Case Number: PSES 90-19/20 WC
Province: Western Cape
Applicant: ALTITIA DENISE KLAASEN
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Metro East Education District offices in Kuils River
Award Date: 28 May 2020
Arbitrator: Arthi Singh-Bhoopchand
Case No PSES 90-19/20 WC
In the matter between
ALTITIA DENISE KLAASEN Applicant
WESTERN CAPE EDUCATION DEPARTMENT Respondent
HEARD: 21 November 2019; 17 February 2020
ARBITRATOR: Arthi Singh-Bhoopchand
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration hearing concerning an alleged unfair dismissal was convened for 21 November 2019 and 17 February 2020 at the Metro East Education District offices in Kuils River. The Respondent was represented by Mr F. Scholtz a labour relations official within the Labour Relations Directorate of the Respondent. The applicant was represented by Advocate J. Robertse a member of the Cape Bar. He was instructed by Mr P. Badenhorst, an attorney of the legal firm Cluver Markotter.
2. Two bundles of documents were handed in as evidence. They were marked bundles “A” and “B” and shall be referred to where necessary.
3. Proceedings were digitally recorded.
4. The parties provided their closing argument in writing, the last of which was received on 12 March 2020.
ISSUE IN DISPUTE
5. I must decide whether there was a dismissal. In the event of a finding that there was a dismissal, I must decide whether the dismissal was substantively and procedurally fair.
6. The applicant was employed on a fixed term contract at the Kuils River Technical High School for the period 1 January 2019 to 31 December 2020. Her services were terminated on 2 April 2020.
7. It is the respondent’s case that the applicant resigned. Applicant disputes this and claims that she was dismissed. The factual matrix that led to the disparate view on how the applicant’s services came to be terminated is set out below.
8. Applicant reported for duty on 7 January 2019, the first day of the of the school term. She was absent from work for 3 days in January 2019 due to a knee injury sustained during a running event. On1 February 2019, applicant was assaulted by a learner in her class. This incident exacerbated an existing medical condition of depression and anxiety. On 12 February 2019 the applicant tendered her resignation via email to the Principal of the school, Mr Quinton Pick.
9. In response to the letter of resignation, Mr Pick contacted the applicant via WhatsApp and asked her whether she was sure of her resignation. Her response was that she was not sure. He then suggested that she “take five”. He also suggested that he could consider removing her Grade 12 responsibilities in order to relive the pressure on her. The applicant returned to work on 18 and 19 February 2019 but fell ill again and was admitted to a clinic. She was diagnosed with a further medical condition and was booked off from work for extended periods during the first school term of 2019 (effectively 20 February 2019 to 1 April 2019 for observation and treatment as an inpatient in hospital.
10. There were subsequently further WhatsApp communications between them regarding the applicant’s health. On 1 April 2019, the applicant advised Mr Pick via WhatsApp that she will have to return to hospital and that the Central Pontine Myelinolysis (CPM) discovered at the stem of her brain required further investigation. She also stated the following:
“I can only with faith and trust ask you not to stop my contract because we are not sure about the effect of my condition yet. I urge you to consider my plea to you. I will not stand in your way to do what is best for the school. It is still your prerogative.”
Mr Pick respondent as follows:
“As you know, I have tried to protect you and carry on, as well as not implementing your resignation. However, I think we need to terminate the contract in the interests of our school and learners……… Thank you for understanding. I will send you an agreement to terminate the contract by mutual agreement or I can just implement your previous resignation letter. Please share with me your thoughts on this one.”
11. The applicant did not respond to Mr Pick’s request. On 2 April 2019, Mr Pick addressed a letter to the parents of the grades taught by the applicant in which he informed them that there was a mutual agreement to terminate the applicant’s contract. When the applicant learnt of this, she expressed her concern with the circuit manager who advised her in an email dated 5 April 2019 as follows:
“According to me this matter has been agreed upon by both parties.”
Applicant then referred a dispute on 29 April 2019. It is the applicant case that her resignation letter was effectively withdrawn or invalid when she returned to work on amended agreed terms. She denies that there was any mutual agreement to terminate her contract.
SUMMARY OF EVIDENCE
12. I provide only a brief summary. I do not summarise the argument but shall refer to same in my analysis.
13. Alitia Klaasen: In her initial discussion with the principal prior to her appointment she was told that her one-year contract would be renewed. She was asked to confirm that she would be available the following year.
14. She had a good relationship with Mr Pick, and it was normal for them to communicate via WhatsApp. At the time that she penned her letter of resignation, she was in a vulnerable state. She had a knee injury for which she had to wear a cast; she has a history of anxiety and depression and the attack by the learner occurred against this this background.
15. She applied for temporary incapacity leave when she was put off work as the sick leave exceeded 30 days.
16. During cross examination she testified that she had not informed her principal that she was retracting her resignation. However, she did re-consider after the principal asked her to “take five” and after he offered to change her responsibilities to relieve her of some work pressure. She then went back. When she became ill after she returned to work, she expected the principal to get a substitute teacher.
17. Quinton Pick: He testified that the applicant is an experienced educator and she has also been a school principal. She had served at their school as a substitute teacher during the third term of 2018. She rendered good service and her attendance was good. He therefore approached her with the specific objective of getting her to improve the Life Sciences results of the Grade 12 learners as they had been struggling to do so.
18. After Applicants appointment, she was absent from school more often than not. He received her letter of resignation on 12 February 2019 shortly after she was assaulted by a learner in her class. Based on his experience, he knew that employees often make emotional decisions. He therefore asked her to “take five” -to reconsider her decision. He did not send that to the WCED for processing in the light of this conversation.
19. When he learnt of the full extent of her medical condition and based on her frequent absenteeism, he expressed his concern for the learners to her. She had been tasked to improve the grade 12 learners, but she was not even present at school. Notwithstanding his efforts to accommodate the applicant by reducing her workload, she was absent for most of the term. There was a limit to how much he could assist and protect her as he had to ensure curriculum delivery. He did not appoint a substitute teacher during the applicant’s absence. but instead paid for a qualified invigilator from school funds. This was because the applicant’s resignation was held in abeyance.
20. His testimony with regard to his communication with the applicant was that when he told the applicant that if she was not at work by 2 April 2019 that he would implement her resignation letter, her response was that it was his prerogative to do so. He deemed this to be an agreement that he has the right to implement the resignation.
21. He also testified that during March he learnt from a medical report which was submitted with the applicant’s application for temporary incapacity leave that she was not medically fit to work. When he received these documents, it was confirmation for him that he had made the right decision to implement the resignation. He was under tremendous pressure from his own management team, the School Governing Body and from parents regarding the applicant’s prolonged absence from school. It is for this reason that he sent the letter of 2 April 2019 to the parents. He stated in the letter to parents that there was mutual agreement to terminate the applicant’s employment because he had to say something. It was put to him that the applicant denies that she agreed to termination. His response was that based on their discussions, he believed that they were on the same page. He also said that the applicant never withdrew her resignation.
22. His concluding remarks were that what he learnt from this matter was that if one reaches agreement with someone about keeping their resignation in abeyance, it should contain specific time periods and conditions and be in writing
23. In disputes concerning unfair dismissals, the employer bears the onus to prove that the dismissal was for a fair reason and that a fair procedure was followed in arriving at the decision to dismiss. However, if the dismissal itself is in dispute, it is a jurisdictional prerequisite that this must be proved first and foremost. The onus then shifts to the employee to prove that there was a dismissal.
Was there a dismissal?
24. Respondent’s case is that the applicant resigned. The distinction between dismissal and resignation was stated in Lottering & Others v Stellenbosch Municipality
“resignation is the term ordinarily used to refer to the termination of employment by the employee, just as dismissal is used to refer to termination by the employer.”
25. The test for determining whether an employee resigned or not is that an employee has to either by word or conduct , show a clear and unambiguous intention not to go on with his/her contract of employment in that heshe has to act in such a way as to lead a reasonable person to the conclusion that he/she did not intend to fulfil his/her part of the contract Resignations are also unilateral acts and should be unequivocal.
26. It is undisputed that the applicant tendered her resignation in a vulnerable moment. Her resignation letter also did not specify when the resignation would have taken effect (i.e. on notice or with immediate effect.) It is for this very reason that the principal asked her whether she was sure about resigning and her clear response was that she was not sure. In the ensuing discussion between them about the reduction of the responsibilities, the applicant indicated her willingness to return to school and to assume the changed responsibilities. This was followed by her actual return to school, albeit for only two days. Counsel argues, correctly in my view that the applicant returned to work on new agreed terms of employment. Her subsequent absenteeism from school is irrelevant when considering the test for resignation.
27. Counsel argues that the applicant did not agree to “think about her resignation “ from 13 February onwards, as contended by Mr Pick; she only thought about it on 13 February 2019 until she accepted the new terms of employment offered to her by the principal and she thus returned to work on 18 February 2019. Her resignation on 12 February 2019 does not meet the test in Fijinn in that it was by no means, clear, unambiguous and unequivocal. Even if there was a valid resignation by the applicant on this date, that she was certain of (which the applicant denies) the acceptance of new terms of employment, on its own, and having been convinced to rather “stay on” would in any event nullify such a resignation.
28. Counsel also submits that the evidence, written and oral, shows that she did not agree for her attempted resignation, which in any event did not meet the test for a resignation, to hang like a sword over her head for the balance of her contract, to be implemented at any later stage by the principal, within his own and exclusive discretion. This is indeed so. The principal however, did exactly that and effectively terminated her contract unilaterally and without procedure. This was not a termination at the instance of the employee.
29. Much of the principal’s evidence is about the applicant’s absence from school, her medical condition and her inability to render her services because of her illnesses. He expressed concern for the welfare of the learners that were being deprived. This is totally understandable. The correct course of action under these circumstances would have been to begin an incapacity process or to get the agreement from the applicant to terminate the contract as he had suggested. None of this happened. The applicant did not agree to the termination. In his last WhatsApp communication with the applicant, he invited the applicant to share her thoughts about his suggestions. She did not do so. Instead, he unilaterally implemented a resignation letter which was for all intents and purposes invalid. The applicant did not have to formally withdraw her resignation.
30. Although it is the respondent’s case that the applicant resigned, the principal informed the parents that the applicant’s contract was terminated by mutual agreement. Yet his testimony was that he implemented her resignation. Why then did he not tell the parents that the applicant had resigned? Applicant has discharged the onus to prove that she was dismissed.
31. The onus now falls on the Respondent to prove that substantive and procedural fairness thereof. Respondent has not placed any evidence in this regard and maintained throughout the process that there was no dismissal and that the applicant had resigned. Despite this being the case for the respondent, the applicants lengthy period of absence and her illness was what seems to have persuaded the respondent to implement her (invalid) resignation. The principal also intimated that the applicant was under some obligation to have disclosed her depression and anxiety when applying for the post. There was also the notion that there was a mention in a medical report that the applicant was last fit for work in December 2018. The applicant’s version of this factor is that it was simply her response to the medical doctor to a question of when last she had worked. The principal however, despite not having sought clarity from the applicant about this at the time, appears to have been influenced by this factor to unilaterally implement the (invalid) resignation. The second two factors can hardly be considered as fair reasons to dismiss
32. If illness and incapacity was what prompted the termination of the contract, then the respondent ought to have presented its case as such. Dismissals for incapacity are inextricably linked to procedure. The procedure ought to have entailed a full investigation of the long and short term prognosis and full consultation with the applicant. This did not happen. The premature termination of the contract is unfair.
33. Arbitrators have a wide discretion in determining the amount of compensation to be awarded. It is not a given that the amount would be for the balance of time of the fixed term contract. In deciding on an appropriate compensation I have taken into account that fact that in the three months that the applicant was employed, she spent more time off sick than in the class room. On her own version she had applied for temporary incapacity leave because she was going to be away for a further extended period. This is the context that she was employed on a fixed term contract of one year for a specific purpose which she was clearly not able to fulfil. I deem it just and equitable to order compensation in the equivalent of two months’ salary.
In the premises, I make the following award.
1. The applicant was dismissed.
2. The dismissal was substantively and procedurally unfair
3. Respondent is ordered to compensate the applicant in the amount being the equivalent of two months salary (R32179,25 x 2 )
4. I calculate this amount to be the sum of R64358,50
5. This amount must be paid to the applicant within 14 days of service of this award