PSES 902-18/19 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT BIZANA
IN THE ARBITRATION
BETWEEN
MAHLUNGULU AT APPLICANT
AND
DEPARTMENT OF EDUCATION – EC RESPONDENT

ARBITRATION AWARD

CASE NO PSES 902-18/19 EC
DATE/S OF HEARING 09 MAY 2019 - 06 DEC 2022
DATE AWARD SUBMITTED 27 JANUARY 2023
NAME OF PANELIST SIZIWE GCAYI


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of s191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Bizana. This matter was heard on the following dates:09 May 2019, 22 August 2019, 24 February 2020, 05 March 2022, 27 August 2022 and 06 December 2022. The parties were given until 20 January 2023 to submit their closing arguments to the Council, as per their request. Closing arguments were filled on time. On 09 May 2019, Mr MP Magoqo from Seethal Attorney’s represented the Applicant [Ms Alicia Thembeka Mahlungulu]. Mr SR Mdondolo an official represented the Respondent, Dept of Education EC. On 22 August 2019, Mr GL Seethal from Seethal Attorneys represented the Applicant up to finality. Mr T Makina represented the Respondent up to finality. The proceedings were mechanically recorded and hand written notes were taken.

ISSUES TO BE DECIDED

2. I have to decide whether the Applicant was constructively dismissed and if so, whether such constructive dismissal was unfair and determine any relief if applicable.

BACKGROUND OF THE DISPUTE
3. The Applicant was employed as an educator since 15 February 1985 by the Respondent. At the time of her dismissal she was the school principal at Mount Zion JSS. She resigned on 28 January 2019. She claimed constructive dismissal. The relief the Applicant seeks is compensation.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case
4. The Applicant testified and called one witness in support of her case.
5. The Applicant testified as follows: She was employed by the Respondent at Mount Zion JSS as the school principal. On 23 January 2019, she was contacted by Mr Mdondolo. She proceeded to the Respondents offices, was attended by Mr Mdondolo and Ms Khatywa. They both informed her of the outcome of the Appeal from the Member of Executive Council [MEC]. The outcome was implemented on 21 January 2019. She read the outcome in their presence. She enquired from them if the 30 days’ period was applicable to her to peruse the outcome as she was advised by the union official from NAPTOSA. They both informed her that such was not applicable, the MEC had already decided.
5.1 She further mentioned that she was very hurt about the demotion. She did not know what to do. She went to the office of the district director. The district director was not available, she spoke to Ms Nontangana, PA to the district director. Ms Nontangana advised her to contact the Head of Human Resource [HR] section, also comforted her. Also informed her that she will be taken to the same school. She will also be considered when the posts were advertised.
5.2 She further mentioned that, going back to the same school on demotion, she was going to be a joke. Salary reduction was a problem as she had debts. After the outcome of the MEC, she was advised by her representative from NAPTOSA that the decision of the MEC was final, only two options were available to her, [1] To resign or [2] Take early retirement.
5.3 In relation to HR section, she mentioned that she spoke to Ms Madonsela, who informed her that she was going to be taken back to her old school. The discussion was held at the office of the district director. She further mentioned that she analysed the whole situation of going back to the same school and the department promising to look for another school, she decided to resign. The Respondent pushed her out of the school.
6. Mr Bibion Shusha [BS] 2nd witness testified as follows: He was employed at Hlamandana Secondary School. Prior joining Hlamandana SS, he was employed at Mount Zion JSS since 2008 – January 2022. In 2008 the school principal at Mount Zion JSS was Mr Thunzi. In 2012 it was the Applicant. He further mentioned that from 2012-2015, he was the member of the School Governing Body [SGB]. There was no good relationship between the Applicant the SGB. Some of the SGB members wanted Mr Notshe to be the school principal. SGB members arranged a meeting with the community, insulted and assaulted the Applicant. In 2013 Ms Thukwana requested financial records of the school.
6.1 He further mentioned that there was an SGB meeting conducted at the district level attended by all SGB members, school principal, district director, Mr Gwala, Mr Makhenkana and Ms Thukwana. The purpose of the meeting was to discuss the incident of assault that occurred at Mount Zion against the Applicant. However, such was not discussed instead there were other allegations levelled against the Applicant. In 2014 Applicant was charged for the first time and charges were later withdrawn.
Respondent’s Case
7. The Respondent led evidence of one witness Ms Buhle Madonsela[BM].
She testified as follows: She was the Acting Director for Human Resource Administration. She had 16 years’ experience as HR practitioner. Six years’ experience with the Respondent. She mentioned that she knew the Applicant as the school principal. On the day the Applicant handed her resignation letter, she assisted her. During that period, she was the deputy director HR section. She advised Applicant against resigning. She also informed the Applicant of the benefits to be forfeited if she continued resigning. Applicant requested to discuss the matter with her family, she left. On the following day, Applicant came with her husband and advised her that they have discussed the matter with the family and concluded that resignation was a good decision. She further mentioned that, she continued advising the Applicant against resigning and implications of resigning considering her age. The post was advertised on 04 March 2019.

ANALYSIS OF EVIDENCE AND ARGUMENT
8. Claims for constructive dismissal are governed by the provisions of section 186[1][e] of the Labour Relations Act 66 of 1995 [LRA] which reads as follows:’’ Dismissal means that – an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee’’
9. In NILAND v HARVEY & OTHERS [2017] [PR33/16] [2017] 15 BLLR [LC] [2017] 38 ILJ 1686 [LC] It was held that” in order for a dismissal to fall within the ambit of section 186[1][e] the facts must prove that the sole reason why the employee left employment, was due to a continued intolerable employment relationship caused by the employer.”
10. The test for constructive dismissals is trite and the pivotal dictum. In Solid Doors [Pty] Ltd Commissioner Theron & others [2004] 25 ILJ 2337 [LAC] The LAC referred to the following prerequisites to prove a case of constructive dismissal: [1] The employee must have terminated the contract of employment. [2] The reason for termination of the contract must be that continued employment has become intolerable for the employee. [3] The employer must have made the continued employment intolerable.
11. In Conti Print CC v CCMA & Others [2015] 9 BLLR 865 [LAC] the LAC emphasized on the fact that if one of the above requirements was absent, constructive dismissal was not established. “There is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment, because he cannot stand working in a particular workplace or for a certain company and that is not due to any, conduct on the part of the employer”.
12. In National Health Laboratory Services v Yona & Others [2015] 36 ILJ 2259 [LAC] The LAC defined the test for proving a constructive dismissal an objective one.” The conduct of the employer toward the employee and cumulative impact thereof must be such that, viewed objectively, the employee could not be reasonably be expected to cope with it”.
13. In Strategic Liquor Services v Mvumbi No & Others [2009] 30 ILJ 1526 [CC] It was stated that “providing the resignation was a reasonable step to escape the intolerable working environment.”
14. In the present matter, it was the evidence of the Applicant that she was not happy about the demotion, she could not picture herself going back to the same school as the Head of Department [HOD] whilst she was previously the school principal. From the period she received the outcome of the Appeal. She communicated the outcome with her NAPTOSA representative, who advised her that the outcome of the MEC was final, she only had two options [1] To resign or [2] Take early retirement. [That was the evidence tendered by the Applicant on 09 May 2019.]
15. During the Applicants case, when the Applicant was led by his legal representative Mr Magoqo: Question- Who told you that you did not have the recourse? Answer- The representative of NAPTOSA, he said the decision of the MEC was final. I had two options [1] To resign or [2] Take early retirement. Based on this answer alone, it is very clear that the Applicant was not properly advised. The Applicant had another recourse of referring a dispute in terms of section 186[2] unfair labour practice relating to demotion.
16. Section 186 [2][a] reads as follows: “Unfair labour practice means any unfair act or omission that arises between the employer and an employee involving- unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissals for a reason relating to probation] or training of an employee or relating to the provisions of benefits to an employee.” The Applicant had 90 days to refer dispute to the Council. [ELRC] in relation to unfair labour practice- relating to demotion in terms of section 191[1][b][ii] LRA 66 of 1995. The trade union official from NAPTOSA mislead the Applicant when he advised the Applicant that she had no further recourse.
17. The Applicant received the outcome of the Appeal from the MEC on 23 January 2019, Applicant then tendered her resignation on 28 January 2019. From the time the Applicant received the outcome of the Appeal and date when she tendered her resignation, what took place/ happened that made the Applicant to conclude that the employment relationship was intolerable? No such evidence was placed before the Council. In Booi v Amothole District Municipality [2022] 43 IJL 91 [CC] where it was stated that “it is accordingly no surprise that the language context and purpose of section 193[2][b] dictate that the bar of intolerability is a high one. The term intolerability implies a level of unberability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour”.
18. Ms Madonsela- Respondent witness testified that she assisted the Applicant on the day she handed her resignation letter. Advised her against resigning, informed her of the benefits that were to be forfeited if she continued resigning. Applicant was given time to properly think about her decision. She left on that day to discuss the matter with her family. The following day, Applicant came with her husband and maintained that resignation was the best decision, it was discussed by the family. Applicant disputed the version of Madonsela, that she informed her of the benefits that were to be forfeited if she continued with resignation and also that she was advised against resigning.
19. Ms Madonsela during cross-examination by the Applicants representative maintained her version, that she advised the Applicant against resigning. She did not crack. Correctly submitted by the Applicant on arguments that there were incidents that took place between the Applicant and the Respondent, it was in May 2014, December 2014, February 2017, August 2017, March 2018 and April 2018. At all these times the Applicant continued to be in the employment of the Respondent. It was in January 2019 when Applicant received the outcome of the Appeal from the MEC confirming her demotion, felt she could not go back to the same school and be the HOD. Applicant did not accept the demotion. Further to that Applicant was not properly advised as I have already highlighted above. In the event the Applicant was properly advised, she would still be in the employment if the Respondent. Misleading advises are the ones that led the Applicant to be out of employment.
20. In Shoprite Checkers [Pty] Ltd v Nkosi and others case no JR625/20 It was held that “By parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal. The employee must provide a substantial explanation that is buttressed by a concrete evidence to prove the intolerability that led to his or her resignation.” Therefore, based on the evidence tendered before the Council, I conclude that the Applicant failed to discharge the onus placed on her. To prove that she was dismissed as contemplated in terms of section 186[1][e] of the LRA 66 of 1995.In all circumstances of this case and after due consideration of all facts which by law I must consider, I deem the following award fair and equitable.
AWARD.
21. The Applicant AT Mahlungulu was not constructively dismissed. The Applicant is not entitled to any relief.

Signature:

Commissioner: Siziwe Gcayi