ELRC222-20/21NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN BRITS

CASE NO.: ELRC222-20 /21NW
In the matter between:-

BOB MASWANGANYE APPLICANT

and

EDUCATION DEPARTMENT OF NORTHWEST RESPONDENT

ARBITRATOR: Ramatobane Maodi
DATE OF AWARD: 18 NOVEMBER 2023

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(e) – Constructive Dismissal

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration hearing was heard at Department of Education North West offices in Brits. The matter was part heard on 14 July 2021 and concluded on 01 November 2023. The applicant, Bob Maswanganye (“the applicant”) was represented by Moribishane Ramafoko, a practicing attorney, who later withdrew as applicant‘s representative and the applicant elected to conduct his case in person. The Respondent, Education Department of Northwest (“the respondent”) was represented by Boitumelo Phuswane, its Labour Relations Officer.

 2. Three (3) set of documents were entered into the arbitration and I marked them as follows:
Bundle A - The applicant ‘s bundle of documents from page 1 to 31;
Bundle A1 - The applicant ‘ s bundle of documents from page 1 to 9;
Bundle R - The respondent‘s bundle of documents from page 1 to 44.

  3. The hearing was digitally recorded, and handwritten notes were also taken.

 PRELIMINARY ISSUE
4. The none.

 BACKGROUND TO THE DISPUTE
5. The applicant, Bob Maswanganye was employed by the respondent as from 01 January 1988 and was promoted as a school principal of Kosea Moeka primary school in April 2004. He held the position of a principal when he resigned on 27 July 2020 . His salary at the time of his dismissal was R56 137.85 per month.

6. The applicant declared a dispute at the Council alleging that he had been constructively dismissed. The matter was
scheduled for a conciliation. As the parties were unable to settle their dispute, the Commissioner at the time issued
a ‘Certificate of Outcome’ to the effect that the dispute remained unresolved. The matter was set down before
me for arbitration.

7. The applicant alleges that the respondent made a continued employment intolerable and consequently he
resigned. He was reporting to Mr Letsoalo as his circuit manager.

8. The parties signed and handed in a pre – arbitration minutes in terms of which the applicant identified the following
as incidents that led to his resignation;
• Bullying and harassment of the applicant by the circuit manager through his constants visits;
• Prior to resignation the applicant was threatened with disciplinary hearing by the circuit manager;
• The circuit manager instructed he applicant to stay home during Covid 19 lockdown during April 2020, insisting that the applicant had comorbidities;
• The circuit manager went to the service provider (for the school) and instigated them to allege that the applicant was asking for kickbacks;
• The circuit manager came to the school and took all the school policies rendering it impossible for the principal to manage the school in June 2020;
• The circuit manager took away the functions of the applicant and handed them to the deputy principal;
• The circuit manager during one of his visits took the IQMS laptop and gave it to one of the departmental heads , Ms Lehasa on 16 March 2020.

9. The applicant sought compensation as a relief equivalent to twelve (12) months’ salary for what he perceived to have been his constructive dismissal.

 ISSUE TO BE DECIDED
10. Whether the applicant was constructively dismissed. If I find that there was any unfairness, I must determine the
appropriate relief.

 SURVEY OF EVIDENCE AND ARGUMENT
11. It is not the purpose nor the intention of this award to provide a detailed reproduction of all evidence submitted to
me during the arbitration (see Section 138(7)(a) of the LRA). I have, however, summarized the portions of
evidence that I considered relevant in making a determination in this matter.

THE APPLICANT ’S CASE
The applicant , Bob Maswanganye in essence testified that:
12. He was a principal of the school and the support he got from the school community was overwhelming until the
issues happened between him and the circuit manager, Mr Letsoalo that led to his resignation.

13. He referred to the entry in the logbook dated 05 February 2020 wherein in Mrs Lehasa wrote a letter to the circuit
manager about how he treated her.

14. The entry dated 10 February 2020 was made by the circuit manager about Ms Mosweu who was the first deputy
principal. From that entry, his position as a principal was revoked and Ms Mosweu was in charge of the school being
prepared for principalship. That entry stated that he was going to exit the department and go on retirement at the
end of the year.

15. In an entry dated 12 February 2020 about a leaner being injured at the school, the circuit manager refused to talk to
him and insisted on talking to the deputy principal in his presence. He then contacted the circuit manager and
expressed his unhappiness about his constant interference with the day to day running of the school.

16. In an entry dated 16 February 2020 by the circuit manager , he visited the school to monitor the kitchen , preparation
of food and finding many faults. He regarded this a witch hunt because the faults in the kitchen were never found by
the national, provincial and the district officials who were in charge of the learners’ food.

17. The entry dated 16 February 2020 was entered by him where Ms Lehasa was bulling him that if he does not give her
the laptop as agreed, the circuit manager will deal with him.

18. The entry dated 28 February 2020 by the circuit manager was about his legal case in Pretoria North court unrelated
to the school . He felt undermined by the circuit manager who openly discussed his private affairs with the whole staff
members and this caused him a lot of stress.

19. He is the author of the entry dated 09 March 2020 about a visit by Dr Tlhapi , the circuit manager, which was about
his conviction and incarceration. It was during this visit that he informed Dr Tlhapi about his constant harassment by
the circuit manager and that he is considering resigning as he could not take the stress any longer.

20. The entry dated 28 March 2020 is made by the circuit manager in respect of his unscheduled visits where school
policies and finance books were taken without his approval and took screen shots of invoices he wanted to query or
follow up with service providers.

21. The entry dated 28 May 2020 was when the circuit manager came to conduct workshop on Covid 19.

22. The entry dated 26 June 2020 was also about another unscheduled visits by the circuit manager where he came to
reprimand the deputy principal about contacting him about looking into the financials and threatened to charge her. In
essence, he was indicating that he was not the principal , but the deputy principal was . The circuit manager then went
to one of the service provider , Mr Mashego , and asked if he was soliciting bribes.

23. He referred to his entry dated 29 June 2020 and stated that because he had high blood pressure, a comorbidity, the
circuit manager advised that he must stay at home contrary to his doctors advice so that the deputy principal can act
as a principal. He further referred to another entry dated 29 June 2020 by the circuit manager about scrutinizing
audited financials of the school from 2018 - 2020 with the purpose of making a case against him.

24. The entry dated 13 July 2020 was when he reported back to school after being ejected the circuit manager despite
the fact that he was not sick.

25. The entry dated 31 July 2020 was when he resigned. He was stressed and wanted to retire at age 65 but his career
was cut shot by the harassment of the circuit manager who made him retire prematurely at the age of sixty.
Cross examination

26. During cross examination when asked to briefly state the reasons for his resignation he stated that prior to his
resignation, his relationship with circuit manager, Mr Letsoalo, had soured and had irreconcilable differences. Their
relationship soured because of the relationship Mr Letsoalo had with Mrs Lehasa about a laptop which she refused to
submit after her resignation from committee of IQMS and Mr Letsoalo said he must buy another laptop despite
budgetary issues. He did not report this issue to his superiors because he is not a cry baby. There was no use
reporting Mr Letsoalo to his superior Dr Tlhapi because Mr Letsoalo was not respecting Dr Tlhapi.

27. When asked how did the entry dated 10 February 2020 by Mr Letsoalo revoke his position as principal and why did
he not report Mr Letsoalo to his superiors , he stated that there was no need because he was not going on retirement.

28. When asked to show where in the records he was told to hand over financial books, not to attend meetings and
workshops , his answer was that there was no entry to that effect.

29. He conceded the entry dated 16 February 2020 by Mr Letsoalo visiting the school to monitor the kitchen, there was
nothing wrong with the visit.

30. When asked about his entry dated 29 June 2020 where he indicated that he went back home for safety reasons after
his discussion with Mr Letsoalo whether it contributed to his resignation, he conceded that it does not show that Mr
Letsoalo pushed him out. He further conceded that he never gave Mr Letsoalo anything about his health from the
doctor. He stated that Mr Letsoalo was sending him home to scrutinize the school financial books. When asked what
did he do when he realised that Mr Letsoalo was pushing him away , he stated that he went home , reflected and went
back to school to resume his duties.

RESPONDENT’S CASE
The witness, Hosiah Letsoalo essence testified that:
31. He was the circuit manager and the immediate supervisor of the applicant. His duties was to monitor all aspects of
the school and to give support in a form of professional development , resources , physically and emotionally. He is
required to report to the department of education about the health of the school. He was supervising twenty eight (28)
schools in total.

 32. He knew the applicant very well and was a principal of one of the schools he was supervising. He was aware that the
applicant had resigned . He heard from his fellow circuit manager , Mr Lebogo that he received a resignation letter
from the applicant and it was not given to his clerk as it was normally done. He saw the letter and the reason for the
resignation was to the effect that it was hard for him to work in the school.

 33. He did not view the resignation letter to be valid . Their relationship was well and healthy . It soured after he found
seventeen (17) financial irregularities in the school financial books. The irregularities were discovered seven (7)
months prior to his resignation. There was proof in terms of report from IGSS that the applicant was not handling the
financials of the school well.

34. During his investigations in January 2020 some supporting documents were lacking and most importantly receipts to
support purchases and services rendered could not be found. He then gave the applicant two months to rectify the
misconduct except that his conduct of paying the chairperson of the SGB money for the feeding of learners (NSLP)
must be rectified immediately. The applicant promised that he will stop buying learners’ food from Makro.

35. He does not remember doing anything wrong to the applicant. He respected the applicant like he did with all other
Principals. He was a principal before and he knew how hard it is getting pressure from the learners, teachers and the
community.

36. With regards to the applicant ‘s claim that it was his number of his unusual visit to the school that made him resign,
he stated that in three months he can visit a school three times and if they need support it can be more visits. Sometimes
they use schools as venue for circuit meetings. The entry dated 28 May 2020 was for a meeting for Covid 19 workshop.

37. On the allegation that he ignored the doctor‘s orders that the applicant was not sick and made him stay home during
Covid 19 , during the covid 19 workshop on 28 May 2020 , they were instructed to inform the principals, educators
and non-educators who had comorbidities and over sixty years to stay at home for their safety. The applicant was
falling within the two categories and was required to stay home. At that time the applicant never gave him any letter
for the doctor that he was not sick.

38. The entries in the logbook about his visit to the applicant ‘s school dated 16 February 2020 and 26 February 2020
were work related and part of his role and responsibilities of food handling and feeding of school learners. The purpose
of the visits were for monitoring and support. Therefore his visits could not have contributed to his resignation.

39. The entry in the logbook dated 10 February 2020 was his and the purpose was to develop colleagues to have roles
and smooth transition from deputy principal to principal so that when Ms Mosweu takes over, she fits perfectly in the
managerial role. It was purely developmental and happened with all principals. In the absence of the principal, a
deputy principal takes over the responsibilities of a principal. As the applicant was to exit at his age, the deputy
principal was to be prepared to take over.

40. The entry dated 10 February 2020 could not have pushed the applicant out of the education department system
because the applicant told him that he will retire at the end of the year. In the entry he wrote that he advised and not
instructed the principal to prepare the deputy principal for principalship. The applicant was a leader of their union and
very assertive and they were in talking relationship.

41. The applicant ‘s allegation that he had a meeting at school , discussed his court case and presented him as a criminal
is not truthful. A certain group within the community that was influential approached him about the applicant ‘s arrest
and he went to the school to warn educators not to be involved in the applicant ‘s arrest or case. He told the educators
that the applicant was arrested, not to listen to external forces and be professional about it. He never attended the
applicant ‘s court case and knew nothing about the substance of his case.

 Cross examination
42. During cross examination he disputed that their relationship soured after Ms Lehasa stepped into their relationship
because Ms Lehasa died before the applicant could resign. He conceded that Ms Lehasa wrote a letter to him about
the laptop, and that he intervened to correct the situation because you cannot have an altercation with someone
immediately thereafter demand a laptop. On question about his visit to the school on 29 June 2020 as a form of
harassment , he responded that teachers were workshopped on the grievance procedure that they must
formalise their complaint.

43 . He had been delegated to investigate the finances of the schools and he found irregularities in the financial books of
the applicant ‘s school.

45. The applicant resigned because he was running away from gross financial misconduct which include fraud,
embezzlement and mismanagement of funds.

CLOSING ARGUMENTS
46. The applicant requested to submit his closing arguments in writing , and the respondent did the same .The respondent
submitted theirs and the applicant failed to submit same.

ANALYSIS OF EVIDENCE AND ARGUMENT
47. The concept of “ constructive dismissal “ was codified into the Labour Relations Act of 1995, as amended (the LRA),
by making it part of the definition of dismissal in section 186 of the LRA . In section 186 (1) (e) of the LRA, a dismissal
was defined as including the instance where ;

  “ … an employee terminated a contract of employment with or without notice because the employer made
continued employment intolerable for the employee.”

 48. The onus to prove the existence of the intolerability rests squarely upon the shoulders of the employee party. The
subjective views of the employee is of no consequence in discharging the onus , as the enquiry to establish whether
intolerability exists is always an objective one.

 49. In Bakker v Commission for Conciliation , Mediation and Arbitration and Others (2018) 39 ILJ 1568 (LC) at
paras 12 - 13 , the court said:
“ Intolerable ‘ is not defined in the LRA , but it is a strong word which suggests a high threshold: In this
regard , Grogan , in his Workplace Law , states:
“ The requirement that the prospect of continued employment be “intolerable” … suggest that this form
of “dismissal” should be confined to situations in which the employer behaved in a deliberately
oppressive manner”.

 50. Considering the provision of section 186(1) (e) , three specific issues emerge for determination , as set out in
Solid Doors (Pty) Ltd v Theron (2004) 25 ILJ 2337 (LAC) as follows :
‘... there are three requirements for constructive dismissal to be established. The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established. 

51. It must be recorded that the applicant submitted into the record , the logbook entries to support his allegations. It was
common cause that the applicant resigned , therefore the first requirement of the constructive dismissal had
been met.

52. I will next deal with the remaining two requirements, namely whether continued employment was made intolerable
for the applicant and whether the respondent was the cause of such intolerability.

53. It is with regard to this two requirements that the applicant ‘s case of constructive dismissal faces considerable
difficulty. In terms of the logbook entries and as confirmed by the circuit manager in his evidence in chief, he visited
the school six times between February 2020 and July 2020 i.e. in six months. The reason for the visits were identified
in the log book and had no record of bulling and harassment. The visits to the school by the circuit manager were
therefore not meant for the applicant, he was merely executing his normal responsibilities and that he does that with
all his schools.

54. In terms of the log book entries and evidence before me , there was no evidence to support the contention that the
applicant was threatened with disciplinary hearing prior to his resignation. The applicant failed to establish how
and when was he threatened with disciplinary hearing. There was no entry in the log book supporting the contention
of the applicant.

55. In the applicant ‘s own evidence , he conceded that he had comorbidities. All employers during Covid 19 were
instructed through Covid 19 government regulations to allow employees such employees to stay home. Therefore the
circuit manager did nothing wrong in implementing the regulations.

56. The applicant provided no evidence to show that the circuit manager instigated the service providers to allege that he
was soliciting kickbacks. What appears to have been the applicant ‘s problems, was the fact that the circuit manager
was investigating financial irregularities in the school , which investigation fell within the scope of the circuit manager
‘s duties as the immediate supervisor of the applicant.

  57. The applicant failed to show any entry in the log book or evidence to established which school policies did the circuit
manager collect from the school rendering him impossible to manage the school in June 2020.

 58. On the issue of the circuit manager taking away the applicant ‘s functions and handed them to the deputy principal ,
the evidence of circuit manager was clear that the reason for that was purely developmental and is confirmed by the
entry in the log book.

 59. The issue of the IQMS laptop given to Ms Lehasa in March 2020 , the circuit manager only visited the school after
Ms Lehasa complained to the circuit manager. The entry in the log book reflects that the applicant agreed that the lap
top be given back to Ms Lehasa. Therefore , the contention by the applicant that the laptop was taken away was
factually incorrect.

60. When one analysises the evidence of the applicant, cognisance must be taken of the fact that all incidents the applicant’s
complains of are isolated incidents which occurred at separate intervals at various stages in his employment career.
As such , this incidents cannot be said to have rendered the continued employment relationship intolerable.

61. In Jordan v CCMA and Others (2010) 31 ILJ 2331 (LAC) the LAC approved a salutary caution that constructive
And held that “ With employment relationship, considerable levels of irritation , frustration and tension
Inevitably occur over a long period . None of those problems suffice to justify constructive dismissal”.

62. The third requirement to proof constructive dismissal is that the circumstances that led to the employees ‘s resignation
must have been brought about by the employer .This means the employer must have performed actions which
created the intolerable circumstances.

63. The most important and relevant factor is whether the respondent was aware of the alleged intolerable conditions
and was afforded opportunity to address and rectify it. During cross examination , the applicant stated that there was
no use in reporting the circuit manager to his superiors because the circuit manager was not respecting his superiors
and that he was not a cry baby.

64. In Bandat v De Kock and Another (2015) 36 ILJ 979 (LC) the Court considered the aforesaid dicta in both Loots
and Albany Bakeries, and came to the following conclusion:
“What the court in Loots and Albany Bakeries thus clearly said was that the employee, in order to show that
a continued working environment was intolerable, has to convince the court that the employee had a
genuine belief that the employer would never change its ways. An important component of establishing
such a genuine belief then has to be the use of suitably available alternative remedies, such as raising a
grievance or using the remedies provided for in the LRA. As the court said in Albany, it can be considered
to be opportunistic for an employee to resign out of the blue, so to speak, without even raising an issue
with the employer and giving the employer the opportunity to remedy the cause of complaint, thus giving.
it a chance to remedy any errant ways.’

 65. In short, and where there is a grievance process in the employer available to the employee which would, if applied,
resolve the cause of complaint, the employee must follow it. If the employee does not follow it, the employee cannot
as a matter of principle claim constructive dismissal, unless the employee proves that there exists truly exceptional
circumstances that may serve to absolve the employee from this obligation. And for the employee to subjectively
claim that he or she has no confidence in the grievance outcome or that the employer would not reform, cannot
suffice as such exceptional circumstances.

 66. The applicant ‘s assumption that it would not have made any difference had he reported the circuit manager or file
a grievance , is not a reasonable assumption and was not substantiated by any facts.

67. I am not convinced that the respondent conducted itself in a manner calculated or likely to destroy or seriously
damage the relationship with the applicant . The respondent ‘s conduct, judged as a whole, was not such that the
applicant could not reasonably be expected to put up with it.

68. In my view and in applying the applicable principles I am not persuaded on the objective facts , that the applicant in
fact discharged the onus of proving a constructive dismissal and his claim stands to fail.

 69. In the circumstances the award that I make is the following;
AWARD
70. The applicant, Bob Maswanganye, was not dismissed by the respondent , Education Department of North West.
71. The applicant’s claim of constructive dismissal is dismissed.
72. I make no order as to costs.

Ramatobane Maodi
ELRC Panelist