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[2018] ZALCJHB 255
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Agricultural Research Council v Ramashowana NO and Others (J1342/15) [2018] ZALCJHB 255; (2018) 39 ILJ 2509 (LC) (1 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1342/15
In the matter between:
AGRICULTURAL RESEARCH
COUNCIL
Applicant
and
SILAS RAMASHOWANA
N.O.
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
THABO MMAPHOKO
SHAKU
Third Respondent
Heard:
20
June 2018
Delivered:
01 August 2018
Summary:
Review
application – constructive dismissal – resignation 15
months after the alleged unlawful deductions – t
he
employee has to resign within a reasonable time of the trigger, which
may be a once-off outrage or the last straw
following the earlier
string of events.
JUDGMENT
NKUTHA-
NKONTWANA, J
I
ntro
duction
[1]
This is an
application in terms of s145 of the Labour Relations Act
[1]
(LRA). The applicant, Agricultural Research Council (ARC), seeks an
order reviewing and setting aside the arbitration award of
the first
respondent, Mr Silas Ramushowana (commissioner), under case number
GATW2745-15 dated 23 May 2015. The arbitration proceedings
were
conducted under the auspices of the second respondent, the Commission
for Conciliation Mediation and Arbitration (CCMA). The
basis of the
assail is that the commissioner found that the third respondent, Mr
Thabo Shaku, (Mr Shaku) was constructively dismissed.
Mr Shaku is
defending the award.
[2]
ARC’s
primary ground of review is that the commissioner committed a
material error in law when he wrongly applied the principles
relating
to constructive dismissal.
Background
facts
[3]
The facts
in this matter are largely common cause. Mr Shaku was employed as a
Divisional Human Resources Manager: Animal Production
Institute on 1
April 2009. He was issued with a laptop subject to the provisions of
a Due Care Agreement (agreement). In terms
of the agreement, Mr Shaku
undertook to exercise due care with regard to the equipment in his
possession and agreed to be liable
for the monetary value of its
replacement in the event it is lost due to his negligence.
[4]
On 21
December 2012, the laptop he had been allocated to was stolen from
his motor vehicle. ARC’s insurer refused to honour
the claim
for the loss of the laptop as its investigations showed that there
was no forced entry into Mr Shaku’s motor vehicle.
[5]
ARC
undertook its own investigation which found that Mr Shaku had been
negligent and had to pay for the loss of the laptop.
Mr Shaku
challenged the finding unsuccessfully. The replacement cost of the
laptop was R11 763.33 and was deducted in three
equal
instalments of R3921.11. The last deduction was made in December
2013.
[6]
Mr Shaku
was not happy with the decision to hold him responsible for the loss
of the laptop because he was never given a chance
to state his side
of the story. According to Mr Shaku’s evidence at the
arbitration, he was a victim of crime that is prevalent
in the area
where the incident took place. His car lock system was jammed by
criminals who managed to gain access into his car
and stole his
personal belongings together with the ARC’s laptop. The matter
was reported to the South African Police Services.
[7]
Mr Shaku
also challenged ARC’s insurer for repudiating the claim for the
lost laptop. When he was not successful, he approached
the Ombudsman
for Short-term Insurance (Ombudsman) who was equally unable to assist
as he did not have the jurisdiction to entertain
the dispute. The
Ombudsman’s decision was communicated to Mr Shaku on 23 April
2013. On 26 July 2013, Mr Shaku advised ARC
that he had instructed
Legalwise to further pursue the matter with the Ombudsman and was
still awaiting the outcome.
[8]
On 14
August 2013, ARC scheduled an enquiry into the loss of the laptop. Mr
Shaku did not attend the enquiry because it took place
after the
decision to deduct his salary for the loss of the laptop had already
been taken. He was of the view that ARC wanted to
rubberstamp its
previous decision. Mr Shaku once more approached lawyers to challenge
the decision to hold him liable for the loss
of the laptop and to
effect deductions from his salary by ARC.
[9]
On 1 March
2015, Mr Shaku resigned from his employment with ARC with notice.
Review
test
[10]
It is trite
that the failure by a commissioner to apply his or her mind to issues
which are material to the determination of a case
constitutes an
irregularity. However, in a case of constructive dismissal, the
enquiry turns on the jurisdictional issue as established
by
the
Labour Appeal Court in (LAC) in
Solid
Doors (Pty) Ltd Commissioner Theron and Others,
[2]
where
it was held:
‘
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.’ (Emphasis added)
[11]
The test
for constructive dismissal have been set out in a number of
authorities and, as mentioned in
Solid
Doors,
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 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.
’
[3]
[12]
Put
differently, as held by the LAC in
National
Health Laboratory Service v Yona and Others,
[4]
‘…
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
.’
(Emphasis added)
[13]
The
pronouncement in
National
Health Laboratory Service
is in accord with the Constitutional Court finding in
Strategic
Liquor Services v Mvumbi NO and Others
[5]
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.
Ultimately,
the test remains whether it was reasonable to resign in order to
escape the intolerable working environment. That is
always a question
of fact that depends on the circumstances of every case.
[6]
Analysis
[14]
Turning to
the facts of the present case, Mr Shaku’s case is that by
deducting the amount for the replacement of the lost
laptop, ARC made
his continued employment intolerable. His challenge is that he was
not negligent in losing the laptop and the
insurer ought to have
honoured the claim and that the decision to hold him liable for the
loss was unfair.
[15]
The ARC’s
initial investigation had recommended that Mr Shaku be held liable.
However, that decision was never implemented
even though
unsuccessfully appealed by Mr Shaku. It is common cause that Mr Shaku
spent almost seven months, from about January
2013 to August 2013,
pursuing the ARC’s insurer, challenging the repudiation of the
claim for the loss of the laptop. He
even approached the Ombudsman
and when he found no joy, he instructed lawyers to take the matter
further.
[16]
In August
2013, ARC acceded to his request and instituted an enquiry into the
loss of the laptop. In fact, Mr Shaku through Legalwise,
had
threatened to issue summons should ARC proceed with deductions as he
had not been given a chance to state his side of the story.
Mr Shaku
did not attend the hearing that sat on 14 August 2013. His evidence
was not he did not want to be part of a hearing that
was just merely
going to rubberstamp the initial decision. Clearly, Mr Shaku’s
decision not to attend the enquiry was ill-advised.
The employer may
recover loss incurred due to the fault or negligence of an employee
in terms of section 34(2) of the Basic Conditions
of Employment Act
(BCEA).
[7]
In this instance, the
ARC was also entitled to effect the deductions in terms of the
agreement.
[17]
The
deductions from Mr Shaku’s salary only commenced in October
2013 with the last deduction effected in December 2013. In
a letter
dated 31 October 2018, Mr Shaku’s erstwhile attorneys, Van Wyk
and Ayre, made it clear that they were instructed
to challenge ARC’s
decision to effect the deductions, including seeking an interdict.
Nothing happened until the last deduction.
Mr Shaku continued working
up until his resignation on 1 March 2015. In his resignation letter
he states that:
‘
I hereby resign as a Divisional
Human Resources Manager: Animal Production Institute albeit under
duress because of the amount of
R11, 567.00 which was unlawfully
deducted from my salary.’
[18]
What he,
however, failed to mention in his resignation letter is the fact that
the deductions were effected during October 2013
to December 2013, 15
months prior. Also, as senior human resources manager with access to
legal advice, he knew what recourse was
available in a case of
unlawful deduction. In fact, he had threatened to avail himself to
litigation in order to vindicate his
rights. However, it is now
apparent that those were empty threats and it would seem that Mr
Shaku accepted the turn of events and
continued working.
[19]
I,
accordingly, find it very opportunistic of Mr Shaku to use the
incident that took place 15 months prior to the date of his
resignation
to support a case of constructive dismissal. I concur
with counsel for ARC’s submission that if indeed the conduct of
the
ARC was so egregious and Mr Shaku’s only reasonable
alternative was to resign, he would not have waited for 15 months to
resign. It is my view that in order to succeed in a claim that the
working conditions were intolerable, the employee has to resign
within a reasonable time of the trigger, which may be a once-off
outrage or the last straw
following
the earlier string
of events.
[20]
The reality
is that Mr Shaku had a
legal
remedy to the alleged oppressive conduct of ARC but he elected to
continue to work. Clearly that shows that the working conditions
were
not unbearable.
[8]
The commissioner made
much of Mr Shaku’s evidence that he had been side-lined on
labour relations matters and he was not informed
of CCMA cases. This
compliant was raised for the first time during the arbitration
hearing. I have taken notice of the fact that
even the LRA 7.11
referral form, like the resignation letter, refers to the unlawful
deductions as a trigger.
Conclusion
[21]
In
all the circumstances,
I
am persuaded that there was no constructive dismissal as Mr Shaku
failed to prove that the ARC made his continued employment
intolerable. The commissioner evidently misconstrued the nature of
the enquiry and clothed himself with the jurisdiction he did
not
have.
[22]
In the view
I take, the award stands to be reviewed and set aside. There is no
need to revert the matter back to the CCMA given
the conclusion I
have arrived at.
[23]
On the
issue of costs, I am disinclined to saddle Mr Shaku with costs since
he is an individual litigant and his conduct in defending
the award
was, in my view, not frivolous.
[9]
[24]
In the
premises, I make the following order:
Order
1.
The
arbitration award dated 23 May 2015 under case number GATW2745-15 is
reviewed and set aside and replaced with the following
order:
‘
1.1
Mr Shaku failed to prove that he was constructively dismissed.
1.2
The CCMA lacks jurisdiction to entertain the dispute.’
2.
There is no
order as to costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Advocate L Steenkamp
Instructed
by:
Etienne Loots Attorneys
For the
respondent:
Advocate T Cooper
Instructed
by:
Parker Attorneys
[1]
Act 66 of 1995 as amended.
[2]
(2004) 25 2337 (LAC) (
Solid
Doors
).
[3]
Supra
at para 28. See also
Conti
Print CC v Commission for Conciliation, Mediation and Arbitration
and others
2015] 9 BLLR
865
(LAC) at paras 7 to 9.
[4]
(2015) 36 ILJ 2259 (LAC) at para 30;
see also
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) at paras 5 to 16.
[5]
(2009) 30 ILJ 1526 (CC) at para 4.
[6]
Mafomane v
Rustenburg Platinum Mines Ltd
[2003]
10 BLLR 999
(LC) at para 49.
[7]
Act 75 of 1997.
[8]
Old Mutual
Group Schemes v Dreyer and Another
(1999) 20 ILJ 2030 (LAC)
referred to with approval in
Albany
Bakeries v Van Wyk and Other
s
(2005) 26 ILJ 2142 (LAC) at para 28.
[9]
Kabe v Nedbank Ltd
(JS633/13) [2018] ZALCJHB 173 T at paras 41 to 50.