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[2018] ZALCJHB 61
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Manzini v South African Local Government Bargaining Council and Others (JR15/15) [2018] ZALCJHB 61 (16 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR15/15
In
the matter between:
MPENDULO
MORRIS MANZINI
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
First Respondent
COMMISSIONER JOSEPH
MPHAPHULI
Second Respondent
CITY OF
JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Third Respondent
Heard:
29
June 2017
Delivered:
16
February 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this
application, the applicant seeks an order reviewing and setting aside
the arbitration award issued by the third respondent
(Commissioner)
under case number JMD121304. In the alternative, he seeks that the
matter be remitted back to the first respondent
(SALGBC) to be heard
afresh by another Commissioner.
[2]
In his
award, the Commissioner found that the applicant had not discharged
the burden placed on him to prove that he was dismissed
for the
purposes of a constructive dismissal claim.
[3]
Two
preliminary points raised on behalf of the third respondent
(Municipality) in opposing the application were abandoned at the
hearing of the matter.
Background:
[4]
The
applicant was employed with effect from 1985. As at the last day of
his employment on 22 March 2013, he was employed
as a Human
Resources Officer. Having resigned from his position for reasons that
will be elaborated upon further in this judgment,
he had then
referred a dispute to the SALGBC and alleged that his resignation
amounted to a constructive dismissal. He sought reinstatement
or
compensation. Attempts at conciliation having failed, the dispute was
referred for arbitration and came before the Commissioner.
The arbitration
proceedings:
[5]
The
applicant’s case is essentially that he had resigned from his
position as a result of unfair treatment by the Municipality.
In this
regard, he testified that;
a)
The unfair
treatment had commenced as soon as he took a position in the HR
Department of the Municipality. He alleged that three
directors in
the Department,
viz
,
Zardad, Kajee and Jones appeared to be displeased with the fact that
he had joined them and had even suggested to him that he
should leave
and join the Labour Relations Department;
b)
At some
point he had moved to the Labour Relations Department after threats
of a disciplinary action were made against him if he
did not take up
a position in that department. Having joined this department, he was
nonetheless remunerated at a rate of an HR
Officer. When his concerns
with his rate of remuneration were not resolved, he then opted to go
back to the HR Department in or
about 2008/2009, where he became
responsible for Training and Development;
c)
Between
1985 and his date of resignation, he was never considered for any
promotion or afforded opportunities to grow, and had accordingly
lodged numerous grievances in that regard. He contended that he had
not received any responses from the Municipality;
d)
In 2012 he
had lodged another grievance pertaining to his request for a transfer
to another department and lack of opportunities
for growth. The
grievance hearing was held on 25 February 2013. The outcome
thereof of was that a personal development
plan was to be initiated
by his supervisor, and that prospects of a transfer to another
department were to be considered. He alleged
however that his
immediate supervisor failed to facilitate the transfer;
e)
Whilst
waiting for the implementation of the grievance outcome, he was then
informed of intended disciplinary steps against him.
At the time, his
health had deteriorated and he had received medical treatment for
work related stress. He had resigned after being
informed of intended
disciplinary steps against him;
[6]
Doctor
Hendritta Pieters testified that the applicant’s resignation
was precipitated by a variety of factors including various
ailments
such as hypertension, insomnia and severe headaches, which she had
attributed to his stressful working environment. She
had further
testified that the resignation was involuntary and that the applicant
was not in full control of his mental faculties
when he resigned.
[7]
Mrs Lenco
Mabuse’s testimony on behalf of the Municipality was
essentially that she was the applicant’s superior. Over
time,
she had observed that her working relationship with him had
deteriorated. This was mainly as a consequence of him being in
the
habit of refusing to obey her instructions. She had further observed
that the applicant’s work had suffered and when
she took up the
matter with him, his response was that he did not find his job
challenging. Aligned to that was the applicant’s
complaints
that management was not attending to his grievances in relation to
his growth and salary.
[8]
Mabuse
confirmed that a grievance hearing was scheduled and it was resolved
that she was to develop a personal development plan
for the
applicant, something the latter had rejected as he wanted to leave
the department. She further complained that the applicant
frustrated
her attempts in assisting him to find solutions to his grievances.
[9]
At the time
that the applicant resigned from his position, Mabuse was on leave.
Upon her return and after hearing of his resignation,
she had
contacted him with the intention of talking him out of his decision
to resign. Her attempts in that regard failed as the
applicant was
resolute in his decision.
[10]
Other
witnesses called on behalf of the Municipality were Eric Mafuyeka,
the applicant’s line manager, who had testified in
relation to
his fractured employment relationship and the fact that he had had
refused to obey his instruction. Mafuyeka also testified
in regard to
his attempts to facilitate the applicant’s transfer to another
department, and further attempts to address his
concerns regarding
lack of developmental growth opportunities.
[11]
Another
witness, Mr Dlamini, the Deputy Director of Labour Relations,
testified in regard to the applicant’s request for a
transfer
to his department, but that such a transfer could not be facilitated
due to the demands made by the applicant.
The award:
[12]
The
Commissioner summarised the applicant’s case and reasons for
his resignation, which were on his version, the Municipality’s
unrelenting unfair conduct which manifested itself in the form of its
lack of appreciation of his hard work; its refusal to allow
him
opportunities for growth in the organisation and to grant him a
transfer from one department to another, and its intentions
to
institute disciplinary proceedings against him. On the applicant’s
version and as further attested to by Dr. Pieters,
these factors had
led to a mental breakdown and other ailments, forcing him to resign.
[13]
The
Commissioner established that it was not in dispute that prior to his
resignation, the applicant had filed grievances, and that
he had
resigned at a time when his request for a transfer was receiving
attention, and when disciplinary steps were being contemplated
against him. Medical reports referred to by Dr Pieters also
demonstrated that during consultations, the applicant had expressed
his frustrations at the lack of resolution in regard to issues of
concern to him.
[14]
The
Commissioner had however observed that the medical report relied upon
by Dr Pieters was in fact issued some four months after
the
resignation of the applicant. He further established that the issues
that had led to the resignation were those already referred
to above,
but that the Municipality had made attempts to address them following
the grievance hearing. Those attempts had however
failed either due
to the applicant rejecting any suggestions in that regard, or having
resigned before any steps could be taken.
[15]
The
Commissioner also had regard to the applicant’s letter of
resignation and concluded that it did not send any signal of
distress, and that the letter was in fact complimentary of the
Municipality, giving an impression that he had left under peaceful
circumstances. In the end, the Commissioner concluded that the
applicant had not made out a case for constructive dismissal.
The grounds of review:
[16]
The
applicant’s grounds of review are that;
a)
The
Commissioner despite having acknowledged that he was treated unfairly
at all times committed misconduct when he found that he
was
nonetheless the orchestrator of his exit, and that the exit was not
influenced by the Municipality’s alleged unfair conduct.
b)
The
Commissioner failed to consider that the Municipality made working
conditions intolerable for him, as evident from the lodging
of
various grievances. Further unfair treatment flowed from the outcome
of the grievance hearing when the Municipality instead
of
implementing the outcome of the hearing, instituted disciplinary
proceedings against him. This had led to his experiencing stress
and
depression.
c)
The
Commissioner committed an irregularity by finding that Dr. Pieters’
report could not be considered as it was not relevant
since it was
compiled after his resignation. This was in circumstances where Dr
Pieters was his regular doctor with whom he had
consulted over a long
period. Furthermore, in the absence of contradictory medical
evidence, there was no basis for the Commissioner
to reject Dr.
Pieters’ evidence
The review test and
applicable principles:
[17]
The dispute
before the Commissioner was whether the applicant’s resignation
was a dismissal within the meaning of Section
186(1)(e)
[1]
of the Labour Relations Act (LRA).
[2]
The onus of establishing a dismissal was upon the applicant as
contemplated in section 192 of the LRA
[3]
.
This implies is that if he failed to pass that first hurdle, that
would have been the end of the matter.
[18]
The test
for establishing constructive dismissal is well known. It is an
objective test involving a value judgment in terms of which
the
enquiry is whether the conduct of the employer has rendered the
continued employment objectively intolerable.
[19]
Thus, the
issue is whether the employer’s conduct was of such a nature
that the employee could not reasonably be expected
to sustain the
employment relationship
[4]
. In
essence, it is required of the applicant to show that: -
a)
He
terminated the employment relationship.
b)
The
termination of his employment was as a result of the Municipality
having made continued employment intolerable
[5]
.
c)
The
conditions or events of which he complained were the main cause of
his decision to terminate the relationship;
d)
The
Municipality’s conduct brought about the situation that made
his continued employment intolerable;
[20]
The test is
a two-stage one. Thus, if the applicant succeeds in showing that his
resignation amounted to a constructive dismissal,
it remains for the
Municipality to show that the dismissal was not unfair.
[21]
The issue
of a dismissal being paramount and a jurisdictional one
[6]
,
the test on review in such cases is not that of a reasonable decision
maker as enunciated in
Sidumo
[7]
.
The test to be applied is whether
the
Commissioner was right or wrong and not whether the conclusion
reached by him was one that a reasonable decision maker could
not
reach. Thus, it has to be determined whether the
Commissioner
correctly found that the applicant was not dismissed. This principle
was reinforced in
Enforce
Security Group v Fikile and Others
[8]
,
where the Labour Appeal Court held that;
‘
The question whether there has
been a dismissal goes to the jurisdiction of the CCMA and the Labour
Court to entertain the parties’
dispute. A finding that there
was no dismissal means that the CCMA and subsequently the Labour
Court did not have jurisdiction
to entertain the dispute. Such a
finding as a matter of fact, has to be a correct finding. It cannot
be a finding that falls within
a band of reasonable findings since
there can only be one correct finding.’
Evaluation:
[22]
The
starting point is that it was not in dispute that the applicant had
indeed handed in his written resignation letter on 20 March 2013.
The letter read as follows;
“
Kindly note that I am
handing in my resignation letter. I am resigning with immediate
effect and I thank you all for the opportunity
that was given to me
to work in your organisation. I hope you will find this in order
”
[23]
The
Municipality’s contentions in the light of the contents of the
resignation letter was that the Commissioner was correct
in his
conclusions that the termination of the employment relationship was
voluntary, and that the letter was complimentary and
had displayed an
expression of genuine gratitude.
[24]
I share the
view that the contents of the letter clearly do not show any
discontentment or animosity towards the Municipality. There
is no
indication in the letter as to what could have triggered the
resignation. I do not however share the view that much should
be read
into the contents of the letter, even though this is obviously a
factor to be taken into account. This is so in that it
is more the
nature of the alleged conduct complained of that is determinative of
whether a constructive dismissal has been established.
[25]
The issue
of whether the Municipality made continued employment intolerable is
assessed on an objective level, and the enquiry is
what it is in the
employer’s conduct that can be said to have made continued
employment intolerable.
[26]
As
correctly summarised by the Commissioner, three main issues aggrieved
the applicant,
viz
,
the alleged lack of opportunities for growth; the alleged refusal by
the Municipality to transfer him to another department; and
the
institution of a disciplinary process against him on account of
alleged misconduct pertaining to a refusal to obey instructions.
[27]
Prior to
dealing with the question of whether there was anything in the
Municipality’s conduct that made continued employment
intolerable, there are some worrisome factors in this case which were
also pointed out by the Municipality in its submissions that
also
needs to be highlighted.
[28]
The first
is that the final grievance hearing was held on 5 Marc
2013 after which two options were to be looked at in
addressing the
concerns raised by the applicant. On the same date that the grievance
hearing was concluded, he had referred an
unfair labour practice
dispute to the SALGBC. In his referral, he had again complained about
lack of opportunities for growth and
desire to be transferred to
another unit. He however did not pursue that dispute despite the
matter having been set-down by the
SALGBC.
[29]
The test
applicable in constructive dismissal cases is whether there were
available alternatives other than a resignation. This
point was long
made in
Kruger
v Commission for Conciliation, Mediation and Arbitration and
Another
[9]
.
In my view, to the extent that the applicant was of the view that his
grievances were not being addressed internally, and further
to the
extent that he deemed it not necessary to pursue that dispute at the
SALGBC prior to his resignation, the Municipality is
correct in
questioning his motivations for his belated claim of a constructive
dismissal. The explanation proffered by Dr Pieters
as to the reason
that the applicant had not pursued the alleged unfair labour practice
dispute prior to resigning,
i.e.
that he ‘could not handle the pressure’, is feeble in the
extreme.
[30]
Aligned to
the above is that the applicant handed in his written resignation on
20 March 2013, but had only referred a
dispute to the
SALGBC on 23 October 2013, some seven months later. In
support for his application for condonation before
the SALGBC which
was unopposed, the applicant had relied upon a medical report
compiled by Doctor Pieters, in which the latter
stated that he
suffered from some ailments due to work related stress. Amongst the
factors contributing to that condition were
the applicant’s
alleged frustrations with the Municipality’s lack of resolution
of the issues he had complained about.
[31]
Significant
with the above is the applicant only approached Doctor Pieters for
consultations on 25 July 2013, some four
months after his
resignation and merely for her to assist him in compiling a report
for the purposes of lodging a claim against
the Municipality. Even if
there was an iota of truth in the allegation that the alleged failure
by the Municipality to address
his grievances led to his alleged
ailment, it is important to point out that as at the time that he
resigned, the medical report
he had relied upon and the alleged
medical conditions he had suffered from, were factors unknown to the
Municipality.
[32]
To come
back to the issues that are said to have aggrieved the applicant and
that allegedly led to his working environment being
intolerable, it
was common cause that the applicant had lodged various grievances and
had complained about a variety of issues
at the workplace since he
joined the Municipality. For the purposes of this application
however, what is relevant is the outcome
of the last grievance
hearing held on 25 February 2013.
[33]
Arising
from that hearing and its outcome on 5 March 2013, a
solution was for the applicant’s immediate supervisor
to
initiate a personal development plan for him with the objective of
addressing concerns surrounding the alleged lack of opportunities
for
growth. At that stage, the applicant appeared to be only interested
in a transfer to another department, but was nonetheless
not averse
to the suggestion of a personal development plan. In the same token
however, and as submitted on his behalf in these
proceedings, he had
no interest in the plan as he intended to leave the department. He
was more interested in a transfer, and the
Municipality did not
appear to be averse to facilitating a transfer to another department
as attested to by Dlamini and Mafuyeka.
[34]
Upon the
outcome of the grievance hearing, and prior to its implementation of,
charges of misconduct were laid against the applicant,
which on his
version aggravated whatever condition had afflicted him, causing him
to resign. As I understood the applicant’s
case, and since he
was to a large extent satisfied with the outcome of the grievance
hearing, the Municipality was not under the
circumstances, entitled
to prefer charges of misconduct against him.
[35]
Clearly
there is a difficulty with the applicant’s approach. The first
is that the mere that an employee has laid a grievance
cannot by all
accounts, imply that an employer is not entitled to institute
disciplinary proceedings against that employee. Of
course, there
would be a problem if the disciplinary measures are taken in
retaliation for the lodging of a grievance
[10]
.
This however was not the applicant’s case.
[36]
A second
difficulty is that it is trite that an employee who has an option of
facing a disciplinary enquiry cannot simply resign
and claim
constructive dismissal
[11]
.
This is so in that discipline is a management prerogative, and it is
for the employer to prove the charges preferred against an
employee.
[37]
When an
employee resigns in the face of a disciplinary hearing, the
invariable conclusion to be reached is that indeed the employee
had a
case to answer, and which he or she was not prepared to do. There is
therefore no basis for a conclusion to be reached in
this case that
the disciplinary measures taken immediately after the grievance
hearing was concluded made the applicant’s
working conditions
intolerable. It appears that the applicant was not prepared to go
through a disciplinary process, and had instead
opted to resign. A
resignation under these circumstances cannot amount to a constructive
dismissal.
[38]
In regard
to the grievances surrounding the alleged lack of opportunities for
growth or the alleged failure by the Municipality
to consider the
applicant’s request for a transfer, it has already been stated
that the applicant had no interest in the
personal development plan
the Municipality had intended for him. This is further confirmed by
the applicant having referred an
alleged unfair labour practice
dispute on 5 March 2013 immediately after the grievance hearing, in
which his dispute centred around
the failure of the Municipality to
transfer him.
[39]
From the
above developments, the only conclusions to be reached are that the
applicant snubbed the Municipality’s attempts
at resolving his
grievances surrounding the alleged failure to afford him
opportunities for growth through its intended development
plan for
him. In regard to the issue of a transfer, Mafuyeka’s testimony
was that the applicant had made certain demands
attached to the
transfer. These included an increase in his remuneration, or choosing
individuals he wanted to work with in another
department. Other than
these demands, the applicant appeared to have sought an immediate
transfer which was something not possible
to achieve in view of the
internal workings of the Municipality.
[40]
In the end
though, it is apparent that the applicant elected to resign in
circumstances where he had conducted himself unreasonably
in seeking
a transfer, and where the Municipality was not even afforded an
opportunity to fully explore the possibility of a transfer
in the
light of his demands.
[41]
It is trite
that a claim of constructive dismissal would be unsustainable in
circumstances where flowing from a grievance hearing
and outcomes, an
employee resigns prior to those outcomes being implemented in order
to address the source of the grievance. In
this case, the applicant’s
conduct of resigning in circumstances where he had rebuffed efforts
to address his grievance or
failed to afford the employer an
opportunity to implement grievance hearing outcomes in order to
address his grievances, cannot
lead to a conclusion that the
Municipality’s conduct had made working conditions intolerable
for him. Added is the conclusion
that the applicant clearly resigned
in the face of the impending disciplinary hearing.
[42]
To conclude
then,
there
is no basis for a conclusion to be reached that at the time of the
termination of the employment relationship, the applicant
was under
any impression that the Municipality had behaved in a manner that
rendered the relationship intolerable. Furthermore,
the circumstances
that led to the applicant’s resignation were not brought about
by the Municipality through any conduct.
Instead, to the extent that
the applicant may have had legitimate grievances, those were attended
to and were to be resolved, had
the applicant not acted precipitously
by resigning.
[43]
Upon
an objective assessment of the factors relied upon by the applicant
as having contributed to the alleged intolerability, and
further
having assessed the Municipality’s conduct as a whole, I am
satisfied that the Commissioner came to the correct conclusion
when
he found that the applicant had not discharged the onus placed on him
to prove that he was dismissed, or that his resignation
amounted to a
constructive dismissal.
[44]
In regard
to costs, it was submitted on behalf of the Municipality that costs
were warranted in this case where the applicant had
simply resigned
in order to avoid a disciplinary hearing. Other than this factor, I
am satisfied that on the facts, the referral
to the SALGBC was
clearly an afterthought, and this review application was equally
clearly ill-conceived. In these circumstances,
it is my view that the
requirements of law and fairness dictate that the applicant should be
burdened with the costs of this application.
Order:
[45]
In the
premises, the following order is made;
1.
The
application for a review of the Second Respondent’s arbitration
award dated 7 November 2014 is dismissed with
costs.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr N Kubayi of Noveni Eddy Kubayi INC
On
behalf of the Third Respondent:
Adv. W. Hutchinson
Instructed
by:
Moodie & Robertson
[1]
“
Section 186:
Meaning
of dismissal and unfair labour practice
“
(1)
‘
Dismissal’
means that:
(a)
…
(b)
…
(c)
…
(d)
…
(e)
an employee terminated a contract of employment with or without
notice because the employer
made continued employment intolerable
for the employee.
[2]
Act 66 of 1995, as amended
[3]
Which provides
that;
"(1)
In any proceedings concerning any dismissal, the employee must
establish the existence
of the dismissal.
(2)
If the existence of the
dismissal is established, the employer must prove that the dismissal
is fair."
[4]
Smithklein Beecham (PTY) LTD v
CCMA & Others
(2000)
21 ILJ 988 (LC).
[5]
Strategic Liquor Services v Mvumbi
N O and Others
(2009) 30
ILJ 1526 (CC) at para 4.
[6]
See
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others (2008) 29 ILJ 2218
(LAC)
At paras [39] –
[41].
[7]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC)
[8]
(2017) 38 ILJ 1041 (LAC);
[2017] 8
BLLR 745
(LAC)
at para 16.
See also
Johnson v Rajah NO
and Others (JR33/15) (
delivered
on 26 January 2017)
[9]
(2002) 23 ILJ 2069 (LC),
(2002) 11
BLLR 1081
(LC
)
at
para 14
[10]
See
Jabari
v Telkom SA (Pty) Ltd 5 (2006) 27 ILJ 1854 (LC); De Klerk v Cape
Union Mart International (Pty) Ltd (2012) 33 ILJ 2887
(LC)
[11]
See
Old
Mutual Group Schemes v Dreyer & Another (1999) 20 ILJ 2030 (LAC)
para 18