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[2017] ZALCJHB 343
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Ngaka Modiri Molema District Municipality v Makama NO and Others (JR1419/15) [2017] ZALCJHB 343 (19 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1491/15
In
the matter between
NGAKA
MODIRI MOLEMA DISTRICT
MUNICIPALITY
Applicant
and
COMMISSIONER
COLLINS LENKWAS MAKAMA N.O.
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
(CCMA)
Second Respondent
WELLINGTON
MOKGOSI MOLOKELE
Third
Respondent
Heard:
20 July 2017, 10 August 2017, 18 August 2017
Delivered:
19 September 2017
Summary:
Review. [Labour Relations Act 66 of 1995] – [Section 186 (1)
(E) – [Alleged constructive dismissal], Compensation.
JUDGMENT
EDMONDS,
AJ
Introduction
[1]
This is an application to review and set aside the arbitration award
of the First Respondent in the matter between Wellington
Mokgosi
Molokele (Molokele) and Ngaka Modiri Molema Municipality (the
Municipality) dated 4 November 2013 under case number NWKD
2575-14,
alternatively an order remitting the dispute back to the Second
Respondent to be heard
de novo
before another Commissioner.
Costs of the application and further and/or alternative relief. There
was also an application for condonation.
The applications were
opposed
[2]
At the hearing of the matter, the parties agreed that the condonation
application would not be opposed. Having considered the
condonation
application and the principles applying thereto, condonation was
granted and the parties proceeded to the merits of
the matter.
[3]
This is a review application in
terms of Section 145 (1) of the Labour Relations Act
[1]
,
(the LRA) against a written award by the First Respondent in the
matter cited above dated 30 July 2015.
Factual
Background
[4]
On 1 December 2011 the Third
Respondent was appointed and employed as the Chief Financial Officer
of the Applicant in terms of the
provisions of Section 57 of the
Local Government: Municipal Systems Act
[2]
,.
The Third Respondent reported to the Applicant’s former
Municipal Manager, Mr. M Mojaki (Mojaki).
[5]
On 14 July 2014 the Third Respondent resigned from his employment in
terms of a written resignation letter. He worked during
the notice
period until 31 July 2014.
[6]
The Third Respondent (Molokele) alleged that the erstwhile municipal
manager, Mojaki, irregularly and unlawfully took away his
responsibilities without any consultation and without providing
Molokele any opportunity to make representations. Mojaki issued
direct instructions to Molokele’s subordinates and employed
consultants to do portions of Molokele’s job, rendering
the
terms of Molekele’s employment a nullity.
[7]
Molokele alleged that in some instances invoices would be generated
and processed and paid, without any of his involvement.,
whose
responsibility it was to handle the finances of the Municipality. In
addition, a number of payments were made and authorised
by Mojaki
without the involvement of Molekele in the procurement of these
services.
[8]
As a consequence of this Molekele filed a grievance against the
Municipal Manager, regarding his performance and the manner
in which
his duties and responsibilities were taken away from him. He stated
that the actions of Mojaki were calculated to force
Molokele out of
his role as Chief Financial Officer and were designed to make and had
the effect of making his continued employment
intolerable.
[9]
Molokele raised these issues with Mojaki on a number of occasions
during their quarterly performance management meetings and
it was
indicated that the situation would be corrected.
[10]
The Applicant did not lead any evidence but relied solely on
cross-examination of the Third Respondent’s witnesses.
[11]
After Molokele’s resignation on 27 August 2014, Molokele
referred a dispute based on constructive dismissal in terms
of
Section 191 of the LRA to the Second Respondent. The matter was heard
on 14 and 15 July 2015 and an arbitration award dated
30 July 2015
was issued.
Parties
Submissions
[12]
The Applicant submitted, in this review application, that
Commissioner Makama, the First Respondent (the Commissioner),
committed
gross irregularities as contemplated in the provisions of
Section 145 (2) (a) (ii) of the LRA in arriving at his finding that
Molokele
was constructively dismissed and that his dismissal was
unfair and that he was entitled to compensation equivalent to 11
months’
salary.
[13]
Molokele submitted that in the circumstances the Commissioner
returned a reasonable reward that was based entirely on the
uncontested evidence led at the arbitration that Molokele could no
longer watch Mojaki wreaking havoc with the Municipal finances
for
which he held statutory responsibility as the Chief Financial Officer
and that despite this he was ignored by the Executive
Mayor and the
Finance Committee politicians.
[14]
Molokele submitted that the Commissioner acted reasonably in
accepting his uncontested version that the Third Respondent had
been
side-lined by Mojaki and could not continue to function in the
position of Chief Financial Officer, for which he bore legislative
accountability.
[15]
Molokele cited the various
authorities in regard to constructive dismissal to which the
Commissioner had reference including that
of the Supreme Court of
Appeal in
Murray vs Minister
of Defence
[3]
in which the Court held that an employee must prove that his or her
resignation was not voluntary and not intended to terminate
the
employment relationship, but that the employee had resigned because
the employer made continued employment impossible. The
SCA held
further that once an employee had established this, the enquiry was
whether the employer had, without reason 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. It
held that the Court would look at the employer’s conduct as a
whole, and its cumulative impact and
ask whether its effect, judged
reasonably and sensibly, was such that the employee could not be
expected to put up with.
[16]
The Applicant argued that, even if the employee’s case is not
rebutted, as in this case, t this did not mean that Molokele
had
proved his case.
[17]
The Applicant submitted that there had indeed been a response to
Molokele’s grievance, contained in page 236 of the bundle.
It
submitted that the Commissioner did not understand the legal
framework and that, had he done so, he would have seen that the
Municipal Manager was entitled to interfere with the authority of the
Chief Financial Officer, even if there is a delegation.
[18]
The Applicant further submitted that the Third Respondent had other
remedies available to him which he failed to exercise and
in failing
to do so could not complain of constructive dismissal.
[19]
It submitted that Molokele had been entitled to declare a contractual
breach in terms of clause 53 of his contract of employment,
alternatively, clause 20 of his contract of employment entitled him
to deal with the issue through arbitration and that he was
reminded
of this in Mojaki’s response to his grievance. He was also
entitled in terms of paragraph 10 of his contract of
employment to
table his grievances before the Municipal Council. He did not make
use of any of these remedies.
[20]
The Applicant also submitted that the employer had not rendered
Molokele’s continued service intolerable, and that Molokele’s
complaint was actually with the role of Mojaki. Had he declared a
dispute in terms of his contract then the real employer would
have
become involved. The real employer being the Ngaka Modiri Molema
District Municipality, not Mojaki himself.
[21]
The Applicant submitted that, at pages 70, 75, and 78 – 80 of
the transcript, it started becoming apparent that the real
reason for
Molokele’s resignation was because the politicians became
hostile towards him and that he was concerned that he
may be attacked
and that these concessions and admissions had not been taken into
account by the Commissioner.
[22]
It stated that, under cross-examination Molokele had given the real
reason for his resignation, that he felt that his safety
was at risk.
It stated that because of this, the Commissioner should have found
that Molokele had not prosecuted his case correctly,
and that his
findings were, therefore, not rational.
[23]
In response, Molokele argued that he had only wanted to do his job,
i.e. ensure the proper financial management of the Applicant.
Mojaki
was not entitled to ride roughshod over him and his contractual
duties. Whilst not taking his functions away from his office,
Mojaki
had elected to work directly with the Chief Financial Officer’s
subordinates which was designed to make him feel worthless.
[24]
He submitted that the alleged alternative remedies which the
Applicant proposed, were disputes around his contract of employment
i.e leave pay, overtime etc. They were not intended to deal with his
grievance.
[25]
In regard to the amount of the award, Molokele stated that it was
within the discretion of the Commissioner to make such an
award.
Reasoning/Merits
[26]
Given the fact that the
Applicant did not lead any evidence and relied solely on its
cross-examination of Molokele, I do not find
that it was unreasonable
for the Commissioner to reach the decision which he did on the
material before him. The Commissioner took
into account the
authorities in
Eagleton and
Others v You Asked Services (Pty) Ltd
[4]
which stated that in order for an employee to prove a claim of
constructive dismissal, three requirements had to be met: (a) The
employee terminated the contract of employment; (b) Continued
employment had become intolerable for the employee; (c) The employer
must have made continued employment intolerable.
[27]
He also referred to the SCA
decision in
Murray
[5]
in which the Court
found that the employee must prove that the resignation was not
voluntary and that it was not intended
to terminate the employment
relationship. Once this has been established the enquiry is whether
the employer 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.
[28]
The Commissioner found that the question that must be answered is
whether or not the conduct of the employer had created circumstances
that induced Molokele, to resign. He found that the
answer was in the affirmative and that he was of the view that
having
raised his issues with Mojaki, the Executive Mayor, the Speaker of
the Council and the members of the Mayoral Committee,
and after the
issues were not addressed, he had no option but to tender his
resignation.
[29]
The Commissioner found that Molokele had discharged his onus in
establishing the existence of a constructive dismissal and
that
Molokele was entitled to compensation.
[30]
He found that, taking into account the circumstances that lead to the
resignation of Molokele, his position with the Applicant,
his length
of service with the Applicant and also the reasons for his
resignation, compensation equivalent to 11 months’
was
appropriate under the circumstances.
[31]
The ordering of compensation must be an order that a reasonable
arbitrator could arrive at. It is my view that in the absence
of any
evidence in regard to the Applicant’s ability to afford the
compensation awarded, and in taking into account only
the position of
the Third Respondent, the Commissioner did not exercise his
discretion in a reasonable way having not considered
all of the
facts.
[32]
I am inclined, therefore, to refer the matter back to the Second
Respondent to hear evidence only in regard to the appropriate
compensation. The matter is to be heard by a Commissioner other than
the First Respondent.
[33]
Both parties have, to some extent, been successful in this matter.
Therefore I am disinclined to make an order as to costs.
[34]
Accordingly, I make the following order:
Order
1.
The First Respondent’s award is reviewed and set aside only in
respect of the amount of compensation;
2.
The matter is referred back to the Second Respondent for a hearing
before a Commissioner other than the First
Respondent on the question
of appropriate compensation only.
3.
There is no order as to costs.
—————————————
R
Edmonds
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: Advocate ESJ van Graan SC
Instructed
by: Mr M
Myambo from De Swart, Vogel and Myambo
For
the respondent: Advocate: XD Matyolo
Instructed
by: RS Tau Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Act 32 of 2000.
[3]
(2008) 29 ILJ 1369 (SCA).
[4]
(2009) 30 ILJ 320 (LC).
[5]
Supra.