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[2018] ZALCJHB 211
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Billion Group (Pty) Ltd v Ntshangase and Others (JR1449/2017) [2018] ZALCJHB 211; (2018) 39 ILJ 2516 (LC) (20 June 2018)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
no: JR 1449/2017
In
the matter between:
BILLION
GROUP (PTY) LTD
Applicant
and
LONDIZWI
NTSHANGASE
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
SILAS
RAMUSHAWANA (
N.O.
)
Third
Respondent
Heard
:
5 and 7 June 2018
Delivered
:
20 June 2018
Summary:
(review-constructive dismissal-objective test-and- dissatisfaction
with the employee’s performance addressed by a verbal
warning
and discussion and not by a disciplinary hearing followed by
dismissal as originally anticipated or intended - disciplinary
and
corrective measures actually adopted not a sham-employee
acknowledging clear option of continuing to work but working harder
or of working hard while looking for alternative employment-continued
sense of foreboding about continued employment prospects
insufficient
to justify a resignation, in light of an acknowledged choice of
alternatives going forward and absence of pressure
from employer to
compel employee to resign – resignation on notice a factor but
not a decisive consideration in constructive
dismissal)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an application to review an arbitration award in which the
arbitrator found that the third respondent had successfully
established that he had been constructively dismissed and awarded him
five months’ salary as compensation. There is also
an unopposed
condonation application.
[2]
The first respondent, Mr L Ntshangase (‘Ntshangase’) did
not file opposing papers. On the first day the matter was
set down,
it could not proceed because the record had been mislaid. Ntshangase
appeared at that hearing and was asked if he wished
to oppose the
application but indicated that he was merely there to hear what
happened in court. At the postponed hearing, two
days later
Ntshangase said he did wish to oppose the application. After it was
explained that a cost award might have to be considered
if the matter
was postponed to yet another date in order for an answering affidavit
and condonation application to be filed, Ntshangase
chose to make
representations on the applicant’s papers and was also given an
opportunity to file heads of argument by 12
June 2016. Instead of
filing heads of argument, Ntshangase filed a ‘responding
affidavit’.
[3]
Since these are review proceedings, and the record the court
considers is the record before the arbitrator, whereas the affidavits
filed by the parties are generally more important in asessing the
grounds of review, unless they deal with issues which were not
on
record in the arbitration, Ntshangase’s responding affidavit
has been treated as the written submissions, which he was
given leave
to file.
Condonation
application
[4]
The applicant has applied for condonation for the late filing of
notices under rule 7A 6 and rule 7A (8) of the Labour Court
rules.
The filing was delayed by about a month because of the need to
reconstruct the incomplete record filed by the CCMA and by
the annual
shutdown of the applicant’s attorneys’ offices. The delay
is not inconsiderable, but the explanation is
a reasonable one and in
the absence of any opposition on this issue there is no evidence of
any material prejudice suffered by
the first respondent, apart from
the obvious one of delaying the relief he obtained in the award
slightly longer. In any event,
the larger part of that delay is owing
to the time taken for the review application to be enrolled.
The award
[5]
The arbitrator found that the main reason why Ntshangase felt the
applicant had made continued employment intolerable was that
his
supervisor had indicated in an email to other management staff that
when he returned from the leave, he should be suspended,
and afforded
a disciplinary hearing with a view to his dismissal. The chairperson
of the company had indicated that it was long
overdue in a replying
email. Further, the arbitrator found that when Ntshangase raised a
serious concern about these emails and
attended a meeting on 19
September which he had requested, his grievance about the letter was
not addressed. Instead his work performance
was questioned and it was
suggested that he should work hard while looking for another job.
[6]
The arbitrator found that the supposed justification for the email
suggesting that steps will be put in place with a view to
dismissing
him, was only done because it was realised that he wanted to resign,
was absurd.
[7]
In addition, the arbitrator found that the failure to attend to
Ntshangase’s grievance only reinforced the impression
that the
applicant was intent on getting rid of him.
[8]
The arbitrator did not separately consider the question of the
fairness of the dismissal but clearly was of the view that the
applicant had continued to create an intolerable situation for the
Ntshangase by not allaying his concerns about the content of
the
email but rather reinforced his expectation that his employment would
be terminated.
Grounds
of review
[9]
The essential grounds of review are that -
9.1 If the arbitrator
considered certain evidence he would not have been able to justify
his conclusion that the third respondent’s
resignation was not
voluntary. The evidence it identifies in this regard is that:
9.1.1
despite the ominous content of the email of five September indicating
that disciplinary action would be taken against him
with a view to
dismissing Ntshangase, by 12 September no steps in anticipation of
disciplinary action had been taken;
9.1.2
at the meeting of 19 September Ntshangase was given two options of
either changing the way he worked or of looking for alternative
work;
9.1.3
Ntshangase conceded in evidence that he had agreed at the meeting
that he would notify the applicant whether he wanted to
resign or
whether he would stay; and
9.1.4
the arbitrator did not take account of the fact that Ntshangase’s
own email of the same date confirmed the existence
of two options.
[10]
The applicant contends that the arbitrator failed to give any weight
to the meeting held on 30 September, which took place
after the third
respondent had expressed his view that he had felt compelled to hand
in his resignation on 27 September. The applicant
submits that
evidence of that meeting shows that it tried to persuade Ntshangase
to reconsider his resignation. It submits that
further support for
the contention that the arbitrator ignored what transpired at that
meeting can be seen in content of Ntshangase’s
email of 4
October. In that email, Ntshangase confirmed his resignation as per
his letter and its acceptance by the applicant with
his last working
day being 31
st
October.
Legal principles
[11]
Before
evaluating the grounds of review, it is worthwhile to reiterate the
high threshold which an employee, who claims constructive
dismissal,
must meet. In
Solid
Doors (Pty) Ltd v Commissioner Theron & others
[1]
,
the Labour Appeal Court repeated the basic requirements for proving
constructive dismissal as well as describing the nature of
a review
of an arbitration award which concerns a constructive dismissal:
[27] ln CEPPAWU &
another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC);
[2002] 5 BLLR 399
(LAC) this court had occasion to consider and
define the meaning of the section. Writing for the court Nicholson JA
said at para
30:
'Constructive dismissal
involves a resignation because the work environment has become
intolerable for the employee as a result
of conduct on the part of
the employer (see s 186(1)(c)).'
[28] It should be clear
from the above that there are three requirements for constructive
dismissal to be established. The first
is that the employee must have
terminated the contract of employment. The second is that the reason
for termination of the contract
must be that continued employment has
become intolerable for the employee. The third is that it must have
been the employee's employer
who had made continued employment
intolerable. All these three requirements must be present for it to
be said that a constructive
dismissal has been established. If one of
them is absent, constructive dismissal is not established. Thus,
there is no constructive
dismissal if an employee terminates the
contract of employment without the two other requirements present.
There is also no constructive
dismissal if the C employee terminates
the contract of employment because he cannot stand working in a
particular workplace or
for a certain company and that is not due to
any conduct on the part of the employer.
[29] Having established
what the requirements are for a constructive dismissal, it is
necessary to make the observation at this
stage of the judgment that
the question whether the employee was constructively dismissed or not
is a jurisdictional fact that
- even on review - must be established
objectively. That is so because if there was no constructive
dismissal - the CCMA would
not have the jurisdiction to arbitrate. A
tribunal such as the CCMA cannot give itself jurisdiction by wrongly
finding that a state
of affairs necessary to give it jurisdiction
exists when such state of affairs does not exist. Accordingly, the
enquiry is not
really whether the commissioner's finding that the
employee was constructively dismissed was unjustifiable. The question
in a case
such as this one - even on review - is simply whether or
not the employee was constructively dismissed. If I find that he was
constructively
dismissed, it will be necessary to consider other
issues. However, if I find that he was not constructively dismissed,
that will
be the end of the matter and the commissioner's award will
stand to be reviewed and set aside.
[12]
Further in
National Health Laboratory Service v Yona &
Others
, the LAC repeated some of the principles governing
constructive dismissals:
[28] Section 186(1)(e) of
the LRA provides that a (constructive) dismissal occurs when 'an
employee terminated a contract of employment
with or without notice
because the employer made continued employment intolerable for the
employee'. On constructive dismissal,
this court, in
Jooste v
Transnet Ltd t/a SA Airways
stated the following:
'In considering what
conduct on the part of the employer constitutes constructive
dismissal, it needs to be emphasized that a "constructive
dismissal" is merely one form of dismissal. In a conventional
dismissal, it is the employer who puts an end to the contract
of
employment by dismissing the employee. In a constructive dismissal it
is the employee who terminates the employment relationship
by
resigning due to the conduct of the employer. As Lord Denning said in
Woods v WM Car Services (Peterborough)
(1982) IRLR 413
(CA) at 415:
"The circumstances [of constructive dismissal] are so infinitely
various that there can be, and is, no rule of
law saying what
circumstances justify and what do not. It is a question of fact for
the tribunal of fact. ..."'
[29] In
Murray v
Minister of Defence
, 8 the Supreme Court of Appeal said:
'[11] That substance, as
was pointed before the 1995 LRA, is that the law and the constitution
impose "a continuing obligation
of fairness towards the employee
on ... the employer when he makes decisions affecting the employee in
his work". The obligation
has both a formal procedural and
substantive dimension; it is now encapsulated in the constitutional
right to fair treatment in
the workplace.
[12] …These cases
have established that the onus rests on the employee to prove that
the resignation constitutes a constructive
dismissal: in other words,
the employee must prove that the resignation was not voluntary, and
that it was not intended to terminate
the employment relationship.
Once this is established, the enquiry is whether the employer
(irrespective of any intention to repudiate
the contract of
employment) had without reasonable and proper cause conducted itself
in a manner calculated or likely to destroy
or seriously damage the
relationship of confidence and trust with the employee. Looking at
the employer's conduct as a whole and
in its cumulative impact, the
courts have asked in such cases whether its effect, judged reasonably
and sensibly, was such that
the employee could not be expected to put
up with it.'
[2]
[30] 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
towards the employee, which rendered continued employment
intolerable
for the employee.
In
passing, it should be mentioned that in
Yona,
the LAC
evidently did not consider that a resignation on one month’s
notice could not be construed as a constructive dismissal.
Consequently, the dictum in
Volschenk
v Prima Africa (Pty)
Ltd
[3]
in which the Labour Court
found on the facts before it that it was inconceivable an employee
would resign on two months’
notice if the employer had made
conditions intolerable, should not be interpreted as establishing a
general principle that resignation
on notice is a bar to a claim of
constructive dismissal. That said, resignation on notice can have a
bearing on whether a resignation
will be construed as constructive
dismissal having regard to the factors the employee claims made their
employment intolerable.
[13]
In
Pretoria Society for the Care of the Retarded v Loots
the
LAC characterised the substantive requirements of the second part of
the test thus:
'When an employee resigns
or terminates the contract as a result of constructive dismissal such
employee is in fact indicating that
the situation
has become
so unbearable
that the employee cannot fulfil what is the
employee's most important function, namely to work.
The employee
is in effect saying that he or she would have carried on working
indefinitely had the unbearable situation not
been created. She
does so on the basis that she does not believe that the employer will
ever reform or abandon the pattern of creating
an unbearable work
environment. If she is wrong in this assumption and the employer
proves that her fears were unfounded then she
has not been
constructively dismissed and her conduct proves that she has in fact
resigned
.
Where she proves the
creation of the unbearable work environment she is entitled to
say that by doing so the employer is repudiating
the contract and she
has a choice either to stand by the contract or accept the
repudiation and the contract comes to an end; …
(emphasis added)
[14]
Lastly, in
Murray v Minister of Defence
the SCA
stressed, amongst other things, the importance of the employer
wrongfully creating the intolerable conditions.
[13] It deserves emphasis
that the mere fact that an employee resigns because work has become
intolerable does not by itself make
for constructive dismissal. For
one thing, the employer may not have control over what makes
conditions intolerable. So the critical
circumstances 'must have been
of the employer's making'. But even if the employer is responsible,
it may not be to blame. There
are many things an employer may fairly
and reasonably do that may make an employee's position intolerable.
More is needed:
the
employer must be culpably responsible in some way for the intolerable
conditions: the conduct must (in the formulation the courts
have
adopted) have lacked 'reasonable and proper cause'
.
Culpability does not mean that the employer must have wanted or
intended to get rid of the employee, though in many instances
of
constructive dismissal that is the case.
[4]
(emphasis added)
Evaluation
[15]
The salient chain of events which emerges from the evidence before
the arbitrator is set out below. I do not intend to summarise
all the
evidence that was before the arbitrator. I must also emphasise that
any additional evidence contained in the founding affidavits
or
Ntshangase’s evidence contained in his‘responding
affidavit’ cannot be considered as the matter must be decided
on the evidence presented to the arbitrator alone. In so far as
submissions are contained in Ntshangase’s responding affidavit
are concerned, these have been considered together with the oral
submissions made in court and the applicant’s heads of
argument.
[16]
At the end of August 2016, an inspection was conducted of certain
shopping mall premises which the applicant company was intending
to
sell and was going to show to the prospective buyer on 9 September.
It was a matter of dispute whether or not Ntshangase was
present on
this inspection.
[17]
In any event, it appears to be common cause that he was instructed by
email on 31 August to remove certain signage of previous
tenants from
the building. He does not dispute this but claims to have been
unaware of when the prospective buyer was going to
view the premises.
[18]
On 1 September, Ntshangase went on leave and returned on 6 September.
The applicant claimed that he went on leave before it
had been
authorised. It appeared that he had submitted the application on the
system but had not received a response, but he told
his superior, Ms
A Monamela (the acting centre manager) before leaving that he had
applied online but had not yet got a response.
[19]
Further, it appears that during his leave some of the signage was
removed but other signage was still there on 5 September.
Ntshangase
maintains that he instructed his team to remove the signage he was
told to remove. The team certain signage by 2 September
but could not
remove other signage which required access to the premises in
question because the signs were inside the former tenants’
premises.
[20]
Whatever the truth of Ntshangase’s claims about what he was
responsible for in relation to the signage, his manager,
Mr Vipond
(‘Vipond’), became exasperated because Ntshangase
appeared to have gone on leave without getting proper authorisation
and the signage work which he expected him to have done was still
incomplete.
[21]
This prompted Vipond to send an email to the CEO on 5 September,
which read:
[Ntshangase]
was instructed to remove the Bidvest signs post my walkabout with
Annah [PG’s supervisor] last Tuesday 30 August.
He has not
complied, and in addition, has gone on leave without authorisation
from Friday last week. We are attending to the outstanding
issues
contained in the email trail today. [Ntshangase], on his return
tomorrow, will be suspended and put through a disciplinary
hearing
with a view to firing to firing him.
The
CEO responded simply by stating:
It’s long overdue,
thanks Gary.
Ntshangase
only became aware of this email exchange on 12 September.
[22]
Notwithstanding the emails above, Ntshangase was neither suspended
nor given notice of a disciplinary enquiry on his return
to work on 6
September.
[23]
However, on Tuesday 13 September, the day after Ntshangase learnt of
the ominous email exchange, he was issued with a verbal
warning for
non-adherence to staff leave provisions in the company’s policy
and procedures by taking leave without obtaining
the correct
approvals.
[24]
It was only on 16 September that Ntshangase expressed his concerns
arising from the emails of 5 September in a letter, part
of which
reads:
My concern is that, after
receiving the attached email and the subsequent verbal warning, I am
now in constant fear of being fired,
I fear that I am no longer
wanted in the company and whatever I do from now on may be viewed as
wrong and subsequently get me fired.
I am traumatised and I find it
hard to work focus under this condition, I have a family to look
after, responsibilities as a father
and the sole breadwinner at home.
I cannot afford to lose my job like this.
I would like to request
that we have a meeting to talk this through with you at your earliest
convenience time and place. It would
be of great help to me to
understand if my fears are unfounded and I can be free to execute my
duties without fear of being fired
or taken through a disciplinary
hearing it will lead to me being fired as I feel like I am no longer
wanted in the company.
Ntshangase
did not specifically identify the letter as a formal grievance, but
it clearly constituted a complaint about the implications
of the
emails of 5 September.
[25]
A meeting then took place on Monday 19 September attended by
Ntshangase, Ms A Moremela, Vipond and Mr C Rossouw, the
head of
facilities. According to Vipond, the purpose of the meeting was to
discuss Ntshangase’s performance in light of the
complaint
about his alleged failure to complete work before going on leave.
[26]
Vipond claims that it was only in the meeting that he and Rossouw
learned of the letter which Ntshangase had handed to Moremela
the
previous Friday. According to Vipond, the upshot of the discussion in
the meeting was that Ntshangase had to work harder and
the company
would look at assisting him with additional resources to do his work.
Ntshangase had also expressed his intention of
resigning and had been
told that, if that was the case, he should continue to work hard
while he was looking for another job. In
essence, Vipond testified
that there were two alternatives open to Ntshangase, to continue
working with the company but to work
harder with additional
resources, or to continue to work hard while looking for other
employment. The understanding at the end
of the meeting was that
Ntshangase would revert to the company on his intentions.
[27]
For his part, Ntshangase had been under the impression that because
he had hande his letter of concerns to Moremela the previous
Friday,
that the meeting on Monday had been specifically been convened to
address his letter. Hence, he was taken aback when issues
of his
performance were discussed and not his concerns about the emails of 5
September. When he was asked why he thought he had
not been suspended
by the time the meeting took place on 19 September, contrary to what
the emails of 5 September seemed to anticipate,
he attributed the
company’s failure to follow through on those intentions to the
fact that he had handed in his letter of
complaint on 16 September.
[28]
Under cross-examination, Ntshangase agreed that he had undertaken to
address the concerns about his performance and that he
would be
provided with additional resources to perform his duties.
[29]
In the afternoon of the same day when the meeting took place,
Ntshangase sent the following email to Moremela, which encapsulates
his view of the meeting:
Unfortunately, matters
raised in my letter of grievance were not addressed in the meeting we
had this morning.
My concerns in my letter
of grievance were mainly based on me coming across a discussion about
my dismissal being imminent due to
me having taken an authorised
leave. The discussion we had this morning caught me off guard as it
was about my performance and
this is never been an issue before. In
our meeting,
I was given two options, one being to change the way
I work or work hard while looking for another job
.
The discussion in our
meeting confirms my fears of being fired and that the company low
along requires my services. Being advised
that they are company is
willing to have me around for a short time while I’m looking
for another job is a clear way of confirming
that I’m no longer
needed in the company
. For such a statement to be raised when it
is for the first time we’re having a meeting in relation to my
performance is
clear that my fears of dismissal are becoming a
reality.
As discussed in our
meeting
I am reflecting and thinking about the options
you
have given me, I love my job and will not do anything to jeopardise
it.
(Emphasis added)
[30]
It was over a week later, on 27 September 2016, that Ntshangase
submitted a resignation letter. In his letter, he expressed
the view
that he was left with no choice but to resign because he was “…being
subjected to undue, disproportionate
and harsh treatment”,
despite raising his concerns that he feared been fired. He claims to
have been shocked at the fact
that the meeting held on 19 September
discussed his performance and not his grievance and the fact that the
email was not discussed
confirmed his fear of being fired. His letter
contained various expressions of his sadness at having to resign.
[31]
The following day, 28 September, Moremela acknowledged the
resignation letter with regret and stated, amongst other things,
that:
The content of the
reasons for your resignation is noted with regret, as, during
subsequent meetings with you, the Company’s
concerns were
addressed and
we believed that consensus was reached on the way
forward: in that you committed to address these concerns and the
company committed
to assist you with additional resources
.
(Emphasis added)
[32]
Ntshangase responded on 29 September, complaining that his grievance
had still not been attended to in a meeting that was supposed
to
address it and that being told to look for another job in the context
of having raised a concern about the emails of 5 September
“…clearly
showed an intention of an anticipated breach of my employment
contract and that left me with no other choice
but to resign”.
He continued to record that he disputed that a consensus had been
reached in a meeting that was meant to
look into his grievance and
that the consequence of the meeting was that undue pressure was
exerted on him and he was threatened
with dismissal.
[33]
A further meeting was convened between Vipond, Moremela and
Ntshangase on 30 October. According to Vipond, Ntshangase was asked
to reconsider his resignation and he undertook to revert to them.
[34]
Following that meeting, on 4 October, Ntshangase sent an email to the
managers concerned, which simply read:
Hi Everyone,
I confirm that as per my
resignation letter which was duly accepted, my last day of employment
will be 31 October 2016.
[35]
The last correspondence from the company was a few days later on 7
October. In that letter, the company accepted his decision
but
recorded that “… it was carefully explained to you that
we requested you to withdraw your resignation and move
forward with
us.” The letter also recorded, amongst other things, that in
the meeting of 30 September, it had been agreed
that the warning he
had received regarding unauthorised leave had nothing to do with the
emails which led to his grievance, and
that the company had
repeatedly confirmed that it was not its intention to dismiss him,
which he had acknowledged. Ntshangase did
not respond to this letter
Evaluation
[36]
Clearly Ntshangase resigned and the first leg of the test for
constructive dismissal was met.
[37]
It is also true that Ntshangase claimed that he had to resign because
the continued relationship had become intolerable. A
recurrent
refrain in Ntshangase’s evidence was that he never got
reassurance from the chairperson whose email had implied
his
dismissal was overdue and the company never dispelled his suspicions
about implications of the emails of 5 September. Was he
justified in
believing there was no reason to believe he would not be dismissed
based on those emails alone? I think not,
for the reasons which
follow.
[38]
Firstly, whatever might have been said in the heat of the moment
between the CEO and the chairperson when it was believed that
Ntshangase had let the company down by taking unauthorised leave and
leaving important work undone, that heat had dissipated by
the time
Ntshangase returned from leave on 6 September. When he returned he
was not suspended. The only overt disciplinary step
taken against him
was a week later when he was issued with the verbal warning relating
to the unauthorised leave. If the
applicant had intended to
follow through on what was stated in Vipond’s email, it does
not make sense why the leave issue
would not simply have been
included as one of the charges in a wider disciplinary enquiry in
which dismissal was a prospective
outcome.
[39]
It is true that the meeting on 19 August did not directly address his
grievance. On the evidence, I am satisfied that only
Moremela and
Ntshangase were aware of his letter of 16 August when the meeting was
convened and that the meeting had been convened
independently with
the aim of addressing his performance. That is why his grievance was
not the subject matter of the meeting,
though it came to light during
the meeting. Ntshangase assumed the meeting had been convened only
because of his grievance.
[40]
Further, it is important that the applicant did not initiate any
disciplinary measures against him regarding his failure to
perform
duties, and there was no evidence of any preliminary steps being
taken by the company that would have indicated that any
further
disciplinary process was imminent by the time he submitted his
complaint on16 September, which was ten days after his return.
[41]
If, as Ntshangase believes, it was his grievance letter that
prevented his dismissal, it raises the question why the company
convened the meeting on 19 September at all. There was no need to
call such a meeting if it was intent on covering up what Ntshangase
believed were its real intentions.
[42]
Quite apart from the absence of any evidence that the company took
steps to follow through on the emails of 5 September in
the sense of
convening a disciplinary enquiry as a precursor to his dismissal, the
outcome of the meeting of 19 September gave
Ntshangase an unequivocal
choice to remain with the company and work harder with additional
resources at his disposal or work hard
while looking for alternative
employment. Ntshangase was naturally reluctant to concede that
the first option did not require
his dismissal but the existence of
two courses of action open to him is undeniable.
[43]
What Ntshangase then fell back on was his continued sense of
suspicion and unease that he would nonetheless be dismissed based
on
the emails of 5 September. This supposedly sustained his subjective
belief that his dismissal was still on the cards. Nevertheless,
despite expressing these fears, he still confirmed he would consider
the options discussed at the meeting.
[44]
When he expressed his choice to resign on 27 September, the company
again met with him and again he agreed to consider whether
he was
going to proceed with his resignation. He tried to downplay this
meeting even to the point of suggesting it did not occur.
However, if
the meeting did not occur, his letter of 4 October ‘confirming’
his resignation is inexplicable. There
was no reason to ‘confirm’
his resignation if there was not an alternative still on the table.
[45]
Ntshangase’s
ongoing anxiety relating to the emails of 5 September was not
objectively justified by subsequent events and
he acknowledged he was
given a choice of options. It cannot be said by any stretch of the
imagination that he had no choice but
to resign or to follow through
with the resignation after he had submitted it. The company’s
conduct was not that of an employer
that had made a decision and
could not wait to see the back of Ntshangase. It was clearly unhappy
with aspects of his work, but
had revised its original spur of the
moment response and was willing to allow him an opportunity to
demonstrate his worth and was
even prepared to provide him with more
resources to perform better. The situation he was faced with from
mid-September 2016 was
not that of an employee with no alternative
but to leave. Nor was he placed under undue pressure in being told he
should work hard
and would be assisted with additional resources. The
prospect that at some stage in the future an enquiry might be
convened does
not constitute undue pressure.
[5]
[46]
At the very worst, his position was no more tenuous than someone on a
final warning, for whom the possibility of a final disciplinary
hearing might loom larger. Ntshangase’s insecurity about his
long term prospects may have had some basis in the sense that
he
could not be one hundred percent confident of his future, but his
fears that his dismissal was inevitable or that serious disciplinary
action was imminent could not be rationally justified by the events
which transpired after his return to work, both before and
after the
emails of 5 September came to his knowledge and he made the company
aware that he knew of them. As such, his subjective
fears were
exaggerated in relation to the objective circumstances. The fact that
his long term employment prospects may have become
less certain than
they were before did not render his continued employment intolerable.
[47]
In the circumstances, I am not satisfied that Ntshangase established
on a balance of probabilities that his continuous employment
with the
company was intolerable. It follows that it is not necessary to
consider the third leg of the test for constructive dismissal.
Consequently, the arbitrator’s finding that Ntshangase was
constructively dismissed and the consequential relief ordered
cannot
stand.
[48]
I understand why Ntshangase would have wanted to defend the award
both because it was in his favour and in view of his subjective
appreciation of the merits of his case. Accordingly, I am not
inclined to make a cost award against him.
Order
[1] The arbitration of
the third respondent issued under case number GATW 16008-16 and dated
3 July 2017 is reviewed and set aside.
[2] No order is made as
to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
Ebersőhn of Gerrie Ebersőhn
Attorneys
RESPONDENT:
In
person
[1]
(2004) 25 ILJ 2337 (LAC) at 2345
[2]
(2015) 36
ILJ
2259
(LAC) at 2268-9
[3]
2015
ILJ
494 (LC) at para [26].
[4]
2009 (3) SA 130
(SCA); (2008) 29
ILJ
1369 (SCA) at 1376-7.
[5]
See Old Mutual Group Schemes v Dreyer & another (1999) 20 ILJ
2030 (LAC) at 2033-4, para [10] where the LAC found that the
mere
threat of a disciplinary enquiry could not be interpreted as unfair
pressure on an employee to resign.