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[2018] ZALCJHB 13
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Bakker v Commission for Conciliation, Mediation and Arbitration and Others (JR1078/14) [2018] ZALCJHB 13; [2018] 6 BLLR 597 (LC); (2018) 39 ILJ 1568 (LC) (24 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE
NO: JR 1078/14
In
the matter between:
SONJA
BAKKER
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
First Respondent
MICHAEL
BOYCE
N.O.
Second Respondent
ABSA
BANK LIMITED
Third
Respondent
Heard:
21 June 2017
Delivered:
24 January 2018
JUDGMENT
WHITCHER,
J:
Introduction
[1]
The Applicant referred a
constructive dismissal dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA) on 24 January 2013
following her resignation with effect from 22 January 2013.
She sought full retrospective reinstatement. Commissioner
M Boyce
found that the Applicant was not constructively dismissed by Absa.
[1]
[2]
This is an opposed application, first to
reinstate the review, which application has, according to the
Practice Manual of the Labour
Court, lapsed on account of the late
filing of the record and subsequent papers and, if this is granted,
to review and set aside
Commissioner Boyce’s award.
[3]
On my evaluation, the Applicant
has provided a detailed and reasonable explanation for delay. It is
evident therefrom that the delay
was occasioned by the delay in
receiving the complete record from the CCMA and the disorderly
fashion it was transcribed as a result
of the piecemeal manner it was
made available by the CCMA. Even though the delay may appear to be
excessive, it was not brought
about by inaction on the part of the
Applicant or her attorneys. The matter thus falls to be determined on
the merits of the review.
The parties have essentially reiterated the
submissions that they made to the Commissioner, this being a review
which the Court
must determine on the basis of correctness.
[2]
The
law on Constructive Dismissal
[4]
Counsel provided a comprehensive overview of the law on constructive
dismissal.
[5]
Section 186(1)(e) of the LRA defines a constructive dismissal in the
following terms:
“
(A)n
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee.”
[6]
In
Pretoria
Society for the Care of the Retarded v Loots
[3]
the LAC stated:
“
Where
an employee resigns or terminates the contract as a result of a
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 the fears were
unfounded, then she has not
been constructively dismissed and her conduct proves that she has in
fact resigned.”
[7]
In
Strategic
Liquor Services v Mvumbi NO & Others
[4]
the Constitutional Court held that the test for constructive
dismissal does not require that the employee should have no choice
but to resign, but only that the employer should have made continued
employment intolerable. There is thus a fundamental shift
from the
test from one in which the employee had no option to resign, to one
in which no other option was reasonably available
to an employee save
for resignation. The shift is thus from a strict test to one that is
slightly less strict.
[5]
[8]
The following was stated by the
LAC in
National Health
Laboratory Service v Yona and Others:
[6]
"In other words, a constructive
dismissal occurs when an employee resigns from employment under
circumstances where he or she
would not have resigned but for the
unfair conduct on the part of the employer toward the employee, which
rendered continued employment
intolerable for the employee. Ms Yona
terminated her employment relationship with the appellant, by
resigning with a month’s
notice. She alleged that the
resignation constituted a constructive dismissal in terms of section
186(1)(e) of the LRA. The appellant
denied that Ms Yona was dismissed
at all. Ms Yona bore the onus to prove her alleged constructive
dismissal. The test for proving
a constructive dismissal is an
objective one. The conduct of the employer toward the employee and
the cumulative impact thereof
must be such that, viewed objectively,
the employee could not reasonably be expected to cope with.
Resignation must have been a reasonable step for the employee to
take in the circumstances
." (counsel’s emphasis)
[9]
Whether or not the employer
intended to repudiate the employment contract is irrelevant.
[7]
[10]
Constructive dismissal is not
inherently unfair. Once, it has been proven that a constructive
dismissal has occurred, the onus shifts
to the employer to prove that
it did not act unfairly. A two - stage approach is thus envisaged.
[8]
The central question is then whether the conduct of the employer that
prompted the employee to resign was fair or unfair.
[9]
A court will consider the circumstances with a view to establishing
whether the employer’s conduct was justified.
[10]
The focus will be on the substantive fairness of the dismissal as
procedural fairness plays little or no role in most constructive
dismissal cases.
[11]
Counsel for Absa added the following law.
[12]
“Intolerable”
is not defined in the LRA, but it is a strong word which suggests a
high threshold: In this regard, Grogan,
in his
Workplace
Law
[11]
states:
“
[T]he requirement that the
prospect of continued employment be ‘intolerable’ …
suggests that this form of ‘dismissal’
should be confined
to situations in which the employer behaved in a deliberately
oppressive manner …”
[13]
The
Labour Court has held that if an employee is too impatient to wait
the outcome of the employer’s attempts to find a solution
to
the perceived intolerable situation and resigns, then constructive
dismissal is almost always out of the question.
[12]
[14]
Furthermore,
the Court has held that an employee who resigns instead of taking an
opportunity to defend herself in terms of a LRA
process, such as a
disciplinary enquiry or a performance counselling process cannot
claim constructive dismissal.
[13]
[15]
The
Constitutional Court in
Strategic
Liquor Services v Mvumbi N.O & Others
,
[14]
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.
[15]
[16]
In
Distinctive
Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre
(MIBC) and Others
,
[16]
Hulley AJ opined that the above statement in
Strategic
Liquor Services
must
be understood to mean the absence of reasonable alternatives. He
said:
[17]
“
It
seems to me that this latter statement must be understood to exclude
a ‘reasonable’ choice.
52
If it was intended to mean that an employee was not required to
demonstrate that he or she had no ‘reasonable’
alternatives
to resignation it would be in conflict with the language
of the section. Quite apart from all the authorities on the question,
the ordinary meaning of the word “intolerable” connotes
the absence of a (reasonable) choice. I emphasise the meaning
of the
phrase intolerable and its various synonyms as set out above. If an
employee has reasonable alternatives, it implies that
the conduct of
the employer is not unbearable or not beyond the limits of tolerance.
Thus,
in
Albany
Bakeries
,
supra
,
Pillay AJA, with reference to the judgment of Conradie JA in
Old
Mutual Group Schemes v Dreyer and Another
53
held:
‘
[28]
Conradie JA referred to the
Loots
case where mention was also made of a belief of the employee that the
employer would never reform or abandon the pattern of creating
an
unbearable work environment. How will an employee ever prove that if
he has not adopted other suitable remedies available to
him? It is,
firstly, also desirable that any solution falling short of
resignation be attempted as it preserves the working relationship,
which is clearly what both parties presumably desire. Secondly, from
the very concept of intolerability one must conclude that
it does not
exist if there is a practical or legal solution to the allegedly
oppressive conduct. Finally, it might well smack of
opportunism for
an employee to leave when he alleges that life is intolerable but
there is a perfectly legitimate avenue open to
alleviate his distress
and solve his problem.
[29] ….
[30] In
addition, even if an employee was dissatisfied with the manner in
which he was dealt with in terms
of the grievance procedure, he could
have made use of the machinery of the Act. Schedule 7 item 2(1) (b)
of the Act provides that
an employer is guilty of an unfair labour
practice if it commits any form of unfair conduct relating to the
provision of benefits
to an employee. A person alleging an unfair
labour practice relating to demotion may refer the matter to a
council or if no council
has jurisdiction to the CCMA for
conciliation and arbitration. The first respondent did not make use
of any of these procedures.’
If an employee finds herself
confronted by conduct which she considers intolerable, but the
employee can avoid such (intolerable)
conduct by taking some course
of action which is reasonably within her power, other than
resignation, then the employee should
follow such other course of
action. To hold that the employee is entitled in such circumstances
to resign and claim constructive
dismissal would, in my view,
undermine the right to fair labour practices enshrined in s. 23 of
the Constitution which requires
that fairness be viewed from the
perspective of both employer and employee.”
Background
facts
[17]
The Applicant commenced her employment with Absa on
11 September 2000. She was employed as a Technical Manager:
Specialised Funding Solutions in Commercial Asset Finance (CAF).
Pursuant to a reorganisation in 2011 her role was incorporated
into
that of Market Development Consultant within CAF. Her role profile
read as follows:
“
To
assist all CAF staff to book non - vanilla/specialised finance
business and to manage these transactions in the Specialised Funding
Solutions (SFS) environment by using in - house systems. To assist
clients with the management of the non - vanilla/specialised
structures and ensure clients continued use of these products. To
complete and control the financial reporting function for CAF:
SFS
(incl Tax) and ensuring accuracy and integrity of information
provided to both internal and external clients.”
[18]
The parties referred to this as the booking of clients on the Mentis
system and crafting specialised financing solutions, as
opposed to
ordinary (vanilla) transactions (such as the financing of a vehicle)
conducted by CAF marketers.
[19]
It is Absa’s policy to review its employees’ performance
twice a year. As such, employees are rated in the middle
of the year
and again at the end of the year against a Performance Development
Plan (“
PD Contract”
)
agreed
upon between
the relevant employee and his/her line manager.
[20]
The Applicant started reporting to Buitenhuis during January 2011.
At the heart of the constructive dismissal dispute
was the setting of
monthly targets by Buitenhuis in the Applicant’s PD plans from
July 2011.
[21]
The Applicant resigned on 22 January 2013 and referred a
constructive dismissal dispute to the CCMA on 24 January 2013,
alleging in the pre-arbitration minute that Absa had made continued
employment intolerable for the following reasons:
(i)
During 2011 Absa unilaterally amended the Applicant's Performance
Development Plan by introducing targets. The introduction of such
targets was unreasonable and unfair due to the nature of the
work she
was employed for and/or performed at Absa;
(ii)
The Applicant was unable to meet the targets as set out by Absa which
resulted in her obtaining very poor ratings. The ratings obtained by
her did not reflect her true performance as an employee;
(iii)
The Applicant addressed the issue with the relevant structures at
Absa and
explained that she was unable to meet the targets for
reasons beyond her control. Absa failed to address
alternatively
properly address the grievance in that regard.
(iv)
During her grievance process, the Applicant requested reassignment or
a separation
package. Absa failed to assist her and made no
alternatively
no proper attempt to resolve the situation;
(v)
Due to her C - ratings, the Applicant was also not allowed to apply
for
alternative positions in Absa as determined by its policy;
(vi)
Buitenhuis adopted a hostile management style towards the Applicant
and
inter alia
unreasonably refused her requests for leave.
The
Applicant’s testimony at the arbitration
[22]
In July 2011, Buitenhuis unilaterally
amended her PD plan by introducing monthly targets. Her performance
was prior to reporting
to Buitenhuis assessed only on the basis of
multi – source feedback obtained from her colleagues. Financial
achievements
such as PBT (profit before tax) and NI (non- interest
income) did appear on her self – assessments prior to reporting
to
Buitenhuis, but she was never assessed on such basis.
[23]
The targets were arbitrary. She repeatedly asked Buitenuis how the
targets were arrived at but received no sensible answer
from him and
history had showed there is no consistency in the performance of her
department.
[24]
Considering the nature of her job, the targets were not achievable
and not within her control. In terms of her role profile
she occupied
a Middle Office position and was not involved in direct marketing.
She only became involved when CAF marketers and
business development
officers (BDO’s) referred to her clients who required
specialised financing solutions. The formulation
of special funding
solutions was very labour intensive and could take up to 18 to 24
months to finalise as opposed to ordinary
vanilla transactions which,
although voluminous, mostly involved mere data capturing and mostly
took only 24 hours to finalise.
She moreover worked on a pipe-line,
meaning that some transactions which she had worked on for a long
time may only reflect as
income in the future.
[25]
She never agreed to an assessment based on targets. When she
repeatedly failed to submit a draft PD plan for the first half
of
2012, she was issued with a written warning on 26 April 2012.
[26]
She suggested alternative measurable, based on the annual growth
sought by the bank, but Buitenhuis indicated that assessment
based on
targets was not negotiable. Buitenhuis’ response stemmed from a
lack of experience in specialised funding and an
unaccommodating
attitude. This attitude is demonstrated in an e - mail dated
17 September 2012 in which he stated:
“
Job description
and measurement of performance: Sonja can propose alternatives;
either purely administrative or sales. Status Quo
will remain if no
proposal is received and agreed to.”
[27]
The
imposition of targets degraded her from an exceptional performer
[18]
to a poor performer and negatively affected her bonuses and career
possibilities in Absa. She received a C –rating for the
period
January to June 2011, a B+ – Good Performance at the end of
2011 and awarded herself a C – rating for the period
January to
June 2012. She expected to receive a D – rating for the period
July to December 2012.
[28]
An employee with multiple C – ratings could
encounter difficulties in applying for another position within Absa.
A D - rating
is the lowest form of rating. She would not have
received any bonus and her chances of promotion would have slimmed
into virtually
non-existent. She would also be placed on compulsory
coaching. Her employment could be terminated in the near future due
to her
not meeting expectation descriptors. Absa’s Standards on
Performance Development states:
“
Any employee who receives
two Does not meet expectations descriptor out of three (mid - year,
year - end, mid - year OR year - end,
mid - year, year - end) may be
dismissed for a failure to maintain a satisfactory standard of
performance after an enquiry is held
to determine the reasons for the
failure to maintain a satisfactory standard of performance.”
[29]
She lodged a formal grievance during August 2012,
wherein she recorded the following:
“
In June 2011, my Pd was
amended to incorporate targets that is unfair and does not represent
what I have been employed to do. This
is creating a situation where I
cannot meet the targets set in my PD. I have been threatened,
humiliated and consistently been
victimised by management.”
[30]
She suggested the following as a solution:
“
I do not think I can
continue working for such a management team.”
[31]
She lodged a similar grievance during
September 2012, wherein she requested a separation package or
being allocated to another
division within Absa as outcome.
[32]
The panel found that she had provided insufficient evidence to
justify the amendment of her PD ratings and indicated that a
separation agreement can only be motivated by the Head of the
department and
that an alternate position can be applied for in
terms
of the normal recruitment process. In her view, the panel,
like Buitenhus, had no experience in specialised funding solutions
and
thus failed to appreciate the nature of her job and grievance.
[33]
After her last grievance hearing (in which she had asked to be
transferred), Buitenhuis offered to transfer her to the office
of
Hendrik Slabbert but later told her that Absa’s policies
required her to apply for an alternative positon through the
normal
recruitment process. By that time, applications for vacant posts in
Slabbert’s department had closed.
[34]
Buitenhuis’ claim that the offer had not been unconditional is
belied by two emails. In an e-mail dated 23 October 2012
the Applicant informed Sue Morar of Employee Relations that she has
decided to accept the position with Slabbert. In an e-mail
dated 24
October 2012 Morar stated the following in response:
“
Please be
advised that the position you were offered is not as a result of the
grievance, but because of a business requirement.”
[35]
Both emails were copied to Buitenhus and he never
disagreed with the exchange between her and Morar.
[36]
She did not look for other positions during that
period because Absa’s later turn - about on this aspect did
nothing to inspire
her confidence in senior management. Moreover, her
applications would have been blocked by the system because of her C
ratings.
[37]
In December 2012, Baloyi, the Head of CAF offered
to assist her in compiling a draft PD plan for 2013, but she did not
revert to
Baloyi. During cross - examination of Baloyi it became
clear that the only assistance that would have been forthcoming was
the
formulation of targets, under circumstances where the
introduction of targets was at the core of the problem. She can
thus
not be blamed for not taking up the invitation.
[38]
Her target
for 2013 was increased to R700 million per annum.
[19]
This was the straw that broke the camel’s back. She was given a
sales target of double that of a normal marketer who had
direct
access to clients. The target was also double the amount paid out
during 2012.
[39]
It thus became clear to her that no assistance
would be forthcoming and that all her complaints fell on deaf ears.
Moreover, she
expected to receive a D – rating at the end of
2012, with all the adverse consequences that came with it (as
explained earlier
on). She was thus set up for failure.
[40]
The fact that she had to work under extreme
pressure was exacerbated by the fact that Buitenhuis refused her
leave over an extended
period of time.
[41]
She also landed up in hospital during
May/April
2011
due to exhaustion and stress.
[42]
She was left with no reasonable alternative than
to resign, which she eventually did with effect from 22 January 2013.
The test confirmed in
Strategic Liquor
Services
does not require her to show that
she had no other alternative but to resign.
[43]
The circumstances under which she had to perform
her duties however became unbearable. She would have continued
working for Absa
had her work circumstances been changed. She liked
her job and is the sole breadwinner with her parents living with her
and depending
on her for financial support. Her father is blind and
her mother is in a wheelchair. She had no other job to walk into and
remained
unemployed for more than a year after her resignation.
[44]
The following was stated in
Wulfsohn Motors (Pty) Ltd
t/a Lionel Motors v Dispute Resolution Centre & Others
[20]
:
“
Where
it appears from the circumstances of a particular case that an
employee could or should reasonably have channelled the dispute
or
cause of unhappiness through the grievance channels available in the
workplace one would generally expect an employee to do
so. Where
however, it appears that objectively speaking such channels are
ineffective or that the employer is so prejudiced against
the
employee that it would be futile to use these channels, then it may
well be concluded that it was not a reasonable option in
the
circumstances.”
[45]
She no longer trusted Buitenhuis or Baloyi to address the situation.
She had escalated her complaints to seniors in the persons
of
Govindasamy and Wessel Steffens, but also without success.
[46]
Following her notice of resignation on 22 January 2013,
Wessels met with her on 23 January and asked if he could
assist
in any way. She did not take up this offer because he had only taken
the time to talk to her and offer assistance after
she had submitted
her resignation.
[47]
She contacted Absa after her resignation and met with Buitenhuis,
Baloyi and HR on 31 January 2013. She requested
the
opportunity to be allowed to her notice period, alternatively be
employed on a fixed term contract to train the person taking
over her
position. Her request was not incompatible with a constructive
dismissal claim. She made the request because she did not
want to be
“black - listed” in the financial or banking sector for
not working her notice period. The definition of
constructive
dismissal in section 186(1)(e) of the LRA also refers to termination
“
with or without notice”
, which is a clear
indication that the working of a notice period is not
per se
incompatible with constructive dismissal. She would not have
reported to Buitenhuis had she been engaged as an independent
contractor.
[48]
Absa disputed each one of these allegations and
its version was accepted by the Commissioner.
The
award
[49]
The Commissioner found that the Applicant had
failed to establish that Absa had made continued employment
intolerable for her. In
particular the Commissioner found the
following.
[50]
With regards to the Applicant’s PD plan,
all that changed was the fact that she would no longer be assessed
based on subjective
criteria (multi-source comments from peers) but
on more objective and measurable criteria (production targets). This
was not peculiar
to the Applicant but applied to all income
generating employees in the CAF division.
[51]
Insofar as the Applicant was called upon by
Buitenhuis to promote the Mentis System, the limited change in
functionality did not
require the Applicant to undergo a
metamorphisis.
[52]
There was no reason why the Applicant could not
reasonably have put up with the imposition of targets or negotiation
of a target.
[53]
It is clear that from the beginning the Applicant
resented the imposition of a production target and was simply not
prepared to
cooperate and her attitude to her superior was
condescending. Buitenhuis’ actions were practical and
reasonable.
[54]
The fact that the Applicant was only required to
submit a draft PD plan is indicative and supportive of Absa’s
version that
the contents of the plan were not cast in stone and were
subject to negotiation.
[55]
Regarding the Applicant’s allegation that
there had been a selective imposition of a production target more
than twice that
of individual marketers, Absa had a good reason for
this decision which included:
(i)
The Applicant had the benefit of two assistants
to generate income as opposed to a single CAF marketer.
(ii)
She would receive the benefit of the CAF
marketers’ groundwork after she had made the effort of
promoting the Mentis system
to the CAF marketers.
(iii)
She only became involved in large transactions
exceeding R3million, whereas the CAF marketers attended to the “rats
and mice”
contracts of high volume but less value.
[56]
The Applicant did not even attempt to resort to
the measure of first resort, namely to comply.
[57]
Absa took all reasonable steps to address the
Applicant’s cause of complaints despite the fact that there was
no substance
to the complaints.
[58]
There was no evidence that Absa deliberately and
unfairly placed pressure on the Applicant to resign. In fact, she was
regarded
as a valuable employee and Absa sought to retain her
undoubted skills and abilities.
[59]
The Applicant acted impulsively and precipitously
in tendering her resignation.
[60]
The Applicant contended that she found the
situation to be so intolerable that she had no option but to resign,
yet she was willing
to return to Absa’s employ – even on
a fixed term contract.
[61]
The fact that the Applicant secretly taped her
discussions with management even after her resignation belies her
explanation as
to why she found it necessary to record the
discussions in the first instance.
My
findings
[62]
On my evaluation Absa has demonstrated with reference to the record
of evidence that there are no grounds to interfere with
the findings
of the Commissioner.
The
implementation of a target system was not unfair
[63]
As submitted by Absa’s
counsel, one has to distinguish between changes to work practices as
opposed to changes to terms and
conditions of employment and between
dramatic or fundamental changes to terms and conditions of employment
and changes which are
not dramatic or fundamental. The reasons for
this are that changes to work practices that do not constitute terms
and conditions
of employment fall within the discretion of
management,
[21]
and employees are expected to accept non-fundamental changes which
have a commercial rational.
[22]
Furthermore, it stands to reason that if actual agreement was in fact
reached that would be the end of this point. It is also a
trite
principle of labour law that management has the prerogative to decide
how to assess the performance of its employees, as
long as the method
of assessment is reasonable and rationally connected to the job of
the employee.
[64]
In setting targets as a way to measure the Applicant’
performance, Absa did not subject the Applicant to any unfair
changes. In this respect:
(i)
The Applicant conceded that she was responsible for generating
income
on the Mentis System and facilitating loans to clients. The bank
earns its income by extending loans. In the bank, parties
use the
term “production” to refer to what the bank pays out to
clients, i.e. the finance provided to clients.
(ii)
Even before she started reporting to Buitenhuis, the Applicant
herself
appreciated that her job entailed financial achievements and
thus listed financial achievements (profit before tax and
non-interest
income) in her self- assessments.
(iii)
Baloyi testified that employees are evaluated on the “what”
and
the “how”. Objective targets are the way of measuring
the “what” and the multi-source feedback is the way
to
measure the “how”. Baloyi testified that it was not
permissible for the Applicant to have been measured solely on
subjective criteria such as the multi-source feedback.
(iv)
It was common cause that the Applicant was not measured solely on
production.
She was also measured on business management, risk and
compliance and people management.
[65]
The Commissioner correctly pointed out that if there was any change
in the manner of assessing the Applicant’s performance,
all
that changed was the fact that she would no longer be assessed based
on subjective criteria (multi-source comments from peers)
but on more
objective and measurable criteria (production targets). The Applicant
was thus not subjected to any changes which could
be regarded as
fundamental or unfair. The method of assessment did not apply solely
to the Applicant, but to her entire team and
all employees in CAF.
[66]
The evidence indicates that the Applicant initially had no problems
with a target system. When Buitenhuis first told her about
it, she
did not indicate that she had a problem with same. This is supported
by the fact that she signed with no problem her June
2011 PD contract
which included a target of R50million per month. The Applicant also
stated in her November 2011 year-end review
that “production
targets for the year has been met and exceeded…”
At the end of 2011, she exceeded her
target by 167% and received a
7.5% increase together with a performance bonus. It was only in 2012,
after she received a subjectively
poor rating (B+ and no A) that she
began resisting an assessment based on targets. For 2012, Buitenhuis
asked the Applicant on
numerous occasions to submit a draft PD plan –
basically her input on her PD plan and what she wanted to be measured
on.
She only submitted same after she was given a written warning for
failing to follow an instruction.
[67]
The probabilities favour Buitenhuis’ version that he explained
to the Applicant how the targets were arrived at. It is
improbable
that Buitenhis did not do so, considering, on the Applicant’s
own version, they discussed the matter on a number
of occasions, and,
at the arbitration both Buitenhuis and Baloyi tendered simple and
similar explanations on how the targets were
arrived at. In essence
an attempt was made to project the size of the book by having regard
to what had been achieved in the past,
the markets and the growth
figures determined by the group. Year on year one would expect
improvement on the previous years.
[68]
Absa’s version that the targets were not
set in stone and were open to negotiation with the employee is
supported by a number
of factors:
(i)
The employees had to submit a draft PD plan and
then engage with their line manager regarding same.
(ii)
That Buitenhuis was prepared to negotiate is
evidenced by the fact that following objections from the Applicant,
he reduced the
proposed 2012 targets from R55M to R50M.
(iii)
In December 2012, the Head of CAF, Baloyi offered
to assist the Applicant in
formulating
her
2013 PD contract (which offer the Applicant spurned). Baloyi
testified that the meeting would have addressed the negotiation
of
monthly targets in light of any submissions made by the Applicant
regarding special departmental circumstances.
The
record of the meeting held on 31 January 2013 further illustrates
that the targets were open to discussion and negotiation.
In the
meeting Baloyi asked the Applicant why she had resigned when Baloyi
had offered to assist her with drafting a budget and
PD plan with
reference to, among other things, “role clarification”
and “regional interaction”. The Applicant
answered that
her 2013 budget was already done by Buitenhuis and that the Mentis
team would have to reach a production level of
R650M (the applicant
originally claimed in her evidence that it was increased to R700M).
Buitenhuis, however, pointed out to her
that the Mentis team (the
Applicant’s team) had met and drafted the 2013 budget
themselves. A meeting with him to discuss
and finalise the Mentis
budget had been set for 22 January 2013. The Applicant did not pitch
for any of the meetings, and instead
submitted her resignation on 22
January 2013.
[69]
The Commissioner correctly found that, although the targets were open
to discussion, the Applicant was simply not prepared
to cooperate –
that is sit down and negotiate her targets – because she
resented the imposition of targets. The evidence
was that she often
did not respond to Buitenhuis’’s emails on the subject
and when Buitenhuis asked her to come up
with draft PD plans, and
hence suggested targets, she did not respond.
[70]
Buitenhuis explained why the Applicant’s targets were higher
than the CAF marketers’ targets. The Applicant worked
with a
team – she had the benefit of two assistants to generate income
as opposed to a single marketer – and her team
only became
involved in large transactions exceeding R3million.
[71]
The Applicant conceded that the other members of her team signed
their PD plans and had lodged no complaints about the targets
that
had been set for the team. Baloyi testified that since the
Applicant’s departure, the annual targets set for the Mentis
team were met and exceeded.
[72]
Buitenhuis’s credentials demonstrated that, contrary to the
Applicant’s claims, he was an experienced banker.
[73]
Buitenhuis was aware that some transactions on the Mentis system may
take long to conclude and only reflect as income in the
future. He
explained that is why the Applicant was not assessed on a monthly,
but on a 6-month and yearly basis. The focus was
on the final
assessment at the end of the year. Applicant was not expected to make
R50m per month. He expected monthly fluctuations.
The Applicant
received a C – rating in July 2011, but a good rating (B +) at
the end of 2011
for the year 2011.
She exceeded the yearly
target by 167% but explained that her department worked on a
pipeline, meaning that some transactions which
they had worked on for
a long time may only reflect as income in the future.
[74]
The Applicant agreed that Buitenhuis had discussed with her ways to
achieve targets. He advised her to go out and actively
market the
capabilities of the Mentis System to CAF marketers, business
development officers and other business divisions of the
bank,
through roadshows. He also advised her to review the time she spent
on transactions. In his view, an experienced employee
like the
Applicant and one who worked smartly would not take 18 to 24 months
to complete even complicated transactions and should
be able to
assess in a reasonable time period the viability of a client.
[75]
There is no evidence to the effect that the Applicant seriously
followed Buitenhuis’ advice, and despite same, she was
not able
to meet her targets or a reasonable proportion thereof.
[76]
Buitenhuis indicated that if the Applicant had shown that she had
followed his advice, he would have taken that into account
in his
ratings and the negotiation of targets.
[77]
The Applicant’s rating at the end of 2011 indicated that the
targets were reasonably within reach. The Applicant got
a C –
rating in July 2011, but redeemed this with a good rating (B +) at
the end of 2011
for the year 2011.
At the end of 2011, the
Applicant exceeded the yearly target by 167%.
Absa
dealt reasonably with the Applicant’s grievance
[78]
The Commissioner correctly found that Absa took
all reasonable steps to address the Applicant’s cause of
complaint, despite
the fact that there was no substance to the
complaint.
[79]
In this respect Absa appointed a panel, which
included an accredited decision-maker at Absa with more than 10
years’ experience
in the bank, to entertain the Applicant’s
grievance, and in light of my findings above, it is not correct that
the panel
failed to appreciate her grievance.
[80]
Furthermore, the Applicant spurned an offer of assistance made by
Baloyi in December 2012 to assist her in formulating her
2013 PD
contract. Baloyi testified that the meeting would have addressed the
negotiation of monthly targets in light of any submissions
made by
the Applicant regarding special departmental circumstances. Baloyi
further testified that she was shocked when the Applicant
submitted
her resignation in light of the fact that she had offered to assist
the Applicant in negotiating her targets.
[81]
Although it makes no difference to my ultimate finding, I find for
the sake of completeness that I reject Absa’s submission
that
if the Applicant was dissatisfied with the outcome of the grievance
hearing, she ought to have launched an unfair labour practice
dispute
in the CCMA before resorting to a constructive dismissal dispute. The
Applicant’s grievance did not concern unfair
conduct relating
to a promotion, demotion or provision of benefits and there is no
requirement in law that a dispute should first
be referred to an
external body such as the CCMA before a claim for constructive
dismissal can succeed.
No
unfair disciplinary action
[82]
The disciplinary action taken against the Applicant was not unfair.
It is common cause that at the beginning of 2012, Buitenhuis
requested all of the members of his team to provide him with draft PD
plans, and that despite numerous requests from Buitenhus
in this
regard, the Applicant failed to deliver her PD plan. She only
delivered it after she received written warning.
[83]
As indicted above, the plan was open to negotiation and discussion so
there was no good reason to refuse to deliver one.
[84]
The written warning also related to a charge that the Applicant
failed to properly capture leave. The evidence demonstrated
that the
finding of the panel in this regard was consistent with the bank’s
leave policy.
No
unfair refusal of leave
[85]
Absa demonstrated that at all material times
Buitenhuis had acted in terms of Absa’s leave policy and on a
number of occasions
had accommodated the Applicant’s leave
requests despite her giving him short notice. Buitenhuis explained in
one instance
Absa had given an undertaking to a client that they will
have the client’s facility up and running by a particular date.
He told the Applicant, who had given him short notice, that she must
get the facility in place and after that she can take leave.
Position
with Slabbert
[86]
The Applicant alleged that after her last
grievance in which she requested an alternative position, Buitenhuis
offered her a position
with Slabbert but later told her (in a meeting
on 22 November 2012) that she had to follow the standard recruitment
process. By
that time, the applications for vacant positons in
Slabbert’s department had closed.
[87]
Buitenhuis testified that this was not an
unconditional offer. It was subject to the approval of Baloyi. Baloyi
testified that HR
informed them that they were not permitted to
create a position which did not exist and if the Applicant wanted to
apply for a
new position she had to follow the normal application
process. This is in line with Absa’s internal mobility policy.
This
policy specifically states that all positions should be formally
applied for to be considered.
[88]
The emails the Applicant referred to suggest that
Buitenhuis did advance an unconditional offer to transfer the
Applicant to Slabbert’s
department. However, he thereafter
found out that Absa’s recruitment policy did not permit such an
offer.
[89]
This finding, however, does not assist the
Applicant.
[90]
Buitenhuis could not be held to something he was
not permitted to do and the application which had purportedly closed
did not relate
to the position Buitenhuis had offered her.
[91]
Slabbert’s team were also measured in terms
of production targets. Thus, the primary factor which allegedly gave
rise to the
Applicant’s constructive dismissal would not have
vanished by virtue of her being deployed into Slabbert’s team.
Reasonable
alternatives to resignation
[92]
In light of the Head of CAF’s (Baloyi’s) offer to assist
the Applicant (discussed earlier on), it is not certain
that the
Applicant’s situation, which she perceived as “intolerable”,
would have remained “intolerable”.
[93]
On the Applicant’s own version, she wanted
an alternative positon within Absa. Baloyi testified that Absa is a
huge organisation
and internally advertises vacancies on its
intranet. The record of the November 2012 meeting reflects that the
Applicant was advised
that if she wished to apply for an alternative
position, her management would s
upport her in
the process.
[94]
The Applicant however responded that she intended
to stay in her positon and refer a dispute to the CCMA.
[95]
The Applicant stated that she did not apply for
any other positons because she would have been blocked by the system
because of
her two C-ratings and she expected a D-rating at the end
of December 2012. She, however, failed to substantiate this claim.
[96]
The Applicant redeemed her first C – rating
at the end of 2011 with a good rating for which she received an
increase and bonus.
Baloyi testified that there is no policy which
provides that an employee could not be appointed to a position
because of a C or
D rating. Vlok testified that although poor ratings
could impact on an individual’s prospects of success, the
system did
not block an individual from applying for a post. In my
view, it also stands to reason that an employee with many years of
experience
and positive support from her line management could also
impact on the employee’s prospects of success. In this case,
the
Applicant’s management categorically offered to provide
this support, but she chose to spurn same and lodge a constructive
dismissal dispute.
[97]
There was no evidence that the Applicant’s job was in jeopardy.
The Applicant’s fear in this respect was irrational.
Even if
she did not perform she would have had to be placed on performance
counselling and sessions to improve in terms of Absa’s
policies. Baloyi testified that the Applicant was a valued and good
employee and was requested to change her mind when she submitted
her
resignation.
[98]
In all the circumstances above, resignation was
manifestly unreasonable.
Order
[99]
In the premises, I make the following order:
1.
The review application is dismissed with no order
as to costs.
_____________________________
Benita Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
R Grundlingh
Instructed
by:
Nothnagel Attorneys
For the Third Respondent:
F A Boda SC
Instructed
by:
Norton Rose Fulbright South Africa
[1]
Issued on 16 April 2014 under Case number GAJB5570-13
[2]
Solid Doors (Pty) Ltd v Theron NO and Others
(2004) 25 ILJ 2337 (LAC);
Conti
Print CC v CCMA and Others
(2015) 36
ILJ 2245 (LAC)
[3]
(1997) 18 ILJ 981 (LAC) at 984E -
F
[4]
(2009) 30 ILJ 1526 (CC) at para
[4]
[5]
Experian Regent Insurance Co Ltd v
CCMA & Others (2013) 34 ILJ 410 (LC) at para [47]
[6]
(2015) 36 ILJ 2259 (LAC) at para
[30]
[7]
Pretoria Society for the Care of
the Retarded v Loots (1997) 18 ILJ 981 (LAC) at 985A - C
[8]
Jordaan v CCMA & Others (2010)
31 ILJ 2331 (LAC) at 2335
[9]
Jonker v Amalgamated Beverages
Industries (1993) 14 ILJ 199 (IC) at 211
[10]
Jooste v Transnet Ltd t/a SA
Airways (1995) 16 ILJ 629 (LAC)
[11]
At 109
[12]
SmithKline Beechman (Pty) Ltd v CCMA & Others
(2000) 21
ILJ 98 (LC)
[13]
Hickman v Tsatsimpe N.O.
[2012]
5 BLLR 493 (LC)
[14]
[2009] 9 BLLR 847
(CC)
[15]
At para [4]
[16]
[2013] JOL 30442 (LC)
[17]
At paras 129 and 130
[18]
I
n the past she had mostly received A
– rating
[19]
I
n a meeting on 31 January 2013 she said it had
increased to R650M.
[20]
(2008) 29 ILJ 356 (LC) at para
[12]
[21]
Apollo Tyres South Africa v NUMSA
[2012] 6 BLLR 544 (LC)
[22]
Mauchle (Pty) Ltd t/a Precision Tools v NUMSA
and Others
(1995) 16 ILJ 349 (LAC);
Motor Industry Staff Association v
Silverton Spray Painters & Panelbeaters
(LAC) Case No JA5/2011