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[2017] ZALCJHB 116
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Mogale v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR1733/16) [2017] ZALCJHB 116 (24 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JR 1733/16
Not Reportable
In
the matter between:
SAMUEL
MOGALE
Applicant
and
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
(GPSSBC)
First
Respondent
ELSABE
HARMSE N.O
Second
Respondent
DEPARTMENT OF GOVERNMENT
COMMUNICATION
AND INFORMATION SYSTEM
Third
Respondent
Heard:
13 January 2017
Delivered:
24
January 2017
Summary:
Bargaining
Council Arbitration proceedings – review of proceedings,
decisions and awards of Arbitrators – Constructive
Dismissal –
Employee only giving generic and generalised evidence at Arbitration
– No corroboration of version provided
despite opportunity to
do so – constructive dismissal not proven.
JUDGMENT
BECKENSTRATER
AJ:
Introduction
[1]
This is an unopposed review application in terms of which the
Applicant seeks to, amongst other things, review and set aside
an
Arbitration Award of the Second Respondent (the Commissioner) of the
General Public Service Sectoral Bargaining Council.
The
Commissioner was appointed by that Council to determine a
constructive dismissal dispute between the Applicant and his previous
employer, the Department of Government Communication and Information
System (the Third Respondent).
[2]
In the Award the Commissioner found that the Applicant failed to
prove that he had been constructively dismissed and consequently
dismissed his claim.
[3]
In bringing the present review application the Applicant represented
himself. In essence he contended that the Commissioner
had not
properly appreciated the evidence before her and that she should have
accepted his evidence that the Respondent had made
his continued
employment intolerable.
[4]
When faced with a review of an award of this nature the Court is
required to consider whether or not the Commissioner’s
finding
was objectively correct. (See
Conti
Print CC v CCMA & Others
[1]
).
Applicant’s contentions
[5]
The Applicant’s evidence before the Commissioner appears from
the transcription of the evidence led at the Arbitration.
The
Applicant’s contentions as appear from that transcript are
summarised below.
[6]
The Applicant had been employed by the Third Respondent as a Senior
Administration Clerk on 1 May 2008. During 2010 he
had a sinus
operation. As a result of this operation he had, from time to
time thereafter, suffered from spontaneous bleeding
from his nose.
[7]
Sometime in 2012 his nose had started bleeding at work and he had
gone to the bathroom to staunch the bleeding. Blood
had fallen
on the floor and he had used a cloth to wipe up the blood.
Apparently a co-employee had seen this incident and
had alleged that
the Applicant had been conducting himself as a witch at the time.
At that stage the Applicant had considered
the comment simply to be a
joke and thought nothing further about it.
[8]
During 2013 the Third Respondent relocated its office to new
premises. The alarm system at those premises was faulty and
would often be triggered for no apparent reason. Rumours of the
Applicant being a witch again then surfaced and the triggering
of the
alarm system for no apparent reason was blamed on his being a witch.
These allegations were made directly and verbally
and also through
numerous innuendoes, references and gestures. As the Applicant
denied he was a witch the allegations were
degrading and humiliating.
[9]
The Applicant alleged that some time thereafter the Third Respondent
had hired private investigators to investigate his background
with a
view towards ascertaining whether he had a history of practising
witchcraft. The investigators had apparently spoken
to a J T
Mahlangu whom the Applicant had considered to be a friend from High
School. He had given unfavourable detail about
the Applicant.
These investigators had also ascertained detail relating to the
Applicant’s financial reports, cell
phone records and
information about his personal life and his family. During 2014
this information started being leaked on
a regular basis to
co-employees so that people at work knew all of his private
information. This, the Applicant alleged,
was the
modus
operandi
of the Third Respondent.
[10]
Sometime thereafter rumours also started circulating that he was HIV
positive. Again these rumours were communicated
to him through
innuendo and gestures. The Applicant denied that he was HIV
positive and again found these allegations humiliating.
[11]
At first the Applicant attempted to put up with the situation, but he
found it humiliating, degrading and destructive of his
dignity.
[12]
The rumours and innuendo about the Applicant were not only circulated
by co-employees, but also by the Third Respondent who
is alleged to
have engaged external parties such as the SABC and social media to
propagate these rumours. Even various Ministers
and the
President who, from time to time, attended the offices of the Third
Respondent, were said to be in cahoots with the Third
Respondent in
this regard.
[13]
By late 2015 the situation had become unbearable and intolerable.
The Applicant accordingly submitted a grievance to
the Third
Respondent. At first he was simply told to ignore the incidents
about which he complained. Thereafter he
had a further meeting
with the Third Respondent’s Chief Director: Human Resources,
Mr Keitumetse Shadrack Semakane (Semakane).
Thereafter he
had resigned by way of a letter on 7 January 2016.
[14]
The Applicant also advised that he had reported his complaints to
several other organisations such as Vodacom, the State Secrecy
Agency, the South African Police Services and the Human Rights
Commission.
The Arbitration
[15]
The background summarised above is largely taken from the Applicant’s
evidence-in-chief at the Arbitration. He did not
identify any
specific incidents or people responsible for the conduct about which
he complained.
[16]
The transcript reveals that prior to the commencement of evidence,
the Commissioner had explained, in simple terms, the process
that was
going to be followed at the Arbitration and offered the Applicant an
opportunity to postpone the matter to ensure that
he had documents
available if he required any for purposes of corroboration. The
Third Respondent’s representatives
indicated that they had no
objection to such a postponement. The Applicant nonetheless
elected to proceed with the matter
recording that it was not his
intention to either call other witnesses or to rely upon
documentation. Soon after the Applicant
commenced giving
evidence he alleged that the Third Respondent had made use of
mainstream media to publish gossip about him.
The Commissioner
again offered the Applicant an opportunity to postpone the matter in
order to properly prepare, obtain witnesses
and bring documents to
the Arbitration, but the Applicant again declined this invitation.
During both evidence-in-chief and
cross-examination the Commissioner
prompted the Applicant to supply detail of the allegations he was
making. Despite this,
he gave no detail of any particular
incidents. Even in cross-examination the Applicant’s
evidence remained generic.
When pushed, the only detail he gave
was that one Lesi Moshwe had told him that he was under investigation
and one Norma Thabisa
also apparently knew about his being
investigated.
[17]
When the Applicant was cross-examined by the Third Respondent’s
representatives, he maintained that when his grievance
was initially
lodged he was at first told that he should just ignore the
incidents. He thereafter admitted that he had a
lengthy meeting
with Semakane on 11 December 2016 to discuss his grievance at which
Semakane had offered him psychiatric counselling.
The Applicant
rejected that proposal as it offered him no assistance in
investigating the complaints raised in his grievance.
Semakane
had then requested him to think about it. The following day the
Applicant reverted to Semakane suggesting that his
grievance be
referred to the Bargaining Council for determination and that the
Third Respondent’s Health and Wellness Department
appoint a
psychiatrist or psychologist familiar with witchcraft to do an
investigation at the workplace. Semakane advised
the Applicant
that he would give it further consideration. At that stage the
Applicant proceeded on annual leave from which
he was due to return
on 11 January 2016. Before that leave ended the Applicant
resigned.
[18]
After his evidence, the Applicant indicated that he was going to
close his case. The Commissioner again warned him of
the
consequences of closing his case without calling further witnesses or
introducing documentation, but the Applicant closed his
case.
[19]
Semakane then gave evidence confirming the handling of the
Applicant’s grievance as set out above. He further denied
that there had been any private investigator appointed by the Third
Respondent.
The case before the Labour Court
[20]
The Applicant made use of one of this Court’s standard Review
Applications in terms of which he sought to have the Award
set aside
and the matter remitted for re-hearing. He further filed a
standard Notice in terms of Rule 7A(8)(b) that he stood
by his Notice
of Motion. However, simultaneously therewith, the Applicant
filed a 147 page Supplementary Affidavit with a
variety of annexures
consisting of letters he had written to various parties after his
resignation and various items of “
evidence
”.
That affidavit sought to elaborate on his evidence at the
Arbitration. In that Supplementary Affidavit the
Applicant also
sought further relief from this Court in the form of damages in the
amount of R150 million. The Applicant
then further delivered
another bundle of documentation (running to 347 pages) which was
labelled “
Documentation
used at Arbitration
”.
This was largely repetitious of the annexures to the Supplementary
Affidavit. While that bundle incorporated
the referral forms
and notices utilised at the First Respondent, most of it consisted of
documents which were not part of the Arbitration.
[21]
The reviewing Court is obliged to give consideration to the matter
having regard to the evidence properly before the Commissioner.
The reviewing Court should not take into account evidence relating to
the merits of the matter not placed before the Commissioner
[2]
.
[22]
Even if this Court were competent to receive further evidence on
review, the Applicant would not be allowed to submit this
evidence.
He would clearly fail the usual test for when a party is entitled to
present further evidence on appeal
[3]
.
[23]
When the Applicant appeared in this Court I put to him that I was
bound to only consider the evidence in the transcript, he
accepted
this. He then, however, continued to argue that the
Commissioner had not given proper weight to the evidence he
had
submitted, erred in not accepting his evidence and erred in finding
that there was nothing wrong with the manner in which he
had been
treated. As I put to the Applicant in Court, the Commissioner
did not find that there was nothing wrong with the
way he had been
treated. The Commissioner’s finding was that his
allegations had not been proved.
[24]
In constructive dismissal disputes the Arbitrator (and the reviewing
Court) is required to determine whether the evidence establishes
that
there was (1) a termination of employment by the employee, (2)
intolerability of continued employment, and (3) the intolerability
was the fault of the employer. All three requirements must be
present (see
Conti
Print
case (above) at paragraphs 7 to 9).
[25]
Considering the evidence before her, the Commissioner found the
following in the Award:
“
[23]
To discharge the onus of proving that the Applicant was
constructively dismissed, he must prove that
it would have been
intolerable to remain in employment and that there is a causal nexus
between the employer’s conduct and
the circumstances that
induced him to resign. The Applicant failed to prove that the
Respondent was the direct cause of the
alleged ‘intolerable’
working conditions. I have afforded the Applicant an
opportunity to decide whether he wanted
to postpone this matter in
order for him to prepare his documentary proof and to subpoena
witnesses that he wished to call as witnesses
during these
proceedings. He refused such opportunity, he failed to submit
any documentary evidence and he did not call any
witnesses to
substantiate his claim of constructive dismissal. The Applicant
made bold and unproved sweeping statements towards
the Respondent and
its employees. The Applicant mentioned that employees from the
Respondent were saying all kinds of things
to him and on social
media, but he failed to provide me with any of their names or proof
of such ‘publication’ on social
media. ...
[25]
It is not contested by the Applicant that he had a meeting with Mr.
Semakane in an attempt to remedy
the situation. The Applicant
however chose to resign whilst he was still on annual leave and did
not give the Respondent
a full opportunity to investigate his
concerns and complaints. He also only decided to lodge a formal
grievance as required
by the Respondent during November 2015, and a
month thereafter he resigned.
[26]
It is very clear from the lack of evidence presented by the Applicant
the he was the maker of
his own destiny by resigning without
attempting to remedy the situation. The Applicant could not
prove that his working conditions
were
intolerable
and that the Respondent caused these intolerable working
conditions”. (Emphasis in original)
[26]
In paragraph 24 of the Award, the Commissioner expressed the view
that the Applicant had to prove that resignation was a measure
of
last resort. In the light of
Strategic
Liquor Services v Mvumbi
N.O.
&
Others
[4]
I do not think this is a correct statement of the law. Apart
from that, however, I agree with the Commissioner’s reasoning
as quoted above.
[27]
My re-assessment of the evidence before the Commissioner (as
reflected in the transcript) leads me to conclude that the Applicant
has failed to establish that continued employment at the Third
Respondent was intolerable or that any intolerability was the fault
of the employer.
[28]
It must be said that the Applicant’s allegations, particularly
insofar as they include assertions that various Ministers,
the SABC
and social media were in cahoots with the Third Respondent are highly
improbable. The simple say-so of the Applicant
cannot be
accepted as proof of those allegations without corroboration.
As set out above no such corroboration was provided
at the
Arbitration. Even in relation to the allegations that
co-employees had accused the Applicant of being a witch doctor
or of
being HIV positive or that they knew of his private information, the
Applicant’s evidence was vague. No details
were given of
where, when and by whom any such incidents had taken place.
Even in relation to these allegations I do not
think the broad
generic statements made by the Applicant (no matter how many times
emphasised and repeated) discharged the onus
on him to demonstrate
that they had, in fact, taken place.
[29]
Moreover, at the Arbitration the Applicant accepted during
cross-examination, that after his last discussion with Semakane
he
had made alternative proposals which Semakane was going to consider.
The Applicant then proceeded on annual leave.
Before the end of
that leave he resigned. This must also been seen in
circumstances where Semakane had offered the Applicant
assistance by
way of counselling. While the Applicant rejected this proposal,
it indicates that the Third Respondent was
looking for solutions to
the grievance. The Applicant thus did not demonstrate that the
Third Respondent was unwilling to
change its conduct. The
Applicant accordingly failed to demonstrate that continued employment
was intolerable.
[30]
Finally, no evidence was produced to demonstrate how the Third
Respondent was at fault in relation to the Applicant’s
complaints. No evidence was introduced to indicate how the
Third Respondent was “
in
cahoots
”
with others and why the Third Respondent (as employer) was
responsible for the spreading of rumours and accusations by
co-employees (if these were assumed to exist). In some matters
the employer may be culpable for failing to act in the knowledge
of
ongoing degrading or bullying conduct at work. This is not one
of those matters. Even at the time of the grievance,
the Third
Respondent did not have any particularity of the allegations to allow
it to accept that the conduct complained of was
taking place.
The Applicant resigned before his suggestion, that a psychologist
with expertise in witchcraft be appointed
to investigate the issues,
was considered.
Conclusion
[31]
In the above circumstances I find that there was no constructive
dismissal of the Applicant and the Award cannot be set aside.
Order
[32]
In the result the following order is made:
[32.1]
The application is dismissed.
______________________
Beckenstrater
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: In person
[1]
(2015) 36 ILJ
2245 (LAC)
at
paras 4 - 6.
[2]
See
Rambar
Construction (Pty) Limited t/a Rixi Taxi v CCMA & Others (2012)
33 ILJ 1911 (LC)
at para 37 and 42;
ZA1
(Pty) Limited t/a Naartjie Clothing v Goldman
N.O
&
Others (2013) 34 ILJ 2347 (LC)
at paragraph 32;
Xorile
v CCMA & Others [2014] ZALCJHB 512
at
para 40 and
Mtshali
v CCMA & Others (1999) 20 ILJ 2400 (LC)
at para 22.
[3]
Mtshali
id at para 23 and
24.
[4]
2010 (2) SA 92
(CC)
at
para 4.