IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO JS619/01
In the matter between:
BAFANA MAHLANGU Applicant
and
AMPLATS DEVELOPMENT CENTRE Respondent
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JUDGMENT
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JAMMY AJ
1. This matter comes before this Court as a consequence of a ruling by a
Commissioner of the Commission for Conciliation Mediation and
Arbitration to the effect that, on the basis of the referral of the dispute to
the Commission by the Applicant, his allegation is deemed to be one of
automatically unfair dismissal and as such, falls to be adjudicated in Court
proceedings and not by way of Arbitration in terms of the Labour Relations
Act 1995.
2. Of material relevance in that regard, is the Applicant’s allegation, expressly
made in his statement of case and confirmed by way of answer to a
specific question in that regard addressed to him by this Court, that the
automatic unfairness of his dismissal is sourced in discrimination against
him which was racially motivated in the context that he is black.
3. That dismissal is classified by the Applicant as constructive. A proper
adjudication of this matter necessitates, in my view, a brief review of the
history of the Applicant’s relationship with the Respondent.
3.1 On or about 5 August 1996 the Applicant and Rustenburg Platinum Mines
Limited (“RPM”) entered into a written bursary agreement (“the bursary
agreement”) in terms of which, inter alia , RPM provided financial
assistance to the Applicant, who at the time was in the second year of
study for the degree of Bachelor of Science in Mining Engineering at the
University of the Witwatersrand, the effect of which was to finance the
obtaining of that degree, provided that it was completed within 3.5
academic years. The agreement further stipulated periods of practical
training to be undergone by the Applicant at RPM and obliged the
Applicant to accept employment with RPM or any Amplats Group
Company and to remain in such employment for a period of six months for
each semester that the Applicant was funded in terms of the bursary
agreement. He was, immediately upon graduation, to report to the Senior
Training Manager in order to finalise employment arrangements.
3.2 A further material condition of the bursary agreement was that it would
automatically be cancelled should the Practical Training Agreement, to be
concluded by the Applicant with RPM be cancelled for any reason
whatsoever.
3.3 A further agreement, “the loan agreement”, was concluded between the
Applicant and RPM in April 1998 and in terms of that agreement RPM lent
the Applicant the sum of R6 600,00 for the purchase of a personal
computer for use in his studies. As consideration for that loan the
Applicant would be obliged to be in the service of RPM for a period of one
month per R1 100,00 loaned to him, which period would run concurrently
with the last six months of his service obligation to it in terms of the bursary
agreement.
3.4 The Practical Training Agreement above referred to was entered into by
the parties on 1 December 1998, following the Applicant’s graduation. In
terms thereof the Applicant was to receive inhouse training from RPM or
any Amplats Group Company, which training would be deemed to
commence on 30 November 1998 and would be completed on 31
December 1999, during which period the Applicant was required to
complete a minimum of fiftyeight weeks of practical training.
3.5 During the currency of the Practical Training Agreement, the Applicant
would receive a training allowance of R3 833,00 per month which the
Respondent describes as a discretionary amount, to be paid to the
Applicant only when he received the training provided for.
3.6 In the event of the cancellation of the Practical Training Agreement for any
reason before its scheduled date of completion, the Applicant would have
no claim against RPM or any Amplats Group Company for any amount
and howsoever arising. Such cancellation could be effected by either
party for any reason on twentyfour hours written notice to the other of
them.
3.7 The Practical Training Agreement, having being duly implemented, was
extended during January 2000, the material terms of such extension being
that the extended training period therein provided for would commence on
3 January 2000 and be completed by 31 December 2000 and that during
that period, the Applicant would receive a training allowance of R3 833,00
per month. The inhouse training received by the Applicant was provided
by RPM and the Amplats Group Companies and administered by Amplats
Development Centre, a division of Anglo American Platinum Corporation
Limited, and cited as the Respondent in these proceedings. The
gravaman of the Applicant’s case was that as a graduate, he was being
paid a salary less than that of other employees, that he was severely
underpaid, that he was thereby degraded, that this treatment was a
consequence of racial discrimination against him and that ultimately, the
cumulative effect of these factors was to render his continued employment
by the Respondent intolerable, leaving him with no alternative other than to
resign. That decision on his part was expressed in a letter dated 7 July
2000, addressed to the Senior Training Manager of the Respondent in the
following terms:
“Termination Of The Practical Training Agreement
I, the undersigned, Bafana Mahlangu (ID. No: 731222 5338 088), on this
7th day of July 2000, hereby terminate the Practical Training Agreement
entered into between the Company and I on the 1 st day of December 1998
because of unfair labour practices practised by the Company, and as a
result made continuing training intolerable for me”.
The letter was signed “Bafana Mahlangu, Mining Trainee”.
4. The discrepancy which the Applicant alleged existed in the remuneration
paid to him was apparent, he contended, when that salary was compared
with that of other employees of the Respondent who were placed in what
was described as “the graduate pool” of employees and who were
appointed to substantive positions as shift supervisors.
5. The Applicant testified that in February 1999, whilst working underground,
he was approached by his Senior Training Officer Mr D Bodenstein, who
conducted what he referred to as a “competency test” on him. When this
was completed Bodenstein explained that the main objective of his training
course would be to qualify him for appointment as a shift supervisor. Until
that appointment had been made however, his remuneration would remain
the same, it was already at the maximum paid for trainees.
6. As time passed however, said Mr Mahlangu, he discovered that other
graduates with similar qualifications were being paid twice as much and
were also receiving other benefits to which he was not entitled. When he
queried this in July 1999, it was explained that the reason for this was that
the “graduate pool”, of which the other graduates to whom he referred
formed part, did not apply to miners.
7. When he continued thereafter to express his unhappiness with his present
position, through various levels of management, articulating that he was
being paid as a fourth year student whilst others with similar qualifications
were treated and paid as professional employees, he was informed again
that those persons were employed in the engineering, and not the mining
sector of the company group. He considered resigning but decided not to
do so when he was informed that this would necessitate his repayment of
the loan which had been made to him.
8. He continued to work on the prevailing basis, his unhappiness continuing
and increasing, until, in January 2000, following repeated expressions of
his dissatisfaction, he was informed that he could only improve and
advance his position if he became part of the graduate pool. Shortly
thereafter he was informed of dissatisfaction with the standard of his
performance and told that if it did not improve, his services would be
terminated.
9. By this time, the Applicant conceded under crossexamination, he had
endured his dissatisfaction and his perception of racial discrimination for a
period of sixteen months, during which he suffered severe emotional
distress leaving eventually, he testified, no other avenue open to him but to
terminate what he regarded as an intolerable state of affairs – hence his
letter of resignation of 7 July 2000 above referred to.
10. Mr Peter Barnes and Mr Paul Wilsenach, Human Resources Managers in
the employ of the Respondent, were the two witnesses called in support of
its repudiation of the Applicant’s claims. The perceived practice by the
Amplats Group of Companies of racial discrimination in any form, let alone
as directed towards the Applicant personally, was discounted, they
testified, by the fact that since 1994, the Respondent had engaged in a
concerted programme to recruit black employees, particularly in the mining
discipline. At the stage of this hearing, the Respondent’s recruitment
programme comprised 70% black as opposed to 30% white employees
and its long term goal, inherent in that programme, is ultimately to increase
the number of blacks at senior levels within the Respondent.
11. No racial criteria whatsoever inform the different levels of remuneration
paid to the Respondent’s employees. Newly graduated employees,
paid to the Respondent’s employees. Newly graduated employees,
irrespective of their race, receive lower remuneration than employees
appointed to the “graduate pool” or to other substantive positions. At the
time of the Applicant’s employment however the graduate pool did not
include employees in the mining discipline, in which the first level of
employment was in the position of shift supervisor.
12. In December 2000 however, this policy was changed to extend the
graduate pool system to all disciplines including mining. This was in
accordance with general policy and not as a consequence of any
complaints or with the intention of benefiting any particular group of
persons.
13. The first substantive appointment for miners would be made only after the
employee concerned received his blasting certificate and displayed a level
of competence and other required characteristics meriting such
appointment. These included suitability to the harsh mining environment,
and safety and supervisory skills.
14. Although the Applicant duly obtained his blasting certificate, it was further
testified, he was deemed unsuitable to be appointed as a shift supervisor
as he did not display the level of competence required. This
notwithstanding, Mr Barnes testified, no decision was taken to terminate
his employment but he was transferred to an open mine, where
underground activity did not apply, situated at Potgietersrus. This move
occurred following a consultation with the Applicant in March 2000 and
conformed to the Respondent’s broad objective of retaining black
employees within the group. The Applicant, acknowledging in the course
of those discussions, his unsuitability for underground work, purported to
welcome the proposed transfer. The Respondent, the witnesses testified,
had every intention of retaining the Applicant in its employ after he
returned from Potgietersrus, had his level of competence been suitable for
returned from Potgietersrus, had his level of competence been suitable for
appointment to the substantive position of shift supervisor, although, it was
stressed, no undertaking was given to him in that regard and he could
have had no legitimate expectation in that context. Before that stage was
reached however, the Applicant, in the circumstances earlier referred to,
submitted his resignation.
15. In response to the Applicant’s resignation letter, Mr Wilsenach testified, he
wrote to him on 14 July 2000, in the following terms
“We are in receipt of your letter dated 07 July 2000 and we accept your
withdrawal from the Training Scheme.
For the record we would like to clarify our point of view. Since obtaining
your degree, Amplats has provided you with extensive training in an
endeavour to provide you with the skills and knowledge that Amplats
requires of its professional mining staff.
It also became evident that you were not adequately suited to the
underground environment in Amplats. You were given the opportunity to
develop and demonstrate suitability to the open pit environment via a
structured training programme. It is apparent that you have not committed
yourself to this opportunity.
Amplats is not in a position to offer you a permanent post and accordingly,
you are released from your financial obligations to the company”.
16. Finally, the witnesses testified, whilst the remuneration paid by the
Respondent differs according to the status of the employee concerned, the
sole criterion in determining those levels is competence, involving factors
such as experience and qualifications and suitability to underground
environment. These are not assessed arbitrarily but are based on the
inherent requirements of the job.
17. The Applicant, although eventually restricting, in the course of these
proceedings, his allegations of racial discrimination as applicable solely to
himself, purported to cite three other black employees as having been
victims of similar treatment. Neither of the Respondent’s witnesses, they
testified, was aware of any complaints from or relating to those individuals,
none of whom, it should be noted, was called by the Applicant to testify in
support of that allegation.
18. There are two further aspects of this matter which are relevant to the
Applicant’s allegations. The evidence of the Company’s witnesses
regarding its affirmative action policy was not in any respect challenged by
the Applicant in the course of crossexamination of the Respondent’s
witnesses as being inaccurate or untrue and his submission that the
general policy which was amended in December 2000 to include miners in
the graduate pool, was one changed precisely to redress acknowledged
discrimination in that regard, cannot have substance when assessed
against the established fundamental tenets of that policy. The second
aspect of significance is that the Respondent’s reply of 14 July 2000 to the
Applicant’s letter of resignation did not itself elicit any reaction or
repudiation on his part. Asked under crossexamination why this was the
case, his response was that he did not think that there was anything that
he could do because he was no longer an employee. That, on any
evaluation, is an inadequate response in the prevailing circumstances.
19. The legal principles applicable to the concept of constructive dismissal
have been exhaustively examined in a line of cases in the Labour Courts.
In a definitive judgment on the issue, the Labour Appeal Court in –
Pretoria Society for the Care of the Retarded v Loots 1997ILJ 981
laid down a number of principles. The employee bears the onus of proving
the existence of an unbearable work environment unlawfully created by the
employer. By doing so, the employer is repudiating the employment
contract with the result that the employee is entitled to elect either to stand
by it or accept the repudiation and terminate it. It is not necessary to show
that such repudiation was intended. At page 984 of the report, Nicholson J
A said this
“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”.
See also –
Chemical Energy Paper Printing Wood and Allied Workers Union and
Another v Glass and Aluminium 2000 CC (unreported Case No:
JA56/00 (LAC).
20. Perceptions of racial discrimination in the employment environment,
endemic in the aftermath of the apartheid era, are not uncommon and are
frequently justified. Those are cases which, if proved and established
upon application of the relevant legal principles, will justify the award of the
maximum relief which the Labour Relations Act 1995, recognising the
absolute unacceptability of that form of conduct on the part of employers,
prescribes. What is however a phenomenon also of not infrequent
occurrence, although perhaps equally understandable in the historical
context, is a hyper sensitivity to a perceived state of affairs in which, upon
objective analysis, the true facts are distorted.
21. The core factor in the Applicant’s dissatisfaction in his relationship with the
Respondent was the differentiation between the salary paid to him in terms
of the Practical Training Agreement and that earned by employees in the
graduate pool. In attributing that differentiation to racial discrimination
against him, he evidences an emotional disregard of the applicable factual
criteria comprehensively explained to, but rejected by him. The
unchallenged evidence of the Company’s general affirmative action policy
and of its attempts, within the ambit of that policy, to advance the Applicant
in areas considered to be more suitable than the underground environment
with which his incompatibility had been established, negate that
contention. There is nothing in the evidence presented in this matter,
objectively assessed, to indicate the imposition by the Respondent of
intolerable or unbearable working conditions which would justify a finding
of constructive dismissal as opposed to one of uncoerced and voluntary
resignation. Stated simply, the Applicant has failed to discharge the onus
resignation. Stated simply, the Applicant has failed to discharge the onus
which he bears to establish the automatically unfair constructive dismissal
for which he contends.
22. For all of these reasons, the application must fail. No submissions having
been to me as to why the established principle that an award of costs will
ordinarily follow the result in litigation of this nature should not be applied,
the order that I make is the following:
The application is dismissed with costs.
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B M JAMMY
Acting Judge of the Labour Court
30 April 2002
Representation:
Applicant in person
For the Respondent
Advocate L Hollander, instructed by Leppan Beech, Attorneys