ELRC661-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
XOLANI ERICK CELE the Applicant
And
DEPARTMENT OF HIGHER EDUCATION AND TRAINING the Respondent

ARBITRATION AWARD

Case Number: ELRC661-22/23KZN
Last date of arbitration: 18/08/2023

Date of award: 23/01/2023

Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 19th January 2023, 15th February 2023, 08th and 09th March 2023, 28th and 29th March 2023, 11th and 12th May 2023, 13th and 14th June 2023 and it was concluded on 17th and 18th August 2023. The arbitration was held on various campuses of Majuba College in Newcastle.

2. The Applicant, Mr Cele, appeared in person and he was represented by Mr N S Radebe an attorney from NSR & Associates. The Respondent, on the other hand, was represented by Mr. T Mthembu, an official from the Department of Higher Education and Training at Majuba College, Newcastle.

3. The arbitration proceedings were held in English and were mechanically recorded.

ISSUE TO BE DECIDED

4. In these proceedings, I am required to decide whether the Applicant was constructively dismissed by the Respondent in terms of section 186(1) (e) of the Act. If I found that the Applicant was constructively dismissed, I am required to determine an appropriate remedy.

BACKGROUND

5. The Applicant is Xolani Erick Cele who was employed by the Respondent as a lecturer at Majuba TVET College, Newcastle. He was employed on 25 July 2011, and he was earning R27 995,00 per month at the time of his dismissal.

6. The Respondent is the Department of Higher Education and Training, a governmental department dully fulfilling its mandate in terms of the Constitution and the relevant legislation, with its offices at 83 Allen Street, Newcastle.

7. The Applicant claims that he was constructively dismissed by the Respondent on 15 November 2022 after he had tendered his resignation on 12 October 2022.
8. The Respondent denies that the Applicant was dismissed but contends that the Applicant voluntarily resigned from his employment.

COMMON CAUSE FACTS

9. The following facts were common cause between the parties:
• That the Applicant was employed by the Respondent as a lecturer
• That he was employed on 25 July 2011
• That at the time of the alleged dismissal, he was earning R27 995,00 per month.
• That he tendered his resignation on 12 October 2022
• That after tendering his resignation, he served one-month notice and he left the services of the Respondent on 15 November 2022

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

First witness

10. The Applicant Mr Xolani Erick Cele was the first witness to testify in support of his case and he testified as follows:

11. He had no intention of resigning from his employment with the Respondent. He only resigned because the Respondent had made his continued employment unbearable for the following reasons:

12. Firstly, he lodged a grievance about his non-appointment to the post of an Acting Senior Lecture HR on 29 November 2019. The Respondent refused to investigate his grievance. What had happened was that he applied for the post concerned. He was shortlisted and called for an interview, but he was not appointed. As a result, he lodged a grievance to the effect that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act. One of the panel members told Nehawu branch secretary that the panel could not understand the Applicant at the interviews because the Applicant just came to boast about his model C English. As a result, they could not understand what he was saying, and they scored him according to what they could understand. Apparently, there was a delay in his grievance as they could not provide him with the record of the proceedings. On 27 July 2020, he telephoned Mr Shangase to advise him that he was the one who was causing the delay in his matter. However, Shangase disputed this and attributed the delay to Mr Ntshangase.

13. On 31 July 2020, he sent the email appearing in page 6 of bundle 1 to Mr Shangase, asking for feedback about his grievance. In response, Shangase undertook to get back to him in this regard. However, he did not receive any feedback from Mr Shangase. On 05 August 2020, he received a letter from Mr Mlotshwa advising him, amongst other things, that his grievance has prescribed. That is why he says that the Respondent refused to investigate his grievance.

14. Secondly, the Respondent threatened him with a disciplinary enquiry and fabricated charges against him. In one of the charges, it was alleged that the Applicant and another two employees of the Respondent failed to submit their marks on time. In fact, the Respondent alleged that ten of its employees had allegedly failed to submit their marks on time. However, the Respondent only charged the Applicant and the other two employees viz: Ngwenya and Hleza. As a result, there was no consistency in the manner in which the Respondent had applied discipline in this regard. Further to that, the Respondent interfered with his witness. He had advised the Respondent that he intended to call Maseko as his witness. Maseko was going to testify to the effect that there was no date that was set for the submission of marks in relation to one of the charges. However, Maseko ended up refusing to testify on his behalf because he was threatened by the management of the Respondent.

15. Also, the chairperson of the disciplinary enquiry fabricated evidence against him. The chairperson recorded in the disciplinary findings that there were various emails advising the Applicant and other employees about the submission date of their marks. However, there were no such emails. He was even prepared to withdraw his denial in this regard if the Respondent’s witnesses were able to produce those emails. He also stated that the chairperson was also not telling truth when he recorded in the outcome of the disciplinary enquiry that the Applicant did not submit his mitigating factors. In this regard he referred the council to page 32 of bundle 1, where the chairperson was confirming receipt of the mitigating factors from the Applicant. This disciplinary enquiry culminated in the Applicant receiving a final warning.


16. Thirdly, he testified that he was diagnosed with severe depression by his psychiatrist, Dr Mnikathi. Consequently, the doctor recommended that he should be relocated to another campus of the Respondent. However, the Respondent failed to comply with the doctor’s recommendation up until he tendered his notice of resignation. The doctor’s medical report was submitted to the Respondent on 18 August 2022. He tendered his notice of resignation on 12 October 2022. The Respondent wrote a letter to relocate him on 31 October 2022. He stated that the Respondent had no valid reason for its failure to comply with the doctor’s recommendation.

17. During or about 29 August 2022, he went to the campus where he was working. When he arrived, he was mocked by his colleagues saying that the mad guy was back at work. When he enquired with them as to where did they got that information, they told him that they got it from Ms Ngubeni, the HOD of the Respondent. This became clear to him that Ngubeni had disclosed information about his medical condition which was supposed to be treated as confidential.

18. These unbearable conditions emanated from the strike which he spear-headed in 2019. This was so because after the strike, his relationship with management became very sour to such an extent that Mr Ntshangase told him and his other union colleagues that there was a dossier on each one of them. This meant that Mr Ntshangase regarded them as troublemakers. Ntshangase also told them that for the college to be governable, they had to be eliminated. These utterances were confirmed by Ngubeni who once told him that the management of the college felt that they must teach him a lesson.


19. During cross examination he admitted that if the grievance was not resolved he should have escalated it to the next level. However, in his case, he could not do that because there was no meeting where it would have been agreed that his grievance had not been resolved. However, he later stated that if the matter was not escalated why would the principal respond by the letter in page 8. But the main issue was the transcript which he did not receive. When he was referred to the last paragraph of the letter on page 8 which was advising him that he had a right to explore other relevant avenues, he stated that he had lost confidence in the process. He confirmed that he was a lecturer on labour relations and admitted that the recourse available to him was to refer the matter to the bargaining council. But he stated that he could not do that because he had not been provided with the transcript. When he was asked why they did not subpoena the transcript, he stated that he had already lost faith in the process. He admitted that the signature appearing on the attendance register of the meeting held on 14 January 2020 was his signature.

Second witness

20. The Applicant’s second witness was Caleb Zuma and he testified as follows:

21. He knows the Applicant as his former colleague, and they started working together in 2012. Also, they were both teaching Human Resources Management at the college, and they were both in the leadership structure of NEHAWU.

22. During 21 November 2019, there was a meeting between NEHAWU and the management of the college. The meeting was initiated by Mr Dladla, who was also a member of NEHAWU. This meeting was attended by him, the Applicant and other union members viz: Frans Hleza, Sifiso Mlambo, Sanele Ntshingila and Langelihle Dladla. The purpose of the meeting was to address the tension between the union and the management of the college. In this meeting, Mr Ntshangase, who was representing the college told them that the senior management of the college had a file on each and every one of them. He also told them that the Applicant was a bully who was bullying management and everyone around him. Therefore, the management had a mandate that they needed to carry out which was to get rid of them.

23. Under cross examination, he admitted that they did not do anything about Mr Ntshangase’s utterances. He also admitted that the Applicant had a right to appeal the findings of the disciplinary enquiry, but he did not do so. He admitted further that the letter in page 8 of bundle 1 was indeed the outcome of the grievance, but the Applicant had requested to be provided with the transcript of interview, which he had not received. Therefore, the letter did not address what the Applicant wanted.


Third witness

24. The Applicant’s third witness was Frans Thembinkosi Hleza who testified as follows:

25. He knows the Applicant as he was his colleague and they worked together in the union leadership. He was amongst the union members who attended the meeting with the campus management on 21 November 2019. In the meeting Mr Ntshangase told them that he had a file for each one of them. He also told them that the Applicant was bully who was bullying everyone at the college.

Respondent’s case

First witness

26. The Respondent’s first witness was Muziwendoda Nkosinathi Ntshangase and he testified as follows:

27. He is employed by the Respondent as the campus manager at the Centre for Peoples Development (CPD). He has been employed as such since June 2017. He knows the Applicant. The Applicant was employed by the Respondent as the lecturer for Human Resources. The relationship between him and the Applicant was just a working relationship.

28. He denied that the Respondent made the Applicant’s continued employment intolerable. What had happened was that the Applicant was not submitting his leave forms when he was offsick, but only medical certificates. As a result, Mr Siphiwe Masondo from the Respondent’s Human Resources Department addressed an email on page 51 to the Applicant detailing the leave forms that were still outstanding and urging the Applicant to submit the leave forms. In terms of the policy the Applicant was required to submit his leave forms within five days from the date of his absence. In the normal course of events, the Applicant was required to submit his leave forms to Ngubeni. Ngubeni would then forward the leave forms to Masondo and Masondo will submit the forms to him for his signature. Thereafter, Masondo would submit the forms to the central office for capturing.

29. On the 26th of September 2022, the Applicant submitted a medical certificate indicating that the Applicant had a depression. The sick note further recommended that the Applicant should be relocated to another campus of the Respondent. However, he could not act on the recommendation because the recommendation did not have sufficient details. So, he wanted to first speak to the Applicant about the relocation, but he could not do so because the Applicant was still on sick leave. Therefore, he was waiting for the Applicant to come back from leave.

30. He denied that there was any meeting with the Applicant and the other five members of the union as alleged in page 2, paragraph 1 of bundle 1. He stated that whenever he had a meeting with someone, he would take the minutes of such a meeting. In this case there were no minutes to prove that there was such a meeting. He never had such a meeting, and Dladla never coordinated any meeting with him. So, he denied having uttered the words the Applicant and his other two witnesses alleged he uttered. Therefore, it was not true that he told them that he had a file on each of them. He also denied that the Applicant had been unjustly disciplined. The testimony about the meeting was a mere fabrication aimed at strengthening the Applicant’s case.

31. He confirmed that he was aware of the grievance filed by the Applicant about the interview process. He was the chairperson of the interview process. However, the grievance that the Applicant lodged was closed. There was no resolution because the matter was abandoned. In the normal course of events, if the grievance had not been resolved, the grievant has a right to escalate the matter or to refer the matter to arbitration. In this case, he never received any referral form referring the grievance to arbitration nor was the grievance escalated.

32. During cross examination he stated that he accepted that the Applicant was not well, but he did not agree to the movement of the Applicant as recommended by the doctor because he still needed justification. He could not contact the Applicant because in terms of the leave policy, an employee must not be contacted during his leave unless if he or she is contacted about his or her leave. He could not provide an answer as to why the Respondent decided to move the Applicant after he had submitted his resignation. But he insisted that the Applicant was indeed temporarily moved. When it was put to him that there was no reason for the relocation of the Applicant to another campus came after he had already tendered his resignation, he stated that the Respondent still needed to decide how long the Applicant would be moved. It was further put to him that the Applicant was away from the 22 August 2022 to 16 September 2022, but between 16 September 2022 to 23 September 2022 the Respondent did not do anything about the doctor’s recommendation. In response, he stated that the doctor’s letter initially indicated that the Applicant would be back on 16 September 2022. Therefore, the Respondent’s assumption was that the Applicant would be return to work on 16 September 2022, but he kept prolonging his return. Had the Applicant came to work on 16 September 2022, the Respondent would have started the relocation process.

33. He produced the minutes and the attendance register of the grievance meeting that was held on 14 January 2020. He stated that the Applicant attended this meeting, and he signed the register. In this meeting he declared that there were no merits in the Applicant grievance and the Applicant should escalate his grievance to the central office if he was not satisfied about the outcome.

34. He denied that the Applicant was targeted for discipline. He admitted that there were 10 employees who had not submitted their marks and that out of the 10 employees only three employees were charged. But he disputed that the three employees who were charged were charged because of their membership with NEHAWU. He stated that Ntombela and Mlambo were not charged because they explained their difficulties and asked for assistance. Mbatha was also not charged because he later complied with what was required. The Applicant and the other two employees who were charged were rude and they refused to provide explanation for their noncompliance.

Second witness

35. The Respondent’s second witness was Thulisile Hilda Ngubeni who testified as follows:

36. She is employed by the Respondent as the Head of Department, and she has been employed as such since April 2001. She was the Applicant’s supervisor.

37. She denied that she ever had a private meeting with the Applicant where she appraised him about the plot to dismiss him as alleged in page 2 paragraph 4 of “bundle 1”. She further denied the allegations in page 3 paragraph 10 of bundle 1, where the Applicant alleged that she threatened to make his working environment intolerable in the meeting that was held on 06 July 2022. She stated that although she could still remember this meeting, she never made any threats to the Applicant as alleged. What had happened was that on the 05 July 2022, she had a staff meeting to do a presentation on the results and to prepare for the second semester. In that meeting the Applicant was very arrogant to such an extent that he insulted her by pointing a finger at her and calling her a liar. But she did not entertain the Applicant’s insult, instead she sticked to the agenda for the day. The following day she sent an email to the union inviting the union and the Applicant to attend the meeting on 06 July 2022 to discuss the Applicant’s conduct in the previous meeting. The Applicant did not attend this meeting, but only Mr Ntshingila. However, she did not do anything about the Applicant’s behavior because the Applicant was out of the campus.

38. She further testified about the meeting which was held on 20 May 2021 relating to staff members who did not submit ICASS marks on time. She stated, with reference to page 6 of the employer’s bundle, that the other employees who did not submit the marks on time managed to give them reasons for their failure. However, the Applicant, Mr Ngwenya and Mr Hleza failed to provide reasons for their failure to submit their marks on time, but instead, they were very arrogant. She refuted all the claims that the Applicant made against her at that meeting.

39. During cross-examination, she stated that she did not do anything about the Applicant’s conduct because the Applicant went on leave after the incident, and she was waiting for him to come back. When she was asked as to what effect would the Applicant’s presence had on the reporting of the matter, she stated that it was just her thought. She disputed that she did not report it because the alleged incident did not happen. She confirmed having received the doctor’s recommendations about relocation of the Applicant. In her motivation sent to the college, she had stated the college must consider the doctor’s recommendations. She admitted that the Applicant’s diagnosis was serious and even to date she still of the same view.

Third witness

40. The Respondent’s second witness was Siphiwe Themba Masondo who testified as follows:

41. He is employed by the Respondent as a clerk at CBD campus. He confirmed that he wrote the email in page 51 of bundle 1. The reason for writing this email was because the Applicant had been absent from work without proof from 16 June 2022 to 11 October 2022. The policy does not allow an employee to be absent for such a long time without proof. In this email he was reminding the Applicant to submit proof of his absenteeism. The normal procedure was that the Applicant should have reported his absence to the HOD. Then the HOD would advise HR and the campus manager. He therefore wrote this email so that the Applicant would submit his leave forms. After this email, the Applicant submitted his leaves forms and the doctor’s note.

42. He further stated that he was aware of the minutes of the meeting dated 14 January 2020. He attended this meeting as the secretary as well as the scriber. The meeting was about the Applicant’s grievance relating to discrimination. The minutes were the true reflection of what transpired in the meeting.

43. During cross examination he admitted that at that time of the meeting he did not know how grievances were supposed to be resolved. But he stated that the Applicant’s grievance was closed, and the Applicant was advised to escalate his matter to the central office.

Fourth witness

44. Thamsanqa Patric Zulu was the Respondent’s fourth and the last witness and he testified as follows:

45. He is employed by the Respondent as the assistant director in its human resources department. He is responsible for, amongst other things, recruitment and selection, human resources development, leave and attendances, payroll, exit and pensions.

46. He stated that the procedure for relocation of staff is that they must establish what led to the recommendations for relocation. Currently, the Respondent has a policy that regulates the movement of staff. There is also a committee that deals with the movement of staff which includes the trade union. Therefore, they were required to first consult with the CIC. They also have doctors who are contracted to provide second opinions. Therefore, they were required to obtain a consent from the Applicant.

47. He confirmed having received the email from the union making a follow up on the relocation of the Applicant. He stated that he did not respond because the Applicant was not copied on the email; he was therefore required to observe confidentiality. He stated that in terms of the Respondent’s policy the Applicant was not required to submit leave forms on the first and second day of his absence. However, from the third day, he was required to submit a fully completed leave form and the sick note. This must be done within five days of the date of absence. Since the Applicant had been absent from work for three months without submitting leave forms, he was in breach of the leave policy.


CLOSING ARGUMENTS

48. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF SUBMISSIONS


49. In these proceedings I am required to decide whether the Applicant was constructively dismissed by the Respondent, in particular, whether the Respondent made continued employment intolerable for the Applicant.

50. Section 192 (1) of the Act provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of dismissal is established, the employer must prove that the dismissal is fair. In the present case, the dismissal is in dispute, therefore the Applicant bears onus to prove the existence of the dismissal.

Whether the Applicant was constructively dismissed by the Respondent.

51. In terms of section 186(1) (e) of the Act, dismissal means that -an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

52. In the present case, it was common cause that the Applicant terminated his contract of employment with the Respondent by tendering his resignation on 12 October 2022. The only issue in dispute was whether the employee resignation was a result of the Respondent having made his continued employment intolerable.

53. In the recent judgement of Sanlam Life Insurance Ltd v Mogomatsi and Others (2023) 11 BLLR 1166 (LAC), it was held that in constructive dismissal disputes, a two-stage approach is normally followed. Firstly, the employee must prove that the employer effectively dismissed him by making her or his continued employment intolerable. It is an objective test. The employee need not prove that he had no choice but to resign, all that is required is to prove that the employer made continued employment intolerable. The conduct of the employer towards the employee and cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Secondly, after the dismissal has been established, the court will evaluate whether the dismissal was fair. The two stages may overlap and be interrelated.

54. In Murray v Minister of Defence (2008) 6 BLLR 513 (SCA), it was held that:

“It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So, the critical circumstances must have been of the employer’s making. But even if the employer is irresponsible, it may not be blamed. There are many things an employer may fairly and reasonable do that may make an employee’s position intolerable. More is need: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked reasonable and proper cause. Culpability does not mean that the employer must have wanted or intended to get rid of the employee though in many instances of constructive dismissal that is the case”.

55. In the present case the Applicant testified that the employer made his continued employment unbearable for the following reasons: Firstly, the employer failed to attend his grievance for unfair discrimination relating to his none-appointment to the post he had applied for. Secondly, he was subjected to an unfair disciplinary enquiry when other employees who did not submit their marks were not disciplined, whereas the Applicant and the other two employees were the only ones who were charged for this misconduct. This resulted in an inconsistency in the way the Respondent applied discipline. Also, the chairperson of the disciplinary enquiry fabricated evidence against them. Thirdly, he was diagnosed with severe depression, but the Respondent failed to assist him with the relocation as recommended by the doctor. Furthermore, the Respondent disclosed his medical condition without his consent because on 29 August 2022, he was mocked by his colleagues saying he was a mad guy. When he asked them where they got that information, they told him that they got it from the Respondent’s HOD, Ngubeni. Thirdly, the Respondent had a vendetta against him and the other employees who were members of NEHAWU. This is so because the Respondent’s campus manager, Mr Ntshangase, told them that he had a file on each of them. According to the Applicant this was confirmed by the Respondent’s HOD, Ngubeni, who told him that the management of the college wanted to teach him a lesson.

56. The Respondent on the other hand denied these allegations. Regarding the first incident, the Respondent’s first witness, Ntshangase and the third witness, Masondo, testified that the Applicant’s grievance was dealt with in the meeting held on 14 January 2020; they produce minutes of the meeting that effect. According to the minutes, the Applicant was told that his grievance had no merits, but he can escalate it to the central office. The Applicant admitted that the signature that appeared in the minutes was his signature. Therefore, in my view, there was no basis for constructive dismissal based on this incident. Despite that, the Applicant himself admitted that he was a lecturer for labour relations and that the recourse available to him was to escalate the matter or refer the matter to arbitration. I am also of the view that the Respondent did not have any control over how the chairperson of a disciplinary enquiry makes his findings. Therefore, the incident where the chairperson of the enquiry was alleged to have fabricated evidence cannot be attributed to the Respondent.

57. Regarding the inconsistency of discipline, both the Respondent witnesses, Ntshangase and Ngubeni, could not provide a justifiable reason as to why the other employees who did not submit their marks we never disciplined. The mere excuse they provided was that the other employees were able to explain as to why they did not submit their marks. In my view this was unfair to the Applicant because the parity rule requires that employees who committed the same office must be treated the same. However, in my view, this incident could not on its own result in continued employment being intolerable. I say so because the Applicant had a remedy to escalate the matter to the next level or to refer the matter to the bargaining council for unfair labour practice. In Eastern Cape Tourism Board v CCMA (2010) 11 BLLR 1161 (LC, it was held that mere unhappiness is not sufficient to justify a claim for constructive dismissal.


58. Regarding the Respondent’s failure to relocate the Applicant, the Respondent’s witnesses could not provide a justifiable reason as to why they failed to assist the Applicant in this regard. Mr Ntshangase testified that he was just waiting for the Applicant to come back to work because the policy did not allow him to talk to the Applicant while he was still on leave. But it was common cause that after the Applicant had resigned, he also received a letter advising him that he was being transferred to another campus. This letter was dated the 31st October 2022. There was no evidence to suggest that before writing this letter Mr Ntshangase had first spoken to the Applicant about the relocation, which is inconsistent with his initial claim that he was waiting for the Applicant to come back to work. Ngubeni also admitted that the Respondent was aware of the Applicant’s condition, and she regarded the Applicant’s conditions as serious. She even recommended that the college should consider relocating the Applicant.

59. In Mogomatsi supra it was held that where the employee’s basis for constructive dismissal is mental distress, the facts of the case must point to the employer having been aware or ought to have been aware of the mental distress of the employee. If an employer is aware of the employee’s psychiatric illness and the employer is indifferent or insensitive about the employee’s mental illness or vulnerability and thereby making continued employment intolerable a proper case for constructive dismissal might be established. An employer must always be vigilant and act sensitively when the employer becomes aware or ought to be aware of a particular susceptibility or vulnerability of an employee.

60. In my view, the Respondent was indifferent and insensitive with the Applicant’s mental illness. I say because there was no evidence to suggest that after receiving the doctor’s recommendation, the employer did something in an attempt to comply with the doctor’s recommendation or attempted to reach the Applicant or his union to advise them perhaps that they were still considering his issue. But the Respondent just kept quiet about the issue. On 26 September 2022, the Applicant’s union wrote a letter to the Respondent making a follow up on the doctor’s recommendations, but the Respondent still did not respond. Mr Zulu testified that he did not respond because the Applicant had not been copied in the union’s email; he was therefore observing confidentiality. In my view, this was just a lousy excuse. The Respondent could have done more to assist the Applicant, and it could have done so because after the Applicant had resigned, they were prepared to move him without any hustle. I am therefore of the view that by failing to relocate the Applicant after having been advised by the doctor that his mental condition was work related, the Respondent made the Applicant’s continued employment intolerable. Therefore, the Applicant has successfully discharge onus that he was constructively dismissed by the Respondent. It follows that there was therefore no reason for the Applicant’s dismissal and his dismissal was substantively unfair.

REMEDY

61. In terms of section 193 of the Act, an arbitrator who find the dismissal unfair must require the employer to re-instate or re-employee the employee unless the employee does not wish to be re-instated, or the circumstances are such that the continued employment relationship would be intolerable. It is trite that the remedy for re-instatement or re-employment is inconsistent with the claim for constructive dismissal. I am therefore of the view that an order for compensation would be appropriate in the circumstances.
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62. In my view, compensation equivalent to eight months’ salary would be appropriate in the circumstances. At the time of his dismissal the Applicant was earning R27 995,00 per month. Therefore, eight months’ salary equates to R223 960.00.

AWARD

63. The Applicant was constructively dismissed by the Respondent, and his dismissal was substantively unfair.

64. The Respondent, the Department of Higher Education and Training, is hereby ordered to pay the Applicant, Xolani Erick Cele, compensation in the sum of R223 960.00 on or before the 15 March 2024. The compensation is subject to income tax and other statutory deductions.

65. There is no order as to costs.

Scelo V Mkhize - Panelist