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[2017] ZALCJHB 95
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UNISA v Nowosenetz NO and Others (JR2519/14) [2017] ZALCJHB 95 (23 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2519/14
In
the matter between:
UNISA
Applicant
and
L
NOWOSENETZ
N.O.
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
E
N NGCINGWANA
Third Respondent
Heard:
12 July 2016
Delivered:
23 March 2017
JUDGMENT
MOTHIBI
AJ
Introduction
[1]
The applicant in this review application
seeks an order reviewing, correcting and setting aside the
arbitration award made by the
first respondent (Arbitrator), dated 28
October 2014, in terms of which he concluded that the applicant had
constructively unfairly
dismissed the third respondent and granted
her compensation equivalent to eight months of her salary amounting
to R733 333.32.
[2]
The application was opposed by the third
respondent.
Preliminary
issues
[3]
The parties have asked the Court to condone
an arrangement reached between their legal representatives in terms
of which they agreed
to vary the time periods within which they could
file their respective notices and affidavits as provided for in terms
of rule
7A. I agree with the parties that it is in the interest
of justice to grant them leave condoning the arrangements between
them in this regard. In the circumstances the arrangements are
condoned.
Background
facts
[4]
The third respondent was employed by the
applicant in terms of the fixed term contract for the period 1 April
2010 until 31 March
2015 and in the position of Deputy Director in
the applicant’s Information and Communication Technology
Department (ICT).
It is common cause that this was a senior
position. She reported to the Executive Director (ED), who
heads the department.
[5]
At the time of the third respondent’s
employment the ED position was vacant.
[6]
It is common cause between the parties that
the ED position was filled with the appointment, in September 2010,
of one Ms Lungi
Sangqu (hereinafter referred to as the ED).
[7]
On 27 March 2014 and by way of a letter
addressed to UNISA’s principal one Professor M Makhanya, the
third respondent
tendered
her resignation “effective immediately”. She
purported in her letter of resignation to be doing so on
24 hours’
notice. She gave the reason for her resignation as follows:
“
My
resignation is due to continuous intolerable working relationship,
unfair labour practice (constructive dismissal) and workplace
harassment. I can no longer endure the treatment as it has a
negative impact on my health.”
[8]
No further details were set out by the
third respondent
in
her letter of resignation other than what is captured above.
[9]
She then referred an unfair dismissal
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) alleging that
she had been unfairly constructively dismissed
by UNISA.
[10]
The
arbitrator presided over the arbitration and issued his award on
28 October 2014 (the award).
[11]
UNISA
seeks to review the award in terms of section 145(2)(a)(i) to (iii)
of the Labour Relations Act.
[1]
It has asked that the award be reviewed, corrected and/or set aside
and in particular, it pivoted the application on the
submission that
the arbitrator’s finding that the
third
respondent
had
been dismissed – notwithstanding her resignation – was
incorrect. UNISA alleges that the award should be reviewed
and
set aside in its totality because, considering the facts associated
to and of relevance in the arbitration, the arbitrator
incorrectly
found that there was a dismissal and that the dismissal was of a
constructive nature. It is alleged that the
arbitrator, in
making this finding, committed a gross irregularity. In the
alternative, it has submitted that in the event
that this Court finds
that there was indeed a dismissal, it ought to make a finding, having
regard to the record and bundles filed,
that the dismissal was
nevertheless fair.
[12]
It follows that should this Court find that
the arbitrator’s award was incorrect in making a finding that
there was a dismissal,
in those circumstances it will not be
necessary to consider the applicant’s alternative ground of
attack.
[13]
The
third
respondent
has opposed the review
application.
[14]
For the reasons that are fully set out
below I find that the arbitrator’s finding that the
third
respondent
had been dismissed by the
applicant, notwithstanding her letter of resignation of 27 March 2014
was incorrect. In addition,
the decision reached by the
arbitrator in this regard is not one which a reasonable decision
maker could have reached having regard
to the evidence before him.
[15]
I am satisfied, having regard to what I
deal with in full below, that the evidence presented at the
arbitration and which is in
any event common cause between the
parties indicates that the
third
respondent
’
s resignation was
premature having regard to the fact that UNISA had, pursuant to a
joint grievance which had been dealt with, communicated
to her and
the ED a plan of action which was aimed at restoring the strained
relationship between them which it would appear was
the main cause of
the
third respondent
’
s
unhappiness.
[16]
The
third
respondent
’
s unhappiness seems to
have started shortly after the ED’s appointment in September
2010. As is apparent from her letter
of resignation she
resigned approximately four years later. I am indebted to the
applicant for setting out, in some detail,
the chronology of events
that transpired between September 2010 to 27 March 2014, in its
affidavit. I agree with the applicant
that the
third
respondent
, in its answering affidavit,
does not thoroughly grapple with the allegations made in the
applicant’s founding affidavit
regarding the chronology of
events that eventually led to the resignation of the
third
respondent
on 27 March 2014. The
chronology therefore as set out by the applicant, is largely
undisputed.
The
History
[17]
The chronology is summarily set out in the
paragraphs that follow.
[18]
Shortly after the ED’s commencement
of employment, she commenced a process aimed at addressing various
structural and operational
shortfalls within the ICT Department (the
restructuring). The applicant, through the ED, alleges that the
affected employees
(including the applicant) were consulted in
respect of the restructuring of the ICT department. This
however is denied by
the
third respondent
who states that upon learning about the proposed
changes to the ICT Department and asking the ED— “…
where are the new job descriptions they
talked to us, what was our role there she could not answer”
.
In any event, on or about 17 January 2011 the approved new
organogram for the restructured ICT Department was
announced.
[19]
It would appear that in the midst of the
proposed restructuring and during November 2010, an incident
occurred which seems
to have been the beginning of what would become,
at best, a fractious relationship between the ED and the
third
respondent
. This related to a
complaint by the ED that the
third
respondent had allegedly skipped a departmental meeting and further
related to an allegation by the ED that the third respondent
had
failed to liaise directly with her regarding a request for her to
take annual leave from 3 January 2011 to 14 January 2011.
It is
not necessary for purposes of this judgment to make a finding on
whether the ED’s complaints in this regard were well
founded
nor to make a determination on whether the third respondent’s
reply to an email from ED taking issue with the above
was appropriate
or not. It is only important to note here that this seems to be
the start of what would become a tumultuous
relationship between the
two parties. The third respondent on her part took issue with
an email sent to her by the ED dated
16 November 2010 in
which the ED accused her of being— “
an
irresponsible person or an immature junior clerk”
.
In response, the third respondent informed the ED that she considered
her email as containing what she called repugnant
remarks and asked
her to refrain from making personal attacks on her and to treat her
professionally. Thus the interpersonal
conflict between the two
commenced.
[20]
In 2011, and upon UNISA becoming aware of
interdepartmental conflict in the ICT Department, it appointed a
consultant to investigate
the alleged interdepartmental conflict
which had been reported by the applicant and a colleague employed
also as a Deputy Executive
Director by the name of Mr Deon Van der
Merwe (Van der Merwe). The aim of the consultant’s
appointment by UNISA and
their eventual report was to suggest to
UNISA a way forward in dealing with what appeared to be
interdepartmental conflict between
the ED, the third respondent and
Van der Merwe. It is common cause between the parties that the
consultant’s report
was tabled in February 2011 and that it
made various suggestions aimed at ameliorating the strained
relations, among which was
a suggestion that “coffee meetings”
be held between the third respondent and the ED.
[21]
Notwithstanding the above commissioned
investigation by an outside consultant and their report, it does not
appear as if the interpersonal
conflict between the third respondent
and the ED improved. This much is apparent from an email sent
by the ED to the third
respondent on or about 6 April 2011 in which
she appears to have taken issue with the third respondent apparently
not attending
the full session of an infrastructure planning meeting
on 4 April 2011. She concludes by stating the following in her
email:
“
I
cannot accept that. You will have to show me respect as the ED
of this department and to constructively contribute to make
this
department a success. If you find you cannot do that, then
there is no way but for us to part ways.”
[22]
A further email was sent by the ED to the
third respondent on or about 11 April 2011 in which she
took issue with an apparent
request by the third respondent that she
be given the ED’s performance agreement. Nothing further
seems to have happened
thereafter except for what appears below.
[23]
The next issue that flared up between the
ED and the third respondent relates to the performance rating score
given to the third
respondent by the ED. In this regard the
third respondent had given herself a performance rating of 3.8 as
against the ED’s
rating of 3. It is common cause that she
lodged an appeal against the performance rating of 3. The
appeal against the
performance rating of 3 was lodged on or about
22 November 2011. An appeal was held pursuant to
which the third
respondent’s performance rating was adjusted to
3.1. This allowed her to qualify for a performance bonus.
[24]
The conflict continued. On or about 8
December 2011 the third respondent and Van der Merwe filed a joint
grievance which raised
various issues against the ED.
[25]
On or about 19 January 2012 the third
respondent was informed by UNISA’s Professor Baijnath
(Baijnath) that UNISA had decided
to first conclude a disciplinary
process that had been initiated against Van der Merwe before
proceeding to deal with the joint
grievance lodged by the two.
[26]
Prior to that and at the beginning of the
2012 academic year, the ICT Department had undergone a substantial
change in respect of
its old structure and a new structure which had
been approved had been given its full effect. In addition, and
due to what
appeared to be no end in sight to the interdepartmental
conflict within the ICT Department, UNISA through Baijnath, placed
the
third respondent on purported special leave from 5 January 2012.
She was apparently placed on special leave due
to the fact that she
was subordinate to the ED and the ED as head of department fulfilled
a pivotal function as head of the division.
It was UNISA’s
view at the time that it would—“
only
be common sense to rather retain the services of the ED in the
circumstances.”
. It was
also a condition of the special leave that the third respondent’s
conditions of employment, salary package
and the like would remain
unchanged and that she would remain operational from home during that
time.
[27]
Thus it should be apparent that it was
during the period of her special leave that the third respondent was
informed on or about
19 January 2015 that the joint
grievance that she and Van der Merwe had lodged against the ED would
be dealt with once
UNISA had finalised the disciplinary process into
Van der Merwe’s alleged misconduct. The third respondent
was advised
that it was UNISA’s view that it would be prudent,
having regard to the joint nature of the grievance lodged, to first
dispose
of the disciplinary hearing of Van der Merwe prior to their
joint grievance being dealt with by UNISA.
[28]
Be that as it may, the third respondent
remained on special leave for a period of five months. Her
special leave ended on
30 May 2012. She was back at work on 1
June 2012. This much is common cause. The uplifting of
her special leave
came after the third respondent had raised a number
of concerns regarding projects assigned to her during her special
leave and
during which period she had been instructed to report to
Professor Baijnath rather than to the ED. In addition, the
uplifting
of her special leave occurred after her union, the National
Education Health and Allied Workers Union (NEHAWU) had taken issue
with the special leave and demanded her “reinstatement”.
In uplifting her special leave, UNISA proposed that the
third
respondent be given an office space external to the ICT Department.
Indeed upon the third respondent return to work
on 1 June 2012,
this was the position that prevailed.
[29]
It is also important to record that during
her special leave UNISA had appointed the firm PricewaterhouseCoopers
(PWC) to conduct
an audit of the ICT Department and had requested the
third respondent to undergo a polygraph examination. This
request to
the third respondent was part of a broader investigation
by PWC on the instruction of UNISA.
[30]
In any event, returning to the issue
regarding the third respondent’s special leave, it is material
to highlight the fact
that the special leave was uplifted effective 1
June 2012. At this time, she and NEHAWU had been informed that
the joint
grievance that she had lodged with Van der Merwe would only
be dealt with once Van der Merwe’s disciplinary hearing had
been
disposed of. Accordingly, and as an interim arrangement
pending the resolution of the joint grievance, the third respondent
was required to render her services in terms of her job description
and in terms of projects assigned to her albeit that she would
be
reporting to Baijnath instead of the ED. This arrangement
endured until at least February/March 2014.
[31]
On or about 17 September 2012 and by way of
a letter addressed to the applicant’s Professor Makhanya, the
third respondent
asked to be paid out the balance of her fixed term
contract plus an additional five years in line with her conditions of
employment
as a measure of terminating the relationship with UNISA.
In doing so, she highlighted various issues among which were
allegations
of— “
continuous
torture and the assassination of my character by the institution”
.
She concluded her letter by reserving her rights to— “…
litigate and to forward the matter to
the Public Protector or my appropriate tribunal or court should UNISA
fail to respond within
seven calendar days”
.
[32]
UNISA
did not accede to her request. It instead, through a letter
dated 6 October 2012 to NEHAWU, expressed the view
that it would
be in the interests of all parties concerned that the joint grievance
be dealt with as it dealt with various allegations
that in the
interests of justice should be properly ventilated. UNISA
reiterated its view that in terms of sound practice
the joint
grievance hearing could only be dealt with once the disciplinary
hearing of Van der Merwe had been finalised.
[33]
On
or about 5 October 2012 NEHAWU referred an unfair labour practice
dispute to the CCMA under case number GATW 13697/12 which dispute
was
conciliated on 23 January 2013. A certificate of outcome was
issued by the CCMA under case number GATW 13697/12 on the
same day
and in terms of which the dispute was characterised as an
interpretation and application of section 186(2)(a).
[2]
The latter section of the LRA refers to an unfair labour practice in
respect of any act or omission involving unfair conduct
by an
employer relating to the promotion, demotion, probation or training
of an employee or relating to the provision of benefits
to an
employee. In terms of the certificate, the third respondent was
entitled to refer, should she wish, the dispute to
arbitration.
It is common cause between the parties that neither she nor NEHAWU
pursued the dispute. In referring the
dispute to the CCMA which
was ultimately conciliated on 23 January 2013, the third
respondent in her referral form summarises
the facts of the dispute
as:
“
The
employee lodged a grievance of unfair labour practice against the
employer jointly with Mr Deon Van der Merwe. Now the
employer
does not want to deal with the joint grievance.”
[34]
In the outcome required for conciliation
she states:
“
I
need the dispute to include Mr Deon Van der Merwe as a joint
grievance.”
[35]
From February to May 2013 it appears that
various correspondence was exchanged between NEHAWU, UNISA and the
third respondent in
respect of the as yet unresolved joint grievance.
[36]
On 22 August 2013 one of UNISA’s
employee’s, a certain Mr Willem Du Plessis, reported to it and
the ED that the third
respondent had allegedly uttered words to the
effect that she had wanted to stab the ED in the neck with a long
knife.
[37]
It would appear that the ED, upon hearing
about the alleged statement uttered by the third respondent stated
that she felt threatened
and accordingly instructed a firm of
attorneys, namely MacRoberts Attorneys (who also represent UNISA) to
pen a letter of demand
on her behalf to the third respondent in which
they demanded a written undertaking from her that she will not
threaten their client.
The MacRoberts letter appears to have
been sent to the third respondent on or about September 2013.
[38]
In the meantime, on or about 9 September
2013 UNISA had issued the third respondent with a notice of intention
to suspend and invited
her to make representations on why she ought
not to be suspended so that it could investigate the alleged threat
that she had made
against the ED. Submissions were made, the
upshot of which was that UNISA decided not to suspend her. She
was however
informed that UNISA viewed the allegation of a threat
against the ED in a serious light and would investigate the
allegations.
It is important to remember that at this stage,
the interim arrangements were in place in terms of which the ED was
not in the
same building as the third respondent which interim
arrangements also included the third respondent reporting to
Baijnath
rather than the ED. Furthermore, the
organisational restructuring initiated by the ED had been implemented
and was fully functional
for quite some time at that stage. The
latter allegation made in the applicant’s founding affidavit
was not denied
by the third respondent.
[39]
On or about 21 October 2013 the third
respondent was issued with a notice to attend a disciplinary hearing
which was to have taken
place on 26 November 2013 but was
not held on that date.
[40]
Early in 2014 and upon the reopening for
the academic year a fresh notice to attend a disciplinary hearing was
issued to the third
respondent, this time scheduling the hearing for
3 March 2014. Again the hearing scheduled for 3 March 2014 did
not take
place. The hearing was rescheduled to be heard on 11
April 2014.
[41]
At the same time and during February 2014
the joint grievance lodged by Van der Merwe and the third respondent
was eventually heard.
A report was issued into the joint
grievance on 24 February 2014. The outcome was
communicated to the third respondent
by Professor Makhanya in which
he stated, among other things, that the university would not be
paying out the third respondent’s
remaining term of her
employment contract, it had requested that the Portfolio Manager
prepare a detailed plan of action through
which the third respondent
will “
engage the relational issues
in the department”
. The
detailed plan, she was informed, will be focused “
unambiguously
on rebuilding the trust that appears to be absent at this point in
the department”
. Professor
Makhanya ended her letter by stating that she was hopeful that
despite all that had happened the third respondent
will make all
efforts towards rebuilding the ICT Department and that if all parties
worked together they will be able to put the
past behind them and
move forward towards a more positive relationship. Most
importantly she stated that:
“
My
door remains open to you: so, please do not hesitate to discuss any
further concerns with me should a need arise during this
process of
rebuilding and growth.”
[42]
On or about 26 February 2014 NEHAWU
responded to Makhanya’s letter, presumably on behalf of the
third respondent, in essence
accepting the need for all parties to
commit themselves to building the university in order to allow it to
continue with its business.
[43]
The ED in turn replied to the report by
stating that before moving to an action plan she suggested that a
conversation between all
affected parties takes place so that—
“
we are able to talk about each
other’s intentions and how we are going to create a safe
environment to work in for all of
us”
.
[44]
On 27 March 2014 the third respondent
resigned in accordance with the letter dealt with above.
[45]
It is common cause between the parties that
UNISA initially purported not to accept the third respondent’s
resignation and
decided to proceed with her disciplinary hearing.
However, it eventually conceded that having regard to the immediate
nature
of the resignation it could not proceed with the disciplinary
hearing. Consequently, the third respondent referred the
dispute
to the CCMA alleging unfair constructive dismissal.
Analysis
[46]
The arbitrator has found that the third
respondent’s resignation amounted to a dismissal and that the
dismissal was constructively
unfair.
[47]
I
will return to the arbitrator’s award shortly. Before
doing so it is important to have regard to what the third respondent
says was the reason for her resignation as captured in her answering
affidavit.
[3]
She states
at paragraph 32 of her answering affidavit that:
“
I
realised that the attempts to resolve the issues between Ms Sangqu
and myself were futile and I decided to resign based on
constructive
dismissal as it was clear the Ms Sangqu did not want to work with me,
taking into account further the way I had been
treated all this
time.”
[48]
Going back to the arbitrator’s award,
he records the submissions made by the third respondent in support of
her contention
that she was unfairly dismissed as follows:
48.1
The restructuring was done without
consultation with her and had a detrimental effect on her;
48.2
her contract was not amended in spite of
her original job description being unsigned it was
de
facto
applicable;
48.3
her contract provided for direct
supervision over the director but the new structure provided only a
dotted line reporting function
to her and a solid line reporting to
the ED;
48.4
there was a material reduction in her
responsibilities and status - she was demoted;
48.5
the special leave letter by the PVC implies
she was the cause of the deteriorating relationship with the ED and
fails to address
why she was singled out and not the ED – in
principle the special leave was unjust and in bad faith;
48.6
she was unable to perform her usual tasks
in isolation from the ICT in her special office;
48.7
the special leave instilled a sense of
fear, discrimination and victimisation in her;
48.8
the cumulative effect of the special leave,
being excluded from ICT meetings and MacRobert’s letter was to
deny her the contractual
right to perform her duties and also
destroyed the relationship between her and the ED;
48.9
the ED’s conduct was bullying towards
her and calculated to drive her from employment as shown by the ED’s
email of
6 April 2011;
48.10
she took all reasonable steps to exhaust
her grievances;
48.11
the last straw was the decision of the
principal accepting the grievance report, rejecting a financial
settlement and that she return
to the ICT department despite
MacRobert’s letter, under an action plan by the PVC; her letter
of resignation summarises her
grounds of constructive dismissal; and
48.12
lastly, that she took issue with the delay
in finalising her grievance which she alleged was contrary to UNISA’s
grievance
policy and amounted to a denial of justice and a violation
of her rights.
[49]
The commissioner correctly summarises in
his award the legal test for ascertaining whether an employee who
resigned had been constructively
dismissed. He records that the
main events that were ventilated during the arbitration were not in
dispute and that it was
accordingly not necessary to make specific
findings as to fault or misconduct in the “
mainly
relational disputes in this case”
.
[50]
He then proceeds to state that there are
two basic separable aspects to the third respondent’s
grievance. He says these
are:
50.1
The restructuring; and
50.2
Secondly, “
the
relational problem with the ED”
.
[51]
I fail to understand the commissioner’s
reasoning when he then goes on to find that there was a drastic
curtailment of the
third respondent’s responsibilities and
status when this very allegation was disputed by UNISA. It is
noteworthy that
the record of the arbitration confirms that the third
respondent conceded during cross-examination that the structural
changes
introduced in January 2011 were in accordance with UNISA’s
prerogative. This is an important concession because it suggest
that the third respondent conceded that the changes which were
introduced were not so material as to affect her terms and conditions
of employment materially. In other words, were the changes in
respect of work practices (requiring consultation) or fundamental
terms of the contract (requiring agreement) changes to the letter
cannot be done without agreement and would amount to a breach
of
contract entitling, in certain circumstances, the employee to accept
the breach and claim constructive dismissal. However,
a change
to work practices which requires consultation, does not go to the
heart of the contract between the parties. A failure
to consult
can hardly be used as the justification to resile from the contact as
a whole. The importance of this distinction
seems to have been
lost to the arbitrator. He accordingly misconstrued the issue
before him and committed a reviewable irregularity.
His finding
that the applicant’s “superficial” consultation
with the third respondent somehow justifies her resignation
or
renders it constructive dismissal is not sustainable having regard to
the evidence. The arbitrator’s conflation
of the joint
grievance and the restructuring is also curious. He says that
the joint grievance was filed in December 2011
but the outcome only
conveyed by the principal on 24 February 2014 some two years and a
few weeks later. What the arbitrator
does not explain is why
then, if he is correct, the third respondent only resigned in 2014 if
on the common cause facts the restructuring
was in full swing at
least as at January 2012. What then, the question remains,
was the proverbial straw that broke
the camel’s back? It
is clear that on the arbitrator’s own reasoning the employee
endured the restructured position
for at least two years prior to
resigning on 27 March 2014. What had changed?
[52]
The joint grievance lodged by the third
respondent and Van der Merwe was dealt with. This much is
common cause. Also
common cause is that UNISA had explained to
the third respondent that the reason that it could not immediately
deal with the joint
grievance was due to the pending disciplinary
hearing of Van der Merwe. The third respondent did not take
issue with it nor
did NEHAWU. In any event, even if she did, it
is important to take note of the fact that having referred a dispute
to the
CCMA, alleging that the employer had failed to deal with her
grievance, she pointedly asked that her grievance be dealt with as
a
joint grievance with Van der Merwe. She herself did not want
her grievance to be separated from Van der Merwe. The
arbitrator fails to take this into account and which failure
indicates to me that he committed a gross irregularity and failed
to
consider the evidence before him.
[53]
He then further goes on to state, when
dealing with what he calls the “
relational
issues”
, that those issues did
affect the disciplinary case against Van der Merwe and that
accordingly “
it is accepted that
the Respondent (UNISA) was reasonable in first wishing to complete
the disciplinary hearing”
.
He seems to accept that there was at least reason to delay finally
disposing of the joint grievance. What he seems
to take issue
with is the fact that there was an additional delay from January 2013
when the disciplinary hearing of Van der
Merwe was apparently
finalised to February 2014 when the joint grievance with disposed
of. However, key to all of this is
a failure by the arbitrator
to consider what is a common cause fact between the parties.
That is that the joint grievance
was eventually dealt with and the
outcome communicated to all parties concerned including the third
respondent. Furthermore,
and most importantly, that in
communicating the outcome of the joint grievance to the third
respondent, UNISA had informed her
that its door remained open to her
and she should not hesitate to discuss any further concerns with it
should the need arise in
respect of the mooted process of rebuilding
and growth. This to me means that there was a reasonable
alternative available
to the third respondent rather than resigning
when the outcome of the joint grievance was communicated to her.
The arbitrator
should have considered whether this reason,
objectively and reasonably viewed is substantiated on the facts.
It is clearly
not having regard to the invitation extended to the
third respondent to discuss any concerns she may have had regarding
the proposed
way forward to rebuild the Department.
[54]
It seems to me that a reasonable
alternative is apparent from the fact that UNISA had committed
itself, and to some extent the ED
too, to rebuilding the relationship
between the third respondent and the ED. One would have
expected a reasonable person
in the third respondent’s position
to have given the mooted processes space to see if, with time, the
strained relationship
between her and the ED could be mended.
Her resignation on 27 March 2014 seems to me to have been
premature having
regard to the commitment by UNISA and to some extent
the ED to move forward and the fact that if in any event she was not
happy
with the outcome of the joint grievance UNISA’s door
“
remains open”
.
She chose not to make use of this open door and resigned. Her
conduct in this regard objectively viewed, was unreasonable.
The
test on review
[55]
In
a case of an alleged constructive dismissal the enquiry is centred on
whether or not there was a dismissal. This question
must be
determined prior to looking into the fairness thereof. The
question of whether a dismissal has taken place, goes
to
jurisdiction. The Labour Appeal Court in
South
African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty)
Limited and Others; SA Rugby Pty Limited v South African
Rugby
Players Union and Another
[4]
held
that
the review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
does
not find application in reviewing a jurisdictional ruling.
In
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
[6]
Steenkamp J explained this test as follows:
“
In
most unfair dismissal cases, the existence of the dismissal is common
cause and the enquiry at arbitration - or on review by
the Labour
Court - is whether the dismissal was fair, and whether the finding of
the arbitrator in this regard was reasonable.
In the
case of an alleged constructive dismissal in terms of s 186(1)(e),
though, the prior question is whether there was a
dismissal. The onus
is on the employee to prove that his resignation amounted to a
dismissal. In order to decide whether there
was a dismissal, the
commissioner has to investigate the full merits of the case. Only
then can the commissioner decide if
there was a dismissal as defined.
If so, the commissioner must still decide whether it was fair. If
not, though, the CCMA did not
have jurisdiction in the first place,
even though the commissioner can only make that finding ex post
facto.”
The test for
constructive dismissal
[56]
Section 186(1)(e) of the LRA defines a
constructive dismissal to mean—
“
an
employee terminated employment with or without notice because the
employer made continued employment intolerable for the employee”
[7]
It
is trite in our law that where alleged constructive dismissal is
concerned, the onus rests squarely on the shoulders of the party
alleging it and that such a party must prove that her resignation was
not voluntary and not intended to terminate the employment
relationship.
[8]
Once this
onus has been discharged, the conduct of the employer must be
assessed and the question then is whether the employee
could
reasonably have been expected to put up with the conduct of the
employer.
[9]
The mere fact
that an employee resigns because work became intolerable does not, in
and by itself, make for a constructive
dismissal.
[10]
I agree with the applicant that this indeed is the law.
[57]
Having
regarding to the conspectus of the facts as summarised above, I am
satisfied that the commissioner’s award must be
reviewed and
set aside in circumstances where he failed to correctly consider
whether a dismissal took place in this case.
The facts
presented to him and as set out above, did not allow for the finding
that there was a dismissal. The third respondent
had other
reasonable options available to her rather than resign on 27 March
2014. In addition, to the extent that the third
respondent
pivots her case on the restructuring that took place, it is of some
importance to take note of the fact that the restructuring
had been
in effect for some years prior to her resignation on 27 March 2014.
She endured it for two years, why then come
2014 this was all of a
sudden too much for her. In any event, it is also worth noting
that she did not, as she had previously
done, refer any dispute to
either the CCMA or the Labour Court challenging the restructuring if
she was indeed aggrieved.
It is particularly important to have
regard to the fact during her saga with the ED, she had NEHAWU in her
corner. She quite
evidently had another reasonable option, if
indeed the restructuring was the cause of her resignation, to have
pursued an unfair
labour practice against UNISA at the CCMA.
The fact that she chose not to do so would suggest that she was
prepared to endure
the state of affairs.
[11]
[58]
Furthermore, insofar as what the
commissioner calls “relational issues” are concerned, I
agree with the applicant that
the third respondent was prepared over
a number of years to endure the conflict between herself and the ED
without resigning and
to be transferred to a different building.
The suggestion that somehow being placed on special leave could have
led to her
dismissal is with respect, a red herring. It will be
recalled that she was on special leave for a period of only five
months.
Her special leave was uplifted effective 1 June 2012
from which point she worked in terms of an interim arrangement
pending the
resolution of the joint grievance that had been filed by
her and Van der Merwe. This is not an issue which should have
weighed
on the commissioner’s mind.
[59]
The
outcome of the joint grievance hearing indicates that the grievance
had been resolved and that a plan was to be implemented
to manage the
relational issues within the Department and furthermore that the
third respondent was invited, should she have concerns
regarding the
mooted plan, to raise these with UNISA. She chose not to do so
but resigned. Her conduct in this regard
objectively viewed is
unreasonable and indeed indicates that she intended to sever the
employment relationship between herself
and UNISA and cannot be said
to have been dismissed. I find that her resignation could not
have been as a result of the employment
relationship or working
conditions becoming intolerable.
[12]
I
agree with the applicant that the only inference that can be drawn
from the facts is that the third respondent resigned to avoid
the
looming disciplinary hearing into the allegation that she made a
serious threat against the ED.
[13]
Bias
[60]
The applicant had also attacked the
arbitration award on the basis that the commissioner’s conduct
viewed in the context of
what took place at the arbitration hearing
raised a reasonable apprehension of bias. I do not agree with
this contention.
The applicant alleges that the manner in which
the arbitrator engaged the ED surrounding her version on how the new
structure had
been approved by UNISA, having regard to his tone and
body language, suggests that he was biased. As I say, I do not
agree.
This is because I do not find any evidence of bias or
that could lead to a reasonable apprehension of bias. It should
be
remembered that a commissioner and indeed any adjudicator of fact,
is entitled to interact with witnesses for purposes of clarification
and requesting them to assist him or her in respect of the
difficulties that they may have with a particular version.
Indeed,
this is particularly so in circumstances where litigants are
not represented by legal practitioners. It seems to me that the
commissioner’s interaction with the ED regarding the reporting
lines properly viewed, was nothing more than an attempt to
afford
UNISA an opportunity to assist him with the difficulty he was having
in respect of a particular aspect of its case.
I do not agree
that he misconceived his role and the nature of the enquiry he was
called upon to decide. In the circumstances
the attack, based
on the bias of the commissioner, is dismissed.
Conclusion
[61]
In conclusion therefore, I find that the
commissioner, notwithstanding the fact that he was aware that
resignation should be a last
resort and that there must be no other
reasonable options open to an employee who claims constructive
dismissal, but to resign,
failed to take into account the totality of
the evidence before him. He should have considered the
cumulative impact of the
conduct complained of by the third
respondent and adjudged whether such conduct, viewed reasonably and
sensibly was such that the
third respondent could not be expected to
put up with it. His finding in respect of the restructuring
exercise at UNISA was
simply incorrect on the facts. In
addition his finding regarding the relationship between the third
respondent and the ED
is also incorrect. The probabilities are
that the third respondent resigned to avoid her upcoming disciplinary
hearing.
[62]
Having regard to my findings it is not
necessary to deal with the challenge brought by the applicant in
respect of the compensation
that was ultimately awarded by the
arbitrator. I have found that the commissioner’s
reasoning is not justifiable having
regard to the evidence before him
and that in any event, based on the facts it was incorrect. It
follows that there was no
constructive dismissal and as such there
can be no unfairness justifying compensation. The order for
compensation is accordingly
set aside.
Order
[63]
In the premises I make the following order:
1.
The second respondent’s arbitration
award dated 28 October 2014 under case number GATW4148-14 is reviewed
and set aside in
its entirety;
2.
The award is substituted with the finding
that the third respondent was not dismissed by the applicant and
consequently was not
constructively dismissed.
3.
There is no order as to costs.
____________________
J Mothibi
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
F
Venter
Instructed
by:
Gouws Attorneys
For
the Third Respondent: S Mabaso of
Mabaso Attorneys
[1]
66
of 1995 (LRA). Section 145(2)(a)(i)-(iii) provides:
“
(2)
A defect referred to in subsection (1), means—
(a)
that the commissioner—
(i)
committed misconduct in relation to the duties of the
commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner’s powers”
[2]
Section 186(2)(a) provides:
“
(2)
“Unfair labour practice” means any unfair act or
omission that arises between
an employer and an employee involving—
(a)
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding
disputes about dismissals for a reason relating
to probation) or training of an employee or relating to the
provision of benefits
to an employee.”
[3]
See page 144 of the paginated record.
[4]
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC); [2008] 29 ILJ 2218 (LAC) at
paras 39-41.
[5]
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 ILJ 2405
(CC); 2008 (2) BCLR 158 (CC).
[6]
(2012) 33 ILJ 363 (LC) at para 20-1.
[7]
In
Eagleton
v You Asked Services (Pty) Ltd
[2008] ZALC 102
;
[2008] 11 BLLR 1040
(LC); (2009) 30 ILJ 320 (LC) at
para 22 this Court set out the requirements for a constructive
dismissal as follows:
“
In
order to prove a claim for constructive dismissal, the employee must
satisfy the Court that the following three requirements
are present:
(i)
The employee terminated the contract of employment (the employee has
resigned).
(ii)
Continued employment has become intolerable for the employee;
(iii)
The employer must have made continued employment intolerable.”
[8]
Murray
v Minister of Defence
[2008] ZASCA 44
;
[2008] 6 BLLR 513
(SCA) ;
2009 (3) SA 130
(SCA);
2008 (11) BCLR 1175
(SCA); (2008) 29 ILJ 1369 (SCA) at para 12.
[9]
Id. The Supreme Court of Appeal reasoned that—
“
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.” (Footnotes omitted.)
[10]
Id at para 13.
[11]
In
Pretoria
Society for the Care of the Retarded v Loots
(1997) 18 ILJ 981 (LAC) at 984 the Labour Appeal Court held:
“
When
an employee resigns or terminates the contract as a result of
constructive dismissal such employee is in fact indicating
that the
situation has become so unbearable that the employee cannot fulfil
what is the employee's most important function, namely
to work.
The employee is in effect saying that he or she would have
carried on working indefinitely had the unbearable situation not
been
created
. She does so on the basis that she does not
believe that the employer will ever reform or abandon the pattern of
creating
an unbearable work environment. If she is wrong in
this assumption and the employer proves that her fears were
unfounded
then she has not been constructively dismissed and her
conduct proves that she has in fact resigned.
Where
she proves the creation of the unbearable work environment she is
entitled to say that by doing so the employer is repudiating
the
contract and she has a choice either to stand by the contract or
accept the repudiation and the contract comes to an end.
. . ”
(Emphasis added.)
Further,
the Constitutional Court in Str
ategic Liquor Services v Mvumbi NO
and Others
[2009] ZACC 17
; (2009) 30 ILJ 1526 (CC);
2010 (2) SA
92
(CC);
2010 (2) SA 92
(CC);
2009 (10) BCLR 1046
(CC);
[2009] 9
BLLR 847
(CC) at para 4 held that the held that the test for
constructive dismissal does not require that the employee have no
choice
but to resign, but only that the employer should have made
continued employment intolerable.
[12]
In
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
above
n 6 at para 34 Steenkamp J reasoned thus—
“
The
authorities referred to above seem to me to establish that,
where
a reasonable alternative to resignation exists, it cannot be said
that the employer has made continued employment intolerable
for the
employee.
By referring to these authorities, the Constitutional
Court appears to have affirmed this principle, while at the same
time pointing
out that the employee need not establish that he or
she had no choice whatsoever but to resign.
The emphasis is on
whether a reasonable alternative exists
.” (Emphasis
added.)
[13]
Id at para 38 where Steenkamp J pointed out that—
“
.
. . it was held in
You Asked Services
that resignation in the
face of poor performance management does not give rise to a
constructive dismissal claim. What about
resignation in the face of
possible dismissal following a disciplinary hearing? In terms of the
dictum in
Smithkline Beecham
, an applicant who resigns
pending a disciplinary hearing would have a hard case to meet in
order to prove constructive dismissal.”