Case Number: PSES 12-19/20 MP
Applicant: Maphaga Z.Z
Respondent: Department of Education Mpumalanga
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of Education-Mpumalanga in Nelspruit.
Award Date: 10 October 2019
Arbitrator: Ramadimala Jacky Mateta
Case Number: PSES 12-19/20 MP
Commissioner: Ramadimala Jacky Mateta
Date of the Ruling: 10 October 2019
In the ELRC ARBITRATION between
Department of Education- Mpumalanga
Union/Applicant’s representative: Adv. J.S Maake (Legal Representative)
Union/Applicant’s address: P.O. Box 5687
Respondent’s representative: Mr. Malaza BSA ( Labour Relations Specialist)
Respondent’s address: Department of Education- Mpumalanga
Private Bag x11341
Telephone: 013 766 5552/5451
Telefax: 086 680 1904
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held and finalized on the 6th of September 2016 at the Respondent’s Offices, Department of Education-Mpumalanga in Nelspruit.
2. The applicant, Mrs. Zingaphi Zodwa Maphaha (“Applicant” hereinafter) attended the proceedings and dealt with her matter represented by Adv. J.S. Maake, a legal representative.
3. The respondent party Department of Education-Limpopo (“Respondent” hereafter) was also present and represented by Mr. Malaza B.S.A, an official from the Labour Relations division of the respondent.
4. The hearing followed only adversarial approach as both parties were sufficiently represented in the arbitration proceedings.
5. Both parties presented their bundles of documents. The applicant’s bundle was marked bundle A (“A” hereafter) while the respondent’s bundle was marked bundle B (“B” hereafter).
6. The proceedings were recorded both digitally and manually.
7. After conclusion of arbitration hearing, parties requested to for extension and submission of their closing arguments in writing and were given until the 16th of September 2019 to submit.
ISSUES TO BE DECIDED
8. I was required to determine as to whether the applicant’s resignation amounts to a dismissal in terms of section 186(e) Labour Relations Act 66 of 1995 (as amended) (“Act” hereafter). If so, I must determine an appropriate remedy in terms of the Act. The applicant has prayed for maximum compensation in terms of the Act.
BACKGROUND TO THE ISSUES
9. Before the date of the arbitration hearing, the parties managed to conclude their pre-arbitration conference and their pre-arbitration minute is contained in the respondent's bundle.
10. The parties agreed that the following issues are not in dispute:
a. The applicant was an employee of the respondent appointed on the 1st of August 2010.
b. The applicant is residing in Thohoyandou in the Limpopo Province.
c. She was placed at Umpilusi Primary School at Ermelo.
d. She was a CS1 Educator earning R15 163.75 as a salary per month.
e. She was initially dismissed for misconduct. She referred an unfair dismissal dispute to the ELRC and was subsequently re-instated by the ELRC in terms of an award dated the 26th November 2018.
f. The re-instatement was retrospective and the respondent was ordered to pay her an amount of R348 766.25 as a back pay on or before the 30th of November 2018.
g. She was supposed to report back for duty on the 30th of November 2018.
h. As at the conclusion of the pre-arb, the applicant had not yet been paid her back pay and her salary from 1st of December 2019 to 15th March 2019.
i. The applicant resigned from service on the 15th of March 2019. (Bundle B page 14).
j. Her resignation letter states that the reason for resignation is that the respondent had frustrated her resumption of duty by withholding the back pay in terms of the award and in so doing rendered it impossible for her to relocate and settle at Ermelo and thus, rendering her continual employment relationship intolerable.
11. The applicant contends that her resignation was as a result of the respondent making continual employment intolerable and therefore should be seen as unfair dismissal in terms of Section 186(1) (e) of an Act.
12. The respondent avers that the applicant’s resignation does not amount to constructive dismissal as there were alternatives to explore and therefore the applicant resigned voluntarily.
SUMMAY OF EVIDENCE AND ARGUMENT.
13. I am required in terms of section138 (7) (a) of the LRA to issue an award with brief reasons. I do not propose to offer an exhaustive survey of all the evidence and arguments led at the arbitration hearing. What follows is a concise summary of the evidence relevant to issues at hand.
14. Mrs. Zingaphi Zodwa Maphaha testified and was as the only witness in her matter. Her evidence is summarised hereunder. The applicant was a teacher at the respondent’s Umpilusi School, in Ermelo.
15. She was previously dismissed from employment by the respondent. She referred an unfair dismissal dispute and was issued with an award. (page 1 to 5 of A). She referred to paragraph 1 to 3 of the award that read as follows:
“(1) I find the dismissal of the Applicant was procedurally and substantively unfair. (2). The Respondent, the Department of Education (Mpumalanga) is ordered to re-instate the Applicant, Zingaphi Zodwa Maphaha, in its employ on terms and conditions no less favourable to her than those that governed the employment relationship immediately prior to her dismissal. (3) The re-instatement in paragraph 2 is to operate with retrospective effect from 14 August 2016.”
16. The date on which she was supposed to report is the same date as the date on which the back pay was payable. The amount was not paid. The respondent then applied for the variation of the award. The Applicant did not oppose the application. The reason for not opposing the variation application was that the Applicant did not want to delay the payment of her back pay.
17. On the 30th November 2018 the applicant’s representative then wrote a letter to the respondent addressed to the Head of Department, of the Department of Education Mpumalanga. (Page 6 of A). She referred to paragraphs 1 to 15 of the letter and explained that she implied that she would not be able to report if she had not been paid her back pay. The reason she could not was that Gert Sibanda is approximately 548Km from the place of her residence, Thohoyandou. While working for the respondent she was staying in a rented flat. She vacated the flat in December 2016. She also had some house goods which had to be carried back. If she had to do so, she would have to hire a bakkie. If she was not paid she would not have a place to stay. The applicant reported her financial plight as early as 30 November 2018. She was also prepared to go to the head office and discuss same with the Head of Department.
18. The Variation Ruling was issued on the 4th of February 2019 and the applicant was still was not paid. On the 15th of March 2019 she wrote a letter of resignation.
19. The applicant referred to the letter on page 19 of A, from Mr. Skosana, the Deputy Director of Labour Relations, Gert Sibanda District. The contents were read into record and she stated that it required her to report within two days despite her not having been paid. The letter from the HOD had not yet been responded to and she had not yet been paid. It was impossible for her to report on the 15th of February 2019. The letter dated the 14th of February 2019 written by her representative indicated that she was booked off-sick from 04 February 2019 to 17 March 2019 and a copy of the medical certificate was attached. (Page 12 of A). After her sick leave she was supposed to report for duty on the 18th of March 2019. She wrote several letters to the respondent and they were not responded to. She was left with three days to report and had still not been paid. She had no alternative except to resign because if she failed to report, disciplinary action would have been taken against her. She was only paid in July 2019, seven months after her resignation.
20. The applicant is a widow with four children. Two children were still at school. They could not continue with their studies in 2018. Enforcement of the award would not have helped. The applicant commenced enforcement proceedings but at the date of arbitration, she had not yet received any enforcement order meaning that she still did not have the means to make it possible for her to report back for duty.
21. She is praying for maximum compensation i.e. an amount equal to twelve month 12 months’ remuneration. The circumstances to be considered are that she did not resign voluntarily as she did not have any means to leave. Even if she would have enforced the award she would still have no means. She was recorded as having been dismissed and that makes it difficult for her to find another job. In 2016 when she left, she had debts which were still outstanding, she had children who had to leave school; she was leaving on her mother’s old age grant, even now, after receiving payment, she still have outstanding debts.
22. Under cross-examination the applicant admitted that she received the letter page 6 of A and that it was instructing her to report back for duty. However she stated that it was impossible because she was by then in Thohoyandou and did not have the means to go back to Ermelo as she had not paid. She argued that had her back pay been paid or had she been in Ermelo she would have reported. She could not say how the letter from her representative was served on the respondent. She agreed that when she resigned, she was still on sick leave. She agreed that the payment she was looking for was a payment in terms of the award and that if it was paid she would not have resigned. She agreed that the letter instructing her to report was from Mr. Skosana and that her letter was addressed to the HOD and was sent through an e-mail transmission. She agreed that her resignation had nothing to do with the school or conditions of work. She re-iterated that the award was directing her to report to the Department of Education-Mpumalanga and her letter on page 6 of A was directed to the HOD and as an effort of trying to meet with the HOD and make arrangement for her reporting, which would in turn be communicated to her supervisors.
23. Mr. B.S.A Malaza reserved the employer’s rights to lead viva voce evidence through witnesses. He chose not to lead any oral evidence and stated that he would only submit heads of arguments in his written closing arguments.
24. In its the closing arguments the respondent submitted the following: That it is further common cause that the applicant was advised following the receipt of the variation ruling through a letter dated 13 February 2019 to report for duty on the 15 February 2019. The applicant responded by letter on the 14 February 2019. The letter had a sick note attached to it indicating that the applicant was booked off sick from 4 February 2019 until 17 March 2019 as per the sick note. On the 15 March 2019 the applicant tendered her resignation from work with immediate effect. The applicant never reported for duties, in order to put the varied arbitration award in operation, but tendered her resignation before even the period of sick leave could be exhausted. This resulted in the department having to process her resignation and to implement of the varied arbitration award simultaneously.
25. The variation ruling confirmed that the applicant was dismissed from work on the 31 December 2016. The award which ordered to respondent to re-instate the applicant with retrospective effect from 14 August 2016, had errors that needed to be corrected as they would have had an effect on the amount of money that had to be paid to the applicant in terms of the award. The respondent was not in position to implement the arbitration award while the variation ruling was pending.
26. It submitted that the applicant has selectively, unreasonably and deliberately not reported for duty. There was no evidence indicating that the applicant was ever instructed not to report or that she was denied access to the employment premises to resume her duties. There were other remedies that were available for the applicant if she felt she was treated badly by the respondent other than to resign. The applicant and her legal representative have failed to invoke the available remedies in terms of Labour Relations Act 66 of 1995, as amended. Section 143(1) reads as follows:
“An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued”. Section 143 (5) as amended further reads: “Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrates Court”.
In as much as there was an attempt by the applicant to enforce the award in terms of the LRA, this was done on 12 April 2019 long after the applicant had resigned, and it appears that this application was abandoned. In Regent Insurance Company Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR3240/10)  ZALCJHB 50; (2013) 34 ILJ 410 (LC) (15 June 2012) at paragraph 61 the court stated that: “In these circumstances, there can be no talk of constructive dismissal. The employee had reasonable alternative options and did not make use of them.”
27. The above mentioned position was confirmed by the Labour Appeal Court on 28 June 2016 when it delivered judgement in CCMA v MBS Transport CC. The applicant failed to enforce the award and elected to resign. It was not rebutted in re-examination by the applicant that the resignation was for personal reasons that emanated from the non-payment of the amount due in terms of the arbitration award.
28. The respondent submitted that in Pretoria Society for the Care of the Retarded v Loots, the court held that the employee must satisfy the Court that at the time of the termination of the contract, he or she was under the genuine impression that the employer behaved in a manner that rendered the relationship intolerable and would continue to do so. The applicant never reported for duty when requested to do so by the respondent and has demonstrated that she intended not to do so.
29. In the circumstances the employer exercised its rights to apply for variation of the arbitration award because of the financial implications as failure to do so would have had effect for the department, which the applicant deemed unbearable. It must be noted that the applicant testified that her resignation was because the respondent did not implement the arbitration award as reflected in bundle A page 5 paragraph 4.
30. In Jordaan v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Appeal Court approved a salutary caution that constructive dismissal is not for the asking and held that “With an employment relationship, considerable level of irritation, frustration and tension inevitably occurs over a long period. None of these problems suffice to justify constructive dismissal”
31. The respondent submitted that the delayed payment of the applicant was because of the errors in the award that needed to be rectified, hence the application for the variation of the award, which the applicant was aware of and did not oppose. The respondent had to update the applicant’s personal information on the persal. Information system seeks approval to amend her status on personal data in order capture the sick leave and implement the termination. That resulted in the delay to make payment. The respondent paid the amount due to the applicant in respect of the period from the date of re-instatement i.e. 1 January 2017 up until the date of her resignation 15 March 2019.
32. It was also submitted that the arbitration award awarded the applicant an amount of R348 766, 25. The respondent paid the applicant an amount of R 404 342.65 i.e. the amount due at the date of her resignation. In her testimony the applicant claimed that the reasons why she resigned included the failure to pay her in accordance with the arbitration award. According to the applicant’s version the conduct of the respondent made continued employment intolerable and specifically made it impossible for her to report for duty and to continue working.
33. The respondent argued that the applicant failed to prove that the resignation was not voluntary and that it was not her intention to terminate the employment relationship. It submitted that the other factor that influenced her to resign was that her four kids resided in Limpopo Province (Venda) and that they were cared by her pensioned mother. It further submitted that the applicant did not make any effort to find or to look for accommodation around her working station. This showed that she has no interest to continue with the employment relationship.
34. It submitted that the applicant’s case was about the non-payment the amount due in terms of the arbitration award which in bundle A page 17 par 2 illustrates the lack of understanding of the enforcement procedure by the author of the letter. On that basis the respondent submitted that the applicant resigned voluntarily and that she failed to prove she that was constructively dismissed. The respondent’s prayer was for the case to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
Whether a dismissal occurred
35. In Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) ILJ 2337 (LAC) the following were laid down as requirements for constructive dismissal:
• That the employee must have terminated the contract of employment;
• The reason for termination must have been that a continued employment had become intolerable;
• The employer must have made a continued employment intolerable;
36. The fourth requirement for constructive, namely that;
• The employee must have had no option than to resign appears from Beecham (Pty) Ltd v CCMA & others (2000) 21 ILJ 988 (LC)
37. I was required to determine whether the applicant’s resignation amounted to contractive dismissal, i.e. whether the applicant party had discharged the onus to prove that “an employee terminated the contract of employment with or without notice because the employer made continued employment relationship intolerable.”
38. The first stage of the enquiry should be to determine whether the requirements for constructive dismissal as laid down in Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) ILJ 2337 (LAC) above were proved.
39. It is common cause that the applicant resigned. I therefore find that the applicant terminated the contract of employment.
40. The second requirement is that the reason for termination was that the employer made a continuation of the employment relationship intolerable. It is common cause that the applicant stated in her resignation letter that the reason for her resignation was that the respondent had frustrated her resumption of duty by withholding her back pay in terms of the award and in so doing rendered it impossible for her to relocate and settle in Ermelo and thus rendering continuous employment intolerable. In her closing argument she argued that the respondent’s uncaring and irresponsible conduct rendered it impossible for her to resume her duties.
41. According to the applicant’s evidence she was unemployed for two years. She had no income during this period and was dependent upon her immediate family members. I also considered her evidence that she had two kids of school-going age, who dropped out of school during 2018, due to lack of financial means on her part. I also considered her evidence that she is a single parent who stays at her pensioned mother’s residence and that she and her kids are principally dependent upon her pensioned mother for their upkeep on her social grant benefits. I also considered that the applicant is highly indebted.
42. The respondent argued that the delayed payment of the applicant was because of the errors in the award needed to be rectified; hence the application for the variation of the award that the applicant was aware of and did not oppose. The respondent had to update the applicant’s particulars on the persal information system and had to seek approval to amend her status on personnel data, to capture the sick leave and to implement the termination of her employment. That resulted in the delay of payment. The respondent managed to make the payment as from the date of re-instatement i.e. from 1 January 2017 up until the date of her resignation, 15 March 2019. There was no evidence led to this effect. There was also no evidence that seems to suggest that this was ever brought to the attention of the applicant. It is for that reason that I find it difficult to accept this version of the respondent.
43. For that reason I find that the respondent made employment relationship intolerable.
44. As to whether the applicant succeeded in proving that the respondent made her continuous employment intolerable depends on whether I will find that the effect of the conduct of the respondent’s management as a whole, judged reasonably and sensibly, was such that the applicant could not be expected to put up with. This is a factual dispute that must be determined after assessment of all evidence presented. It can only be done once the fourth requirement had been satisfied.
45. The fourth requirement for constructive dismissal is that the employee must have had no option than to resign as ruled in Beecham (Pty) Ltd v CCMA & others (2000) 21 ILJ 988 (LC). The applicant’s evidence is that she that she had no option except to resign because she was supposed to report back for duty on the 18th of March 2019. I also considered her evidence that she wrote several letters to the respondent and that were not responded to. I considered her evidence that she was only left with three days to report and still was not yet been paid. I considered her evidence that she had no alternative except to resign because if she failed to report, disciplinary action would have been taken against her.
46. In Amalgamated Beverages Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC) the Labour Appeal Court defined constructive dismissal as: “The termination of employment contract by reason of the employee’s rather than the employer’s immediate act. However such an act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified.”
47. I considered the applicant’s evidence that she resigned after writing numerous letters to respondent indicating her financial predicament and with the hope that the respondent would pay her until she realised that there she would not be able to relocate due to lack of financial means. The applicant argued that the respondent sole reason for not paying was that the respondent was unhappy about the order for re-instatement and made every effort to frustrate the applicant so that the applicant will find it impossible to continue with employment relationship. There was no evidence led to prove that the respondent’s conduct was not justified.
48. In Jooste v Transnet Ltd t/a SA Airways  5 BLLR 1 (LAC) the LAC quoted with approval from Woods v WM motors and remarked, “It is clearly established that there is implied in the contract of employment a term that employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee...To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it... The conduct of the parties has to be looked at as a whole and its cumulative impact assessed”.
49. I considered the applicant’s evidence that the respondent never bothered to respond to her letters but only issued an instruction that she must report for duty. The respondent never explained what delayed the payment of her back pay. The respondent argued that the applicant has failed to enforce the award and elected to resign for personal reasons that emanated from the non-payment of the amount in terms of the arbitration award. Arbitration awards are binding to the parties unless set aside on review. The failure of the employer to comply with the award and/or to provide an explanation for the non-compliance leaves the applicant with little hope and caused employee not to trust all systems. For I find that left the applicant in a weak position and with the impression that the employer was a law unto itself. That left the applicant with the impression that even if the enforcement proceedings were instituted, it would be futile and helpless. I also considered that she attempted to enforce the award but even after the conciliation and pre-arb meeting, the council had not yet issued any order.
50. Following the above case law, I find that the respondent conducted itself in manner that when calculated likely to destroy the relationship of confidence and trust between employer and employee.
51. In Pretoria Society for the Care of the Retarded v Loots  BLLR 721 (LAC) the court reiterated the same and held that, “the employee must show that, but for the employer’s conduct, the employee would not have terminated the contract without reasonable and proper cause, employer conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.”
52. In Albany Bakeries Ltd v Van Wyk & others (2005) 26 ILJ 2142 (LAC), it was said, “Like in every contractual relationship it is implied in an employment contract that neither the employer nor the employee would do, or omit to do, anything that would cause either of them to find it impossible or difficult to continue as a party in the employment relationship. Such conduct would amount to repudiation of the contract. Therefore, by making the employee’s continued employment intolerable, the employer thereby repudiates the employment contract.”
53. It appears from Smith Kline Beecham (Pty) Ltd v CCMA & (2000) 9 LC 6.13.1 (2000) 21 ILJ 988 (LC) that the onus is on the employee to prove that the conduct of the employer was intolerable. The Court remarked that, “if the employee felt that the conduct of the employer was intolerable, the employer must prove that its conduct was justifiable and neither unfair nor unlawful.
54. There was no evidence led by respondent to prove that its conduct was justified and neither unfair nor unlawful.
55. I therefore find that the applicant had no option other than to resign. For that reason I find that the applicant has succeeded in discharging her onus to prove constructive dismissal. The applicant has requested for maximum compensation of 12 months’ salary. In determining the amount of compensation I considered that the applicant suffered emotionally; that she is a widow with two children and the conduct of the respondent. I also considered that the applicant is no longer in an employment. I considered that employer is a public education with limited resources which must be mainly used for the benefit and the interest of the child. However, the conduct, omission and tardiness are often caused by the employees. The respondent has recourse to recover any amount that might be viewed to constitute a fruitless expenditure. For that reason I find 8 months will be appropriate under the circumstances.
56. The applicant’s resignation amounts to constructive dismissal.
57. The dismissal of the applicant is both procedurally and substantively unfair.
58. The respondent, Department of Education-Mpumalanga, is ordered to pay the applicant Mrs. Zingaphi Zodwa Maphaha, an amount of R121 23310 [One Hundred and Twenty-one Thousand,Three Hundred and Ten Rand] as compensation for a dismissal that was both procedurally and substantively unfair.
59. The amount referred to above must is equivalent to the applicant’s salary for a period of eight months’ and must be paid to the applicant on or before the 30th of November 2019.
Ramadimala Jacky Mateta
Sector: Public Service: Education