ELRC784-22/23FS

Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 784-22/23 FS
Date of award: 8 September 2023

In the Arbitration between:

Sefatsha Marthin Mahloane Applicant

and

Department of Education – Free State Respondent


DETAILS OF HEARING AND REPRESENTATION

1. This is the arbitration award in the matter between Sefatsha Marthin Mahloane (the Applicant) and the Department of Education – Free State (the Respondent), held on 22 June 2023 (virtually) and 4 – 6 September 2023 at Clarens Combined School in Clarens.

2. The Applicant was represented by Ms Phindile Mdluli, a legal practitioner from Phindile Mdluli Attorneys. The Respondent was represented by Mr Solomon Moloi, a Labour Relations Officer of the Respondent.

3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation was not required.

RULING ON LEGAL REPRESENTATION
4. On 22 June 2023 Ms Mdluli argued an application for legal representation, which application was opposed by the Respondent.

5. The application for legal representation was granted for the following reasons:
1) The Applicant’s mental illness was at the core of the dispute, and his case might raise some legal issues.
2) The Applicant was a lay person, and unfamiliar with proceedings before a forum such as the ELRC.
3) The comparative abilities of the parties would be more equal if legal representation was granted.
4) The Respondent did not raise convincing arguments why the application should be refused.
5) I found that it would be unreasonable to expect the Applicant to continue without legal representation.

ISSUE TO BE DECIDED
6. The dispute was referred in terms of section 191(5)(iii) of the Labour Relations Act, 66 of 1995, as amended (the LRA), as a claim of unfair dismissal for unknown reasons.

7. The Respondent challenged the existence of a dismissal.

8. I was called upon to determine whether the Applicant was dismissed, as alleged. Only once the Applicant is able to establish the existence of a dismissal does the onus shift to the Respondent to prove the fairness of the dismissal (section 192 of the LRA).

9. In the event that I find in his favour, the Applicant sought to be reinstated, but placed at another school i.e not Clarens Combined School where he worked at the time of his resignation.

RULING ON HEARSAY EVIDENCE
10. The two medical reports from Dr ND Magubane contained in bundles “A” and “B” were relied on in the evidence in chief of the Applicant. I enquired into whether Dr Magubane would be called to testify on the reports, and it was stated that Dr Magubane would not be called as a witness.

11. No application for the admission of hearsay evidence was argued by Ms Mdluli in terms of section 3(1)(c) of the Law of Evidence Amendment Act, 1998.

12. The two medical reports from Dr ND Magubane contained in bundles “A” and “B” were ruled to be hearsay evidence, and accordingly not admissible.

BACKGROUND TO THE ISSUE
13. The Applicant was employed as an Educator (PL1) at Clarens Combined School in Clarens from 1 May 2021. He tendered his resignation on 24 August 2022 in writing. On 29 August 2022 he withdrew his resignation, also in writing. The resignation was accepted by the Respondent and the withdrawal of the resignation was not accepted by the Respondent.

14. On 4 September 2023 the Applicant stated that he was in mental distress and felt anxious and depressed. An adjournment to 5 September 2023 was requested. The Respondent did not oppose this request, and the arbitration proceeded on 5 September 2023.

15. I had instructed parties, on 5 September 2023, to address me on a cost order in their closing arguments.

SURVEY OF EVIDENCE AND ARGUMENT
16. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered.

Documentary:

17. Bundle “A” was submitted into evidence by the Applicant, and “B” by the Respondent. Its veracity was not disputed and it was accepted as it purported to be.

Evidence of the Applicant:

18. The Applicant, Sefatsha Marthin Mahloane (“the Applicant”), testified he initially had a good working relationship, but it had changed. He had started to experience symptoms which he did not understand. He was once referred to a Doctor in Bethlehem which the Respondent wanted him to see. He was once booked off for Covid-19, but he did not have a positive test result, and after that his colleagues started to treat him differently. He saw different Doctors in Bethlehem, Qwa-Qwa and Kwa-Zulu Natal, where his home was. The Respondent called the Doctors to verify the medical certificates which he had submitted when he was booked off. The Head of Department (HOD) and Deputy Principal wanted a specific diagnosis of the condition he was suffering from.

19. A meeting was held with the Principal, during which he felt under attack and cross-examined, so he walked out of the meeting and went home to Kwa-Zulu Natal. He consulted with another Doctor thereafter and was booked off for approximately three months. He returned to work on 1 December 2021. During this time, in August 2021, he consulted with Dr Magubane who had diagnosed him with severe depression, stress and anxiety. His wife had informed the Principal of his diagnosis and expected date of return. He confirmed that he had only submitted the medical report of Dr Magubane to the Respondent after his resignation.

20. During March 2022 he reported that he could not attend morning sessions anymore due to the noisy worship that took place. His ears could not tolerate the noise level. The HOD and Deputy Principal’s response to him was that it had nothing to do with them, and that if he did not attend morning sessions, he would not know what went on at the school, as the morning sessions involved daily meetings.

21. On one occasion his medication made him feel dizzy, and he went to his car and laid down because he felt lightheaded, yet he was accused of being drunk. On another occasion he requested to go home earlier because he was not feeling well, and the Deputy Principal accused him of being drunk. Another time the HOD has asked him how he was able to walk whilst being so drunk, and a colleague said he saw the Applicant when he had consumed alcohol. The Principal had also said to his wife that there had been multiple reports of the Applicant having been drunk on duty, and his wife questioned the absence of any breathalyser tests done. He further felt sabotaged by the HOD, and he referred to a specific incident when they were busy with IQMS (integrated quality management system). He complained about these challenges to SADTU (South African Democratic Workers Union), but nothing was done. He conceded that no documentary proof existed that he had ever filed a formal complaint or grievance for the Respondent to attend to. He further conceded that, although he felt victimized, he never raised it through formal avenues.

22. On 20 August 2022 he was absent from school. He went home to his wife in Kwa-Zulu Natal for the weekend, and when he wanted to travel to Clarens there were roadblocks and no electricity. He reported the challenge to the Principal, but received no response. When he arrived in Clarens at his rental house, he found out that the Principal and a colleague went to his house to see if he was telling the truth. He e-mailed his resignation to the Principal on 24 August 2022, received no response, and did not report for work again. He conceded that he did not give notice, as required, but has resigned with immediate effect. He was not of sound mind when he had submitted his resignation. He was of the view that the Principal had an obligation to contact him to find out what the reason was for his sudden dismissal. On 29 August 2022 he sent a retraction (withdrawal) of his resignation, but the Principal told him that it will not be accepted because the resignation has been sent to the Department and has been processed.

23. He sought to be reinstated, but to work at another school.

24. The second witness, Londiwe Mohloane, the Applicant’s wife (“the wife”), testified to the complaints of the Applicant to her about his work environment and his consultations with medical practitioners, including a Psychiatrist, that had diagnosed him with severe depression. She had personally submitted several medical certificates to the Principal, either through WhatsApp or e-mail, and she has personally informed the Principal of the Applicant’s mental ill-health. She confirmed that one of the medical reports mentioned that one of the factors of the Applicant’s conditions was substance abuse, specifically alcohol, but she added that she did not believe the Applicant was abusing alcohol.

25. The Applicant was at home in KwaZulu-Natal when he submitted his resignation, whilst she was at work. She only found out when she arrived home. She did not deny the version that the Applicant had on multiple occasions reported to the school that he was in Kwa-Zulu Natal, but then he would be in Clarens.

Evidence of the Respondent:

26. The only witness, Lindiwe Mokoena (“Mokoena”), was the Deputy Principal at Clarens Combined School. She testified that neither the Principal, nor herself or the HOD was made aware that the Applicant suffered from a mental illness. The Applicant initially made a good impression, but his work standard quickly deteriorated. Herself and the HOD had tried to assist the Applicant to improve, but to no avail. On one occasion a meeting was scheduled with the Principal, herself, the HOD, the Applicant and SADTU to address the Applicant’s poor performance and absence, but the Applicant failed to attend the meeting. She had personally smelled alcohol on the Applicant’s breath during working hours on multiple occasions. Some learners, teachers and parents have complained that the Applicant had appeared to be intoxicated at school on multiple occasions. No breathalyzer test had been done on the Applicant on occasions when he was suspected of being intoxicated. No formal disciplinary steps were taken against the Applicant for his excessive absenteeism and his poor work performance, as she had hoped that her and the HOD’s assistance would be effective. The Applicant was not dismissed by the Respondent, but he had resigned and his resignation was processed. She denied the version that the Applicant was victimized, and added that it was a vague statement to which she could not properly respond.

ANALYSIS OF EVIDENCE AND ARGUMENT
27. Parties had submitted their respective closing arguments in writing on 6 September 2023. The closing arguments were considered but will not be repeated herein.

28. The Applicant categorized his dispute as a claim of unfair dismissal yet led a great deal of evidence on claim of constructive dismissal. As both claims are a species of dismissal, I will deal with both claims.

29. In terms of section 192(1) of the LRA, the onus vests in the Applicant to prove the existence of a dismissal in dismissal disputes.

Constructive dismissal:

30. The prerequisites in establishing a claim of constructive dismissal have long been established, and was once again confirmed in the recent judgement of Browns the Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1091/22) [2023] ZALCJHB 189 (handed down on 19 June 2023) being:
i. First, the employee (Applicant) must have terminated the contract of employment;
ii. Second, the reasons for the termination of the contract must be that continued employment has become intolerable for the employee (Applicant); and
iii. Third, the employer must have made continued employment intolerable.

31. If one of the above requirements is absent, a claim of constructive dismissal must fail. The Courts have defined the test for proving a constructive dismissal claim as an objective one.

32. As to the credibility of the Applicant, in establishing a claim of constructive dismissal, it is important to note that the Applicant claims he was absent from work on 20 August 2022 because he could not travel from Kwa-Zulu Natal to Clarens due to roadblocks and no electricity, whereas his wife had testified that he could not return to Clarens due to strikes. Curiously, 20 August 2022 was a Saturday, and not a normal school day.

33. It was common cause that the Applicant had tendered a written resignation on 24 August 2022, by e-mail, on 08h09. This written resignation was received by the Principal and it was the evidence of Mokoena that the resignation was accepted and processed through to the regional office of the Respondent, almost immediately. The resignation of the Applicant was with immediate effect. The Applicant testified that he did not report for work again after he had resigned and his wife clarified that, when he had sent the resignation letter, he was already no longer in Clarens, but rather in Kwa-Zulu Natal, at home. The Applicant has satisfied the first prerequisite.

34. The Applicant’s claim that the Principal ought to have reached out to him to find out what the reasons for his immediate resignation was, is rejected. The reasons for his resignation were clearly stated in his resignation letter and did not need further clarification.

35. The Applicant’s resignation did not specifically state that continued employment had become intolerable, but he did resign with immediate effect, and he also mentioned that there was no peace at the school, that teachers were treated negatively and that he could not take it anymore. I am of the view that the Applicant has failed to satisfy the second prerequisite, as he has proven that he did not, in fact, consider a continued employment relationship intolerable, as he has withdrawn his resignation five days later. It cannot be held that the work environment is unbearable and intolerable if a resignation is withdrawn five says later, and if the primary remedy sought is reinstatement.

36. There was no evidence presented that the Respondent had made continued employment intolerable, as alleged. The Applicant’s evidence was that he suffered from mental distress and mental ill-health and felt victimized. This was not proven by the Applicant. The Applicant conceded that he did not file any formal complaint or grievance so that the Respondent could be made aware of the alleged unbearable situation so as to have an opportunity to address and/or rectify it. Mokoena testified on a meeting scheduled, at the behest of the Respondent, to address the Applicant’s continued absence and poor work performance, yet the Applicant did not even show up for the meeting. The Applicant did not challenge Mokoena’s evidence that he was absent from work often. It was common cause that the medical report on the Applicant’s mental health was only submitted to the Respondent after the resignation of the Applicant.

37. It was held in Gold One Ltd v Madalani and Others [2021] 2 BLLR 198 (LC) that “intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly”.

38. The Applicant has failed to prove that the conduct of the Respondent towards him, when viewed objectively, was such that he could not reasonably be expected to cope with it. In this case, the Applicant made a hasty decision to resign and it follows that the Applicant was the author of his own misfortune.

Unfair dismissal:

39. No evidence was led by the Applicant to prove and/or establish the existence of a dismissal during the arbitration. As such, it must follow that the Applicant has failed to prove the existence of a dismissal. The claim of the Applicant that he was dismissed on 7 September 2022 when he was informed that his resignation has been accepted is rejected.

40. Accordingly the claim of unfair dismissal stands to be dismissed.

41. It is established law that a resignation is a unilateral act by employee and does not need the employer's acceptance. The employment relationship is terminated immediately when the written resignation is given and received (see Mohlwaadibona v Dr JS Moroka Municipality (J718/21) (handed down on 18 March 2022). It was further held that a resignation cannot be unilaterally withdrawn unless the employer consents to it. The employer’s consent to withdraw a resignation is equivalent to rehiring or re-employing the employee, but not the same as reinstatement. If an employee fails to honor a notice period after resigning, it does not negate the effect of the resignation. Reviving the employment relationship would require a fresh offer and acceptance, which amounts to rehiring or re-employment. The person consenting to the withdrawal of the resignation must have the authority to rehire or re-employ for it to be valid.
42. In the event that a resignation is withdrawn in the public section, clause 69(5) of the Public Service Regulations states that “an employee who has submitted his or her resignation to the executive authority may only withdraw his or her resignation with the written approval of the executive authority, which approval shall be made no later than the last working day”. On the Applicant’s own version, he had resigned on 24 August 2022 with immediate effect, making 24 August 2022 his last working day. He only submitted a withdrawal of his resignation on 29 August 2022.
43. The Applicant was unable to proof, on a balance of probabilities, that he was constructively dismissed or dismissed for unknown reasons.
44. I had instructed parties to address me on costs in terms of clause 54 of the ELRC Rules in their closing arguments. The Respondent failed to address me on costs, and the Applicant sough a cost order in his favour.
45. I am making a cost order in terms of clause 54.1.4 of the ELRC Rules which states that: “whether a party or the person that represented that party in the arbitration proceedings acted in a frivolous and vexatious manner by proceeding with the dispute”. The referring party proceeded with this dispute, despite having a legal practitioner who ought to have advised him on his prospects for success, thereby causing the Respondent unnecessary cost in defending the claim. A cost order for the reasonable disbursements actually incurred by the Respondent is made in terms of clause 54.2 of the ELRC Rules, and is calculated as follows:
i. Travelling cost: Distance between Bloemfontein and Clarens: 355km x 2 =
710km x R 4.18 (AA tariff) = R 2 967.88
R 68.50 x 2 (tollgate) = R 137.00
ii. Accommodation cost: R 950.00 x 2 = R 1 900.00
iii. Total cost order: R 5 004.88

AWARD
46. The Applicant, Sefatsha Marthin Mahloane, was unable to establish the existence of a dismissal and he was unable to prove a claim of constructive dismissal.

47. The Applicant is not entitled to any relief.

48. The Applicant is furthered ordered to pay the Respondent’s wasted costs for reasonable disbursements actually incurred, to the amount of R 5 004.88, as calculated in paragraph 45. This must be paid by no later than 30 September 2023.

Minette van der Merwe
ELRC Panelist