ELRC333-19/20KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG
CASE NO.: ELRC333-19/20KZN
IN THE MATTER BETWEEN: -
MOEKETSI S.B. APPLICANT

AND

DEPARTMENT OF EDUCATION - KZN RESPONDENT
___________________________________________________________________

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 25 March 2022


Applicant : S.B. MOEKETSI
Telephone :
Fax :
Email :

Respondent’s representative : B.N. MDLALOSE
Telephone :
Fax :
Email :


DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing commenced on 29 October 2019 and proceeded on 5 February 2020, 14 September 2020, 25 October 2020 and 19 January 2022.
[2] The applicant represented himself and the respondent was represented by Mr B. N. Mdlalose.
[3] The proceedings were conducted in English and recorded electronically. The parties, at the conclusion of proceedings, elected to submit written closing arguments on or before the 28 January 2022.
PRELIMINARY ISSUES
[4] The applicant had closed his case on 29 October 2019, however on 5 February 2020; the applicant provided further documents with the intention of using these documents to cross-examine the respondent’s witnesses. As the respondent had not had ample time to peruse the documents, it was agreed that the issue of these documents be dealt with on the papers. Subsequently, the commissioner issued a ruling granting the applicant leave to discover Bundle B and C, re-open his case and lead the evidence of any witness only in respect of the newly discovered material should he deem it necessary. The respondent was granted leave to cross-examine any of the applicant’s witnesses arising from the aforementioned should they deem it necessary.
[5] The respondent commenced leading the evidence of Bheki Ezrom Kubheka but applied to withdraw him as a witness. The commissioner granted the application and issued an oral ruling expunging the evidence of this witness from these proceedings.
BACKGROUND TO THE DISPUTE
[6] The applicant was employed as an educator at Ncandu Combined School (hereinafter referred to as “Ncandu”) and was teaching Business Studies to Grade 12 learners.
[7] In January 2019, the applicant tendered his resignation. When he received letters informing him that his salary was frozen and his Temporary Incapacity Leave (TIL) was declined, he took TIL from 12 March 2019 until 30 April 2019.
[8] The applicant referred a constructive dismissal dispute to the Council and sought retrospective reinstatement at another school alternatively compensation.
ISSUE TO BE DECIDED
[9] I am required to determine in terms of Section 186(1)(e) of the Labour Relations Act 66 of 1995 (as amended), whether the applicant terminated his employment with or without notice because the employer made continued employment intolerable.
SURVEY OF EVIDENCE AND ARGUMENTS
DOCUMENTARY
[10] The applicant submitted bundles which was marked as Bundle “A”, “B” and “C”.
COMMON CAUSE FACTS
[11] The applicant had applied for cross-transfer to another school.
[12] The applicant submitted a resignation letter and subsequently resigned however while serving notice, he took TIL.
[13] Thandile Health Risk Management (hereinafter referred to as “Thandile”) declined the applicant’s 2018 TIL application.
[14] An amount of R139 769,87 was deducted from the applicant’s pension in respect of his TIL.
APPLICANT’S SUBMISSIONS
SETHOLELA BERNARDIN MOEKETSI
The salient aspects of applicant’s submissions are recorded below.
[15] In 2011, while he was teaching at Phumlani High School he accepted a transfer to Ncandu. In January 2012, he was told that his transfer had been approved but thereafter heard nothing. He made enquiries and subsequently wrote a letter in 2013 to the PA of the MEC of Education whereafter he received a letter informing him of his transfer to Ncandu.
[16] He commenced employment at Ncandu on 3 June 2013 and was teaching Grade 12 learners.
[17] After the learners had performed very poorly in the September 2013 trial exams, the Principal, Mr Simelane (hereinafter referred to as “Simelane”), Acting Principal, Ms Makhoba (hereinafter referred to as “Makhoba”) and HOD, Mr Kubheka (hereinafter referred to as “Kubheka”) called him for a meeting.
[18] At that meeting Simelane told him, “We all have got honours degrees, please do not undermine us.” They had big books, so he got scared and thought that they were going to charge him. They informed him that they had questioned the learners regarding his teaching and the learners had complained that they could not understand him when he teaches, and he does not teach but just talks about his family. He agreed to the strategy that was discussed with him to improve the pass rate.
[19] The Acting Circuit Manager, Mr Ngcobo (hereinafter referred to as “Ngcobo”) came and asked him about the strategy and they thereafter agreed that he would teach the Business Studies learners two extra hours after school from 14h00 to 17h00. It was further agreed that Ms Ngema (hereinafter referred to as “Ngema”) and Simelane would assist him after hours. Ngema would do the previous question papers and Simelane would do the translation because he was unable to converse in IsiZulu.
[20] At a January 2014 staff meeting, Simelane announced the Business Studies results and stated that the reason the learners obtained 61%, was not because of the applicant, as he was unable to teach, and both Business Studies and English in Grade 12 from thereon would be taught by Ngema. He was demoted to teaching Arts and Culture and L.O.
[21] He admitted that he did not follow the correct procedures when he wrote a letter to Kubheka, who was also the site steward for SADTU, to voice his dissatisfaction, therefore he did not receive a response.
[22] On 21 January 2014, he wrote a letter in confidence to Ngcobo regarding his demotion, however Ngcobo gave his letter to Simelane who read it at a staff meeting. It was embarrassing for his letter to be read in front of all the staff. Simelane told him that he would be vacating the school as he was unable to teach.
[23] The following day he went to teach the Grade 9 learners, but they refused to sit down and one learner (hereinafter referred to as “Learner KM”) continued talking as if he was not in the class. He asked Learner KM to sit down but he refused so he told him to leave the class. Thereafter, he and Learner KM got into a scuffle and the learners started screaming.
[24] When Simelane called another meeting and told him that he was degrading himself, his reputation and that he had kicked Learner KM, he kept quiet.
[25] The following day he told Simelane that he knows that he had done his best to bring him to Ncandu and he had disappointed him. He asked Simelane to send him back to his previous school. Simelane called his secretary to take minutes and he started crying hysterically as he wanted to leave. Simelane told him that the secretary had got a promotion at the Municipality, and if he stayed in Ncandu, he would also find him a job outside of the school. Simelane further told him that the letter that he wrote to the PA of the MEC did not sit well with the officials and he would never get another transfer.
[26] He was very happy when Simelane was subsequently suspended.
[27] In April 2014, he was examined by Dr Moola who told him that he was tense.
[28] He told Makhoba that he drove on the wrong side of the road and almost had a head on collision because he wanted to leave the school to see a doctor.
[29] He went to Dr Master and told him what Dr Moola had said. He pleaded with Dr Master to give him time to clear his mind, but Dr. Master told him that he does not do that but would book him with specialist psychologist, Dr Seedat.
[30] In May 2014, he saw Dr Seedat and she booked him off on TIL from May 2014 to July 2014 and he thereafter obtained an extension to October 2014.
[31] On 15 October 2014, he wrote a letter to Kubheka and Makhoba wherein he requested protection against the learners however nothing was done to resolve the dispute.
[32] In 2015, when he went to the classes, the learners would boo him and leave the class. At a parent meeting, one parent said, “we already said we don’t want this particular teacher in the school, if you fail, we will make him leave”.
[33] He was happy when Makhoba moved him back to teaching Grade 12. While he would be teaching the Grade 12 class, Ngcobo would visit the school and ask him to leave the class, but not in a bad way, as he just wanted to motivate the learners.
[34] After the motivation Ngcobo would come and ask him if he cared about the learners, where did he come from and if he was able to teach which was painful, but he asked in a polite way. Ngcobo told him that the learners could not understand him.
[35] At a meeting with the departmental officials, Ngcobo said that the only reason he wanted to teach Grade 12 was because he was greedy and wanted money for marking.
[36] He was very shocked, as the Acting Ward Manager, Mr Ndaba (hereinafter referred to as “Ndaba”) and he were very close running mates, told him that some teachers think they are bigger than the school.
[37] Thereafter, at the gym he met Mrs Tlou, a department official who told him that he was so embarrassing.
[38] Makhoba had called him and the SMT members; and gave him a warning about his work not being up to scratch and the learners complaining about what he had been saying in class. The SMT members who were all SADTU members asked her to retract the warning, and she did.
[39] On 12 August 2015 he wrote a grievance letter to Makhoba and asked her to transfer him to another school. When she did not respond he escalated the letter to Ndaba. Thereafter, Makhoba called him and politely told him that Ndaba had said that he must find his own school.
[40] In 2016, there were no significant issues where he could say that the Employer made his working conditions unbearable. He was happy teaching Business Studies to Grade 10, 11, 12 and he was also studying. The matric result for Business Studies in December 2016 was an average of 35%.
[41] In 2017, Mr Baafe (hereinafter referred to as “Baafe”), who was a substitute teacher would teach in all his Grade 12 periods. He was allocated other grades and was only teaching the Grade 12’s when Baafe was not available.
[42] In 2017, he obtained a transfer to Buhlebomzinyathi High school however he was told that he was a troublemaker, and his cross transfer was declined.
[43] On 1 August 2017, when he went to the Grade 12 class, the learners swore him. Learner KM was very degrading and asked if he was even able to teach. He told Makhoba and Ms Zwane (hereinafter referred to as “Zwane”) what the learners had said, they went inside the class, looked at him, never said anything and just left.
[44] He left the class and sent a message about learners to the Circuit Manager, Mr Bhagwandas (hereinafter referred to as “Bhagwandas”) who then came to Ncandu. He explained his challenges and Bhagwandas thanked him for being honest and said that he would consider transferring him to schools in town but that could be a problem.
[45] On 2 August 2017, he sent an email to Dr Seedat, informing her that there were too many learners at school, issues about the learners, and every teacher had to teach under a tree, but he could not understand why he had to be the class teacher for the ‘under-tree class’. He then went for a session with Dr. Seedat, and she booked him off on TIL for 3 months, as from 2 August 2017.
[46] During 2017, before he took sick leave, while he was driving from school to his home, the learners would swear at him, and he would hear words; “hey Moeketsi as you unable to teach, you are yet to be dismissed from work”.
[47] In December 2017, while he was on leave, he was driving with his family through Madadeni, he heard the same comments. He followed the learner (hereinafter referred to as “Learner H”) and asked him why he was swearing and tried to speak to him, but Learner H just laughed in a confrontational way. He told Learner H that he was dumb and trying to blame him. Learner H then picked up stones and threw it at his car. One stone hit him on his arm, and another smashed his windscreen. He opened an assault and damage to property charge. Learner H was arrested and after an ADR, Learner H’s mother replaced his windscreen and agreed that Learner H would not return to Ncandu, then he dropped the charges.
[48] In January 2018, he took leave for the entire year, that being January 2018 to December 2018.
[49] Referring to Makhoba’s letter , dated 22 June 2018 to the HR Department, he stated that she should have demanded that he submit the medical documents and not just demand that he be punished.
[50] When he returned to school in January 2019, he told the SGB Chairperson, Mr Motaung (hereinafter referred to as “Motaung”), Makhoba and Bhagwandas that the situation had become embarrassing for him and his family. He explained that even his fellow church members were told of his inability to teach. The male members including the Ward Manager, Mr Vilakazi (hereinafter referred to as “Vilakazi”) were having a braai and they did not see him approaching, when one gentleman asked who this teacher is, and Vilakazi said in Zulu; “one of those teachers working only for money and being unable to teach” but he did not mention any name.
[51] He then started to harbour thoughts of resigning. He sincerely thought that his leave had been long, and he needed to do justice to the learners as he had been diagnosed with a condition and was not getting better. He would tell Makhoba that he is resigning and when she asked him when, he told her he would resign in June 2019 and would give a month’s notice in May 2019.
[52] Motaung was also denying him leave for workshops. He called Bhagwandas, who came to school and spoke to Motaung, who then admitted that he had not received an instruction from Bhagwandas.
[53] He discussed with Makhoba and Bhagwandas his intention to resign and they cordially had an agreement that he would resign and serve notice. He told them that he was unable to teach, and the situation had become embarrassing for him and his family, so he would resign.
[54] In January 2019, he submitted his letter of resignation to Makhoba. He continued to teach until he heard that his TIL had been declined and this was a confirmation of what Dr. Seedat had hinted. A clerk in the leave section told him that his TIL had been declined, and certain monies would be deducted from his salary. When he asked her for the letter indicating that it was declined, she told him that he must wait for it.
[55] On 12 March 2019, he received a letter informing him that his TIL was declined, and he thereafter took TIL. On 8 April 2019, he was informed that his salary had been frozen.
[56] Referring to the matric results for the period 2008 to 2013 , he stated that Ncandu obtained 100% in 2008, 68% in 2009, 55.56% in 2010, 26.92% in 2011, 50% in 2012, 60.6% in 2013, 32% in 2014, 45% in 2015 and was an underperforming school before he arrived there. It was a T60 school and the notion that he was an incompetent teacher just flies in the face.
[57] He referred to Dr Seedat’s affidavit in support of her medical report
[58] He averred that the Quality Management System (QMS) for School Based Educators was the acceptable scientific standard which was meant to measure educators’ performance and if the notion of the employer was that he was unable to teach then their conclusion should be based on this document to determine if he indeed was an incompetent educator.
Under cross-examination he testified that:
[59] He submitted his resignation letter on 25th January 2019.
[60] He received the letter from the District Director regarding his application for TIL for the period 1st August 2018 to 21 November 2018 on 12 March 2019 and he responded to it.
[61] It was put to him that he was misleading the Tribunal when he said that the declined TIL for period 01/08/2018 to 21/11/2018 contributed to his alleged intolerable employment. He stated that Dr. Seedat hinted that his further leave may be declined, he then kept on visiting the leave section to inquire and the clerk hinted that his leave would be declined. Dr Seedat had told him that they would appeal the leave that was declined. The clerk had shown him the report and told him that annexures were missing, and she asked him to write a motivation letter to show the severity of his condition.
[62] He did not deny that there was a first report and he agreed that he could not say with certainty if the report that was shown to him was for the period 2 May 2018 to 31 July 2018 or 1 August 2018 to 21 November 2018.
[63] He confirmed that during the Business Studies lessons he spoke to the learners about his family.
[64] When it was put to him that what he was doing during this period was irrelevant to Business Studies and the learners were justified to complain about him, he averred that he was a new teacher, introducing himself to the learners about where he came from, his family, names of his kids, where he graduated so that the learners would know him, and he did not see any problem in doing that.
[65] It was put to him that the principal had brought to his attention that the learners were complaining about his teaching methods, and he was asked to come up with a strategy, he stated that the learners had not performed well and had failed so he was asked to come up with a strategy on how he could improve the results.
[66] When questioned if he was not asked to come up with a strategy to improve his teaching methods, he stated that it can be semantics that it was teaching methods.
[67] It was put to him that Ngcobo denies ever meeting him on a one-on-one basis and would deny what he was claiming that Ngcobo had said to him. He stated that Ngcobo came to Ncandu and after the meeting, he asked to see him and in a polite manner, asked what was happening. He responded that he had deduced from the June exams that the learners were not following the correct way of answering essay questions and everything was not up to scratch. When Ngcobo asked him about a strategy to improve their results, he told Ngcobo that the principal, deputy principal, HOD and he had agreed that he would start teaching from 14h00 to 17h00.
[68] It was put to him that Ngcobo will deny making utterances about him wanting to go back to teaching Grade 12, being greedy and wanting money for marking, he stated that after the school was evaluated as a T60 school Ngcobo stood up and said “now we can see the reason why Moeketsi wanted to go back to Grade 12, it is because he was greedy because he wanted the money for marking”.
[69] It was put to him that Ngcobo will deny asking him to leave the classroom and that it was an SMT member who would ask the subject teachers to leave the class and not him. He stated that Ngcobo came to class and asked him to leave so that he could motivate the learners.
[70] When questioned about his testimony where he said that Ngcobo had asked him if he cared about the learners, he stated that after Ngcobo had motivated the learners, he confronted him and told him that the learners had said that they could not understand him when he was teaching.
[71] He told the SMT and Ngcobo that he could not converse in IsiZulu and there was a language barrier.
[72] It was put to him that the sentiments expressed by the leaners was that they could understand him and had nothing to do with IsiZulu but everything to do with his incompetence as a teacher. He disagreed and stated that incompetency in the first place cannot be assessed, even if a teacher has been teaching at the school, and he arrived at the school on 3 June 2013 but by 25 November 2013, he was branded as incompetent.
[73] It was put to him that he had testified that Ngcobo was part of the District team; therefore, it was actually in 2014 after Ncandu had performed poorly and was a T60 school, and thus he was almost a year in the school. He stated that the Business Studies results was 61% in 2013 and in 2014 he was demoted from Grade 12, Ngema was teaching, and the results was 45%.
[74] His sentiment of being afraid of Simelane was due to him feeling that he owed Simelane a favour for working so hard to bring him to Ncandu but this sentiment does not form part of his claim for constructive dismissal.
[75] When asked if the presence of Simelane at Ncandu had nothing to do with his claim for constructive dismissal, he averred that it did because from 3 June 2013, the time he arrived at Ncandu, he was already suffering from Major Depressive Disorder, but he was diagnosed in May 2014 and when he started seeing Dr. Master regarding his stress issues, Simelane was still the principal.
[76] When questioned as to how Simelane caused him to suffer from stress, he stated that in 2013, after the learners had failed the trial exams, Simelane called him for a meeting and told him not to undermine them. On 14 January 2014, Simelane called a staff meeting and in the presence of some teachers stated that the result of 61% in Business Studies was not because of the applicant but because of his and Ngema’s intervention of teaching the Grade 12’s from 14h00 to 17h00. Simelane had also removed him from teaching Grade 12 and gave him a subject that he had never taught before.
[77] After he had an altercation with the learners, Simelane called another meeting to further embarrass him in front of the school. They were not on speaking terms, if he saw Simelane standing by the main office, he would choose another route to walk to the staff room, as he was apprehensive. His first altercation with the learners was in 2014 and his second altercation, which was serious, was in 2017.
[78] He confirmed that Ngema and Simelane assisted him with his strategy from 14h00 to 17h00, during the extra classes. He would present the lesson in the first two hours and Simelane would translate in IsiZulu. While he was teaching, Simelane would interject all the time to find out if the learners were following him. Ngema did the previous question papers, and the learners would write tests, thereafter he would take the scripts home, mark them and present it to the learners the next day.
[79] He conceded that he received help from Simelane and Ngema and it was not only his contribution towards the 61% pass rate.
[80] When questioned that if Simelane was causing his stay at the school to be uncomfortable, why did he not report him to other authorities in the Department. He stated that he wrote a letter to Ngcobo in January 2014 complaining about his demotion from Grade 12 and the events that had taken place at school.
[81] It was put to him that Ngcobo will deny that the applicant wrote a letter to him reporting his unhappiness at Ncandu. He stated that when Kubheka did not respond to his letter, he wrote a very lengthy letter to Ngcobo, and he did not respond but gave his letter to Simelane.
[82] When questioned that as he alleged that he had not received any joy from Ngcobo, why had he not reported it to other departmental structures, as he had previously done. He stated that he was castigated and embarrassed when his letter was read in front of the teachers. He wanted to leave Ncandu and Simelane alluded that the District Officials would never let him leave the school because of the letter that he had written to the PA of the MEC.
[83] There was a time when he had asked Simelane to transfer him back to his previous school, and he thanked Simelane for fighting hard for his position, so he could organize his transfer back to that school.
[84] It was put to him that Makhoba was surprised that during Simelane’s tenure he was not happy at Ncandu, and she refuted his claim that a letter written by him was read in a staff meeting or in the presence of other staff members. He stated that Makhoba was in the first meeting where Simelane had said that he must not undermine them as they all had honours degrees. Makhoba was there when the letter was read in the staff room by Simelane, she was aware that he had been demoted from teaching Grade 12 and he also wrote a letter to her, requesting to be transferred because he was not happy.
[85] When he had altercations with the learners, Simelane would not ask him what happened, but he would call a meeting and start blaming him. He was not happy even after Simelane left in 2014 because he and Makhoba did not have a mutual relationship, he was still not received well by the learners and his medical conditions were still existing.
[86] He admitted that Makhoba had supported him when he applied for a cross transfer. When questioned if that was not the kind of support he would expect from the headmaster, he stated that Makhoba wanted him to leave the school, so she supported him in signing the document. Under further cross-examination he admitted that he wanted to leave Ncandu and the transfer was initiated by him.
[87] When it was put to him that Makhoba would testify that she supported him in his endeavors at the school, he stated that she never supported him, the same modus operandi continued, when the learners had a problem, they would report things to her, and she would call him to the staff room to voice the learners’ unhappiness with him. In 2017, she also removed him from teaching Grade 12 and arranged for Baafe to teach them Business Studies.
[88] When questioned as to why Baafe had been brought to the school, he stated that in his own opinion it was possibly because Baafe could teach better than him.
[89] It was put to him that is exactly why Baafe was brought, because learners were complaining and Makhoba had to source the services of Baafe because he was not delivering. He stated that they also asked Baafe to leave because there was a similar problem to his.
[90] When it was put to him that Makhoba supported him and even went to his house for him to fill in the leave documents for his TIL, he admitted that Makhoba had come to his house because there was an error and she wanted him to sort it out.
[91] When it was put to him that when he mentions 2015 to 2019, he must not insinuate as if he was at school throughout that period because he was absent for a very long time. He stated that he was booked off work from 2nd August 2017 by Dr Seedat until January 2019.
[92] He conceded that he had presented that he was teaching Grade 12 from 2015 to 2019, and he presupposed that he was there while even in 2019 when he left the service he was still on leave.
[93] He agreed that on his Exit Interview Questionnaire he had indicated that he was satisfied with his relationship with his supervisor/manager, and further stated that he was at peace with himself and did not want to burn bridges.
[94] When it was put to him that he was making startling accusations against the management of the school, he stated that at the time he filled out the Exit Interview Questionnaire he did not know that it will come before the Tribunal, and he wrote it sincerely to let bygones be bygones. He confirmed that Makhoba gave him the form to fill after he tendered his resignation.
[95] It was put to him that he was being economical with the truth because he was resigning, had nothing to lose and he could have said whatever he wanted on the Exit Interview Questionnaire but now he is saying that he did not get support, and was contradicting himself. Further, even his letter of resignation does not state that he was under pressure to resign, it was only talking about his illness which was a classic example of a person who wanted to pursue something other than teaching and the Exit Interview Questionnaire and his resignation letter seem to paint a different picture to what he was saying. He stated that he was unable to function at Ncandu because of the taunting by the learners and the parents and he also started harboring the issue of saying that he cannot be there anymore, he could not keep on taking incapacity leave all the time, so he decided to resign.
[96] He was elected as a shop steward sometime in 2015 and he was in contact with the branch executive of that Union.
[97] When it was put to him that a shop steward is a person who understands the issues regulating employer-employee relationships, he stated that he never received training, their main function was fighting for their leader to be elected but he confirmed that he interacted with the union leadership.
[98] When told that it was odd that he would be suffering as he was in a position to communicate with branch leader and voice his grievance, he stated that he had informed the branch leadership, but they did not support him.
[99] It was put to him that he did not go to the District Office or report this matter to his union because he knew that the incompetence was on his part and not on the side of the department and he was further questioned as to why he had not approached the district office or other authorities when he had all these issues in school and was not getting any joy from circuit managers and the principal, he stated that he did not know that there were other structures that he could exhaust, besides speaking to the ward manager.
[100] The incident with parents happened in 2015 and he did not know why the parents had told the principal that he must leave the school.
[101] He confirmed that he could converse in Isizulu, but when he arrived in 2013 his language proficiency in Isizulu was not the same as it is now. He was not able to do language switching when he was teaching the learners.
[102] He was not aware that in terms of the Department’s Transfer Policy, the responsibility to accept or deny a transfer lies in the hands of the management of that school.
[103] When questioned that he had testified that on 2nd of August 2017 the Grade 12 learners swore at him and was asked what had provoked them, he stated that when he was marking their assignment scripts, he told them that he would not accept the standard of their assignment because they needed to show that they were eager to pass Grade 12. Some assignments were done on dirty paper, some had resemblance of feet markings on them, and some were copied from other learners, therefore he was not able to mark the assignments and they had to redo those assignments.
[104] It was put to him that what he was telling this Tribunal was not true and what had provoked the learners was the poor standard of teaching that they were experiencing from him. He stated that in that year the Grade 12 was work was done by Baafe, the learners submitted their assignment to him, and he complained about the standard of their assignment and that is what started the altercation.
[105] When it was put to him that Vilakazi will deny making utterances about teachers only taking money and not being able to teach, he stated that is what transpired and that is why he said that this issue had gone outside of the school environment.
[106] His TIL commenced in 2014 and continued until he exited the department in 2019. It was correct that in 2016 he was diagnosed with major depressive disorder and during 2016 he was pursuing LLB studies. He admitted that during this period he had mentioned that he had an interest in pursuing law and had no interest in education anymore.
[107] When questioned if this could be a reason why he was not paying particular attention while he was performing activities as an educator to a point that learners would complain, he stated that he started studying LLB in 2016 and learners were complaining prior to that, and there was no way in which his studies had impacted on his teaching ability.
[108] When questioned if the chronic illness he described in resignation letter was not impacting on his studies, he stated that studying gave him hope and it was something that he was doing on the side because everybody was not happy with him teaching.
[109] He was unfit to continue as an educator because of his major depressive disorder which was caused primarily by the working conditions at Ncandu.
[110] It was put to him that his submissions did not fit the description of constructive dismissal, particularly because not a single avenue of all the Departmental procedures to deal with labour peace, had been exhausted. He stated that with the information that he had at that time, he had sent his grievances to Makhoba and Ndaba and he was unable to work at Ncandu as he had suffered too much at the hands of the learners and the district officials, and he could not put up with the situation.
[111] He was referred to his resignation letter wherein he had stated that the chronic disorder had rendered him unfit to continue as an educator, and it was put to him that nothing in his resignation letter says that his major depressive disorder was because of intolerable conditions. He stated that it was because he was content with his resignation letter, and he had decided that he did not want to work at Ncandu. The situation was intolerable for him, and he kept most of the things to himself. He wanted to let bygones be bygones, resign in peace and leave everything as it is.
[112] He changed his mind when he sought legal advice in respect of the money that was deducted from his pension and from his research, he realized that there were cumulative facts that he was pushed to resign under intolerable working conditions thus he invoked a dispute for constructive dismissal.
[113] He admitted that it was never his intention to lodge a constructive dismissal dispute, and it was an afterthought.
[114] It was put to him that site stewards are regarded as leaders and would be well versed with employment laws. He averred he only attended general meetings which was scheduled four times a year and he also to attended site steward councils but there was never training in labour relations.
[115] He was aware of the grievance process before he resigned. He had discussed his unhappiness with his friend who then suggested that he write a letter to the principal and ask her to sign and if she failed then he had to write to her immediate supervisor and ask them to sign the letter. Hence, he wrote to Makhoba requesting her to grant him a transfer.
[116] When questioned that since he was aware of the grievance procedure before he resigned, why did he not follow the grievance procedure as contained in the Employment of Educators’ Act, he averred that he did not know about the grievance procedure as contained therein.
[117] It was correct that he had testified that he had engaged with the Office of the MEC in respect of his transfer from his previous school to Ncandu. He admitted that he was aware of other structures beyond the circuit manager. He agreed that the circuit office, district office and head office all form part of the Department of Education’s structure.
[118] In January 2014, after he was demoted by Simelane, he went to the Circuit Office to submit a letter to Ngcobo.
[119] When asked if he had submitted anything to Ngcobo’s supervisor as Ngcobo had not acted on the so-called letter that he alleged was submitted to Ngcobo, he averred that he did not know that Ngcobo had a supervisor.
[120] It was put to him that it was very difficult to believe as he knew that there is an Office of the MEC and as an old educator he must have known that there are other offices before the MEC, he stated that he became aware of the offices after it was explained to him about how he could lodge his dispute, that after the principal, he could submit his grievance to the Ward and Circuit Managers.
[121] When questioned as to why he did not report his so-called grievances to the district office, he stated that he submitted his grievance to the principal and then to the circuit manager, who told him to find his own school.
[122] It was put to him that as a shop steward, he was also privy to the leadership of the union so why did he not ask them what he should do. He stated that Makhoba was an agenda convenor in the SADTU Branch Executive Committee, so if he approached the chairperson, she would tell them that at school he was conniving with other NATU teachers so they should not listen to him.
[123] It was put to him that it was not true that the employer had made the continued employment intolerable, he had resigned because he wanted to pursue his interest elsewhere. He stated that he had a house, car, bond, kids, and wife who was not working so why would he resign without a salary. If his working relationship was not intolerable, he would have left after he finished his qualification. The employer thought that because the learners complained that they could not understand him, and as he could not speak English well, he was incompetent.
[124] He conceded that the QMS was not the only document that can be used if an educator was not performing, and a supervisor can call the educator and discuss without reference to any document if he or she had been made aware that an educator was not performing according to standards.
[125] When questioned that other than him remarking about the word ‘punishment’, he did not dispute the contents of Makhoba’s letter wherein he was absenting himself without complying with the leave regulation and submitting documents, he averred that when he had taken TIL, he had submitted a letter which indicated that the doctor was still preparing the annexures and that would be submitted in due course.
[126] He admitted that the TIL document indicates that a medical report must be submitted with Annexure B and further admitted that it was not the first time that he had applied for TIL, and he knew what to submit.
[127] He was aware that the department had the right to subject a TIL application for a secondary assessment by its own medical practitioners and it was correct that the department’s medical practitioners may arrive at a different conclusion from that of his own medical officer.
[128] When questioned if he acknowledges that it is difficult for the department to put their doctor's version in the absence of his medical officer, he averred that the affidavit was another form of testimony.
PARMESHWAR ROHANLAL BHAGWANDAS.
The salient aspects are recorded below.
[129] He was not the Acting Ward Manager; he has been the Circuit Manager of Ncandu since October 2014, but he left the District Office to join Teacher Development at Head Office during March 2015 to February 2017, and thereafter he resumed his duties as the Circuit Manager of the school with effect from 1 March 2017 to date. Ncandu is amongst the schools in the Phumelela Circuit.
[130] He was aware of all educators at schools that come under his jurisdiction and more so of the applicant because he had been teaching Grade 12.
[131] He met the applicant but could not recall the dates however he did have logbook entries which would indicate the exact dates that he had interacted with the applicant. Their interaction was always very cordial.
[132] The applicant was very often on prolonged sick leave and there were occasions when he had to intervene to ensure that Business Studies that the applicant was teaching in senior classes were being taught and they had to ensure that suitably qualified substitute educators were employed.
[133] There was an incident when the applicant telephoned him and indicated that the security guard was not allowing him to leave the school premises to attend a workshop. He told the applicant that he should discuss the matter with Makhoba because it was not his responsibility to intervene on matters regarding staff conflicts unless it was a matter that concerned an educator and the principal of the school. This is the protocol as he is not the supervisor of the security guard.
[134] On 25 May 2017, he visited the school to address staffing issues. The applicant mentioned to him that the learners were threatening to protest against him.
[135] There was an occasion when Makhoba summoned him to indicate that the learners were unhappy with the applicant’s teaching, and they threatened to protest should the applicant continue to teach them. He assisted to resolve the situation before it escalated. He had engaged with Makhoba about the protest and suggested that the applicant’s workload be reviewed by the SMT in consultation with the applicant. It then transpired that there was an urgent need to remove the applicant from those classes, as the applicant was experiencing challenges teaching those learners.
[136] The applicant mentioned to him that when he teaches, those learners seemed unable to understand him. The learners had alleged that they could not understand the applicant when he was teaching and also the applicant would waste a lot of their time and speak more about his family.
[137] He thought that there was an issue of the language. The language of learning and teaching at the school is English, the subject that the applicant was offering was being taught in English. The learners had mentioned to Makhoba that they could not understand the applicant’s teaching or they could not understand the language. Sometimes at their schools there is code switching. When the learners requested the applicant to explain certain concepts in their mother tongue, he could not code switch into Isizulu.
Under cross-examination he testified that:
[138] The learners were not happy with the applicant’s teaching methods. When asked if he were to sum up the unhappiness as incompetence on the part of applicant, he stated that the Business Studies results at the school was extremely poor.
[139] When told that the applicant had testified that he had never received any support from all levels of the department starting from the school to the district office, he stated that according to him the applicant was always supported. He interacted with the applicant, and he, being a former subject advisor of commercial subjects and having taught Business Studies (previously Business Economics) at matric level, also gave the applicant guidance and support wherever he could but the applicant’s attendance was extremely erratic. The applicant used to be on prolonged sick leave, so it was difficult to really track his progress in so far as the support that was rendered to him, given his attendance record and his frequent leave from school for prolonged periods on account of sick leave.
[140] As the Circuit Manager he was satisfied that the applicant received all the support that he required as an educator.
RESPONDENT’S SUBMISSIONS
BONGANI SIMPHIEWE EMANUEL VILAKAZI
The salient aspects are recorded below.
[141] The first time he met the applicant was at Ncandu because as a District Official they would visit underperforming schools. At some stage the applicant was introduced as one of the teachers at Ncandu.
[142] The applicant had also come to his church, and they had a conversation at church. He saw the applicant about 3 or 4 times at church.
[143] When told that the applicant had tendered evidence that while at church, he had mentioned that there were teachers who only took money but was unable to teach however no name was mentioned, and the applicant concluded that this statement was about him. He denied discussing anything related to his profession as a Circuit Manager, at the church.
[144] He was the Circuit Manager for Madadeni Circuit, and the performance of educators was discussed with their supervisors, principal's, deputy principals and departmental heads. The applicant at that time was in another Circuit. Other circuits were not within his scope so he would not have much information about what happens in schools in those circuits.
Under cross-examination he testified that:
[145] He became a Circuit Manager in 2013 and as an official, he formed part of Transversal Teams where they would visit underperforming schools, and Ncandu was one of the schools which they had visited.
[146] The school performs the analysis, the main purpose of the transversal team is to provide support to the school and they, as Circuit Managers, would provide administrative support and management support to the management of the school.
[147] As part of the transversal team, he would have a meeting with the principal and the SMT. If the school was not performing, he would discuss the problem with the principal.
[148] He was not aware that the applicant was one of the underperforming teachers as he was not a subject advisor. Subject advisors deal with subject specific issues and provide support to the educators during that process. The subject adviser would know the details of the teacher that is performing at a particular level.
[149] It was never mentioned to him that the applicant was an incompetent teacher or that the applicant was always absent at school.
[150] He saw the applicant at church at the end of the 2016. They had a good relationship and he had invited the applicant for a braai. He did not know if the applicant was new to the church or if other church members knew the applicant. No one at the church function had asked him about the applicant.
[151] He denied telling anyone that the applicant was getting paid for nothing or that he is always absent from school.
MARJORIE THANDI DOROTHY MAKHOBA
The salient aspects are recorded below.
[152] She was employed as the Deputy Principal and thereafter as the Acting Principal at Ncandu, but she has subsequently resigned.
[153] She and the applicant had a very good relationship, she treated him very well as a teacher and as a subordinate.
[154] The applicant’s relationship with the learners was not good because he used to absent himself frequently at school and take long leave. Due to him frequently absenting himself, parents complained about him, thus her stance was to find a substitute teacher so that the learners could be taught properly, as she realized that the applicant was not teaching properly as she had expected.
[155] At times the applicant would not send his leave papers, she would then go to his place and request for it.
[156] Her interest was for the matrics to obtain good results and she did not like his continued behavior of absenting himself at school.
[157] The learners were dissatisfied with the way he was teaching them. They complained to her that the applicant was always telling them about his family instead of teaching and he was not teaching them properly. He even talked to them about his wife’s thighs.
[158] One day a girl learner came to her crying and complaining about the applicant. The applicant followed this learner, and she was surprised because as the learner was explaining to her that they were quarreling with the applicant, the applicant out of the blue, said, “I'm not going to propose to you.” Then that incident ended because they had to go back to the class.
[159] The applicant was told that the learners were complaining about him. She had suggested that Baafe teach the Grade 12 classes, and the applicant teach the lower classes. She could not impose on Baafe to go to the applicant’s class without the applicant’s consent. The applicant agreed and did not have any problem with that.
[160] When the learners were complaining about the applicant there was never any stage when the applicant’s life was in danger, and he never reported to her that his life was in danger. He never reported any incident to her, but the learners did.
[161] When told that the applicant had testified that he had not enjoyed the protection of management, despite him reporting that the learners were hostile and not treating him well, she stated that they had protected him as a teacher, as a member of the staff but the learners would tell them what he was doing in class.
[162] The learners would ill-treat him, and he would also ill-treat them. They would go to class and talk to the learners not to ill-treat a teacher but to respect the teacher. He did get the protection of the management and his HOD, Kubheka, protected him.
[163] The problem was that he was absenting himself and one day he told her that he was studying to be a lawyer.
[164] She could not recall Simelane telling her about the applicant’s ill-treatment by the learners at the school. During her time, from the time she started in 2014 up until 2019, there was never any report that was submitted by the applicant suggesting that he received ill-treatment from the learners.
Under cross-examination she testified that:
[165] One of her roles, as the Deputy Principal, was to do class visits and check if the teacher was teaching up to the required standards. She never went to listen to the applicant’s lessons as that was taken care of by the HOD.
[166] When questioned if it was not important for her to do class visits as the learners were always complaining to her, she stated that is why she resolved it in another way and she had reported it to the HOD. She averred that the applicant was teaching matrics and absenting himself frequently, whenever there was a problem, he was not there all the time, so she had to solve the problem by getting another teacher to teach the Grade 12’s. She informed the applicant about it, he agreed, was happy and sort of relieved to get rid of Grade 12’s because they were giving him a tough time as he was frequently absenting himself and he was studying for something else. There was no problem, otherwise he would have told her that he would teach the Grade 12’s and he would have taught them.
[167] When questioned if she only listened to the learners’ side of the story, she stated that the applicant was also involved because she told him that learners were having a problem with the way he was teaching them, and then because he continued to absent himself, she had to make sure that learners were taught because at the end of the year, they would have failed the subject. The applicant, maybe in a year, would be away for 6 months, he would come and go, and the learners needed to be taught.
[168] She denied that she and Simelane, after receipt of the learners poor September 2013 results, had gone to the learners’ class to ascertain how the applicant was teaching. She further stated that they would not go and ask the learners how the teachers were teaching them, they just analyzed his results as a teacher in a meeting.
[169] When told that the applicant had testified that she and Simelane had called the applicant to ask him what the problem was with his teaching and they informed him that the learners were complaining about his teaching, she stated that he was confusing her with Simelane, as Simelane had called him. She could not do that on behalf of the principal when the principal was there to call the matric teachers and talk to them about the results.
[170] According to the learners he would teach them but during his lessons, he would then cross over to his family.
[171] When questioned if it was wrong for a new teacher to introduce himself and talk about his family and where he was from, she stated that at the beginning of the year when he introduced himself to the class, he could say whatever, but not every time that he went there, he had to tell them the very same thing. He should have gone to the class well prepared, knowing his subject matter.
[172] She could not recall the exact date when the learners told her that the applicant spoke about his wife’s thighs. The learners had listened to what the applicant had said, and they came and told her that he kept on telling them about his family instead of teaching them.
[173] She and Baafe did not attend the same church. Baafe used to teach at Ncandu before she started there. She did not know him until he came to Ncandu and introduced himself, when he was looking for a job.
[174] The parents mentioned during the parents’ meetings that the applicant was not teaching the learners properly and they said that he must go. She protected the applicant and said that he was employed by the Department, not them, they must leave everything to her, and she will sort it out, which she did, as learning did continue in Grade 12.
[175] The Grade 12 results were improving each year. She agreed that when she came to the school the results were 32% in 2014, 45% in 2015, 37% in 2016, 52% in 2018 and only after modulation they started getting above 60%.
[176] She had taught physical science to Grade 12’s and it was correct that they had never obtained more than 20%.
[177] She could not remember the applicant’s letter requesting protection from the learners. She was aware of the applicant’s letter requesting to be transferred to another school.
[178] When questioned that she had mentioned that she was not aware of any situation where the applicant had put forward his dissatisfaction with the school environment, she stated that it was not because of the applicant’s dissatisfaction with Ncandu, but he requested a transfer from Ncandu to another school.
[179] When it was put to her that the letter indicates that the reason for the transfer was because of the intolerable environment, the learners had been violent towards the applicant, and he was concerned about his well-being, she insisted that the applicant told her that he wanted to move to another school.
[180] When questioned if she was aware that the applicant’s letter for cross transfer indicated that he had been diagnosed with major depressive disorder. She averred that she was aware of the letter and further stated that it was not true, the applicant wanted to move from Ncandu to another school not because he was having a disorder, but because he was busy studying law.
[181] When it was put to her that the applicant did not tell her that he was studying but he was submitting his exam timetables to her, she stated that he told her he was studying and that he wanted to change his career.
[182] It was put to her that when the applicant was diagnosed with major depressive disorder, he was not studying, he took incapacity leave in 2014 and started studying in 2016. She insisted that the applicant was taking TIL every year and it was not true that he ended up studying to escape the intolerable conditions at Ncandu.
[183] When questioned if the learners could not understand the applicant because of the language barrier, she stated that it was not because of the language barrier because other teachers were teaching them, and they understood those teachers.
[184] She denied that the leaners understood other teachers because those teachers were teaching them in isiZulu.
[185] When it was put to her that Bhagwandas had said that the problem was because the applicant could not code switch into IsiZulu, she disagreed.
[186] She disagreed that she believed the learners and therefore they and their parents had an attitude towards the applicant. She stated that Baafe was a Nigerian and he did not know IsiZulu. He taught the applicant’s class in English; he did a great job and the learners understood him.
[187] It was put to her that the applicant submitted his leave documents late because the doctor had a backlog. She stated that the applicant did not inform her that the doctor had a backlog. Further, the applicant should have gone to his doctor well in advance because he knew that he was going to extend his leave, but he waited until his leave was affected, and he also did not bother to bring the documents but wanted her to go to his residence to fetch the documents.
[188] When questioned as to why she did not send a letter to the applicant to submit the leave documents in time or she would turn his leave into unpaid leave, she stated that she was busy running the school. She went to his house to fetch the papers that he was keeping with him. Her concern was to have a teacher to replace him because the learners were without a teacher while he was at home. Under further cross-examination, she stated that she did not want to ill-treat him as he was sick. Further, she was saving the school and the applicant in terms of his salary because his wife was not working, and he had two children.
[189] When questioned about the letter that she wrote wherein she indicated that the applicant must be punished. She stated that Bhagwandas, who was her supervisor, asked her for an immediate report on the applicant’s conduct as he was aware that the applicant was frequently absenting himself from work.
[190] When it was put to her that in 2017, the applicant called her and Zwane to assist him when a Grade 12 Learner stood up in class and inter alia started swearing and calling him names, but she just stood there and then left. She denied that and stated that they had scolded the learners and told them not to do that. As managers they would not just stand there and say nothing while a teacher was being scolded.
[191] She was aware of the incident in January 2017, where the applicant had laid charges against a learner, and it was correct that the learner did not to return to Ncandu.
[192] Bhagwandas came to school when the learners went on strike in 2017 because they wanted the applicant to leave Ncandu, but they managed to cool down that situation.
[193] The applicant resigned without any pressure, and she did not think that all the incidents that he had mentioned were relevant because he was quite happy at the school up until he wanted to pursue another career.
REGGIE BHEKI NGCOBO
The salient aspects are recorded below.
[194] He was appointed as Circuit Manager in January 2015 and is responsible for the KwaMsane Circuit. Ncandu used to be part of KwaMsane Circuit but now belongs to Phumelela Circuit.
[195] During the transversal team visits, he would be accompanied by many circuit managers and subject advisors. They would regularly visit the underperforming schools, and he met the applicant in one of those visits. He and the applicant never discussed any issue of the extra classes because that was the competence of the subject advisors.
[196] When told that the applicant had testified that during one of his visits to the school, he asked the applicant to leave the class because he wanted to motivate the learners and he had asked the applicant if he cared about the learners. He denied that he asked the applicant if he cared about the learners and further stated that when they arrive at a school, they meet and discuss with the SMT, he is the one who would usually go and motivate the Grade 12 class, but he would not go into the classroom alone, and in Ncandu the HOD would organize the class and thereafter invite him.
[197] He denied that he had remarked about the applicant wanting to teach Grade 12’s and his greediness in the presence of staff, and he further stated that he would never do that because the issue of deciding who teaches what class and subject is the responsibility of the principal.
[198] When told that the applicant had testified that he was aware that the applicant was not treated well at the school and as a result he was diagnosed with major depressive disorder, he stated that he was hearing it for the first time and the applicant never made him aware that he was not happy at school.
Under cross-examination he testified that:
[199] It was put to him that the applicant had placed his letter dated 21st January 2014 in his pigeonhole at Amajuba and never received any response until Simelane read it in a staff meeting. He stated that he had never received that letter and had he received it, he would have immediately attended to the matter and would never have given it to Simelane. The first time he saw that letter was when the respondent showed him a copy.
[200] When it was put to him that he had asked the applicant to leave the class so he could motivate the learners and thereafter he had told the applicant that the learners did not understand his teaching, questioned if he cared about the learners and asked the applicant for a one-on-one meeting outside of the classroom. He stated that firstly, he would never go to the classroom alone, he would be accompanied by an SMT member, and he would just motivate the learners to work hard to achieve their goals and his motivation to the learners had nothing to do with the subject. In his session with the Grade 12 learners, he did not allow them to talk back to him. He was the only person who talked when motivating them to work hard and achieve their objectives.
[201] He denied that after he had motivated the learners, he would complain to the applicant that he was unable to teach the learners because they had said that they could not understand him. When he interacted with the learners, he would never allow them to mention any subject or any subject teacher so there was no way where he would speak to the teacher, because after motivating the learners, they would go to the office, compile the report, and call all the teachers.
[202] He was not aware that the learners were unhappy with the applicant.
[203] He only interacts with the teachers when they are in a group. He did not remember having a meeting with the applicant and the other Business Studies teachers.
[204] He denied having had a cordial meeting with the applicant where he enquired about the problem and encouraged the applicant to have extra classes to assist the learners. He further stated that that was the role of the subject advisor and not a circuit manager.
[205] When it was put to him that after the September 2013 trial exams results were released, he had asked to see the teacher who was teaching Business Studies, mentioned that Business Studies had never been failed and had asked as to what the problem could be, he stated that he did not think it ever happened where he spoke to an individual teacher regarding the passing or failing of a subject. He would speak to the principal or the SMT, and definitely not to an individual teacher.
[206] When questioned if he as part of the transversal team would have been aware that a teacher had been demoted from teaching Grade 12. He averred that that information might be presented by the principal or any SMT member. The role of a principal is to decide who is to teach a particular subject in a particular grade and the principal can do that at any time because it is their function to move teachers around.
[207] It was put to him that Ngema replaced the applicant as a Grade 12 teacher in 2014, and in 2016 the applicant went back to teach Grade 12 Business Studies, and as part of the transversal team, he would analyze the results of the school thus he would be aware that the applicant had been demoted. He stated that he was never aware that the applicant had been demoted, he was hearing it for the first time, and he also did not know that Ngema also taught Business Studies because from 2015, he was no longer responsible for Ncandu.
[208] As part of a transversal team, they would go to assist an underperforming school including the teachers but the people leading that process would be the circuit manager and the subject advisor. In 2015, he was no longer the Circuit Manager therefore Bhagwandas would discuss issues with the subject advisor and later advise the principal on what changes must be made.
[209] When asked if he was aware of the narrative created that the applicant was an incompetent teacher, he stated that Business Studies was not a subject that was being failed year in and year out so it did not warrant a situation where they had to sit down and discuss Business Studies at Ncandu because that would be dealt with by the Subject Advisor and the Circuit Manager.
[210] After a transversal team has completed their report, the role of speaking to the teachers is usually given to the Circuit Manager of the school. During his tenure as the Circuit Manager of Ncandu, after the Subject Advisors have spoken, he would be given a chance to motivate the teachers and encourage them to work hard and improve the results of the school.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties and what follows is a summary relevant to the dispute at hand and does not reflect all the arguments considered in deciding this matter.
[211] The applicant brought a dispute in terms of section 186(1)(e) of the LRA which provides that a dismissal takes place if an employee terminates the contract of employment because the employer made continued employment intolerable.
[212] The onus of proving constructive dismissal is with the employee that it would have been intolerable to remain in the employment of the employer.
[213] In Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) the court held that there are 3 requirements for constructive dismissal to be established:
1. The first is that the employee must have terminated the contract of employment;
2. The second is that the reason for the termination of the contract must be that continued employment has come intolerable for the employee;
3. The third is that it must have been the employee’s employer who made continued employment intolerable.
[214] It is common cause that the applicant tendered his resignation on 25 January 2019. After he received letters informing him that his TIL was declined and his salary was frozen, he took TIL from 12 March 2019 to 30 April 2019.
[215] In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) the test was formulated as follows:
“When an employee resigns or terminates the contract as a result of a constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee’s most important function, namely, to work. The employee is in effect saying that he would have carried on working indefinitely had the unbearable situation not been created. He does so, on the basis that he does not believe that the employer will ever reform or abandon the pattern of creating unbearable work environment”.
[216] The second requirement is an objective test and is not what the employee subjectively considers to be intolerable working conditions.
[217] In Smithkline Beecham (Pty) Ltd vs. CCMA & Others [2000] 3 BLLR 344 (LC) the Court emphasized that:
“A constructive dismissal can only take place in circumstances where, objectively speaking, the employer’s intolerable conduct left the employee with no option but to resign. The subjective perceptions of the employee are not permitted to colour the assessment or otherwise of the employer’s actions.”
[218] The applicant made references to various incidents, in an attempt to substantiate his claim that had purportedly made his continued employment with the respondent intolerable.
[219] The applicant confirmed that after the poor performance of the Grade 12 Business Studies learners, he was called by Ncandu Management: Simelane, Makhoba and Kubheka for a meeting. At that meeting, he was informed that the learners had complained that they could not understand his teaching and further he did not teach but talked about his family. They had a discussion and he agreed to a strategy to improve his teaching methods.
[220] I have noted that the applicant failed to put his versions and challenge some of the versions of the respondent’s witnesses while they were on the stand.
[221] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[222] The applicant testified that he was demoted in January 2014 and that Simelane had remarked that the learners obtained 61% was not due to him as he was unable to teach. It is noted that the applicant did not offer any testimony challenging these assertions.
[223] When the applicant put to Makhoba that his letter indicated that he wanted a transfer because of the intolerable environment, the learners were violent towards him and he was concerned about his well-being, she responded that the applicant had informed her that he wanted to move to another school.
[224] It remained unchallenged that the learners complained because they were dissatisfied with the applicant’s teaching and further, he wasted their time by talking about his family during their Business Studies lessons.
[225] The applicant also testified that he kept quiet when Simelane discussed his altercation with learner KM, wherein he was told that he was degrading himself, his reputation and that he had kicked Learner KM.
[226] Except for the applicant testifying about the ‘unruly behaviour’ of the learners he failed to relate any incident at school where the learners were violent towards him.
[227] It is apparent that the applicant was made aware by Ncandu Management that the learners were complaining about his teaching and his conduct in the classroom. It remained unchallenged that Baafe who took over his lessons, was teaching the learners in English.
[228] The applicant conceded that the lodgement of his constructive dismissal dispute was an afterthought.
[229] The applicant was booked off sick by Dr Seedat from 2 August 2017 until January 2019. The applicant confirmed that he had an agreement with Dr Seedat that she would not testify and talk to her medical report pertaining to him in any proceedings.
[230] Bhagwandas testified that he interacted with the applicant, gave him guidance and support however his attendance was extremely erratic and he took lengthy sick leave. It is important to note that he as the Circuit Manager was satisfied that the applicant had received all the support that he required as an educator.
[231] The respondent’s version was presented via the testimony of three witnesses, who all came across as honest, did not hesitate when testifying and were clear and candid in their responses.
[232] Vilakazi testified that as part of the Transversal Team, he would have a meeting with the principal and the SMT. He was not aware that the applicant was one of the underperforming teachers, it was never mentioned to him that the applicant was an incompetent teacher or that the applicant was always absent. He and the applicant had a good relationship. He denied remarking that the applicant was getting paid for nothing or that he was always absent from school.
[233] Makhoba testified that she and the applicant had a good relationship and he was treated well as a subordinate. She testified that the learners complained that the applicant was not teaching them properly and during their lessons he continuously talked about his family. She averred that the applicant was informed of the learners’ complaints against him. She testified that there was never any stage where the applicant’s life was in danger and further, he never reported to her that his life was in danger. She averred that the problem was the applicant’s frequent absenteeism.
[234] It is apparent that Makhoba did what was in the best interest of the learners. Baafe was recruited and he taught the leaners in English. The applicant conceded that he believed that Baafe was a better teacher than him.
[235] Ngcobo denied discussing any issue about extra classes, that he asked the applicant if he cared about the leaners, that he remarked about him wanting to teach the Grade 12 learners and being greedy, that he complained to the applicant about his inability to teach the learners or that he spoke to the applicant on an individual basis. He stated that most of his interactions were with the principal and SMT and he only interacted with teachers when they were in a group.
[236] Ngcobo testified that he never received the applicant’s letter, but had he received it he would have immediately attended to the matter.
[237] The applicant’s resignation letter dated 25 January 2019 states, “Kindly receive my notice of intention to resign; my resignation from employment is due to being diagnosed with Major Depressive Disorder. The chronic disorder has rendered me unfit to continue as an educator. Therefore, I shall resume serving my three months’ notice from 25 January 2019, which shall end on 30 April 2019.”
[238] The applicant was a union official, and he was well aware of the Department’s hierarchical structure. The fact that he approached the MEC for his transfer matter, yet failed to do so, when he claimed to be encountering such intolerable conditions, does not make sense.
[239] In Albany Bakeries Ltd v Steven Raymond Van Wyk & Others (2005) 26 ILJ 2142 (LAC), the Court held “It is, firstly also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire. Secondly, from the very concept of intolerability one must conclude that it does not exist if there is a practical or legal solution to the allegedly oppressive conduct. Finally, it might well smack of opportunism for an employee to leave when he alleged that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem”.
[240] It is interesting to note that nowhere in the applicant’s resignation letter and in his Exit Interview Questionnaire he makes mention of the intolerable conditions at Ncandu. I agree with the respondent that the applicant when submitting his resignation letter and completing his Exit Interview Question had nothing to lose and could have indicated all the intolerable conditions that he claimed he had encountered at Ncandu.
[241] The applicant by his own admission testified that he had haboured thoughts of resigning because of his lengthy leave, and him needing to do justice to the learners, as he had been diagnosed with a condition and was not getting better.
[242] In order to succeed with a constructive dismissal claim, the employee has to show that the resignation was a measure of last resort, and the employee had no other remedies such as the grievance procedure or lodging unfair labour practice disputes in the Council. Objectively there must be no avenue open to the employee.
[243] I am not convinced that the respondent had subjected the applicant to an intolerable working condition. I accordingly have come to the conclusion that the applicant’s resignation was voluntary.
[244] I find that the applicant has failed to adequately prove that his resignation was a measure of last resort. In light of the aforementioned case law, I find that the applicant has failed to discharge the onus of proving a constructive dismissal.
AWARD
[245] The applicant was not dismissed in terms of the provisions of Section 186(1)(e) of the LRA.
[246] The applicant’s application is dismissed.
[247] There is no order as to costs.

ELRC Commissioner: P. Jairajh
DATED: 25 March 2022