ELRC172-24/25LP

Case Reference: ELRC172-24/25 LP
Date: 24 July 2024
Panellist: MN MASETLA

In the matter between:

Maggie Maake Applicant

And

Department of Education - Limpopo Respondent

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an award in the arbitration between the applicant, Maggie Maake and the respondent, Limpopo Department of Education.

2. The arbitration process was held under the auspices of the Education Labour Relations Council (ELRC), in terms of section 191 (5) (a) of the Labour Relations Act, 1995, as amended (LRA) and the award is issued in terms of section 138 (7) of the LRA.


3. The arbitration proceedings took place on 17TH of July 2024 at the respondent’s premises, Corner Hospital and Hans van Rensburg Street, Polokwane.

4. The applicant was represented by Mr M.C Makwala, an attorney from M.C Makwala and Associates.

5. The respondent was represented by Ms Portia Modipa, a Labour Relations Practitioner.


ISSUE TO BE DETERMINED

6. I must determine whether the applicant was dismissed or not. If I find that dismissal is established, I must decide whether that dismissal was procedurally and substantively fair or not.

7. To order appropriate relief.

BACKGROUND TO THE ISSUES IN DISPUTE

8. The applicant referred an alleged unfair dismissal dispute to the ELRC. In particular the applicant alleged that the reason for the dismissal is constructive in nature.

9. The dispute remained unresolved following a conciliation process on 07th of June 2024. The matter was subsequently set down for an arbitration process.

10. The respondent’s position was that there was no dismissal since the applicant had applied for early retirement.

11. Both parties submitted bundles of documents. The applicant’s bundle was marked A and the respondent’s bundle was marked B.


SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case

12. Mohlago Maggie Maake stated under oath that she was the Principal of Tours Primary School from 1st of January 1998 until she was constructively dismissed. Her working environment no longer became conducive from the year 2021 when her District Senior Manager accused her of not having proper sanitation at school.

13. This was during Covid 19 period which dictated cleanliness and the availability of proper sanitation. In 2021 again, she also detected several monitoring interventions of her conduct which she thought were fault finding missions. That was when she received a request from the Circuit Manager to accept the department report to take her Grade 7 learners to Mamosala Secondary School. She declined the request and sought the intervention of her union, SADTU. She refused the request because it was not her case to rescue after schools. A grievance was submitted to the union on 14th of February 2022 and the matter was discussed by SADTU. Thirdly, she was given a WhatsApp or voice message by Dr Mbholeti, Circuit Manager wherein she was implicated that she wanted advertised promotional posts to be given to local educators. She was not given the name of the sender of the massage but was told that the message came from Thabina Circuit. At the time she was recommended by one SGB to be a panellist. She was recused as a result of the message. She again submitted a grievance to SADTU on 9th of November 2021. From there she started having insecurities.

14. On 5th of March 2024, a concerned group of four people came to her school and demanded to have a meeting with her and the SGB Chairperson. Those people namely were Mametja Jack, Rodney Mangena, Vincent Matimane and Deponyeka Evelyn. Though she did not authorise it, the meeting proceeded and was chaired by the SGB Chairperson. The meeting was adjourned to the 8th of March 2024 where community members attended. The concerns raised at that meeting was that she prevented developments of the school. The community wanted her and the SGB Chairperson to leave the school. There was no consensus of the demand for her to leave the school and that desired outcome was not realised. During this meeting of the 8th of March 2024, she did not attend the meeting because she was sick.

15. The Monday, following the 8th of March 2024, she went to school followed by the Circuit Manager. Mr Mametja closed the gate to deny her access to the school but allowed the Circuit Manager access. The Circuit Manager telephonically informed her that she wanted the Deputy Manager Governance to come. A meeting was then scheduled for the 12TH of March 2024. She was given a document containing complaints raised by the community with signatures by the Circuit Manager. She was then advised to go home escorted by police officials. She was later told that she must report at the Circuit Office.

16. On 13th of March 2024, she reported at the Circuit Office. During the day she had nose bleeding and requested to go and consult a doctor. She only consulted on 18th of March 2024 and was booked off until 20th of March 2024. However, on the 19th of March 2024, the Circuit Manager invited her to a meeting at the school with the Deputy Manager Governance. In that meeting, they advised her that they were on a fact-finding mission to investigate allegations of fraud raised by the community. They wanted finance books to be in order for them to peruse. The perusal could not be completed. Since it was school holidays, they promised to come back on the 3rd of April 2024 when the schools reopen. At the time, the books were not in order and the school treasurer advised them that they were not done preparing the books. On 11th of April 2024, the Circuit Manager and Deputy Manager Governance insulted her and she was not allowed to answer. They told her to organise herself and they would come back on the 20th of April 2024. She then decided it was enough and wrote an application for early retirement which she handed in on 12th of April 2024. She was tired of the noise. She felt that she was victimized by the community, insulted in the presence of the treasurer, escorted by the police and worked under pressure. She would not have applied for early retirement and wanted to be reinstated.

Respondent’s case

17. Raholane Winza Mashope testified under oath that he is the respondent’s Corporate Services Manager. He knew the applicant as the Principal of Tours Primary School. He stated that the applicant had never lodged a grievance with the respondent in respect of all the issues she testified about. The grievance forms referred to at pages 41, 45 and 51 of her bundle (A) were never handed to their office for processing.

18. If an employee is aggrieved, he or she would complete a grievance form and hand it over to a designated person at the employer. Thereafter a grievance hearing would be convened. In the applicant’s case, the applicant has never lodged a grievance.

19. He stated that the applicant only sent an application through for early retirement. The applicant never stated in that application that she was victimized or intimidated. The retirement application was processed.


ANALYSIS OF EVIDENCE AND ARGUMENTS

20. The applicant’s matter or dispute is a dismissal as contemplated in section 186 (1) (e) of the LRA. It provides as follows:

‘’ An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’’

21. In dealing with the evidence tendered in this case, I am guided by what the Labour Court and Constitutional Court stated in Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC).
22.
23. The Constitutional court held as follows:

‘’The test for constructive dismissal does not require that the employee must have had no choice but to resign. It requires merely that the employer should have made continued employment intolerable.’

In Niland Harvey and Others (2017) (Pr33/66) the Port Elizabeth Labour Court held as follows:

‘’In order for a dismissal to fall within the ambit of section 186 (1) (e) and thus be considered to be constructive dismissal, the facts must prove that the sole reason the employee left her employment was due to continued intolerable employment relationship caused by the employer. The continuance of employment following the intolerable event or conduct may invalidate a claim of a constructive dismissal especially when the intolerability was not raised with the employer during such a period so as to give an opportunity to remedy same’’.

24. As I will explain herein after, the evidence presented clearly shows that the applicant did not resign but applied for early retirement.

25. The applicant testified that she felt that she was working under unfavourable conditions because she detected several monitoring’s which appeared to be fault finding missions. I must state that the applicant failed to elaborate and specifically identify these faults finding missions, except that she referred to her District Senior Manager who accused her of not having proper school sanitation during Covid 19 in the 2020/2021 financial year.

26. If the accusations by the applicant’s District Manager were so serious that it created an intolerable working environment, the applicant would have immediately lodged a grievance and started addressing the issue. The fact that she continued working after the alleged incident for approximately three years simply invalidates her constructive dismissal dispute.

27. The second issue raised by the applicant was that she received a request from her Circuit Manager, in which she was requested to accept that her Grade 7 learners must be moved to Mamosala Secondary School to prevent the school from being closed, a decision that she did not agree with. This also took place in 2021.

28. What is also critical in this case was that the request was never implemented. The applicant continued working. Again, I cannot see how a request which she declined constituted intolerable working conditions that rendered continued employment impractical.

29. The third incident alleged by the applicant was when the Circuit Manager, Dr Mbholeti, shared with her a voice message or WhatsApp message. The details of the message were that she was implicated in allegations that she wanted to give local educators promotional posts which were advertised. She was a panel member. She was then removed as a panel member in the interview. She then lodged a grievance on page 41 of Bundle A. I wish to state further that the grievance was never lodged with the respondent but only with SADTU. In all of the above instances, the applicant did not submit any grievance to the respondent but only to SADTU. The respondent was not given an opportunity to remedy the situation if it was so grave.

30. The last issue raised by the applicant was that on 05th of March 2024, a group of parents came to her school and demanded to have a meeting with her and the School Governing Body (SGB). Though she did not authorise the meeting, the meeting went on and was chaired by SGB Chairperson. She also attended the meeting. She was alleged to be denying the school the opportunity to develop. The meeting resolved that the SGB Chairperson and herself must leave the school. A development project was, amongst others, deforestation of the school yard. A follow up meeting was held on 08th of March 2024 with community members in attendance. On the follow up meeting, she did not attend because she was on sick leave. She was refused entry to the school when she returned on 12th of March 2024 by one Mr Mametja, a community member. The Circuit Manager also gave her a document signed by the community members alleging that she had committed fraud.

31. Following all this, the Circuit Manager, District Manager, SGB and Governance Deputy Manager convened a fact-finding mission on the fraud allegations. It was during this process around 5th of April 2024, that she felt harassed and intimidated.

32. She also felt she could not take the situation any longer because she was not allowed to answer. She then decided to resign. Again, the applicant was a principal who would receive grievances from her teachers and she would attempt to resolve them. In this instance, if the applicant felt intimidated and harassed during investigations of fraud allegations, she should have lodged a grievance. This, she did not do.

33. In her application for early retirement, the applicant did not state intolerability as one of the reasons for her application for early retirement. The plausible and probable conclusion is that she applied for early retirement in the middle of an investigation to avoid having to deal with the investigations themselves.

34. Resignation is a prerequisite to allege a constructive dismissal.

35. Furthermore, following my overall assessment of the evidence, I find that the respondent did not, in any event, make the applicant’s continued employment intolerable.


AWARD
36. The applicant’s dispute referral is dismissed.

MN MASETLA
PANELLIST