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[2017] ZALCCT 59
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West Coast College and Another v Brink and Others (C388/16) [2017] ZALCCT 59 (28 November 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 388/16
In
the matter between:
WEST
COAST COLLEGE
First
Applicant
THE
DIRECTOR GENERAL OF THE DEPARTMENT
OF
HIGHER EDUCATION AND TRAINING (DHET)
Second Applicant
and
LINDA
BRINK
First Respondent
GPSSBC
Second Respondent
C
M
BENNETT
Third Respondent
Heard
:
12 October 2017
Delivered:
28 November 2017
SUMMARY:
Review – constructive dismissal –
LRA ss 145 and 186(1)(e).
JUDGMENT
STEENKAMP
J
Introduction
[1]
Ms Linda Brink
[1]
was employed by the West Coast College. She resigned and claimed
constructive dismissal. Commissioner C M Bennett
[2]
found that she was constructively dismissed; that the dismissal was
unfair; and ordered the Department of Higher Education and
Training
to pay her compensation equivalent to six months’ salary.
[2]
The applicants – West
Coast College and the Director-General of the Department of Higher
Education and Training – seek
to have that arbitration award
reviewed and set aside under s 145(2) of the Labour Relations Act.
[3]
[3]
At the beginning of the hearing, I granted condonation for the late
filing of the applicants’ supplementary and replying
affidavits.
Background
facts
[4]
The background facts are usefully summarised by the arbitrator. It
need not be repeated in detail.
[5]
The employee’s problems began in August 2013 and culminated in
her resignation on 30 April 2015. She and her husband both
worked for
the college. In August 2013 the college’s deputy CEO, Ms Rhazia
Hamza, accused Ms Brink of being jealous of her,
because she, Hamza,
could sit on Mr Brink’s lap and there was nothing that his wife
could do about it. Mrs Brink was understandably
upset and sent Hamza
an email in which she expressed her unhappiness:
“
Goeiedag Rhazia
Ek verwys na jou uitlating gister dat
ek “jaloers bokkie” is, en blykbaar jaloers is op jou. Ek
wil dit duidelik stel
dat hier niemand in hierdie kantoor is op wie
ek jaloers is nie. Ek is hier om my werk te doen en ek probeer om dit
na die beste
van my vermoë te doen. Ek dink dit is uiters swak
smaak van julle om my en my huwelik te bespreek en van my ‘n
bespotting
voor my mede kollegas te maak. Ek vertrou dat julle julle
tyd beter sal benut deur dit aan julle werk te spandeer en my
persoonlike
lewe met rus te laat.”
[6]
The next day, Mrs Brink’s manager, Abrahams, called her in and
told her that Hamza wanted her dismissed. She explained
what had
happened and Abrahams, in the words of the arbitrator, “backed
off”.
[7]
Two months later, Mr Brink was suspended. A disciplinary hearing
ensued. Hamza was the initiator. She made allegations about
Mrs
Brink.
[8]
Mrs Brink submitted a grievance about Hamza to D Rossouw, the HR
manager. The college did not convene a grievance hearing.
[9]
In February 2015 Mrs Brink resubmitted a grievance against Hamza and
her own manager, Abrahams. Still the college did not convene
a
grievance hearing.
[10]
In March 2015 Mrs Brink submitted a third grievance against Abrahams,
Rossouw, Kelly and Mbulawa (Rossouw’s line manager).
She sent
emails to the CEO, Joose-Mokgethi, to ask for a meeting. She did not
have the courtesy of a response.
[11]
On 1 April 2015 Mrs Brink was transferred from the College to the
DHET. But her position and salary remained the same. On 24
April 2015
she submitted a fourth grievance, copied to Jooste-Mokgethi. Finally
the latter responded, saying no more than she would
tell Mbulawa to
“pay attention to the matter”.
[12]
On 30 April 2015 Mrs Brink resigned. She stated in her resignation
letter that she considered herself to have been constructively
dismissed. She referred a dispute to the Bargaining Council
accordingly.
Arbitration
award
[13]
The arbitrator correctly identified the dispute in terms of s
186(1)(e) of the LRA. He had to consider whether the employer
had
made continued employment intolerable for the employee.
[14]
The arbitrator noted that the college failed to challenge most of the
allegations by Mrs Brink. He concluded that Hamza did
make the
comments about sitting on Mr Brink’s lap and did demand Mrs
Brink’s dismissal. And Rossouw (and the college)
did nothing to
address Mrs Brink’s grievances. When the college did react, it
was to threaten her with disciplinary action
for “involving
herself with her husband’s disciplinary procedure”. And
having submitted two complaints about
Rossouw and Mbulawa,
Jooste-Mokgethi instructed one of them to address the very complaint.
[15]
The arbitrator correctly asked the question, “Can it be said
that the [employee] was subjected to intolerable treatment?”
He
concluded that she was. Hamza had wanted her dismissed and dragged
her into the process involving her husband. That the employee
felt
victimised, was understandable. Her grievances were ignored; instead,
she was threatened with disciplinary action. By act
and omission, she
was subjected to intolerable treatment.
[16]
Having found that the employee had been constructively dismissed, the
arbitrator turned to the question whether the dismissal
was
nevertheless fair. He found that it was not. The college ignored her
grievances. It did not treat her fairly. And she was victimised
for
raising her grievances.
[17]
Having considered that the employee was constructively dismissed and
that it was unfair, the arbitrator considered the appropriate
remedy.
At the time of her resignation, her fixed term contract had another
19 months to run. But she had secured employment at
the same salary
at Northlink College. In order to work there, she had to commute from
Malmesbury to Bellville every day –
at a cost of about R1 000
per week in fuel costs alone. The arbitrator considered compensation
equivalent to six months’
salary to be fair. That amounted to
R125 655, 00. Her petrol costs alone for the remaining 19 months of
her contract would be R81
700, 00. The difference (R 43 955, 00)
would equate approximately two months’ salary. He found that to
be a suitable
solatium
for her un
fa
ir treatment.
Grounds
of review
[18]
Mr
Allom
,
for the applicants, submitted that the arbitrator’s conclusion
was not one that a reasonable arbitrator could reach.
[4]
Evaluation
[19]
The applicants complain that Mrs Brink’s allegations about the
way she was treated were generally uncorroborated. But
the arbitrator
acknowledges this; yet he points out that the college did not
challenge those allegations. That is a proper and
reasonable
evaluation of the evidence before him. And Hamza, one of the main
protagonists, was not called by the college to respond
to the serious
allegations against her.
[20]
Although he did not refer to
it, the arbitrator’s approach was in line with that of the SCA
in
Murray v
Minister of Defence.
[5]
[21]
As in
Murray
, the arbitrator asked whether the college’s
conduct was such that its effect, judged reasonably and sensibly, was
such that
the employee could not be expected to put up with it. Given
the employee’s numerous grievances and the college’s
failure
to respond, that was a conclusion that another reasonable
arbitrator could reach.
[22]
Mr
Dykman
also referred to
Value
Logistics v Basson
[6]
where this Court summarised the following principles regarding
constructive dismissal, citing the Constitutional Court in
Mvumbi
:
[7]
22.1 The test for
constructive dismissal does not require that the employee had no
choice but to resign, but only that
the employer should have made
continued employment intolerable.
22.2 The employer must be
culpably responsible in some way for the intolerable conditions: the
conduct must have lacked
‘reasonable and proper cause’.
[23]
The arbitrator, without referring to the case law directly, applied
the correct test. He considered the evidence before him
on the
probabilities. He concluded that the employer had made continued
employment intolerable, especially given its recalcitrance
to deal
with Mrs Brink’s grievances in any way. That is a conclusion
that another arbitrator could reasonably have reached
on the same
evidence.
[24]
Having found that the employee had been constructively dismissed, the
arbitrator then correctly turned to the next leg of the
enquiry,
namely whether the dismissal was fair. He found that it was not. The
college addressed its own problems whilst ignoring
Mrs Brink’s.
It did not treat her fairly. Instead of addressing her grievances,
she was prejudiced and victimised. The arbitrator’s
conclusion
that the dismissal was unfair is a reasonable one.
[25]
That leaves the question of the appropriate remedy. The employee
sought compensation rather than reinstatement. The arbitrator
carefully considered what an appropriate amount of compensation would
be. Six months’ salary equates R125 655, 00. He took
into
account that, having had to find alternative employment in Bellville,
Mrs Brink’s petrol costs for the remaining 19
months of her
contract with West Coast College would approximate R81 700, 00. The
difference would be equivalent to no more than
about two months’
salary. It is in those circumstances that he considered six months’
salary to constitute fair compensation.
That is not unreasonable.
Conclusion
[26]
The award is not reviewable. Both parties asked for costs to follow
the result. I agree. There is no longer any relationship
between the
parties and Ms Brink has been forced to incur legal costs after a
final and binding arbitration award was handed down
in her favour.
Order
The
application for review is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
M R
Allom (attorney).
FIRST
RESPONDENT: D Dykman (attorney).
[1]
The first
respondent.
[2]
The third
respondent, a panelist of the General Public Service Sectoral
Bargaining Council (the second respondent).
[3]
Act 66 of
1995 (the LRA).
[4]
In other
words, the test in
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
29
ILJ
1097
(CC). Although the question in a constructive dismissal case may
redound to the question whether there was a dismissal at
all –
i.e. a jurisdictional question – both parties approached it
from this angle.
[5]
(2008) 29
ILJ
1369 (SCA).
[6]
(2010) 32
ILJ
2552 (LC) paras 28-38.
[7]
Strategic
Liquor Services v Mvumbi NO (
2009)
30
ILJ
1526 (CC);
[2009] 9 BLLR 847
(CC).