave to appeal is
dismissed; and
1.2.
The applicant is to pay the first
respondent’s costs.
__________________________
SNIDER,
A J
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of
1995 (as amended)
[2]
Mafikeng
and Others v JAC Pallets Africa CC and Others
(2010) 31
ILJ
686 (LC)
[3]
Page 19
line 3
[4]
Page 18
[5]
Paragraph
[19] on page 5.