PSES115-18/19WC
Text
PSES115-18/19WC
Award Date:
04 March 2019
Commissioner: Jacques Buitendag
Case No.: PSES115-18/19WC
Date of Award: 04 March 2019
In the Arbitration between:
M N DANIELS
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: N Williams
Telephone: 082 783 1328
Telefax: 021 591 6377
Email: nathan@wllm.co.za
Respondent’s representative: L Randall
Telephone: 021 467 2858
Telefax: 021 4425 8612
Email: lauren.randall@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 19 July-; 20 and 21 August-; 28 November 2018 and 13 February 2019 in Cape Town. Adv. N Williams instructed by Dykman Attorneys represented the Applicant, Ms. N M Daniels. Ms. L Randall represented the Respondent, the Western Cape Department of Education (WCED). The proceedings were digitally recorded.
2. The parties submitted written closing arguments. I received Adv. Williams’ arguments on 18 February 2019. Ms. Randall submitted her arguments on 19 February 2019. I accordingly consider 19 February 2019 being the last day of the arbitration.
THE ISSUE IN DISPUTE
3. I must determine whether the Respondent constructively dismissed the Applicant. If I decide that the Applicant was constructively dismissed I must decide on the appropriate remedy.
BACKGROUND TO THE ISSUE
4. The Department of Basic Education introduced a Policy on Screening, Identification, Assessment and Support (hereinafter referred to as SIAS) in 2014. The main focus of the policy is to manage and support teaching and learning processes for learners who experience barriers to learning. The Ned Doman High School in Athlone was identified in 2014 as a pilot Full Service Schools(FSS) where SIAS would be introduced.
5. The Applicant was transferred from the Northern Cape Department Green Point High School where she was a post level 1 educator to the WCED with effect from 1 January 2015. She took up the position of Leaner Support Educator at the Ned Doman High School. The Learner Support Educator post is a WCED District post.
6. On 7 March 2016 the Applicant wrote an email about her alleged unfair treatment in her position as Learner Support Educator at the Ned Doman High School to her union SADTU, who in turn referred it to the WCED as a grievance. According to the Applicant this grievance was never resolved.
7. On 6 February 2018 the Applicant filed a formal grievance with the Respondent relating to her alleged intolerable working conditions. A grievance meeting was scheduled for 26 February 2018. The Applicant did not attend the meeting. The WCED deemed the grievance to have been withdrawn based on the absence of the Applicant from the grievance meeting along with her repeated declaration of lodging a dispute with the ELRC.
8. On 16 April 2018 the Applicant resigned. Her resignation letter, addressed to the Head of Department, (Mr. Brian Schreuder) reads as follows:
Sir
I herewith serve notice of my resignation with immediate effect, from the WCED position as Learner Support Educator at MCED SLKES. Effective date being today, Monday 16 April 2018.
The reason for this is:
“1. The continuous unacceptable conduct of the employer towards me, has made my conditions of work totally unacceptable.
2. I have with regards to this extremely serious situation, tried on numerous occasions to seek some form of recourse from all levels at the WCED to put a stop to it. I also exhausted the internal means and even invoked dispute resolution processes to resolve this matter amicably, but to no avail. The situation has become even worse since I did this.
The employer’s continued unacceptable actions have rendered the continuation of the employment relationship under these circumstances intolerable and to such an extent, that I have no other option available to me now, but to resign.”
9. On 9 May 2018 the Applicant referred an unfair dismissal dispute to the ELRC. The Applicant claims that she was constructively dismissed and she seeks 12 months’ compensation as relief. The Applicant earned R25 766.00 per month at the time. The Respondent claims that the Applicant was not constructively dismissal but has resigned.
SUMMARY OF EVIDENCE AND ARGUMENT
10. During the arbitration proceedings the parties submitted bundles of documents into evidence and called a number of witnesses. I have considered all the evidence and argument presented during this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this dispute.
The Applicant’s evidence
11. Ms. N M Daniels testified under oath. She started her teaching career in 1989 in the Northern Cape. Her application for a transfer from the Northern Cape Department of Educator to the WCED was approved and she was transferred with effect from 1 January 2015 as a Learning Support Educator (Bundle A2-3). Ms. Daniels testified that she was placed at Ned Doman High School.
12. In 2015 she received a job description (JD) from Mr. Abrahams and Ms. Sofela from the district office. The JD described her functions and roles in terms of SIAS. It did not include main stream teaching (Bundle A 4-6).
13. Ms. Daniels referred to the SIAS policy and indicated that it was never her understanding that the policy required a Leaner Support Educator to do mainstream teaching (Bundle A 112-106). She pointed out that in terms of the policy teachers must screen all children and compile a learner profile. Ms. Daniels testified that the Principal, Mr Philander, refused screening to be done and was anti SIAS and required her to do mainstream teaching. She said that if teachers do not do screening nothing else can happen in terms of leaner support.
14. She testified that later in 2015 she received another JD from the district office and was informed that the District will be responsible for her “IQMS” - performance appraisal (Bundle A7-11). She pointed out that in terms of the organogram her reporting line is to Learner Support and not to the Principal of the school (Bundle A7).
15. Ms. Daniels submitted in the first three months nothing happened in terms of Learner Support and instead of doing her work in terms of her JD she was given mainstream teaching to do by the Principal. She testified that this was not what she had signed up for and questioned it with Mr. Hassen of the District Office. Considering it was a pilot project she hoped that things will improve. But in 2016 she was again given a mainstream teaching timetable.
16. Ms. Daniels testified that the grade 8 educators agreed to complete the learner profiles in terms of SIAS but it did not take place because, according to Ms. Jackson, a grade 8 educator, Mr. Philander told the educators not to complete the profiles (Bundle A62-69).
17. On 7 March 2016 Ms. Daniels wrote an email to her union SADTU which was in turn referred by the union to the WCED (Bundle A111-112). In the email she complained about the unfair treatment from Mr. Philander and Mr. Hassen. To sum it up she gave background to her doing mainstream teaching in 2015 instead of her work as a Learner Support Educator. She referred to a district meeting where Mr. Hassen confirmed that Learner Support Educators are District appointments and answer to the District and not to Principals. She indicated that at Ned Doman Mr. Philander insists that she teach mainstream. She complained about not being allowed to start learner support in 2016 despite being ready and pointed out that in terms of her JD she is to support main stream teachers and not do main stream teaching. She complained about being confused regarding her JD and her reporting lines and being told by Mr. Philander and Mr Hassen that her JD include teaching English and Business studies. She submitted that what they expected from her is not covered by her JD and that the District is allowing her position be used inappropriately for mainstream teaching. She questioned who will be responsible for her performance appraisal if main stream teaching is now her main function. She indicated that the working relationship between herself, Mr. Philander and Mr. Hassan is deteriorating and that the working environment is starting to become hostile. She fears that she will become a target to be set up for constructive dismissal because she is complaining.
18. Ms. Daniels referred to the minutes of a grievance meeting held on 5 July 2016 (Bundle A114). The WCED offered to “move Ms. Daniels to a FSS primary school, to serve at a Internerant High School Mountain View S/S, crystal S/S.” Ms. Daniels testified that she has never been trained in a primary school environment and that the Mountain View post was a contract post and not a full time position. The WCED could also not give details of what the posts would involve.
19. Ms. Daniels responded on 15 July 2016 per email to the grievance meeting. In summary she submitted that the offers are not in good faith as no such posts exist at the above-mentioned schools and that she has a permanent employment contract. She stated that she is quite happy at Ned Domain and expect to be allowed to do her work as Learner Support Educator according to her job description. She requests the necessary support from the District and that her grievance be dealt with urgently by the WCED. She indicates that the grievance require a formal investigation and wish for the matter to be resolved amicably. She mentioned that Ms Bathgate stated during the meeting (held on 5 July) that misconduct charges were filed against her by Mr. Philander (Bundle A115).
20. On 12 September 2016 Ms. Daniels wrote to the WCED complaining that her grievance is still unresolved and that her job security is being threatened (BundleA116-117). A grievance meeting was scheduled for 27 September 2016 but was rescheduled because Ms. Daniels did not receive the minutes of the previous meeting. A meeting was arranged for 10 October 2016 (Bundle A118). Ms. Daniels testified that this meeting never took place.
21. She referred to a complaint she lodged on 15 November 2016 about the IQMS process at Ned Doman (Bundle A120-121) and the outcome of her grievance in which the WCED found that the process was flawed in many respects (Bundle B124-125).
22. Ms. Daniels also complained about a disciplinary action she considered to have been unfairly instituted by Mr. Philander in 2016 (Bundle A126) and an unfair deduction from her pay in 2017.
23. On 4 July 2017 Ms. Daniels wrote to the Western Cape Provincial Minister of Education making a “protected disclosure” about what she perceived to be criminal offences and other wrongdoings by employees of the WCED (Bundle 132-145). On 8 September 2017 the Minister responded to her that no evidence of corruption and covering up at Ned Doman have been found (Bundle A144-151). Ms. Daniels testified that the report is wrong in as far as it concluded that she refused to attend a second meeting to address her JD complaint. She also pointed out that Mr. Philander received a verbal warning about alleged examination irregularities (Bundle A144-145). She testified that she was not interviewed during the investigation. She is not satisfied with the report.
24. Ms. Daniels testified that at the beginning of the 2018 school year, Ms Sefella, her District line supervisor, presented her with a new JD. When she asked her about changes to the JD Ms. Sefella said that she did not know who made the changes. She was questioned about a JD presented by the Respondent during the arbitration (Bundle E1-3). This JD required 40% mainstream teaching. She said that it was the first time she saw this JD.
25. Ms Daniels testified that she received a call from a Ms. Button of the SGB about a laptop that the Principal alleged she has stolen in a SGB meeting of 31 January 2018 (Bundle A187-189). SGB members requested to meet with her on a Saturday. Ms Daniels testified that the laptop was issued to her in 2015 and she had to explain herself to the SGB members. Ms. Daniels said that she felt defeated after the meeting.
26. On 6 February 2018 the Applicant lodged a formal grievance about her alleged “Victimisation, Psychological abuse, Bullying, Harassment, Discrimination, Negative Management; Abuse of power of office and mismanagement of leave”. The solution she proposed was “An immediate stop to all victimization by Principal Philander, Deputy Principal G Johnson, SLES Head (Anver Hassen), Directorate Employee Benefits WCED (Paul Adams. J Gordon. Disciplinary action taken against all perpetrators. … of a fair safe and conducive working environment to perform my duties free from abuse and duress as per WCED official job description. Compensation for stress and trauma suffered as results of the victimisation and financial strains suffered.”
27. Ms. Daniels testified that she was still being prevented of doing her job as per her JD (Bundle A7-11).
28. She testified that on 22 February 2018 she received a call from the Athlone Police station about the alleged stolen laptop but indicated that she was never criminally charged. She testified that she was devastated of being accuses of theft. (At the time of her evidence during the arbitration, Ms. Daniels still had the laptop in her possession).
29. On 16 April 2018 she tendered her resignation in writing (as referred to in par. 8 above).
30. Under cross examination Ms. Daniels was confronted with an email she sent to Mr. Philander on 14 October 2014 in which she writes “I really would like the position and would be able to help you set up tourism as a subject at your school as well as teaching English and whatever else you require. Please let me know what the next step should be.” It was put to Ms Daniels that she did not want to teach as per the original agreement. Ms Daniels testified that Mr. Philander mentioned a number of vacancies. It was not District posts. She said that she opted for the Learner Support Educator post. She agreed to assist in the beginning with teaching as the District and Ned Doman were not prepared for the Learner Support Educator post.
31. It was put to Ms. Daniels that the JD in Bundle A was not supplied to her and that her JD is the one reflected in Bundle E which include 40% mainstream teaching. Ms. Daniels testified that Ms. Berenice Daniels said that the JD (as reflected in Bundle A7-11) is the only official JD.
32. It was put to Ms. Daniels that she reported to the Principal as it was a pilot project. Ms. Daniels referred to the organogram in the JD and testified that she is a District employee and reported to the District Leaner Advisor.
33. She testified that Mr. Philander and Mr. Hassen said that if she does not do mainstream teaching that they will do away with the Leaner Support Educator post. It was put to Ms Daniels that Mr. Philander and Mr. Hassen will testify that it was not said to her.
34. It was put to Ms. Daniels that she only wanted things her way; only her views on the implementation of SIAS to be regarded and did not want to teach in spite of SIAS being a pilot project. Ms. Daniels testified that she did teach English and Business Studies in 2015 and 2016. In 2017 no table was given to teach subjects.
35. It was put to Ms. Daniels that she declined three alternative posts offered to her. Ms. Daniels replied that there were no vacacies at the schools and no high school post. She denied being hostile to Department officials. She did not attend the 2018 grievance meeting as she was sick and presented a medical certificate.
36. Ms L Geduld testified under oath. She is an educator and a SADTU shop steward. Ms. Geduld said that she attended a meeting with Ms. Daniels on 16 February 2016 where the JD (as contained in Bundle A4) was discussed. She has not seen the JD in Bundle E before. She referred to the minutes of the meeting (Bundle E22-25) and said that she has not seen it until the night before the arbitration. The minutes are not accurate. The purpose of the meeting was to seek clarity on the JD and Mr. Daniels’ role at the school. Ms. Daniels had an issue with the time table for mainstream teaching. No periods were allocated for learner support. Her JD did not contain mainstream teaching. In June she attended a meeting where the JD as contained in Bundle A7-11 was presented by Ms. Berenice Daniels as the JD for the Applicant. Dr. Naicker chaired the meeting. This JD contained no mainstream teaching.
37. Ms Geduld testified that she attended the grievance meeting of 5 July 2016. None of the schools had the infrastructure to accommodate Ms. Daniels and none of the offers were in writing.
38. Mr. L Cranfield testified under oath via telephone. He is an educator at Ned Doman High School. He testified that Ms. Daniels tried to implement SIAS but there were a lot of infighting between Ms. Daniels and Mr. Philander. SIAS was not effectively implemented although the school has a number of learners with special needs. According to Mr. Cranfield, Mr. Philander was the reason for the non-implementation of SIAS.
The Respondent’s evidence
39. Mr. S G Philander testified under oath. He is the Principal of Ned Doman High School. Mr Philander testified that the school was identified as a pilot school for SIAS in 2014. They wanted a person that can also teach English, Business Studies and Economics. Ms. Daniels’ CV stood out. She was aware that she will be required to teach English and other subjects and she confirmed this in her email of 27 October 2014 (Bundle E20). The post will also be responsible for leaner support. Mr. Philander testified that he saw no impact that Ms. Daniels has made in terms of learner support in 2015. In 2016 Ms. Daniels taught Business Studies Grade 10. She achieved a 100% pass rate in Business Studies. She also agreed to teach English Literacy for grade 8 (Bundle E26).
40. Mr. Philander testified that it was in 2016 Ms. Daniels’ resistance started. She did not go to classes to see how she can assist in terms of leaner support. He testified that Ms. Daniels was a stumbling block in the implementation of SIAS. She badmouthed people and they regretted believing that she would be the most competent person for the job.
41. Mr. Philander said that he disagreed with Mr. Cranfield’s view that he was in fact the stumbling block in the implementation of SIAS. He said that SIAS is a brilliant policy but that Ms. Daniels did not understand that the core of SIAS was to help learners. She was requested to do the administrative work for teachers in terms of screening but she refused. She maintained that it the teachers’ responsibility.
42. Mr. Philander testified that since 2017 he had on numerous occasions told Ms. Daniels to return the school’s laptop (Bundle E19). She refused. He eventually reported it to the SGB and later to the SAPS.
43. Mr. Philander testified that Ms. Daniels’ circumstances were self-inflicted and she would at times sit in a room doing no work. When he tried to implement progressive discipline the Applicant said that she was not reporting to him and that she is on the District staff establishment. The Applicant was informed by Mr. Hassen that the Principal at a school where Leaner Support Educators are placed can give instructions.
44. Mr. Philander said that the conditions were not intolerable and that Ms. Daniels was not forced to resign.
45. Under cross-examination Mr. Philander was referred to a grievance report dated 26 February 2018 regarding the grievance lodged by Ms. Daniels on 6 February 2018 (Bundle B19-24). Mr. Philander agreed that the Applicant did not attend the meeting.
46. Mr. Philander was referred to the SIAS policy and agreed that Ms. Daniels’ job as a Leaner Support Educator in terms of SIAS was not to teach mainstream. He submitted that the policy is a guideline and the implementation thereof is a process. With regard to Ms. Danlies’ refusal to complete leaner profiles, Mr Philander was referred to the leaner profile document which indicate that the teacher must complete the profile forms (Bundle A63).
47. Mr. Philander agreed that the Applicant is a District appointment. He cannot confirm whether he has seen the JD on Bundle A7-9. Mr. Philander testified that in 2015/16 SIAS was still in a trail period and Ms. Daniels was requested to do mainstream teaching. He said that he motivated that mainstream teaching be included in the Applicant’s JD. Mr. Philander agreed that the Applicant’s JD cannot be changed without her agreement.
48. Mr. Philander agreed that the IQMS process followed in 2016 in terms of Ms. Daniels was found by the WCED to have been flawed (Bundle A124-125). He agreed that an investigation found him guilty of examination irregularities and that he was disciplined for it.
49. Mr. M E Hassen testified under oath. He is the Head Specialised Leaner and Educator Support for the District. He explained that Ned Doman High School was identified as one of two full service high schools for the implementation of SIAS. Mr. Hassen testified that Mr. Philander approached the District in December 2014 about the possible appointment of Ms. Daniels as the Learner Support Educator at Ned Doman. The normal recruitment process was not followed but instead Ms. Daniels was transferred from the Northern Cape to the WCED with effect from January 2015.
50. Mr. Hassen testified that he has 70 Leaner Support Educators under his jurisdiction. Some of them support more than one school. 2015 was the first time such a post was allocated to a high school. Mr. Hassen said that he was involved in the drafting of Ms. Daniels’ JD. In 2016 the JD was amended to adapt to the needs of the school. He said that the JD on Bundle A4 was a draft document that was floating around at the time. He said that the needs of a high school differ from that of a primary school because in a primary school there is class teaching as opposed to subject teaching in a high school. The Applicant has expertise in subject teaching and she was utilised to also do mainstream teaching. It was not unreasonable to ask her to do mainstream teaching. In 2016 there was unhappiness about her workload. She agreed to a time table for mainstream teaching.
51. Mr. Hassan testified that the Applicant’s role, functions and responsibilities were clarified in a meeting held on 16 February 2016 and that she was expected to do mainstream teaching and adhere to teaching timetable allocated to her (Bundle E22-25). His understanding was that Ms. Daniels accepted the outcome.
52. Mr. Hassan explained that Learner Support Educators report to Leaner Support Advisors and that job evaluation will be a combined Principal- and Leaner Support function. The Principal will provide management support such as managing attendance. Mr. Hassan said that he does not think that Ms. Daniels did not fulfil her role. But there was a string of grievances, some of which he attempted to resolve but Ms. Daniels refused to participate and she also did not attend some grievance meetings. Meetings did not materialise because Ms. Daniels refused to attend or was advised not to attend.
53. Mr. Hassan testified that the District does not issue laptops and the saga of her refusing to return the laptop went on and on. He advised Mr. Philander that if Ms. Daniels does not return the laptop that he must report it as stolen.
54. Mr Hassen agreed that he said in a meeting that Principals do not own the Leaner Support Educators and that they answer to the District.
55. Mr. Hassan testified that he was aware of the alleged conflict between Ms. Daniels and the school and that some of it was also directed at himself and his staff. He indicated that her work environment was not intolerable. Mr. Hassan agreed in cross- examination that the alternative posts offered were not made in writing to Ms. Daniels. Mr. Hassan submitted in re-examination that the alternative posts offered to Ms. Daniels in 2016 and in 2018 (after her resignation) were because of a clear breakdown at Ned Doman. In his view the Applicant did not want to resolve the matter.
56. Ms. Yolanda Booysen testified under oath. She is a Leaner Support Advisor. Ms. Booysen testified that she is responsible for the performance appraisals (IQMS) of Leaner Support Educators. In 2016 she could not asses Ms. Daniels as she was not teaching leaner support but was doing mainstream teaching. It was also difficult to provide support to Ms. Daniels in 2017. Ms Daniels was absent on 2 and 12 May 2017 and a meeting scheduled for 16 May never happened. Ms. Booysen said that on one occasion when they did meet Ms. Daniels, she pushed her out of the door. She laid a complaint against Ms. Daniels about it. She always offered reasons why she could not support leaners. Ms Booysen testified that she later discovered that Ms. Daniels is a mainstream teacher and not a qualified remedial teacher.
57. With regards to the laptop issue, Ms. Booysen testified that when asked Ms. Daniels to return the laptop to the school as it is the schools property, Ms Daniels burst out crying and saying that she is not on her side.
58. Under cross examination, Ms Booysen explained that she was Ms. Daniels’ line manager. Ms Booysen agreed that Ms. Daniels was not able to perform her functions in terms of her JD. She said that she would have wanted Ms. Daniels to focus on leaner support. Ms. Booysen testified that she can understand Ms. Daniels’ frustration but that she does not know what the agreement between her and Mr. Philander entailed. She said that she found a Leaner Support Educator teaching mainstream and that she was unable to performance manage or appraise Ms. Daniels. Ms Booysen agreed that Ms Daniels’ appointment letter does not refer to mainstream teaching.
59. Ms. Booysen testified that Mr. Philander’s view was that Ms. Daniels can be asked to do more than just leaner support.
60. Ms. B Sifela testified under oath. She is a Leaner Support Advisor. Ms Sifela testified that her job entailed supporting Ms. Daniels. When she learnt in June 2015 that Ms. Daniels were teaching mainstream subjects she reported it to Mr. Hassen. He asked her to withdrew because she is a leaner support advisor and Ms. Daniels was teaching mainstream. She did not have contact with Ms. Daniels again until 2017 when she was told to provide support to Ms. Daniels. When she wanted to meet with Ms. Daniels she said that she cannot meet with her without her union representative. She met her again on 23 January 2018. They had a good discussion and she told her step by step what to do.
61. Under cross examination Ms. Sifela was referred to the JD on Bundle A7-11. She said that it looks like the JD she and Dr. Naidoo gave to the Applicant in June 2015. She agreed that the Key Performance Areas did not include mainstream teaching. Ms. Sifela testified that they expected Learner Support Educators to provide targeted remedial support.
62. With regard to other options offered to Ms. Daniels, Ms Sifela testified that her impression was that Ms. Daniels was not unwilling to consider other options. Ms. Sifela testified that there were and still are challenges in the full implementation of SIAS because of budgetary constraints.
Closing arguments
63. The written closing arguments of both parties are part of the record. I have taken it into account. I don’t find it necessary to repeat it here in full. I will refer to it in my analyses of the evidence and argument to the extent that I need to. In short, Adv. Williams argue that the Applicant has discharged the onus of proving that her working conditions were made intolerable and that she was constructively dismissed. He argues that the Applicant is entitled to 12 month’s compensation and legal cost. The highpoint of Ms. Randall’s argument is that the Applicant’s work condition was not intolerable to such an extent that it warrants her claim of constructive dismissal.
ANALYSES OF EVIDENCE AND ARGUMENT
64. Section 186 1(e) of the LRA as amended provides that an employee may claim that he/she has been dismissed “…if an employee terminated the contract of employment with or without notice because the employer made the continued employment intolerable”. This is generally referred to as constructive dismissal.
65. In order to appreciate the concept of “constructive dismissal”, it is important to have regard to the jurisprudence that have been developed in this arena by our labour courts.
66. The Labour Appeal Court has defined constructive dismissal as: “... the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. However, such an act of the employee is precipitated by earlier conduct on the part of the employer, which may or may not be justified.” (Almagated Beverages Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC)). Generally speaking, the resignation of an employee in response to the intolerable conduct of an employer will have to be the last resort after all reasonable avenues to resolve the problem have been exhausted.
67. In Mahlangu v Amplats Development Centre (2002) 23 ILJ 910 (LC) the Labour Court confirmed that the conduct of employers must be judged objectively and that employees are being expected to exhaust other possible remedies before resigning and claiming constructive dismissal and not to jump to resigning at the first opportunity. The critical issues for determining cases involving claims of constructive dismissal are: a) whether the employee brought the contract to an end; b) whether the reason for the employee’s action was that the employer had rendered the prospect of the continued employment intolerable; c) whether the employee had no reasonable alternative other than terminating the contract.
68. In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) at 724E-G, 984E-F, the Labour Appeal Court described the test for establishing whether the termination of an employment relationship by an employee amounts to a constructive dismissal as follows: “ When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfill what is the employee’s most important function, namely, to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.” The Labour Appeal Court continued in the abovementioned case to explain that the employee must be able to satisfy the court or arbitrator that at the time of the termination of the contract that the employer had actually behaved in a manner that she believed rendered the relationship intolerable and would continue to do so.
69. In Mafomane v Rustenburg Platinum Mines Ltd [1995] 5 BLLR 1 (LAC) the LAC held that the requirement that the employee prove that his continued employment had become “intolerable”, has the following implications:
• In referring to Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others (1998) 19 ILJ 1240 (LC) and Lubbe v Absa Bank [1998] 12 BLLR 1224 (LAC), the courts stated that 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 and secondly, there was no reasonable alternative to escape those unbearable circumstances, than to resign.
• 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, will usually find it hard to characterise the resignation as a constructive dismissal. (With reference to Old Mutual Group Schemes v Dreyer & another (1999) 20 ILJ 2030 (LAC)). 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.
• Furthermore, 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. However, judgment must be made from the perspective of a reasonable person in the shoes of the employee.
70. In the Mafomane matter the court then concluded to state that: “the conclusion that the question whether the employee’s continued employment has become intolerable, 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 idiosyncrasies of the particular employee, is 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.”
71. The starting point for the determination of constructive dismissal disputes, like any other dismissal disputes, is the determination of the existence of a dismissal, if positively determined, the fairness test is to be applied. Fairness is to be determined with reference to the conduct of the employer and the effects thereof on the employee i.e. the commissioner ought to seek answers to the following questions: 1. Whether the employer was guilty of the conduct complained of; 2. Whether the conduct of the employer rendered the continued working relationship intolerable; and 3. Whether there were no other alternatives for the employee but for resignation.
72. In Strategic Liquor Services v Mvumbi NO & Others 2010 (2) SA 92 (CC) it was held that the test for constructive dismissal does not require that the employee should have no choice but to resign, but only that the employer should have made continued employment intolerable. The further test is that the employer must be culpably responsible in some way for the intolerable convictions. The above questions can only ever be satisfactorily answered when adopting a holistic review of the evidence before the commissioner.
73. Having regard to the abovementioned case law I will now consider the Applicant’s contention that she was constructively dismissed.
74. I must from the onset say that the Applicant came across as stubborn and having a view that only she is right and others are wrong. Her refusal or stubbornness in returning the school’s laptop being but one example of this. Then there is the Principal of Ned Doman High School, Mr. Philander. He is a person with a strong personality who were at times even argumentative during cross-examination. Having these two strong personalities in an environment where Ned Doman High School was a pilot school for the implementation of SIAS and where a Leaner Support Educator post was introduced to the school for the first time, was a recipe for conflict, if not managed properly from the start.
75. The crux of the Applicant’s case is that she was not allowed, from the start, to perform her duties as Learner Support Educator and that she was forced to teach mainstream subjects in spite of her JD not providing for this function to be performed. According to the testimony of Mr. Philander and the arguments submitted by Ms. Randall, the Applicant agreed to teach English and to do whatever else the school requires from her. This, they say, is supported by the email that the Applicant wrote to Mr. Philander on 27 October 2014 (Bundle E20). She indeed voiced this commitment in this email. But when the Applicant was transferred from the Northern Cape to the WCED she was appointed in a District post as a Learner Support Educator and not as a mainstream teacher. I am satisfied with the Applicant’s testimony, corroborated by the testimony of Ms. Geduld, that the JD initially presented to her in 2015 and the one later in June 2015 (Bundle A7-11) constitute what was expected from her as a Leaner Support Educator. These JD’s does not make any mention whatsoever of the Leaner Support Educator being responsible for mainstream teaching.
76. In as far as Ms. Randall put it to the Applicant that the JD in Bundle E1-3 that provides for her to do mainstream teaching is in fact her JD, there was no evidence presented by the Respondent’s witnesses to prove that this JD was in fact presented to the Applicant in 2015.
77. Whilst the Applicant did agree to do mainstream teaching in 2015 because of SIAS being new to the school, she was again given mainstream teaching in 2016 in spite of it not being part of her JD. The expectations she had for her role at the school, as per her JD, clearly differed from what Mr. Philander expected from her. One of the consequences for the Applicant having to teach mainstream in 2015 was that the Leaner Support Advisor, Ms. Sifela, withdrew from her role to support the Applicant. In this regard Ms. Sifela testified that when she reported to Ms. Hassen that the Applicant is doing mainstream teaching that he in fact asked her to withdraw.
78. Mr. Hassen testified that he was under the impression that the Applicant accepted on 16 February 2016 that she was expected to do mainstream teaching. His impression was clearly wrong because on 7 March 2016 the Applicant wrote a comprehensive email to her union about the circumstances that she had to work under. Her email letter was referred by the union to the Respondent. A meeting to resolve the Applicant’s grievance was held on 5 July 2016 and offers were made to move the Applicant to another school. The options were cryptically set out as to “move Ms. Daniels to a FSS primary school, to serve at a Internerant High School Mountain View S/S, crystal S/S.”
79. When the Applicant questioned, in an email dated 15 July 2016, whether these offers are in good faith, there was no proper response forthcoming from the Respondent. One would have expected an employer who makes offers of alterative placement to an employee in order to resolve a grievance, to formalise the options in writing so that the employee knows what she is letting herself in for. It should not be up to the employee to guess what the options entails or whether it is genuine offers or not. Importantly, in as much as Mr. Hassen submitted that the Applicant’s work conditions were not intolerable, he testified during his re-examination by Ms. Randall that the offers made to the Applicant in 2016 and also in 2018 (after her resignation letter) was because of a clear breakdown at Ned Doman. I conclude from his testimony that management what thus well aware, as far back as July 2016 of the breakdown at Ned Doman.
80. On 12 September 2016 the Applicant wrote again to the Respondent about her unresolved grievance. Whilst a meeting was scheduled for 27 September 2016 it was rescheduled for 10 October 2016 but never took place. There is no evidence that the Applicant was in fact responsible for this meeting not taking place. Every indication is that the Applicant wanted a resolution to her work conditions at Ned Doman.
81. The Applicant suffered a further consequence of her being tasked with mainstream teaching in 2016 because Ms. Berenice Daniels could not asses the Applicant’s performance as a Learner Support Educator. The Respondent eventually declared the IQMS performance process flawed after she filed a grievance in this regard.
82. On 4 May 2017 the Applicant again complained about her work conditions in an email addressed to Ms. Berenice Daniels. In the last paragraph of her letter she pleaded for intervention. But her situation at the Ned Doman did not improve because on 6 February 2018 the Applicant filed, what would be her last grievance, after she was again being confronted with having to teach mainstream.
83. A grievance meeting was scheduled for 22 February 2018. It is common cause that the Applicant did not attend this meeting. Whilst the grievance report reflects that the Applicant indicated prior to the meeting that she will not attend, the report also reflects that the Applicant submitted a medical certificate to the ERO on the morning of the grievance meeting (Bundle B20). The grievance meeting continued in the Applicant’s absence and concluded that there is no unfairness and that the grievance is deemed to have been withdrawn based on the Applicant’s absence from the meeting and her repeated declaration of lodging a dispute at the ERLC. Having received a medical certificate from the Applicant, the least that the meeting could have done was to postpone to meeting or to asked for written representations from the Applicant before coming to the conclusion that the grievance is “deemed” to be withdrawn. The net result was that the grievance remained unresolved.
84. The Applicant then tendered her resignation on 16 April 2018. In the letter penned to the Respondent she effectively claimed to have been constructively dismissed. She was however required to work out a 3 months’ notice.
85. The Applicant has attempted since 2016 through various avenues to resolve her work conditions at Ned Doman. But it was all to no avail. I find that her resignation was because the work conditions has become unbearable and is indeed the result of an unfair constructive dismissal. She was employed as a Leaner Support Educator. Her duties as per her JD did not entail mainstream teaching. Having to perform mainstream teaching coupled with Mr. Philander’s incorrect views as to who was responsible for the screening of the leaners and his insistence that she continue to teach mainstream impacted negatively on her ability to perform her role as a Leaner Support Educator in terms of the SIAS policy. Ms. Sifela agreed in cross examination that the Leaner Support Educators JD as per Bundle A7-11 does not include mainstream teaching. She emphasized that the District expected Leaner Support Educators to provide targeted remedial support. This did not happen. Ms. Booysen agreed in cross examination that the Applicant was not able to perform her functions in terms of her JD and that she would have wanted the Applicant to focus on leaner support. She testified that she understands the Applicant’s frustrations. There was no indication at the time that the Applicant penned her resignation letter that her work conditions would change. A reasonable person finding herself in the Applicant’s shoes would also have resigned.
86. For all the above reasons I find that the Applicant has discharged the onus of proving that she was constructively dismissed.
87. The Applicant seeks compensation as relief. She has made education her career for 29 years and she was permanently employed by the Respondent before she was unfairly constructively dismissed. She is not a young woman and may find future employment, particularly in formal education sector, difficult. I find that compensation equal to 12 months’ remuneration fair and equitable in this instance.
88. Adv. Williams argued that costs must be awarded against the Respondent. Cost does not usually follow a finding against a party in arbitration proceedings under the LRA. Whilst I have found that the Applicant was constructively dismissed, I do not believe that the Respondent was frivolous or vexatious in its defence. I award no costs.
AWARD
I find that the Applicant was unfairly constructively dismissed by the Respondent.
1. I order the Respondent, the Department of Education - Western Cape, to pay compensation to the Applicant, Ms. Nicolette M Daniels, in the amount of Two Hundred Ninety-Three Thousand Eight Hundred and Eighty Rand (R292 880.00) being equivalent to 12 months’ gross remuneration (R24290.00 x 12 months = R293 880.00).
2. The Respondent must pay the total amount of Two Hundred Ninety-Three Thousand Eight Hundred and Eighty Rand before close of business on 1 May 2019.
3. Interest will accrue on the compensation amount from 2 May 2019 in accordance with section 143(2) of the LRA.
ELRC Panellist: Jacques Buitendag
Case No.: PSES115-18/19WC
Date of Award: 04 March 2019
In the Arbitration between:
M N DANIELS
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: N Williams
Telephone: 082 783 1328
Telefax: 021 591 6377
Email: nathan@wllm.co.za
Respondent’s representative: L Randall
Telephone: 021 467 2858
Telefax: 021 4425 8612
Email: lauren.randall@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 19 July-; 20 and 21 August-; 28 November 2018 and 13 February 2019 in Cape Town. Adv. N Williams instructed by Dykman Attorneys represented the Applicant, Ms. N M Daniels. Ms. L Randall represented the Respondent, the Western Cape Department of Education (WCED). The proceedings were digitally recorded.
2. The parties submitted written closing arguments. I received Adv. Williams’ arguments on 18 February 2019. Ms. Randall submitted her arguments on 19 February 2019. I accordingly consider 19 February 2019 being the last day of the arbitration.
THE ISSUE IN DISPUTE
3. I must determine whether the Respondent constructively dismissed the Applicant. If I decide that the Applicant was constructively dismissed I must decide on the appropriate remedy.
BACKGROUND TO THE ISSUE
4. The Department of Basic Education introduced a Policy on Screening, Identification, Assessment and Support (hereinafter referred to as SIAS) in 2014. The main focus of the policy is to manage and support teaching and learning processes for learners who experience barriers to learning. The Ned Doman High School in Athlone was identified in 2014 as a pilot Full Service Schools(FSS) where SIAS would be introduced.
5. The Applicant was transferred from the Northern Cape Department Green Point High School where she was a post level 1 educator to the WCED with effect from 1 January 2015. She took up the position of Leaner Support Educator at the Ned Doman High School. The Learner Support Educator post is a WCED District post.
6. On 7 March 2016 the Applicant wrote an email about her alleged unfair treatment in her position as Learner Support Educator at the Ned Doman High School to her union SADTU, who in turn referred it to the WCED as a grievance. According to the Applicant this grievance was never resolved.
7. On 6 February 2018 the Applicant filed a formal grievance with the Respondent relating to her alleged intolerable working conditions. A grievance meeting was scheduled for 26 February 2018. The Applicant did not attend the meeting. The WCED deemed the grievance to have been withdrawn based on the absence of the Applicant from the grievance meeting along with her repeated declaration of lodging a dispute with the ELRC.
8. On 16 April 2018 the Applicant resigned. Her resignation letter, addressed to the Head of Department, (Mr. Brian Schreuder) reads as follows:
Sir
I herewith serve notice of my resignation with immediate effect, from the WCED position as Learner Support Educator at MCED SLKES. Effective date being today, Monday 16 April 2018.
The reason for this is:
“1. The continuous unacceptable conduct of the employer towards me, has made my conditions of work totally unacceptable.
2. I have with regards to this extremely serious situation, tried on numerous occasions to seek some form of recourse from all levels at the WCED to put a stop to it. I also exhausted the internal means and even invoked dispute resolution processes to resolve this matter amicably, but to no avail. The situation has become even worse since I did this.
The employer’s continued unacceptable actions have rendered the continuation of the employment relationship under these circumstances intolerable and to such an extent, that I have no other option available to me now, but to resign.”
9. On 9 May 2018 the Applicant referred an unfair dismissal dispute to the ELRC. The Applicant claims that she was constructively dismissed and she seeks 12 months’ compensation as relief. The Applicant earned R25 766.00 per month at the time. The Respondent claims that the Applicant was not constructively dismissal but has resigned.
SUMMARY OF EVIDENCE AND ARGUMENT
10. During the arbitration proceedings the parties submitted bundles of documents into evidence and called a number of witnesses. I have considered all the evidence and argument presented during this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this dispute.
The Applicant’s evidence
11. Ms. N M Daniels testified under oath. She started her teaching career in 1989 in the Northern Cape. Her application for a transfer from the Northern Cape Department of Educator to the WCED was approved and she was transferred with effect from 1 January 2015 as a Learning Support Educator (Bundle A2-3). Ms. Daniels testified that she was placed at Ned Doman High School.
12. In 2015 she received a job description (JD) from Mr. Abrahams and Ms. Sofela from the district office. The JD described her functions and roles in terms of SIAS. It did not include main stream teaching (Bundle A 4-6).
13. Ms. Daniels referred to the SIAS policy and indicated that it was never her understanding that the policy required a Leaner Support Educator to do mainstream teaching (Bundle A 112-106). She pointed out that in terms of the policy teachers must screen all children and compile a learner profile. Ms. Daniels testified that the Principal, Mr Philander, refused screening to be done and was anti SIAS and required her to do mainstream teaching. She said that if teachers do not do screening nothing else can happen in terms of leaner support.
14. She testified that later in 2015 she received another JD from the district office and was informed that the District will be responsible for her “IQMS” - performance appraisal (Bundle A7-11). She pointed out that in terms of the organogram her reporting line is to Learner Support and not to the Principal of the school (Bundle A7).
15. Ms. Daniels submitted in the first three months nothing happened in terms of Learner Support and instead of doing her work in terms of her JD she was given mainstream teaching to do by the Principal. She testified that this was not what she had signed up for and questioned it with Mr. Hassen of the District Office. Considering it was a pilot project she hoped that things will improve. But in 2016 she was again given a mainstream teaching timetable.
16. Ms. Daniels testified that the grade 8 educators agreed to complete the learner profiles in terms of SIAS but it did not take place because, according to Ms. Jackson, a grade 8 educator, Mr. Philander told the educators not to complete the profiles (Bundle A62-69).
17. On 7 March 2016 Ms. Daniels wrote an email to her union SADTU which was in turn referred by the union to the WCED (Bundle A111-112). In the email she complained about the unfair treatment from Mr. Philander and Mr. Hassen. To sum it up she gave background to her doing mainstream teaching in 2015 instead of her work as a Learner Support Educator. She referred to a district meeting where Mr. Hassen confirmed that Learner Support Educators are District appointments and answer to the District and not to Principals. She indicated that at Ned Doman Mr. Philander insists that she teach mainstream. She complained about not being allowed to start learner support in 2016 despite being ready and pointed out that in terms of her JD she is to support main stream teachers and not do main stream teaching. She complained about being confused regarding her JD and her reporting lines and being told by Mr. Philander and Mr Hassen that her JD include teaching English and Business studies. She submitted that what they expected from her is not covered by her JD and that the District is allowing her position be used inappropriately for mainstream teaching. She questioned who will be responsible for her performance appraisal if main stream teaching is now her main function. She indicated that the working relationship between herself, Mr. Philander and Mr. Hassan is deteriorating and that the working environment is starting to become hostile. She fears that she will become a target to be set up for constructive dismissal because she is complaining.
18. Ms. Daniels referred to the minutes of a grievance meeting held on 5 July 2016 (Bundle A114). The WCED offered to “move Ms. Daniels to a FSS primary school, to serve at a Internerant High School Mountain View S/S, crystal S/S.” Ms. Daniels testified that she has never been trained in a primary school environment and that the Mountain View post was a contract post and not a full time position. The WCED could also not give details of what the posts would involve.
19. Ms. Daniels responded on 15 July 2016 per email to the grievance meeting. In summary she submitted that the offers are not in good faith as no such posts exist at the above-mentioned schools and that she has a permanent employment contract. She stated that she is quite happy at Ned Domain and expect to be allowed to do her work as Learner Support Educator according to her job description. She requests the necessary support from the District and that her grievance be dealt with urgently by the WCED. She indicates that the grievance require a formal investigation and wish for the matter to be resolved amicably. She mentioned that Ms Bathgate stated during the meeting (held on 5 July) that misconduct charges were filed against her by Mr. Philander (Bundle A115).
20. On 12 September 2016 Ms. Daniels wrote to the WCED complaining that her grievance is still unresolved and that her job security is being threatened (BundleA116-117). A grievance meeting was scheduled for 27 September 2016 but was rescheduled because Ms. Daniels did not receive the minutes of the previous meeting. A meeting was arranged for 10 October 2016 (Bundle A118). Ms. Daniels testified that this meeting never took place.
21. She referred to a complaint she lodged on 15 November 2016 about the IQMS process at Ned Doman (Bundle A120-121) and the outcome of her grievance in which the WCED found that the process was flawed in many respects (Bundle B124-125).
22. Ms. Daniels also complained about a disciplinary action she considered to have been unfairly instituted by Mr. Philander in 2016 (Bundle A126) and an unfair deduction from her pay in 2017.
23. On 4 July 2017 Ms. Daniels wrote to the Western Cape Provincial Minister of Education making a “protected disclosure” about what she perceived to be criminal offences and other wrongdoings by employees of the WCED (Bundle 132-145). On 8 September 2017 the Minister responded to her that no evidence of corruption and covering up at Ned Doman have been found (Bundle A144-151). Ms. Daniels testified that the report is wrong in as far as it concluded that she refused to attend a second meeting to address her JD complaint. She also pointed out that Mr. Philander received a verbal warning about alleged examination irregularities (Bundle A144-145). She testified that she was not interviewed during the investigation. She is not satisfied with the report.
24. Ms. Daniels testified that at the beginning of the 2018 school year, Ms Sefella, her District line supervisor, presented her with a new JD. When she asked her about changes to the JD Ms. Sefella said that she did not know who made the changes. She was questioned about a JD presented by the Respondent during the arbitration (Bundle E1-3). This JD required 40% mainstream teaching. She said that it was the first time she saw this JD.
25. Ms Daniels testified that she received a call from a Ms. Button of the SGB about a laptop that the Principal alleged she has stolen in a SGB meeting of 31 January 2018 (Bundle A187-189). SGB members requested to meet with her on a Saturday. Ms Daniels testified that the laptop was issued to her in 2015 and she had to explain herself to the SGB members. Ms. Daniels said that she felt defeated after the meeting.
26. On 6 February 2018 the Applicant lodged a formal grievance about her alleged “Victimisation, Psychological abuse, Bullying, Harassment, Discrimination, Negative Management; Abuse of power of office and mismanagement of leave”. The solution she proposed was “An immediate stop to all victimization by Principal Philander, Deputy Principal G Johnson, SLES Head (Anver Hassen), Directorate Employee Benefits WCED (Paul Adams. J Gordon. Disciplinary action taken against all perpetrators. … of a fair safe and conducive working environment to perform my duties free from abuse and duress as per WCED official job description. Compensation for stress and trauma suffered as results of the victimisation and financial strains suffered.”
27. Ms. Daniels testified that she was still being prevented of doing her job as per her JD (Bundle A7-11).
28. She testified that on 22 February 2018 she received a call from the Athlone Police station about the alleged stolen laptop but indicated that she was never criminally charged. She testified that she was devastated of being accuses of theft. (At the time of her evidence during the arbitration, Ms. Daniels still had the laptop in her possession).
29. On 16 April 2018 she tendered her resignation in writing (as referred to in par. 8 above).
30. Under cross examination Ms. Daniels was confronted with an email she sent to Mr. Philander on 14 October 2014 in which she writes “I really would like the position and would be able to help you set up tourism as a subject at your school as well as teaching English and whatever else you require. Please let me know what the next step should be.” It was put to Ms Daniels that she did not want to teach as per the original agreement. Ms Daniels testified that Mr. Philander mentioned a number of vacancies. It was not District posts. She said that she opted for the Learner Support Educator post. She agreed to assist in the beginning with teaching as the District and Ned Doman were not prepared for the Learner Support Educator post.
31. It was put to Ms. Daniels that the JD in Bundle A was not supplied to her and that her JD is the one reflected in Bundle E which include 40% mainstream teaching. Ms. Daniels testified that Ms. Berenice Daniels said that the JD (as reflected in Bundle A7-11) is the only official JD.
32. It was put to Ms. Daniels that she reported to the Principal as it was a pilot project. Ms. Daniels referred to the organogram in the JD and testified that she is a District employee and reported to the District Leaner Advisor.
33. She testified that Mr. Philander and Mr. Hassen said that if she does not do mainstream teaching that they will do away with the Leaner Support Educator post. It was put to Ms Daniels that Mr. Philander and Mr. Hassen will testify that it was not said to her.
34. It was put to Ms. Daniels that she only wanted things her way; only her views on the implementation of SIAS to be regarded and did not want to teach in spite of SIAS being a pilot project. Ms. Daniels testified that she did teach English and Business Studies in 2015 and 2016. In 2017 no table was given to teach subjects.
35. It was put to Ms. Daniels that she declined three alternative posts offered to her. Ms. Daniels replied that there were no vacacies at the schools and no high school post. She denied being hostile to Department officials. She did not attend the 2018 grievance meeting as she was sick and presented a medical certificate.
36. Ms L Geduld testified under oath. She is an educator and a SADTU shop steward. Ms. Geduld said that she attended a meeting with Ms. Daniels on 16 February 2016 where the JD (as contained in Bundle A4) was discussed. She has not seen the JD in Bundle E before. She referred to the minutes of the meeting (Bundle E22-25) and said that she has not seen it until the night before the arbitration. The minutes are not accurate. The purpose of the meeting was to seek clarity on the JD and Mr. Daniels’ role at the school. Ms. Daniels had an issue with the time table for mainstream teaching. No periods were allocated for learner support. Her JD did not contain mainstream teaching. In June she attended a meeting where the JD as contained in Bundle A7-11 was presented by Ms. Berenice Daniels as the JD for the Applicant. Dr. Naicker chaired the meeting. This JD contained no mainstream teaching.
37. Ms Geduld testified that she attended the grievance meeting of 5 July 2016. None of the schools had the infrastructure to accommodate Ms. Daniels and none of the offers were in writing.
38. Mr. L Cranfield testified under oath via telephone. He is an educator at Ned Doman High School. He testified that Ms. Daniels tried to implement SIAS but there were a lot of infighting between Ms. Daniels and Mr. Philander. SIAS was not effectively implemented although the school has a number of learners with special needs. According to Mr. Cranfield, Mr. Philander was the reason for the non-implementation of SIAS.
The Respondent’s evidence
39. Mr. S G Philander testified under oath. He is the Principal of Ned Doman High School. Mr Philander testified that the school was identified as a pilot school for SIAS in 2014. They wanted a person that can also teach English, Business Studies and Economics. Ms. Daniels’ CV stood out. She was aware that she will be required to teach English and other subjects and she confirmed this in her email of 27 October 2014 (Bundle E20). The post will also be responsible for leaner support. Mr. Philander testified that he saw no impact that Ms. Daniels has made in terms of learner support in 2015. In 2016 Ms. Daniels taught Business Studies Grade 10. She achieved a 100% pass rate in Business Studies. She also agreed to teach English Literacy for grade 8 (Bundle E26).
40. Mr. Philander testified that it was in 2016 Ms. Daniels’ resistance started. She did not go to classes to see how she can assist in terms of leaner support. He testified that Ms. Daniels was a stumbling block in the implementation of SIAS. She badmouthed people and they regretted believing that she would be the most competent person for the job.
41. Mr. Philander said that he disagreed with Mr. Cranfield’s view that he was in fact the stumbling block in the implementation of SIAS. He said that SIAS is a brilliant policy but that Ms. Daniels did not understand that the core of SIAS was to help learners. She was requested to do the administrative work for teachers in terms of screening but she refused. She maintained that it the teachers’ responsibility.
42. Mr. Philander testified that since 2017 he had on numerous occasions told Ms. Daniels to return the school’s laptop (Bundle E19). She refused. He eventually reported it to the SGB and later to the SAPS.
43. Mr. Philander testified that Ms. Daniels’ circumstances were self-inflicted and she would at times sit in a room doing no work. When he tried to implement progressive discipline the Applicant said that she was not reporting to him and that she is on the District staff establishment. The Applicant was informed by Mr. Hassen that the Principal at a school where Leaner Support Educators are placed can give instructions.
44. Mr. Philander said that the conditions were not intolerable and that Ms. Daniels was not forced to resign.
45. Under cross-examination Mr. Philander was referred to a grievance report dated 26 February 2018 regarding the grievance lodged by Ms. Daniels on 6 February 2018 (Bundle B19-24). Mr. Philander agreed that the Applicant did not attend the meeting.
46. Mr. Philander was referred to the SIAS policy and agreed that Ms. Daniels’ job as a Leaner Support Educator in terms of SIAS was not to teach mainstream. He submitted that the policy is a guideline and the implementation thereof is a process. With regard to Ms. Danlies’ refusal to complete leaner profiles, Mr Philander was referred to the leaner profile document which indicate that the teacher must complete the profile forms (Bundle A63).
47. Mr. Philander agreed that the Applicant is a District appointment. He cannot confirm whether he has seen the JD on Bundle A7-9. Mr. Philander testified that in 2015/16 SIAS was still in a trail period and Ms. Daniels was requested to do mainstream teaching. He said that he motivated that mainstream teaching be included in the Applicant’s JD. Mr. Philander agreed that the Applicant’s JD cannot be changed without her agreement.
48. Mr. Philander agreed that the IQMS process followed in 2016 in terms of Ms. Daniels was found by the WCED to have been flawed (Bundle A124-125). He agreed that an investigation found him guilty of examination irregularities and that he was disciplined for it.
49. Mr. M E Hassen testified under oath. He is the Head Specialised Leaner and Educator Support for the District. He explained that Ned Doman High School was identified as one of two full service high schools for the implementation of SIAS. Mr. Hassen testified that Mr. Philander approached the District in December 2014 about the possible appointment of Ms. Daniels as the Learner Support Educator at Ned Doman. The normal recruitment process was not followed but instead Ms. Daniels was transferred from the Northern Cape to the WCED with effect from January 2015.
50. Mr. Hassen testified that he has 70 Leaner Support Educators under his jurisdiction. Some of them support more than one school. 2015 was the first time such a post was allocated to a high school. Mr. Hassen said that he was involved in the drafting of Ms. Daniels’ JD. In 2016 the JD was amended to adapt to the needs of the school. He said that the JD on Bundle A4 was a draft document that was floating around at the time. He said that the needs of a high school differ from that of a primary school because in a primary school there is class teaching as opposed to subject teaching in a high school. The Applicant has expertise in subject teaching and she was utilised to also do mainstream teaching. It was not unreasonable to ask her to do mainstream teaching. In 2016 there was unhappiness about her workload. She agreed to a time table for mainstream teaching.
51. Mr. Hassan testified that the Applicant’s role, functions and responsibilities were clarified in a meeting held on 16 February 2016 and that she was expected to do mainstream teaching and adhere to teaching timetable allocated to her (Bundle E22-25). His understanding was that Ms. Daniels accepted the outcome.
52. Mr. Hassan explained that Learner Support Educators report to Leaner Support Advisors and that job evaluation will be a combined Principal- and Leaner Support function. The Principal will provide management support such as managing attendance. Mr. Hassan said that he does not think that Ms. Daniels did not fulfil her role. But there was a string of grievances, some of which he attempted to resolve but Ms. Daniels refused to participate and she also did not attend some grievance meetings. Meetings did not materialise because Ms. Daniels refused to attend or was advised not to attend.
53. Mr. Hassan testified that the District does not issue laptops and the saga of her refusing to return the laptop went on and on. He advised Mr. Philander that if Ms. Daniels does not return the laptop that he must report it as stolen.
54. Mr Hassen agreed that he said in a meeting that Principals do not own the Leaner Support Educators and that they answer to the District.
55. Mr. Hassan testified that he was aware of the alleged conflict between Ms. Daniels and the school and that some of it was also directed at himself and his staff. He indicated that her work environment was not intolerable. Mr. Hassan agreed in cross- examination that the alternative posts offered were not made in writing to Ms. Daniels. Mr. Hassan submitted in re-examination that the alternative posts offered to Ms. Daniels in 2016 and in 2018 (after her resignation) were because of a clear breakdown at Ned Doman. In his view the Applicant did not want to resolve the matter.
56. Ms. Yolanda Booysen testified under oath. She is a Leaner Support Advisor. Ms. Booysen testified that she is responsible for the performance appraisals (IQMS) of Leaner Support Educators. In 2016 she could not asses Ms. Daniels as she was not teaching leaner support but was doing mainstream teaching. It was also difficult to provide support to Ms. Daniels in 2017. Ms Daniels was absent on 2 and 12 May 2017 and a meeting scheduled for 16 May never happened. Ms. Booysen said that on one occasion when they did meet Ms. Daniels, she pushed her out of the door. She laid a complaint against Ms. Daniels about it. She always offered reasons why she could not support leaners. Ms Booysen testified that she later discovered that Ms. Daniels is a mainstream teacher and not a qualified remedial teacher.
57. With regards to the laptop issue, Ms. Booysen testified that when asked Ms. Daniels to return the laptop to the school as it is the schools property, Ms Daniels burst out crying and saying that she is not on her side.
58. Under cross examination, Ms Booysen explained that she was Ms. Daniels’ line manager. Ms Booysen agreed that Ms. Daniels was not able to perform her functions in terms of her JD. She said that she would have wanted Ms. Daniels to focus on leaner support. Ms. Booysen testified that she can understand Ms. Daniels’ frustration but that she does not know what the agreement between her and Mr. Philander entailed. She said that she found a Leaner Support Educator teaching mainstream and that she was unable to performance manage or appraise Ms. Daniels. Ms Booysen agreed that Ms Daniels’ appointment letter does not refer to mainstream teaching.
59. Ms. Booysen testified that Mr. Philander’s view was that Ms. Daniels can be asked to do more than just leaner support.
60. Ms. B Sifela testified under oath. She is a Leaner Support Advisor. Ms Sifela testified that her job entailed supporting Ms. Daniels. When she learnt in June 2015 that Ms. Daniels were teaching mainstream subjects she reported it to Mr. Hassen. He asked her to withdrew because she is a leaner support advisor and Ms. Daniels was teaching mainstream. She did not have contact with Ms. Daniels again until 2017 when she was told to provide support to Ms. Daniels. When she wanted to meet with Ms. Daniels she said that she cannot meet with her without her union representative. She met her again on 23 January 2018. They had a good discussion and she told her step by step what to do.
61. Under cross examination Ms. Sifela was referred to the JD on Bundle A7-11. She said that it looks like the JD she and Dr. Naidoo gave to the Applicant in June 2015. She agreed that the Key Performance Areas did not include mainstream teaching. Ms. Sifela testified that they expected Learner Support Educators to provide targeted remedial support.
62. With regard to other options offered to Ms. Daniels, Ms Sifela testified that her impression was that Ms. Daniels was not unwilling to consider other options. Ms. Sifela testified that there were and still are challenges in the full implementation of SIAS because of budgetary constraints.
Closing arguments
63. The written closing arguments of both parties are part of the record. I have taken it into account. I don’t find it necessary to repeat it here in full. I will refer to it in my analyses of the evidence and argument to the extent that I need to. In short, Adv. Williams argue that the Applicant has discharged the onus of proving that her working conditions were made intolerable and that she was constructively dismissed. He argues that the Applicant is entitled to 12 month’s compensation and legal cost. The highpoint of Ms. Randall’s argument is that the Applicant’s work condition was not intolerable to such an extent that it warrants her claim of constructive dismissal.
ANALYSES OF EVIDENCE AND ARGUMENT
64. Section 186 1(e) of the LRA as amended provides that an employee may claim that he/she has been dismissed “…if an employee terminated the contract of employment with or without notice because the employer made the continued employment intolerable”. This is generally referred to as constructive dismissal.
65. In order to appreciate the concept of “constructive dismissal”, it is important to have regard to the jurisprudence that have been developed in this arena by our labour courts.
66. The Labour Appeal Court has defined constructive dismissal as: “... the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. However, such an act of the employee is precipitated by earlier conduct on the part of the employer, which may or may not be justified.” (Almagated Beverages Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC)). Generally speaking, the resignation of an employee in response to the intolerable conduct of an employer will have to be the last resort after all reasonable avenues to resolve the problem have been exhausted.
67. In Mahlangu v Amplats Development Centre (2002) 23 ILJ 910 (LC) the Labour Court confirmed that the conduct of employers must be judged objectively and that employees are being expected to exhaust other possible remedies before resigning and claiming constructive dismissal and not to jump to resigning at the first opportunity. The critical issues for determining cases involving claims of constructive dismissal are: a) whether the employee brought the contract to an end; b) whether the reason for the employee’s action was that the employer had rendered the prospect of the continued employment intolerable; c) whether the employee had no reasonable alternative other than terminating the contract.
68. In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) at 724E-G, 984E-F, the Labour Appeal Court described the test for establishing whether the termination of an employment relationship by an employee amounts to a constructive dismissal as follows: “ When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfill what is the employee’s most important function, namely, to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.” The Labour Appeal Court continued in the abovementioned case to explain that the employee must be able to satisfy the court or arbitrator that at the time of the termination of the contract that the employer had actually behaved in a manner that she believed rendered the relationship intolerable and would continue to do so.
69. In Mafomane v Rustenburg Platinum Mines Ltd [1995] 5 BLLR 1 (LAC) the LAC held that the requirement that the employee prove that his continued employment had become “intolerable”, has the following implications:
• In referring to Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others (1998) 19 ILJ 1240 (LC) and Lubbe v Absa Bank [1998] 12 BLLR 1224 (LAC), the courts stated that 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 and secondly, there was no reasonable alternative to escape those unbearable circumstances, than to resign.
• 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, will usually find it hard to characterise the resignation as a constructive dismissal. (With reference to Old Mutual Group Schemes v Dreyer & another (1999) 20 ILJ 2030 (LAC)). 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.
• Furthermore, 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. However, judgment must be made from the perspective of a reasonable person in the shoes of the employee.
70. In the Mafomane matter the court then concluded to state that: “the conclusion that the question whether the employee’s continued employment has become intolerable, 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 idiosyncrasies of the particular employee, is 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.”
71. The starting point for the determination of constructive dismissal disputes, like any other dismissal disputes, is the determination of the existence of a dismissal, if positively determined, the fairness test is to be applied. Fairness is to be determined with reference to the conduct of the employer and the effects thereof on the employee i.e. the commissioner ought to seek answers to the following questions: 1. Whether the employer was guilty of the conduct complained of; 2. Whether the conduct of the employer rendered the continued working relationship intolerable; and 3. Whether there were no other alternatives for the employee but for resignation.
72. In Strategic Liquor Services v Mvumbi NO & Others 2010 (2) SA 92 (CC) it was held that the test for constructive dismissal does not require that the employee should have no choice but to resign, but only that the employer should have made continued employment intolerable. The further test is that the employer must be culpably responsible in some way for the intolerable convictions. The above questions can only ever be satisfactorily answered when adopting a holistic review of the evidence before the commissioner.
73. Having regard to the abovementioned case law I will now consider the Applicant’s contention that she was constructively dismissed.
74. I must from the onset say that the Applicant came across as stubborn and having a view that only she is right and others are wrong. Her refusal or stubbornness in returning the school’s laptop being but one example of this. Then there is the Principal of Ned Doman High School, Mr. Philander. He is a person with a strong personality who were at times even argumentative during cross-examination. Having these two strong personalities in an environment where Ned Doman High School was a pilot school for the implementation of SIAS and where a Leaner Support Educator post was introduced to the school for the first time, was a recipe for conflict, if not managed properly from the start.
75. The crux of the Applicant’s case is that she was not allowed, from the start, to perform her duties as Learner Support Educator and that she was forced to teach mainstream subjects in spite of her JD not providing for this function to be performed. According to the testimony of Mr. Philander and the arguments submitted by Ms. Randall, the Applicant agreed to teach English and to do whatever else the school requires from her. This, they say, is supported by the email that the Applicant wrote to Mr. Philander on 27 October 2014 (Bundle E20). She indeed voiced this commitment in this email. But when the Applicant was transferred from the Northern Cape to the WCED she was appointed in a District post as a Learner Support Educator and not as a mainstream teacher. I am satisfied with the Applicant’s testimony, corroborated by the testimony of Ms. Geduld, that the JD initially presented to her in 2015 and the one later in June 2015 (Bundle A7-11) constitute what was expected from her as a Leaner Support Educator. These JD’s does not make any mention whatsoever of the Leaner Support Educator being responsible for mainstream teaching.
76. In as far as Ms. Randall put it to the Applicant that the JD in Bundle E1-3 that provides for her to do mainstream teaching is in fact her JD, there was no evidence presented by the Respondent’s witnesses to prove that this JD was in fact presented to the Applicant in 2015.
77. Whilst the Applicant did agree to do mainstream teaching in 2015 because of SIAS being new to the school, she was again given mainstream teaching in 2016 in spite of it not being part of her JD. The expectations she had for her role at the school, as per her JD, clearly differed from what Mr. Philander expected from her. One of the consequences for the Applicant having to teach mainstream in 2015 was that the Leaner Support Advisor, Ms. Sifela, withdrew from her role to support the Applicant. In this regard Ms. Sifela testified that when she reported to Ms. Hassen that the Applicant is doing mainstream teaching that he in fact asked her to withdraw.
78. Mr. Hassen testified that he was under the impression that the Applicant accepted on 16 February 2016 that she was expected to do mainstream teaching. His impression was clearly wrong because on 7 March 2016 the Applicant wrote a comprehensive email to her union about the circumstances that she had to work under. Her email letter was referred by the union to the Respondent. A meeting to resolve the Applicant’s grievance was held on 5 July 2016 and offers were made to move the Applicant to another school. The options were cryptically set out as to “move Ms. Daniels to a FSS primary school, to serve at a Internerant High School Mountain View S/S, crystal S/S.”
79. When the Applicant questioned, in an email dated 15 July 2016, whether these offers are in good faith, there was no proper response forthcoming from the Respondent. One would have expected an employer who makes offers of alterative placement to an employee in order to resolve a grievance, to formalise the options in writing so that the employee knows what she is letting herself in for. It should not be up to the employee to guess what the options entails or whether it is genuine offers or not. Importantly, in as much as Mr. Hassen submitted that the Applicant’s work conditions were not intolerable, he testified during his re-examination by Ms. Randall that the offers made to the Applicant in 2016 and also in 2018 (after her resignation letter) was because of a clear breakdown at Ned Doman. I conclude from his testimony that management what thus well aware, as far back as July 2016 of the breakdown at Ned Doman.
80. On 12 September 2016 the Applicant wrote again to the Respondent about her unresolved grievance. Whilst a meeting was scheduled for 27 September 2016 it was rescheduled for 10 October 2016 but never took place. There is no evidence that the Applicant was in fact responsible for this meeting not taking place. Every indication is that the Applicant wanted a resolution to her work conditions at Ned Doman.
81. The Applicant suffered a further consequence of her being tasked with mainstream teaching in 2016 because Ms. Berenice Daniels could not asses the Applicant’s performance as a Learner Support Educator. The Respondent eventually declared the IQMS performance process flawed after she filed a grievance in this regard.
82. On 4 May 2017 the Applicant again complained about her work conditions in an email addressed to Ms. Berenice Daniels. In the last paragraph of her letter she pleaded for intervention. But her situation at the Ned Doman did not improve because on 6 February 2018 the Applicant filed, what would be her last grievance, after she was again being confronted with having to teach mainstream.
83. A grievance meeting was scheduled for 22 February 2018. It is common cause that the Applicant did not attend this meeting. Whilst the grievance report reflects that the Applicant indicated prior to the meeting that she will not attend, the report also reflects that the Applicant submitted a medical certificate to the ERO on the morning of the grievance meeting (Bundle B20). The grievance meeting continued in the Applicant’s absence and concluded that there is no unfairness and that the grievance is deemed to have been withdrawn based on the Applicant’s absence from the meeting and her repeated declaration of lodging a dispute at the ERLC. Having received a medical certificate from the Applicant, the least that the meeting could have done was to postpone to meeting or to asked for written representations from the Applicant before coming to the conclusion that the grievance is “deemed” to be withdrawn. The net result was that the grievance remained unresolved.
84. The Applicant then tendered her resignation on 16 April 2018. In the letter penned to the Respondent she effectively claimed to have been constructively dismissed. She was however required to work out a 3 months’ notice.
85. The Applicant has attempted since 2016 through various avenues to resolve her work conditions at Ned Doman. But it was all to no avail. I find that her resignation was because the work conditions has become unbearable and is indeed the result of an unfair constructive dismissal. She was employed as a Leaner Support Educator. Her duties as per her JD did not entail mainstream teaching. Having to perform mainstream teaching coupled with Mr. Philander’s incorrect views as to who was responsible for the screening of the leaners and his insistence that she continue to teach mainstream impacted negatively on her ability to perform her role as a Leaner Support Educator in terms of the SIAS policy. Ms. Sifela agreed in cross examination that the Leaner Support Educators JD as per Bundle A7-11 does not include mainstream teaching. She emphasized that the District expected Leaner Support Educators to provide targeted remedial support. This did not happen. Ms. Booysen agreed in cross examination that the Applicant was not able to perform her functions in terms of her JD and that she would have wanted the Applicant to focus on leaner support. She testified that she understands the Applicant’s frustrations. There was no indication at the time that the Applicant penned her resignation letter that her work conditions would change. A reasonable person finding herself in the Applicant’s shoes would also have resigned.
86. For all the above reasons I find that the Applicant has discharged the onus of proving that she was constructively dismissed.
87. The Applicant seeks compensation as relief. She has made education her career for 29 years and she was permanently employed by the Respondent before she was unfairly constructively dismissed. She is not a young woman and may find future employment, particularly in formal education sector, difficult. I find that compensation equal to 12 months’ remuneration fair and equitable in this instance.
88. Adv. Williams argued that costs must be awarded against the Respondent. Cost does not usually follow a finding against a party in arbitration proceedings under the LRA. Whilst I have found that the Applicant was constructively dismissed, I do not believe that the Respondent was frivolous or vexatious in its defence. I award no costs.
AWARD
I find that the Applicant was unfairly constructively dismissed by the Respondent.
1. I order the Respondent, the Department of Education - Western Cape, to pay compensation to the Applicant, Ms. Nicolette M Daniels, in the amount of Two Hundred Ninety-Three Thousand Eight Hundred and Eighty Rand (R292 880.00) being equivalent to 12 months’ gross remuneration (R24290.00 x 12 months = R293 880.00).
2. The Respondent must pay the total amount of Two Hundred Ninety-Three Thousand Eight Hundred and Eighty Rand before close of business on 1 May 2019.
3. Interest will accrue on the compensation amount from 2 May 2019 in accordance with section 143(2) of the LRA.
ELRC Panellist: Jacques Buitendag