08 April 2025 -ELRC171-24/25KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG, KWAZULU-NATAL

CASE NO: ELRC 171 -24/25 KZN
In the matter between:

CLARA EVIDENCE MUTHWA APPLICANT
(Employee)

and

DEPARTMENT OF EDUCATION KWAZULU – NATAL RESPONDENT
(Employer)

ARBITRATION AWARD

Details of hearing and representation

This arbitration took place over three days and was finalized on 12 February 2025, at the offices of the Public Service Association (PSA), Provincial Office, 190 Jabu Ndlovu Street, Pietermaritzburg, KwaZulu-Natal.

Mr C Ngubane, an official from the union PSA, represented the applicant. Mr S Daniso, an official from the respondent’s employee relations department, represented the respondent.
The hearing was digitally recorded.
The representatives made an application to submit closing arguments in writing by 21 February 2025, which application I granted. The respondents’ representative made a further application for an extension of time in which to submit its closing arguments. No closing arguments were received from either party as of 18 March 2025, which date I regard as the final day of arbitration.
I proceed to issue this award in the absence of the parties’ closing arguments.
The parties relied on a common bundle of documents, which I marked exhibit “A”. The parties further concluded a pre-arbitration minute on 16 October 2024, which is included in the bundle.

Issue in dispute

I am required to determine, in the terms stipulated in the pre-arbitration minute, whether the applicant’s termination of employment constitutes a constructive dismissal.

Background to the dispute

The applicant was employed as a post-level two educator at the Silwanetshe Primary School situated in Willowfontien, Pietermaritzburg, KwaZulu-Natal (school).
She commenced employment at the school in August 2019 and at the time of the termination of her employment held the post of head of department.
The applicant submitted “letters of grievance” to the respondent during her employment at the school.
The applicant resigned in writing on 07 December 2023.
In her letter of resignation, she gave notice indicating that her last day of work would be 31 January 2024.
On 08 December 2023, the head of the department informed the applicant in writing that her resignation had been accepted.
On 15 January 2024, the applicant sent a further letter to the respondent entitled, “Withdrawal of Resignation” in which she stated that she was withdrawing her resignation.
The applicant lodged a dispute with the council alleging that she was constructively dismissed. The dispute remained unresolved at conciliation and was scheduled for arbitration before me.

Survey of evidence

The applicant testified and did not call any witnesses.
The respondent led the evidence of two witnesses, namely; Mr. TS Ngcobo, the school principal, and Ms PT Mtobeni, a senior personnel officer from the respondent’s pension department.
The applicant relied on certain incidents that occurred at the school which she alleged, cumulatively, rendered her continued employment intolerable. These incidents involve the deputy principal of the school, Mrs. M.V Mchunu (Mchunu). The applicant alleged that she had lodged written grievances against Mchunu in respect of the major incidents but none of these were addressed by the respondent.
The first incident took place on 09 March 2022 and relates to the applicant’s moderation of a school examination paper set by Mchunu. On that day Mchunu came to her office to discuss the paper. The applicant pointed out that the paper did not comply with the requirements of the CAPS (Curriculum and Assessment Policy Statement) document. The discussion also dealt with Mchunu’s swapping her teaching subject with another educator without informing the applicant, in her capacity as head of department.
The applicant testified that Mchunu became emotional and personal, culminating in a heated argument between them. Mchunu insulted the applicant by alleging that the applicant had failed in her previous post as a deputy principal. She threw the examination paper at the applicant. The applicant realized that their interaction was going to end badly, and she left the room. She instead addressed a letter to the principal on 24 March 2022 entitled “Grievance on treatment by the Deputy Principal (Mrs. M.V Mchunu)” .
The applicant lodged her grievance because she was responsible for the curriculum in her department. She was responsible for ensuring that teachers were teaching the subject that they were supposed to teach and that examination papers were set according to the required standards. Mchunu instigated three other educators to “rebel” against the applicant’s moderation of their examination papers. These papers were eventually moderated by the school principal, Ngcobo.
The applicant alleged that the school principal did not do anything to address her grievances. Ngcobo, in his evidence, confirmed that he received the applicant’s grievance letter. He testified that he dealt with the moderation problem by creating a subcommittee to train all moderators. Concerning the subject change he discussed the matter with each educator and reversed the change.
Significantly the principal testified that the applicant was a competent head of department whom he did not want to lose. He believed that he had dealt with her letter of complaint adequately. The applicant made no other formal approach to him or management, to pursue her complaint relating to the first incident of 9 March 2022. She verbally complained to him on occasion that she was unhappy with Mchunu’s conduct.
The principal further testified that upon receipt of the applicant’s letter of resignation, he interviewed her to enquire as to the reason. The applicant maintained that it was to pursue her ancestral calling of becoming a traditional healer. Motbeni’s evidence served simply to confirm that the applicant’s resignation was processed by the pension department.
The second incident took place on 26 May 2022 whilst the applicant was counselling a newly appointed educator assistant, for being under the influence of alcohol on the school premises. The applicant alleges that Mchunu instructed the educator assistant to record the counselling session on his phone. Mchunu thereafter sent the recording to the school staff WhatsApp group on 28 May 2022.
When the applicant confronted Mchunu about the recording, she aggressively approached the applicant and stated that she did not want to talk to “stupid old women”. Mchunu banged the table with her fists and raised her voice in a loud and aggressive manner. To avoid a physical- confrontation the applicant quickly left the room. The applicant wrote a letter to the department on 1 February 2023, this time to the Circuit Manager complaining that Mchunu was guilty of defamation and cyberbullying.
The content of the recording was not introduced into evidence nor was any evidence led to prove the factual basis for the applicant’s allegations of defamation and cyberbullying.
The educator assistant subsequently informed the applicant about Mchunu’s instruction and her threat to destroy the applicant and drive her out of the school and Mchunu’s area. Mchunu took to shoulder bumping the applicant in the school corridors to the extent that the applicant would turn and walk in the opposite direction whenever she saw Mchunu approaching. Details of when and for how long this conduct persisted were not indicated.
These conditions allegedly became unbearable for the applicant. She alleged further that she could not complete her tasks as head of the department, fell behind the other department heads, was regarded as a slow performer, and was “made a laughingstock” by the other educators. Finally, Mchunu’s conduct of not inviting her to a senior management team meeting on 20 January 2023 resulted in the applicant being alienated from the senior management team. These events affected her psychologically and socially and she ended up receiving treatment for depression.
The applicant addressed a further letter dated 18 December 2023 to the chairperson of the school safety committee regarding a third incident that took place on 14 December 2023. In this last incident, Mchunu allegedly locked the school gates whilst the applicant was on the school premises and took the keys from the security guard. As a result, the applicant was stranded on the school premises without access to toilets, water, and food for more than five and a half hours. The applicant alleges that Mchunu’s conduct amounted to victimization.
I pointed out to the applicant that she had resigned on 07 December 2023 and that the incident of 14 December 2023, taking place after her resignation as it did, could not have contributed to or impacted her decision to resign. In the premises, I do not discuss this incident any further.
The applicant finally addressed a letter to the director of the Department of Education on 23 February 2024 . In that letter, the applicant reiterates her aforesaid grievances as set out above.

Analysis of evidence and argument

Section 186(1)(e) of the Labour Relations Act (“LRA”) defines a constructive dismissal as follows:

“Dismissal means that an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; …”

In the matter of Solid Doors (Pty) Ltd v Commissioner Theron & Others , the Labour Appeal Court held that very strict proof of constructive dismissal is required. An employee who claims a constructive dismissal must prove that he or she has terminated the employment contract; that the conduct of the employer rendered continued employment intolerable and that the intolerability was of the employer’s making.
The LAC further held that an employee must prove all three requirements. If the applicant fails to prove any one requirement, then she has not established a case of constructive dismissal.

Whether the applicant terminated her contract of employment

An employee who alleges constructive dismissal must as a first requirement establish that he or she terminated the contract of employment, failing which the existence of the dismissal is not proved, and the ELRC will have no jurisdiction to arbitrate the dispute.
On 07 December 2023 the applicant issued a letter to the director of the pension department headed “Termination of services for Ms. CE Muthwa, persal number: 15096190 in terms of which she resigned from the respondent’s employment. In her letter of resignation, the applicant gave notice that her last day of employment would be 31 January 2024. In the premises, the applicant intended her last day of employment to be 31 January 2024 and that date to be the date of her alleged constructive dismissal. These facts were agreed in the pre-arbitration minute as common cause .
In her letter of resignation, the applicant records the following:

“ I would like to give 60 days’ notice to effect my resignation effective from today. My last day will be on 31 January 2024. The reason for my resignation being that I have to fulfil my ancestral calling off being trained as a Traditional Health Practitioner which requires my full commitment. After initiation, I can consider coming back to the system and to be employed as an educator.

Thank you for the experience that I have gained while serving in your department. I hope to be considered again to be employed as soon as I have finished my initiation period.”

On 15 January 2024, however, the applicant submitted another letter to the respondent entitled, “Withdrawal of Resignation” in which the applicant purports to withdraw her resignation. The reason for such withdrawal she alleged was that she had instituted a grievance with the Safety and Security Committee of the school, which grievance is pending. The applicant’s purported withdrawal raises the question of whether the applicant’s termination of employment stands, in compliance with the primary requirement to prove a constructive dismissal.
It is trite law that a resignation, once it has been communicated by an employee to the employer, is final and cannot be withdrawn unless the employer agrees to that withdrawal. On 8 May 2024, the applicant’s representative wrote to the respondent requesting a meeting with the respondent’s representative to find an amicable solution to the dispute. The response was that such engagement would be futile .
The respondent was therefore not prepared to negotiate the way forward with the applicant, which includes a withdrawal of the applicant’s resignation. In the premises, the applicant’s termination of her employment, by way of resignation, stands.
I find that the applicant terminated her employment with effect from 31 January 2024.

Whether the applicant’s continued employment was rendered intolerable

In the matter of Tiso Black Star Group (Pty) Ltd v Ndabeni and Others, the court held that intolerability is not established by the employee’s say-so, perception, or state of mind, but it is the conduct of the employer viewed in an objective sense. It is also trite that intolerability is measured against an extremely high threshold.
In the matter of HC Heat Exchangers (Pty) Ltd v Araujo and Others , the court held that intolerability is 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. Such conduct does not, per se, establish intolerability.
The court went on to suggest certain core considerations that must be examined in assessing the intolerability that an employee alleges. The first is whether the employer’s conduct, considered as a whole together with its cumulative impact, is such that when reasonably and sensibly judged, an employee could not be expected to put up with it. I turn to discuss this first aspect against the facts of this matter.
Concerning the first incident of 9 March 2022 (the moderation incident), the applicant issued a letter of complaint on 24 March 2022 to the principal of the school. The totality of the applicant’s complaint is that Mchunu became emotional, argued with the applicant, resisted the applicant’s authority as departmental head, and that she insulted the applicant.
The applicant’s version was not opposed. The department did not call Mchunu as a witness to refute that version, nor was any explanation proffered for its failure to do so. The applicant’s version of events must stand. In the circumstances, the applicant has established that Mchunu had created the conditions she found herself in on 9 March 2022 and, in her subjective view at least, that such conditions were intolerable.
I am alive to the court’s guidance in the HC Heat matter above that intolerability is far more than having to deal with an obnoxious, rude, and uncompromising superior who treats an employee badly. The applicant’s first complaint is a serious one that falls into that category. The applicant, however, only resigned on 7 December 2023, approximately one year and nine months after the incident. The glaring question is, given the long lapse of time, whether the applicant’s working conditions remained intolerable, objectively assessed on 7 December 2023, the date of her resignation. Various factors militate against that contention.
In the matter of Wright and TNT Express the point was made that an aggrieved employee should not delay for “too long” because the longer one puts up with alleged intolerable working conditions, the harder it is to prove that the situation was intolerable. The delay of one year and nine months in this matter is long in the context of a school environment, and the serious nature of the allegations made by the applicant.
The Minister of Basic Education has in terms of section 4 of the Employment of Educators Act, 1998 determined and consolidated the terms and conditions of employment of educators as set out in the department’s Personnel Administrative Measures (PAM). Given the disruptive nature of educator grievances, PAM stipulates mandatory time frames and procedures to deal with them.
Included in the terms and conditions of service is a “Grievance Procedure” which prescribes the steps that must be followed by employees when lodging a grievance. Chapter G of the procedure sets out its objective and reads as follows:

“OBJECTIVE
G.2.1 Purpose and Application

The purpose of this grievance procedure is to address grievances in public education by fulfilling the primary objectives of this procedure which is to promote –

G.2.1.1 Speedy, impartial, and equitable handling of grievances.

G.2.1.2 Sound labour relations.

G.2.1.3 Resolution of individual grievances at the lowest possible level in a department.”

The PAM prescribes the following grievance procedure. Annexure G1, the cover page of the Grievance Form, summarizes the process and issues instructions as to the required procedure to follow when lodging a grievance. Paragraphs one and two thereof contain the following instructions:

“1. This form must be used to lodge a formal grievance (excluding an alleged unfair dismissal) when you are dissatisfied with an act or omission, and you are unable to resolve a problem by using informal discussion.

You have to lodge your grievance within 90 days from the date on which you became aware of the act or omission which adversely affects you.
The applicant did not follow this formal grievance procedure. Instead of completing the prescribed grievance form the applicant addressed a letter to the school principal. It is trite law that where an employer has a formal grievance procedure in place, an employee who intends to lodge a grievance must exhaust the grievance procedures prescribed by the employer before resigning.
Although the principal took the administrative measures of setting up a sub-committee to train moderators and reversing the subject change that the applicant complained of, these did not address the mistreatment that the applicant suffered at the hands of Mchunu. The applicant would have become aware of these measures in her capacity as head of the department. She in any event did not dispute them.
It was the applicant’s failure, however, to follow the correct grievance procedure that resulted in her grievance not being properly and fully addressed. An examination of the necessary grievance form reveals that had the applicant lodged a formal grievance she would have been consulted and called upon to participate fully in the grievance process, until its finalization.
In the first instance, the grievance form requires proof of service thereof on the employer. It requires the grievant to fully state his or her grievance and to propose solutions thereto. The process, as encapsulated in the grievance form, makes further provision for the grievance if unresolved to the grievant’ s satisfaction, to be escalated to higher levels of management and ultimately to the director of the department.
The applicant alleged that it was the cumulative impact of Mchunu’s mistreatment of her during the period 9 March 2022 to 7 December 2023 that made her continued employment intolerable. This allegation must be carefully analyzed from a factual and chronological perspective.
The first incident took place on 9 March 2022 and the second on 26 May 2022. The applicant wrote another letter to the department on 1 February 2023. This time around she addressed it to the Circuit Manager. The letter details the applicant’s complaints of alleged misconduct in the form of defamation of character and cyberbullying.
The applicant once again failed to follow the prescribed grievance procedure by completing the required form. Secondly, the letter of complaint is written approximately eight months after the misconduct complained of. It is a further five months late in breach of the 90 days stipulated within which to lodge a grievance. In any event, the principle established in the matter of Wright and TNT Express above that an aggrieved employee should not delay for “too long”, applies.
The applicant thereafter addressed another letter to the Safety and Security Committee dated 18 December 2023. The chairperson of that committee is not in the chain of management specified in the pro forma grievance form as someone empowered to deal with any grievance an educator raises against another educator. In any event, the applicant resigned before sending her letter to the committee. She resigned on 7 December 2023, and her resignation was accepted on 8 December 2023.
Concerning the applicant’s last letter to the director on 23 February 2024, the applicant on her version, and in the absence of the department agreeing to the withdrawal of her resignation, was no longer an employee with effect from 1 February 2024. Paragraph G.2.1.3 of the grievance procedure provides for grievances to be resolved at the lowest level. The applicant did not follow that process.
The probability is that if the applicant had lodged a formal grievance before resigning from the department, in terms of the prescribed steps stipulated in the grievance procedure her mistreatment at the hands of Mchunu could have been addressed.
The applicant instead alleged that she was unaware of the formal grievance procedure and that the principal did not inform her about same. This explanation is unacceptable given that the applicant was the head of her department and prided herself on compliance with processes and procedures. Moreover, she had previously held the post of deputy principal and ought to have been aware of the provisions set out in PAM, by Section 4 of the Employment of Educators Act.
Most importantly, the applicant conceded in her cross-examination that if she had followed the correct grievance procedure in each instant, her grievances would have been attended to.
In the premises, I find that the employer was not given a full and proper opportunity to ventilate the applicant’s grievances. There is no proof of service in either her letter to the circuit manager or the director. Her subsequent letters of complaint, it would appear, were not received for systemic reasons. In any event, in the absence of the applicant having followed the mandatory grievance procedure, there was no obligation on the department to entertain her grievances.
I have, however, found that the applicant’s complaints against Mchunu stand uncontested. The applicant was convinced, at least in her subjective view, that her continued employment had been made intolerable. The crisp question that remains is whether that was objectively true.
I reiterate for context that the first incident took place on 9 March 2022 and the second on 28 May 2022. The applicant resigned on 7 December 2023, one year and seven months after the May 2022 incident. The obvious question is why the applicant waited for more than 19 months to resign if her conditions were as intolerable as she claims. A further conflict arises in that the applicant worked another 60 days during her notice period and continued to endure the intolerable working conditions she so bitterly complained about, even after those conditions had come to a head on 7 December 2023 when she resigned.
Moreover, the applicant, in an about turn purported to withdraw her resignation on 15 January 2024 whilst serving out her notice period. The explanation given was that the safety committee had undertaken to investigate her complaint of 14 December 2023 . The applicant’s explanation for the withdrawal indicates that the high threshold of intolerability that is required in a constructive dismissal did not exist at the time that the applicant resigned.
This finding is bolstered by the reason for her resignation that the applicant furnishes in her letter of resignation. The reason she proffered in her letter is completely different and unrelated to the grievances that the applicant complains about in this matter. In her letter of resignation, the applicant stated that she was resigning to fulfill her ancestral calling of being trained as a traditional health practitioner. She confirmed that reason when the principal enquired about it. Her grievances, however, are about the serious maltreatment she suffered at the hands of Mchunu.
When cross-examined on this glaring conflict the applicant tendered the implausible explanation that she was a peaceful person and as such wanted to resign under peaceful circumstances. She had simply “sugar-coated” the reason for her resignation.
The applicant’s conduct, ultimately, must be judged against the standard of reasonableness. The question to be asked is what a reasonable educator in the applicant’s position would do. In my finding, a reasonable educator would not endure 18 more months of intolerable employment, voluntarily serve out a further 60-day notice period, and thereafter seek to return to those intolerable working conditions by attempting to withdraw her resignation; irrespective of what her explanation is for her actions. The applicant’s actions, objectively assessed, derogate from the high threshold of intolerability required to prove that she was constructively dismissed.
I find for the aforesaid reasons that the applicant’s continued employment was not intolerable. The applicant has failed to discharge the burden on her in respect of the intolerability requirement and her constructive dismissal dispute falls to be dismissed for that reason alone.
In the premises, I do not need to deal here, with the third requirement of whether it was the employer who made her continued employment intolerable.
I accordingly make the following award.