THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case JS174/02
In the matter between:
DONALD MAFOMANE Applicant
and
RUSTENBURG PLATINUM MINES LIMITED Respondent
JUDGMENT
INTRODUCTION
1. The applicant was employed by the respondent as a Human Resources
Officer with effect from 5 May 2000. On 12 October 2000 the applicant
resigned from the respondent’s employ on one month’s notice. The
applicant says that he resigned only because the respondent had made his
continued employment intolerable by discriminating against him on the
ground of race. He claims that he was constructively dismissed within the
meaning of s 186(1)(e) and that his dismissal was automatically unfair in
terms of s 187(1)(f) of the Labour Relations Act 66 of 1995. He claims
compensation in terms of s 193(1)(c) read with s 194(3).
2. At the trial, each side adduced the evidence of two witnesses. The
applicant gave evidence and called an erstwhile colleague, Mr Jacob
Aphane. The respondent called the applicant’s erstwhile immediate
superior Mr Marius Fourie and an erstwhile colleague Mr Ricky Finn. I am
of the view that all four witnesses generally gave their evidence honestly
and to the best of their ability. When they contradicted one another, it was
because of differences of perception and misunderstandings at the time, an
element of wishful thinking in the way that they remembered the events and
faded memories of commonplace events some three years ago.
3. I will commence with a description of the general background and a
chronology of the more significant events and then turn to the particular
disputes and the rules of law that govern their determination.
BACKGROUND
4. The applicant is Mr Donald Mafomane. He worked for the JCI mining house
before joining the respondent. He joined JCI in 1980 and made his way
through the ranks in their HR department. He ultimately attained the
position of HR Manager. When JCI was unbundled, he was retrenched.
That was when he joined the respondent.
5. The respondent is Rustenburg Platinum Mines Limited. Mr Mafomane was
employed in its Union Section at Swartklip in Northern Province. It
comprised three shafts known as Richard Shaft, Spud Shaft and Declines.
Mr Mafomane was employed as an HR Officer at Richard Shaft.
6. Ms Ren ée Steyn was the HR Manager of Rustenburg’s Union Section. She
was in charge of the HR departments at the shafts. Each of those
departments had the same basic structure. The structure of the HR
department at Richard Shaft before Mr Mafomane joined them, was as
follows:
6.1. The head of the department was Mr Marius Fourie. His title
changed but it was for the most part that of Senior Personnel
Officer or SPO.
6.2. Mr Fourie was in charge of six HR Assistants. Each of them was
responsible for the HR function at one or two of the sections of
Richard Shaft. They reported directly to the SPO.
6.3. Each of the HR Assistants had one or two HR Administrators to
assist them. Each HR Administrator was responsible for the
mundane HR paperwork relating to a section.
7. Because Mr Mafomane’s complaint is one of race discrimination, it is
necessary to say something about his race and that of his colleagues. He
is a black man. Ms Steyn and Mr Fourie are white people. The HR
Assistants are black except for one of them who is white.
8. Three of the HR Assistants feature more prominently than the others in the
events that culminated in Mr Mafomane’s resignation:
8.1. Mr Ricky Finn was the only white HR Assistant. He lived on the
mine at Union Section where his father had been a manager since
1986. He joined the mine in its metallurgical department in
September 1990. He worked for them as a shift foreman until
1995 when he went to university. He obtained a B.Comm
Honours in Industrial Psychology. He excelled in his studies and
was at or near the top of his class. He returned to the mine in
December 1999 when he joined the HR department at Richard
Shaft as an HR Assistant. By May 2000 when Mr Mafomane
joined, Mr Finn had only been an HR Assistant for five or six
months but, because he had lived and worked on the mine since
1986, he had intimate knowledge of the mine, its people and its
operations. He knew every manager on the mine and all the
union officials. It gave him a significant advantage in the
performance of his HR functions. At some time after the events in
question in this case, he was promoted to the position of HR
Officer. He is still in that position.
8.2. Mr Thabo Mathoka joined the HR department at Richard Shaft in
early 1999. He was an HR Assistant at the time of Mr
Mafomane’s appointment. He was promoted to the position of HR
Officer after Mr Mafomane’s departure but he is no longer with the
mine. He resigned for personal reasons.
8.3. Mr Jacob Aphane joined the HR department at Richard Shaft as
an HR Assistant in October 1999. He remained in that position
until September 2002 when he was dismissed. His dismissal led
to a dispute which is still subject to litigation.
9. Mr Fourie’s management style was informal. Everybody from the SPO
down to the HR Administrators were on first name terms. Mr Fourie
regularly met with his staff. The staff meetings were informal and
everybody was allowed to contribute. Mr Fourie also maintained an open
door policy which allowed his staff to see him whenever they wished to do
so.
10. One of the controversies in this case, arose from the fact that Mr Fourie on
occasion appointed Mr Finn as acting SPO when he (Mr Fourie) went on
leave. Mr Mafomane pleaded that it was contrary to the practice at the
mine “ for personnel to appoint persons who are most senior but below them
in rank, to perform their duties while on leave” . There was however no
evidence of such a practice. Mr Fourie and Mr Finn testified that the rule
was that, when managers went on leave or were temporarily absent for any
other reason, they appointed “ the most appropriate person” to act in their
stead. The most appropriate person would often be their secondin
command but not necessarily so. It depended on the circumstances of
every case. This evidence was not contradicted or challenged.
11. Mr Fourie also testified that the mine had adopted an aggressive affirmative
action policy. Ms Steyn was particularly insistent that they make every
effort to recruit and groom previously disadvantaged people for ultimate
appointment to senior management positions on the mine. It was generally
difficult to find suitable candidates particularly because the mine was
situated at a remote location far from the nearest town and it was difficult to
attract people to work there. The mine generally and Ms Steyn in particular,
however kept up their efforts to seek out and recruit appropriate candidates
in pursuit of their affirmative action policy. This evidence was also not
challenged or contradicted.
12. In late 1999 or early 2000, the mine introduced a new computerised system
of recordkeeping in their HR departments at Union Section. It was known
as the SAP system. It is not clear from the evidence whether this system
was introduced in all the departments at Union Section or only in the HR
departments. It is also not clear precisely how the system worked and what
it did. These matters are however not important. What is important is that
the SAP system became an important tool in the HR departments at Union
Section. It was necessary for all the staff to be able to operate the system,
at least to the level required by the particular functions they performed.
They underwent training courses on the SAP system from late 1999. Those
training courses progressively allowed those who participated in them,
increasing levels of access to the SAP system as their competency
increased. Mr Fourie and all the HR Assistants at Richard Shaft underwent
these courses. Mr Finn who had just joined the HR department at Richard
Shaft, was particularly keen to qualify himself on the SAP system. He
attended more training courses than his colleagues. By May 2000 when Mr
Mafomane joined them, he was more proficient on the system than any of
the other HR Assistants and had acquired the same level of access as Mr
Fourie. The latter indeed testified that Mr Finn’s expertise on the system
exceeded his own. This evidence was not challenged or contradicted.
13. On 18 March 2000 an incident occurred which set in train a series of events
that ultimately led to Mr Mafomane’s main complaint of race discrimination.
Mr Fourie’s teenage son fell seriously ill. The details are unimportant
except to say that within a day or two, the boy was paralysed and unable to
walk and his prognosis uncertain. He was urgently hospitalised in Pretoria.
Mr Fourie took two weeks’ leave to be with his son. He returned to work
thereafter but his son remained in hospital, initially in Pretoria and later in
Johannesburg. It is not clear for how long he remained in hospital but it
continued at least until late in the year. During that time, Mr Fourie
continued to live and work on the mine and cared for the couple’s two other
children. Mrs Fourie stayed in Pretoria and later Johannesburg to be with
their son in hospital. They were however allowed to spend their weekends
at home. Mrs Fourie and the boy in other words spent their weeks at
hospital in Pretoria and later Johannesburg and their weekends at home on
the mine.
14. During Mr Fourie’s absence from the mine for the two weeks he took off
when his son fell ill, he appointed Mr Finn as acting SPO to take care of his
functions as head of the HR department at Richard Shaft. He said that Mr
Finn was the most appropriate person to do so by virtue of his long
experience and intimate knowledge of the mine, its people and its
operations and his expertise on the SAP system. By all accounts Mr Finn
coped well with his duties as acting SPO.
MR MAFOMANE’S APPOINTMENT
15. Mr Mafomane applied for the post at the Richard Shaft at the mine, in
response to an advertisement. The advertisement was not before the court.
Mr Mafomane said that it advertised for an HR Officer. The vacancy in the
HR department at the Richard Shaft, was however that of an HR Assistant.
They never had an HR Officer and their management structure did not have
a level between the SPO and the HR Assistants who reported directly to
him. The HR departments at the other shafts also did not have a line
function position of HR Officer. There were two other HR Officers at the
other shafts but they did not perform linefunctions. The one was a Ms
Lamos who worked in the litigation department and the other was a Ms Van
Rooyen who worked in the communications department.
16. Mr Mafomane was interviewed by Ms Steyn and one or more other people.
She decided to appoint him as HR Officer at the Richard Shaft. Mr
Mafomane said that she told him that he would report to the SPO and that
the HR Assistants would in turn report to him.
17. Mr Mafomane was appointed by a letter of appointment dated 4 April 2000.
It appointed him as HR Officer at the Richard Shaft. It did not include a job
description. There was in fact no post of HR Officer at the Richard Shaft.
Although it was an established rank in the mine’s employment grading
system, the Richard Shaft did not have a post of HR Officer.
18. Ms Steyn told Mr Fourie of Mr Mafomane’s appointment in his department.
She was enthusiastic about the appointment, not only because he was
appropriately qualified for the job, but also because he seemed an ideal
affirmative action candidate. She told Mr Fourie to train and groom him as
his successor as SPO.
19. Mr Mafomane commenced his employment on 5 May 2000. Mr Fourie gave
him an induction course of one week. He shared Mr Fourie’s office for the
first two weeks until his own office was ready. He also did some SAP
training. He was put in charge of the HR functions of two of the sections at
Richard Shaft. They were sections 141 and 142, together known as the
Merensky Section. His functions and responsibilities in relation to those
sections, were the same as that performed by the HR Assistants but, in
recognition of his superior experience and status, he was given two
sections and they were moreover mining sections that were more
complicated than some of the other sections. Because he was responsible
for two sections, he was also allocated two HR Administrators, one for each
section. He reported to Mr Fourie. Although it was initially suggested that
the HR Assistants would report to him, they in fact continued to report
directly to Mr Fourie.
20. All of this meant that Mr Mafomane’s position in the HR department at
Richard Shaft was as follows. He held the rank of HR Officer. It afforded
him status, seniority and remuneration superior to that of the HR Assistants.
The position that he held within the hierarchy of the department, was
however practically at the same level as that of the HR Assistants. He
performed the same functions and had the same responsibilities as they
did, albeit that his were somewhat more extensive and complicated than
most of theirs. He had no say over them. He and they reported directly to
Mr Fourie. When the latter discussed operational issues in staff meetings,
he dealt with Mr Mafomane and the HR Assistants as a group insofar as
they performed the same functions and had the same responsibilities.
21. Mr Fourie had a number of discussions with Mr Mafomane about their plans
to train and groom him for promotion to the position of SPO and beyond.
They discussed ways in which Mr Mafomane could be given the exposure
and experience required for future appointment to more senior
management positions. In the meantime, Mr Fourie was of the view that Mr
Mafomane first needed to learn the ropes in the management of the two
sections allocated to him. Although he had previously had practical
experience on a JCI mine, his more recent experience was at JCI’s
corporate headquarters rather than handson management at a mine. Mr
Fourie moreover gained the impression that Mr Mafomane may have had
expectations borne of his recent experience at JCI’s corporate
headquarters, that were unrealistically lofty. Mr Mafomane for instance
requested his own telephone line (which the HR Assistants did not have
because telephone lines were scarce), suggested that they should have
their own photocopier and fax machine (which they never had) and
suggested that a section of people who were not part of their department,
should report to him. Mr Fourie’s response was that Mr Mafomane should
be patient and “ give it time” .
THE EVENTS OF AUGUST 2000
22. Mr Fourie suddenly and unexpectedly had to take leave for the week from
Monday 14 th to Friday 18 th August 2000. His son was still in hospital in
Johannesburg where he and his mother spent their weeks and returned
home for weekends. When they were due to return to Johannesburg after
their weekend at home on 12 and 13 August 2000, Mrs Fourie told her
husband that she could not take it any longer and needed a break of a
week at home to gather herself and spend time with their other children. Mr
Fourie told Ms Steyn of the problem and she immediately told him to take
the week off. On Monday morning 14 August 2000, he went to the office to
attend to a few urgent matters and then left for Pretoria with his son later
that morning. One of the things he did before he left, was to appoint Mr
Finn to act as SPO in his absence. This appointment turned out to be
controversial and the source of much of Mr Mafomane’s complaint.
23. Mr Fourie explained that he appointed Mr Finn to stand in for him, because
he regarded him as the most appropriate person to do so. His reasons for
appointing Mr Finn rather than Mr Mafomane, were the following:
23.1. He had to make the appointment urgently and on short notice at a
time when he was distressed. He had to appoint someone whom
he could trust to run the department in his absence without
referring back to him because he expected to have his hands full
with the care of his son in Johannesburg. Mr Finn had acted as
SPO in March and had shown himself to be capable of doing so
effectively.
23.2. Mr Finn’s ability to act as SPO, was superior to that of Mr
Mafomane for a number of reasons. Mr Finn had many years’
experience on the mine, albeit not in the HR field. He had
intimate knowledge of the mine, its people and its operations. He
would not have any difficulty interacting with the rest of the mine.
Mr Mafomane on the other hand, was new to the mine and had
not had any exposure to the rest of it beyond Richard Shaft. He
would not interact with the rest of the mine with the ease that Mr
Finn could do so. Mr Finn’s proficiency on the SAP system was
also superior to that of Mr Mafomane. He had the necessary
qualifications and skills to perform all the functions on the SAP
system required of an SPO. Mr Mafomane had not yet mastered
the SAP system to the level required for that purpose.
23.3. Mr Finn had his own section completely under control and ran it
smoothly without assistance. Mr Mafomane on the other hand,
still required considerable assistance with the running of his two
sections. It was consequently easier to burden Mr Finn with the
additional duties of SPO for a week than it would have been to
impose them on Mr Mafomane.
23.4. Mr Finn was responsible for only one section. Mr Mafomane on
the other hand, was responsible for two sections that were
moreover more complicated than that of Mr Finn. It was easier to
get other people to assist Mr Finn in the running of his section
while he acted as SPO, than it would have been to get someone
to assist in the running of Mr Mafomane’s two more complicated
sections while he was doing so.
23.5. It would for essentially the same reasons not have been feasible
to appoint Mr Mafomane as acting SPO with the assistance of Mr
Finn. It would have affected all three sections for which the two of
them were responsible and would consequently have been more
difficult to accommodate.
24. The appointment of Mr Finn as acting SPO, meant that Mr Mafomane had
to report to him. Mr Mafomane felt slighted by the fact that he had to report
to someone who was junior to him in rank.
25. One of the other last things that Mr Fourie did before his departure for
Johannesburg, was to forward an email he had received about certain HR
procedures that had to be followed, to Mr Finn for him to convey to the
members of the HR department at Richard Shaft. Mr Finn called a staff
meeting and described the procedures to the staff. Mr Mafomane felt
slighted that this function was entrusted to Mr Finn in his capacity as acting
SPO, because it meant that Mr Mafomane had to receive a briefing from
someone who was his junior.
26. During the week, Mr Finn attended an SPO’s meeting called by Ms Steyn.
On his return, he called a staff meeting at Richard Shaft to inform them of
the outcome of the SPO’s meeting. Mr Mafomane did not attend this report
back meeting. He sent a message that he was “ too busy” to attend. When
Mr Finn however called on him immediately after the meeting, it became
apparent that Mr Mafomane was not busy but had refused to attend the
meeting. The inference is that he also felt slighted by the idea of having to
attend a reportback by someone who was his junior.
27. In the course of the week, Mr Lyndane Mtwa, the business manager at
Richard Shaft, requested Mr Finn to have a letter due to be circulated to all
employees, translated into Fanagalo. Mr Finn requested or instructed Mr
Mafomane to do the translation. Mr Mafomane refused to do it and said
that it was “ not his job” . He later explained that he would never, ever take
an instruction from someone who was his junior. He was quite adamant
that he would not under any circumstances ever do so.
28. On Friday afternoon 18 August 2000, the HR standby dutyroster for Union
Section for the period from 9 June to 21 September 2000, came to Mr
Mafomane’s attention for the first time. According to the roster, Mr
Mafomane had to perform standby duty for the week commencing that very
Friday afternoon. It offended Mr Mafomane for a number of reasons. The
first was that he had planned to spend the weekend with his family who
lived elsewhere. The standby duty however meant that he had to remain on
the mine for the weekend. The second was that all the other names on the
list, were those of HR Assistants. It did not include any HR Officers. Mr
Mafomane inferred that he was the only HR Officer required to do standby
duty. The third was that there was a note at the top of the roster in Mr
Fourie’s handwriting that read “ HR Assistants” . Mr Mafomane inferred from
the note that Mr Fourie regarded him as an HR Assistant and did not
acknowledge his status as an HR Officer.
29. Mr Mafomane’s distress about the standby dutyroster was understandable
but based on a number of misconceptions. It is not clear why it was only
brought to Mr Mafomane’s attention only on 18 August 2000. The
uncontradicted evidence was that the rule was that both HR Assistants and
HR Officers had to do standby duty. Some people were exempted from
standby duty because of the particular functions they performed. Those
who were exempted at the time, included the only other HR Officers Ms
Lamos (because of her litigation responsibilities) and Ms Van Rooyen
(because of her communications responsibilities). It meant that Mr
Mafomane was in fact the only HR Officer required to do standby duty at the
time. But the uncontradicted evidence was, not only that it was the rule that
HR Officers had to do standby duty, but also that all the other HR Officers
appointed since Mr Mafomane’s departure, have always had to do standby
duty. Mr Fourie lastly explained the note on the roster as one he had made
merely to indicate the category of people to whom it had to be distributed,
without suggesting that all of them were HR Assistants. It was an
inaccurate note but one made in the course of ordinary office routine
without any intention to characterise Mr Mafomane as an HR Assistant.
30. Mr Fourie returned to the office on Monday 21 August 2000. Mr Mtwa and
Mr Finn told him about Mr Mafomane’s refusal to translate the letter. He
met with Mr Mafomane to discuss the matter. Mr Mafomane confirmed that
he had refused to translate the letter because he said that he would never,
ever under any circumstances take an instruction from a junior. Mr Fourie
told him that he regarded his attitude as very negative and explained that
he (Mr Fourie) often took instructions from junior people if the
circumstances warranted it. Mr Finn had moreover been appointed as
acting SPO and in that capacity had the authority to request Mr Mafomane
to do the translation. Mr Mafomane taxed Mr Fourie on his appointment of
Mr Finn as acting SPO and asked him why he had not appointed him (Mr
Mafomane) instead. Mr Fourie explained that, by virtue of his long
experience on the mine, Mr Finn was equipped to perform the functions of
SPO while Mr Mafomane had only been there for a short while and was
consequently not yet able to do so.
31. Mr Mafomane was not satisfied by the outcome of his meeting with Mr
Fourie and raised the matter with Ms Steyn. She met with him and Mr
Fourie on 28 August 2000. When she asked Mr Mafomane about his
refusal to translate the letter, he reiterated that he would never, ever under
any circumstances take an instruction from a junior. She told him that, if
that was his attitude, it would affect his prospects of promotion. There is a
slight difference between Mr Mafomane and Mr Fourie about precisely what
Ms Steyn said in this regard. According to Mr Mafomane, she told him not
to have any expectations of promotion if that was his attitude. According to
Mr Fourie, on the other hand, she said that, if that was his attitude, he would
have difficulty getting promotion. Mr Fourie again explained why he had
appointed Mr Finn and not Mr Mafomane to act as SPO in his absence.
32. Mr Mafomane and Mr Fourie had materially different perceptions of the
outcome of their meeting with Ms Steyn. Mr Mafomane said that it left him
feeling lonely and isolated with nowhere to turn. Mr Fourie said on the other
hand that he left the meeting thinking that the issue had been resolved in
the sense that Mr Mafomane had been placated and persuaded not to feel
that he had been slighted. He said that, if Mr Mafomane had told him that
he was still unhappy, he would have taken further steps to have the issue
resolved. He said that he was sure that he and Ms Steyn would have found
a solution acceptable to Mr Mafomane, if necessary by offering him a
transfer to a different shaft or even to a different mine. If they were not
able to find a solution satisfactory to Mr Mafomane, he would have advised
Mr Mafomane to pursue the matter with the mine manager or with group
management at corporate headquarters. He was confident that they would
have been able to resolve the issue to Mr Mafomane’s satisfaction.
33. The saga had a sequel that only emerged in the crossexamination of Mr
Aphane. He said that some of the other HR Assistants were unhappy about
the fact that Mr Finn had been appointed acting SPO in Mr Fourie’s place
instead of giving Mr Mafomane the opportunity to do so. They raised their
unhappiness with “ senior management” by email. A Mr Geldenhuys and
another person came from head office and held individual interviews with
the authors of the email correspondence. Mr Aphane was one of them.
Although they had not mentioned any names in their email
correspondence, he did so in his interview with the people from head office.
They said that they would take steps to ensure that the problem was
addressed. The evidence did not reveal anything more of these meetings
or the impact they had, if any. It is difficult to imagine that Mr Mafomane
and Mr Fourie did not know about these meetings but I infer from their
failure to mention them, that they did not. No further evidence was led on
the question whether senior management responded to these grievances
and, if they did so, what they did.
MR MAFOMANE’S RESIGNATION AND ITS AFTERMATH
34. Mr Gouws van Wyk was the SPO at Declines and his wife, Ms Leonie van
Wyk was the SPO at Spud Shaft. They went on their annual leave from
6 October until 12 November 2000. During their absence, HR Assistants in
their respective departments were appointed acting SPO’s in their stead. A
Mr Andr é Naude stood in for Mr van Wyk and a Mr Marius Joubert stood in
for Ms van Wyk. Mr Mafomane learnt of this arrangement on 5 October
2000, on the eve of the Van Wyk’s departure. He felt that he was once
again overlooked for appointment as acting SPO. Mr Fourie explained that
the acting appointments would have been made by Mr and Ms van Wyk
respectively. He did not know why they regarded Mr Naude and Mr Joubert
to be the most appropriate people to take their place but did hold the view
that it would in any event not have been appropriate for Mr Mafomane to be
appointed acting SPO at those shafts. Mr Mafomane had not yet had any
exposure to or experience of those shafts. Although Spud Shaft was very
similar to Richard Shaft, each had their own habits and detailed procedures
and it was necessary for anybody acting as SPO, to be acquainted with
them. Mr Mafomane had no exposure to or experience of Spud Shaft and
was consequently not competent to be appointed acting SPO. Declines
was moreover a significantly different operation because it was an incline
shaft with significantly more mechanical mining than at Richard Shaft. It
entailed very different HR functions of which Mr Mafomane had no
experience.
35. Mr Mafomane said that this latest slight was the final straw that caused him
to resign. He did so by giving one month’s notice of resignation on
12 October 2000. His letter of resignation was polite but to the point and
merely said that he gave notice of his resignation with effect from 12
November 2000. Rustenburg’s counsel suggested that the polite terms of
the letter indicated that Mr Mafomane in fact did not harbour any grievance.
But this submission is in my view unfounded. The letter was in polite terms
and no more. It does not justify any inference about Mr Mafomane’s state
of mind at the time, other than that he had decided to resign.
36. Both Mr Fourie and Mr Finn testified that they asked Mr Mafomane why he
was resigning. He did not mention any unhappiness and said that he
intended to establish a business of his own for the supply of “ personal
protection equipment” to the mine. He told them that he had contacts on
the mines and the support of the unions and thought that it was a prospect
he could not forego. Mr Fourie said that he was sorry to lose Mr Mafomane
but wished him luck with his new venture. Mr Mafomane denied these
conversations altogether and said that neither Mr Fourie nor Mr Finn ever
asked him why he had resigned. He did not have any plans to start a
business of his own and did not resign for any such reason. He also did not
do anything to establish such a business. It is not clear where the truth lies
but in my view the evidence of Mr Fourie and Mr Finn is overwhelmingly
more probable than that of Mr Mafomane. It is common cause that the
three of them remained on a collegial and friendly footing and had contact
with one another on a daily basis for the duration of Mr Mafomane’s notice
month. It is inconceivable that they would not have discussed the reasons
for his resignation. His denial that they ever did so, is too improbable to
accept. One must conclude that they had some discussion on the topic.
The only evidence of it, is that of Mr Fourie and Mr Finn. Their version must
accordingly be accepted. It does not follow that Mr Mafomane in fact
resigned to pursue a business venture rather than as a result of his
unhappiness with his work. He may just have told a white lie about the true
reason for his resignation, particularly if it was because he felt that they had
treated him in a racist manner but did not wish to trigger a confrontation
about an issue as sensitive as that. However, that is mere speculation and
the issue remains unclear.
37. After Mr Mafomane’s departure, Mr Finn again stood in for Mr Fourie over
the Christmas holidays from December 2000 to January 2001. In January
2001, Ms Steyn suddenly resigned. Mr Fourie was appointed acting HR
Manager in her place from February to June 2001. Mr Mathoka was in turn
appointed acting SPO in Mr Fourie’s place for the same period.
38. Since these events, the HR structure at Union Section has been altered.
One of the changes that has been made at each shaft, is that a position of
HR Officer has been introduced as a linefunction between the SPO and the
HR Assistants. Under the current structure, the HR Assistants report to the
HR Officer and the latter in turn reports to the SPO. Both Mr Finn and Mr
Mathoka were appointed HR Officers.
39. Mr Fourie testified that, if Mr Mafomane had not resigned and had stayed at
the mine, he would today have been the SPO of Richard Shaft. This
evidence was not challenged.
40. I turn against the background to an analysis of Mr Mafomane’s claim and
the rules of law that govern it.
THE ESSENCE OF MR MAFOMANE’S CLAIM
41. The essence of Mr Mafomane’s claim is captured in paragraph 5 of his
statement of claim which says that,
“the subject matter of this application concerns the unfair
discrimination against the applicant by the respondent based on
race and colour which discrimination resulted in applicant
unwillingly resigning from the respondent’s employ” .
It concludes by saying that “ the constructive dismissal of applicant by the
respondent constitutes an automatic unfair dismissal” .
42. The essence of the claim is in other words one based on the constructive
dismissal of Mr Mafomane within the meaning of s 186(1)(e) of the LRA
which was automatically unfair in terms of s 187(1)(f) of the LRA in that it
was Rustenburg’s unfair discrimination against Mr Mafomane that made his
continued employment with it intolerable and caused him to resign.
43. The race discrimination of which Mr Mafomane complains, is important for
two separate but interrelated reasons. The first is that it is alleged to have
been the circumstance that caused Mr Mafomane’s continued employment
with Rustenburg to become intolerable and thus rendered his resignation
from Rustenburg’s employ, a constructive dismissal by the latter. The
second is that it is the unfair race discrimination that rendered Mr
Mafomane’s constructive dismissal automatically unfair insofar as it was the
reason for his resignation and consequently for his constructive dismissal.
44. Mr Mafomane’s claim thus lies at the intersection between constructive
dismissal on the one hand and dismissal that is automatically unfair on the
other. They intersect at the point they have in common, which is
Mr Mafomane’s allegation that the mine made his continued employment
intolerable by its discrimination against him on the ground of his race. It is
consequently necessary to consider the rules that govern constructive
dismissal and automatically unfair dismissal by reason of race
discrimination.
CONSTRUCTIVE DISMISSAL BY RACE DISCRMINATION
45. Constructive dismissal is a wellknown concept in our labour law and pre
dates the LRA. Its predecessor did not give express recognition to the
concept but the Industrial Court and the Labour Appeal Court held that in
certain circumstances, where the employee resigned due to the conduct of
the employer, the resignation by the former could be characterised as a
dismissal by the latter. The courts based this conclusion on, or derived
support for it from, the analogy to the termination of a contract at common
law, by one party on the grounds of the wrongful repudiation of the contract
by the other. That was for instance why the Labour Appeal Court said in
Pretoria Society for the Care of the Retarded, that, when an employer
renders the employee’s continued employment unbearable, “ the employer
is repudiating the contract and (the employee) has a choice either to stand
by the contract or accept the repudiation” .
46. The concept of constructive dismissal is now codified in s 186(1)(e) of the
LRA. It defines a “ dismissal” to include the circumstance where,
“an employee terminated a contract of employment with or without
notice because the employer made continued employment
intolerable for the employee” .
47. Landman J pointed out in Sappi Kraft that the LRA continues to use the
concept of constructive dismissal as described in the earlier cases but
introduced refinements and did not take over all the rules that governed
constructive dismissal under the old law. The codification under the LRA
has amongst other things severed the link between constructive dismissal
and wrongful repudiation of a contract at common law. It is now a statutory
concept in its own right which does not need to retain its link to the common
law doctrine of wrongful repudiation for its justification.
48. Constructive dismissal under the LRA, is treated as a species of dismissal
subject to the rules that govern dismissals generally. One of those rules is
the one in s 192(1) that in any proceedings concerning any dismissal, “ the
employee must establish the existence of a dismissal” . It means that an
employee who complains about an unfair dismissal of the constructive kind,
bears the onus of proving the elements of a constructive dismissal in
s 186(1)(e). They are,
that the employee terminated the contract of employment;
that the employee’s continued employment had become intolerable;
that the circumstances that rendered the employee’s continued
employment intolerable, were of the employer’s making, and
that it was because of those circumstances, that the employee
terminated the contract of employment.
49. The requirement that the employee prove that his or her continued
employment had become “ intolerable”, has the following implications:
49.1. The test is an objective one. It means that the employee must
prove at least two things. The first is that the circumstances had
become so unbearable that the employee could no longer
reasonably be expected to endure them. The second is that there
was no reasonable alternative to escape those unbearable
circumstances, than to resign.
49.2. When the latter issue is considered, it must be borne in mind that
the termination of an employment relationship, is usually only
appropriate as a remedy of last resort. An employee who resigns
to escape an oppressive working environment despite the fact that
there are other avenues of escape open to him or her, will usually
find it hard to characterise the resignation as a constructive
dismissal. The ultimate test however, 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.
49.3. I have thus far spoken of circumstances that render continued
employment “ intolerable” in the sense that the employee can no
longer “ reasonably” be required to endure them, as if there is a
single objective standard by which those matters can be judged.
But that is often not the case. The question whether continued
employment has become “ intolerable” or whether the employee
can no longer “ reasonably” be required to endure it, are based on
value judgments which sometimes vitally depend on the
perspective from which they are made. A case where a black
employee suffers race discrimination by a white employer, is a
good example. The assessment whether the race discrimination
is so severe as to be intolerable, will often depend on the
background and the perspective of the individual making it. What
may seem inconsequential from the perspective of someone who
has never suffered the humility and denigration of race
discrimination, may be regarded far more seriously and indeed
intolerable from the perspective of a lifelong victim of race
discrimination and the humility and denigration that it entailed.
From whose perspective then, should one judge whether the race
discrimination was such that the employee could not reasonably
have been expected to endure it? It seems to me that the
judgment must be made from the perspective of a reasonable
person in the shoes of the employee. Section 186(1)(e) firstly
says that continued employment must have been made
intolerable “ for the employee” . It suggests that the assessment
whether continued employment has become intolerable, must be
made from the employee’s perspective. The purpose of the
section is secondly to give effect to the right of every employee in
terms of s 185(b) of the LRA and ultimately in terms of section
23(1) of the Constitution, not to be subjected to unfair labour
practices. This right requires that the question whether continued
employment has been rendered intolerable, be judged from the
perspective of the employee. It would be unfair to deny the
remedies of dismissal to employees who resign because their
continued employment became intolerable from their perspective.
49.4. The conclusion that the question whether the employee’s
continued employment has become intolerable in that he or she
cannot “ reasonably” be required to endure it, must be made from
the perspective of a reasonable person in the shoes of the
employee, obviously does not mean that the employee’s own
views must prevail. The test remains an objective one. The
idiosyncracies of the particular employee, are not the benchmark.
The assessment must be made from the perspective of a
reasonable person in the shoes of the employee, that is, from the
perspective of a reasonable person with the same background,
life experience and position.
50. The requirement of s 186(1)(e) that “ the employer made continued
employment intolerable ”, means that the circumstances that rendered the
employee’s continued employment intolerable, must have been of the
employer’s making. They must be circumstances under the employer’s
control. The employer must have brought them about by its act or
omission. It does not mean that the employer must intentionally have done
so. I respectfully disagree with the suggestion in Sappi Kraft that “ there
should be some intention, even if it is unsaid, that the employment
relationship should be ended.”
51. The implication of the requirement of s 186(1)(f) that the employee must
have resigned “ because” the employer made continued employment
intolerable, is that there must be a causal relationship between the
intolerable working environment on the one hand and the resignation on the
other. It is only if the employee resigns because continued employment
has become intolerable, that the resignation may constitute a constructive
dismissal. If the employee resigns for another reason, the resignation does
not constitute a constructive dismissal, even if the employee’s continued
employment has been made intolerable.
AUTOMATICALLY UNFAIR DISMISSAL BY RACE DISCRIMINATION
52. A claim of unfair dismissal, whether of the actual or constructive kind,
usually requires an enquiry in two stages. In the first, the question is
whether there was a dismissal. In the second, the question is whether the
dismissal was unfair. However, when an employee contends that the
dismissal was automatically unfair within the meaning of s 187 of the LRA,
the second stage asks a different question. It does not ask whether the
dismissal was unfair. It asks instead whether the dismissal was of a kind
described in s 187. The employee must bring the dismissal within the ambit
of s 187. He or she bears the onus of proving that the dismissal was of a
kind contemplated in that section. Once the employee does so, that is the
end of the matter.
53. One of the dismissals s 187(1)(f) characterises as automatically unfair, is,
“if the reason for the dismissal is …. that an employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary grounds, including, but not limited to race”.
Section 187(2) goes on to say that, despite s 187(1)(f),
“a dismissal may be fair if the reason for the dismissal is based on
an inherent requirement of the particular job” .
54. Both sections 187(1)(f) and 187(2) require an investigation into “ the reason
for the dismissal” . In the case of a constructive dismissal, “ the reason for
the dismissal” is the facts or circumstances that rendered the employee’s
continued employment intolerable. In other words, an employee who
contends that his or her constructive dismissal was automatically unfair
because the reason for it was the employer’s unfair discrimination on the
ground of race, must show that,
the employer unfairly discriminated against the employee on the
ground of race, and
by doing so, the employer made the employee’s continued
employment intolerable.
55. It follows that an inquiry into a claim that a constructive dismissal was
automatically unfair in that the reason for the dismissal was the employer’s
unfair discrimination against the employee on the ground of race, will
usually logically start with the enquiry into the question whether the
employer unfairly discriminated against the employee on the ground of race.
Only if that enquiry yields an affirmative answer, does the enquiry turn to
the second question whether the employer’s unfair discrimination made the
employee’s continued employment intolerable.
56. An allegation that an employer unfairly discriminated against an employee
on the ground of race, involves at least three components. The first is that
the employer differentiated by treating the particular employee less
favourably than other employees. The second is that the employer made
the differentiation on the ground of race. The third is that it was unfair for
the employer to do so.
57. An employee who claims that his or her dismissal was automatically unfair
on this ground, bears the burden of proving the first and second of these
components. He or she must prove that the employer treated them less
favourably than other employees and that the employer did so on the
ground of race. The latter requirement has the following implications:
57.1. The mere fact that an employee of one race is treated less
favourably than an employee of another race, does not in itself
mean that the differentiation between them is made on the ground
of race. For instance, if two workers of different races are paid
different wages purely because the one is unskilled and the other
highly skilled, the differentiation between them is not one on the
ground of race. The differentiation is made on the ground of race
only if it is made on the basis of race and not if it is made on
another rational and justifiable basis.
57.2. It does not mean that the differentiation must overtly be based on
race or that the employer must have intended to differentiate on
that basis. Unfair discrimination may occur “ directly or indirectly” .
Indirect discrimination looks at the effect of the employer’s
conduct rather than the intention behind it or the means by which
it is achieved. If the effect of the employer’s conduct is that
employees of one race are treated less favourably than
employees of another race, then the differentiation between them
is indirectly made on the ground of race, even if the employer
does not intend to differentiate on the ground of race and even if
the means by which the differentiation is effected, are not overtly
racebased.
57.3. It follows that, if employees of one race are treated less favourably
than employees of another, and there is no other obviously
rational and justifiable basis for the differentiation between them,
an inference arises that it is directly or indirectly made on the
ground of race. It imposes an evidential burden on the employer
to rebut the inference by evidence that the differentiation is based
on another rational and justifiable ground and not on race.
58. Once the employee establishes that he or she was less favourably treated
than others and that the differentiation was made on the ground of race, the
differentiation is presumed to constitute unfair discrimination. The employer
then bears the burden of proving that it was not unfair. This imposition of
the burden of proof of the employer, once the employee has proved
differentiation on a ground specified in s 187(1)(f), is not directly
comparable to, but is nonetheless broadly in line with, both the scheme of
the LRA and particularly s 192(2) which requires the employer to prove the
fairness of a dismissal and s 9(5) of the Constitution which deems
discrimination on a specified ground to be unfair unless it is proved that it is
not.
APPLICATION TO THIS CASE
59. I return to Mr Mafomane’s claim that Rustenburg discriminated against him
on the ground of his race. It is based on five complaints of race
discrimination identified in paragraphs 9 to 16 of his statement of claim. I
will deal with each of them in turn.
60. The first complaint is that Mr Fourie always addressed Mr Mafomane as
“Human Resources Assistant” when he knew that he was an HR Officer.
This complaint is not supported by the evidence. Mr Fourie’s evidence in
this regard was not challenged or contradicted. He said that he never
addressed Mr Mafomane as “ Human Resources Assistant” . He always
addressed him by his first name. The note that he made at the top of the
standby dutyroster that read “ HR Assistants”, was not addressed to Mr
Mafomane and could not have been so understood.
61. The second complaint is that Mr Fourie appointed Mr Finn to act as SPO in
his absence while he was on leave for a week from 14 August 2000. Mr
Mafomane complains about this appointment in two respects. He says
firstly that it was made contrary to a “ common practice” for staff due to go
on leave, to appoint the most senior person below them in the hierarchy, to
act in their stead. But the evidence of Mr Fourie and Mr Finn was that there
was no such common practice and on the contrary, that the rule was that
the acting appointment had to go to the most appropriate person who need
not be the secondincommand. This evidence was also not challenged or
contradicted. Mr Mafomane secondly says that the appointment required
him to take instructions from his subordinate. That was so but the question
is whether it constituted discrimination on the ground of race, in other
words, whether this consequence was imposed on Mr Mafomane because
he was black. It is clear from Mr Fourie’s evidence, that his appointment of
Mr Finn was not in any way motivated by racist considerations. But that is
of course not the end of the enquiry. The question remains, whatever Mr
Fourie’s motive or intention might have been, whether the effect of his
decision was to discriminate against Mr Mafomane on the ground of his
race. I am of the view that it did not. I say so for the following reasons.
First, the rule that, when a member of management was absent, the most
appropriate person had to be appointed in his stead, whether it was the
most senior person below him in the hierarchy or not, would inevitably mean
that junior people would sometimes act in positions senior to those
members of staff who were ordinarily above them in the hierarchy. That
would be so whatever the race of the more junior person who receives the
acting appointment or that of the people senior to him who then have to
report to him while he holds the acting appointment. The rule is in other
words colour blind and there is nothing inherent in its application that would
affect one race more favourably than another. Secondly, the application of
the rule in this case, was indeed colour blind. Mr Fourie justified his
conclusion that Mr Finn was the most appropriate person to act in his stead
and his grounds of justification were never seriously challenged or
contradicted. Thirdly, shortly after this incident, Mr Fourie appointed Mr
Mathoka as acting SPO from February to June 2001. It demonstrated at
the very least, that neither the “ most appropriate person” rule nor Mr
Fourie’s application of it, invariably selected white members of staff for
acting appointments rather than their black colleagues. While I have
considerable sympathy for Mr Mafomane’s bruised feelings about this
incident, his response to it does seem to have been wholly unreasonable.
He had only been with the mine for three months when the acting
appointment was made. He had received various assurances from Ms
Steyn and Mr Fourie that they had high ambitions for him and intended to
train and groom him for appointment to senior management positions in
future. Their plans were to afford him preferential treatment on the ground
of his race for the sake of the transformation of the staff complement at the
mine to redress historical racial imbalances. In the light of those
assurances, he should have realised that, when he did not get the acting
appointment, it was due to his inexperience after only three months at the
mine and not because of his race.
62. Mr Mafomane’s third complaint is that he was required to do standby duty
“whilst white personnel holding precisely the same rank as applicant were
exempted from such standby” . That was true only insofar as Ms Lamos and
Ms Van Rooyen were exempted from standby duty. Mr Mafomane was
however not required to do standby duty because of his race. The
uncontradicted and unchallenged evidence of Mr Fourie and Mr Finn was
that the rule was that HR Assistants and HR Officers had to do standby
duty. Ms Lamos and Ms Van Rooyen were exempted from it only because
of the particular functions they performed. While there was no other HR
Officer at the time of Mr Mafomane’s employment with the mine, Mr Finn
and Mr Mathoka were thereafter promoted to that position and continued to
do standby duty in that capacity. In the other departments at the mine,
senior management staff at levels equal to and higher than that of HR
Officer, also always did standby duty. There was accordingly no race
discrimination in the rule or its application.
63. Mr Mafomane’s fourth complaint is that Ms Steyn told him during their
meeting on 28 August 2000, “ not to harbour any expectations of promotion
at any time in the future” . The evidence did however not bear out this
complaint. It was common cause between Mr Mafomane and Mr Fourie
that Ms Steyn made the comment referred to, in response to Mr
Mafomane’s reiteration that he would never, ever under any circumstances
take an instruction from a junior. Ms Steyn said that she thought that that
was a negative attitude. According to Mr Mafomane, she added that he
should not have any expectations of promotion if that was his attitude.
According to Mr Fourie, she said that he would have difficulty getting
promotion if that was his attitude. The difference between them was slight.
What they had in common, was that Ms Steyn merely said that Mr
Mafomane’s attitude to instructions received from people junior to him who
were temporarily appointed to act as his senior, would block or impede his
promotion. She never said and he could never have understood her to say,
in the light of the repeated assurances given to him by Ms Steyn and Mr
Fourie that he was to be trained and groomed for fasttrack promotion, that
he would never be promoted. She merely said in effect that his promotion
would be blocked or impeded if he persisted in his refusal to accept and
abide by the implications of the mine’s “ most appropriate person” rule. The
comment was a reasonable one in the circumstances, was not motivated by
any racist considerations and could not reasonably have been understood
to be so.
64. Mr Mafomane’s last complaint is that, when Mr and Ms Van Wyk left on
leave on 5 November 2000, Mr Naude and Mr Joubert were appointed to
act in their stead despite the fact that they were both junior to Mr Mafomane
in rank. It is true that they were HR Assistants while Mr Mafomane was an
HR Officer. But it was again an instance of the application of the “ most
appropriate person” rule. According to the evidence, the appointments
would have been made by Mr and Ms Van Wyk. There is no evidence of
the reasons why they deemed Mr Naude and Mr Joubert respectively to be
the most appropriate people to act in their stead. Mr Fourie however
testified that, whatever their considerations might have been, Mr Mafomane
was in any event not an appropriate replacement for them because he had
not had any exposure to or experience of the shafts at which they were
employed. Mr Mafomane’s lack of exposure to or experience of those
shafts, was common cause. Mr Mafomane was moreover unable seriously
to quibble with Mr Fourie’s evidence that Mr Mafomane’s lack of knowledge
of the workings of the HR departments at those shafts, rendered him
incapable of acting as SPO of those departments. These appointments, or
rather the failure to appoint Mr Mafomane as acting SPO in the place of Mr
or Ms Van Wyk, accordingly also did not amount to discrimination on the
ground of race.
65. I conclude for these reasons that Mr Mafomane has not established the
race discrimination of which he complains. Even if this conclusion is wrong
however, there is another respect in which Mr Mafomane has failed to
establish that his continued employment at the mine had been rendered
intolerable. It arises from the fact that he failed to pursue further remedies
reasonably open to him to obtain redress of such complaint as he might
have had. He raised the issue with Mr Fourie and Ms Steyn but then left it
there. He did not tell them that he remained dissatisfied and wished to
pursue the matter. According to Mr Fourie, if they had known that he was
still dissatisfied, a range of further remedial steps would have been taken.
Mr Mafomane also did not raise his complaint with the manager of the mine
or with senior management at head office. He should have pursued those
avenues of redress before resorting to the drastic step of termination of his
employment. That was how his colleagues in the HR department at
Richard Shaft responded. He should have done the same. According to Mr
Fourie the mine manager and senior management at head office, would
have ensured that Mr Mafomane’s complaint was addressed and resolved
to his satisfaction. Mr Fourie’s evidence in this regard was again not
challenged or contradicted.
66. I conclude that Mr Mafomane has not established that his continued
employment at the mine had become intolerable. Mr Fourie’s
uncontradicted and unchallenged evidence was that, if Mr Mafomane had
stayed at the mine, he would today have been the SPO at Richard Shaft.
That would clearly have dispelled any perception Mr Mafomane might have
had, that he was being discriminated against on the ground of his race.
67. I conclude that Mr Mafomane has failed to establish an essential element of
his claim which must for that reason fail. I am however of the view that it
would not be appropriate to order him to pay the respondent’s costs. I
consequently make the following order:
The applicant’s claim is dismissed.
W H Trengove AJ
11 August 2003