In the arbitration between:

N M BUTHELEZI APPLICANT

and

THE DEPARTMENT OF EDUCATION AND CULTURE RESPONDENT

ARBITRATION AWARD

1 . HEARING AND REPRESENTATION

1.1 The arbitration was conducted 4 September 2000, Durban under the auspices of IMMSA and the ELRC. The Grievant, Mrs NM Buthelezi, was represented by an attorney, Mr EJ Mbeje and partners. The Department of Education and Culture (“the department”) was represented by Mr AS Mbongwe.

2 . ISSUE TO BE DECIDED

2.1 The Grievant contended that she was forced to resign and in the circumstances was constructively dismissed in August 1997.

3 . EVIDENCE AND ARGUMENT

3.1 The Grievant was employed as a post level one teacher at Emabhekazi primary school in Ladysmith. 29 July 1997she was intimated by youths who entered the school premises. As result of the incident she was escorted to the bus stop by the police and advised by the principal to report the matter to the circuit inspector. She did not return to the school and the circumstances surrounding her non-return is at the centre of this dispute. 30 July 1997 she reported to the inspector, Mr BL Ntanzi. Over the next three days they met three times. There is a dispute as to what occurred and what was said between the Grievant and Mr Ntanzi.

3.2 According to Ntanzi he advised her to return to school as he had received a report that the school governing body had met the boys parents and had resolved the dispute. When she maintained that she still feared for her life and did not feel it was safe to return, he advised her to make a formal application to be declared a displaced teacher in terms of the circular. He explained the procedure to her and gave her a copy of the circular. However she felt that the process would take too long and wanted to leave the area. She therefore insisted on all occasions to be transferred to Newcastle or Danhauser. When he advised her that he did not have the authority to transfer her and that her only option was to follow the displacement procedure or return to the school, she handed to him a resignation letter at their third meeting. Probable as a result of not being asked by either representative, he did not say what he did with this letter, whether he handed it on to the relevant authorities to process it and if so, when.

3.3 According to the Grievant, Ntanzi never informed her of the displacement procedure but insisted that she return to the school or resign. He said the children are without a teacher so she must return to the school or resign. He told her that he also had a similar experience but had returned to school. She pointed out that because she was a woman her situation was more vulnerable, and she’d rather resign than die.

3.4 She approached Mr Martin, the regional director. She asked him to intervene and persuade Ntanzi to transfer her and not force her to resign. Martin’s response was to send her back to Ntanzi and advise her to seek police protection. The police however were not helpful.

3.5 Faced with these responses and being afraid to return to the school, she felt she had no option but to resign. She delivered a letter of resignation to Ntanzi. Both sides did not advise me of the date of this letter or its delivery but I gathered it was probably about 6 August 1997.

3.6 During cross examination the Grievant conceded that in a letter from her dated 15 November she stated that Ntanzi had told her to write a letter within 5 days explaining her absence and the incident at the school. It was put to her that the circular makes mention of a “5 day period” – it states that the teacher must make application for displacement within 5 days of the alleged intimidation or thereat – and therefore her concession showed that Ntanzi had obviously explained the circular to her. She denied this and claimed that he had merely told her to write a letter within 5 days explaining her absence or she would not be paid. He did not explained that he was referring to the displacement procedure. She also conceded that she had asked Ntanzi, Mr Martin had a more senior official, Dr Lotter, for a transfer.

3.7 Three days after submitting her letter of resignation to Ntanzi, she reconsidered her decision. She informed him that she wished to withdraw her resignation. However he advised her that it was impossible because her resignation had been processed and her post advertised. She telephoned the personnel in Pietermaritzburg, the regional and circuit offices, and ascertained that they had not received her letter of resignation. She explained her problem to an official in the regional department, a Mrs Snyman, who advised her to write a letter withdrawing her resignation and to ask Ntanzi to fax it to the department.

3.8 The Grievant wrote three letters, dated 13 August 1997 and addressed to the principal, the superintendent and the inspector. According to her, Ntanzi refused to accept his letter because he felt the tone was threatening and because in the letter she claimed that she had been misinformed. She faxed the letter to Snyman 18 August 1997. Proof of transmission was produced. In the company of her husband and a policeman, she hand delivered the letter addressed to the principal. The principal was absent so she handed it to his assistant. In her evidence she did not indicate what happened to the third letter.

3.9 The letters essentially read as follows : “I wish to draw your attention to the fact that I am withdrawing my resignation with immediate affect. When I resigned I was not properly informed about all the facts.”

3.10 The Grievant said that she did not keep copies of these letters. Copies were however handed in to the arbitration by the department. The Grievant’s attorney contended that this was proof that the department received the letters at all times. The department agreed they had the documents.

3.11 Ntanzi denied the Grievant informed him she wanted to resign or had attempted to deliver a letter of withdrawal. He only became aware in October 1997 that she had written such a letter. While querying the payment of the replacement teacher with Snyman, she expressed uncertainly about whether she could process the documents of the replacement teacher because she was in possession of a letter of withdrawal from the Grievant. Not knowing what to do, he had Snyman referred the matter to Dr Lotter.

3.12 After delivering her letters of withdrawal, the Grievant consulted a doctor put her off work until 18 September 1997. She gave the doctor’s certificate to a fellow teacher to hand to the principal.

3.13 There was no communication between her and the school or the department until about 29 and 30 September 1997. In the interim she received no acknowledgement of her resignation or that it had been accepted, nor did the department acknowledge her letter of withdrawal or doctors’ certificate. Nor did she make enquiries as to her status. However it came to her attention that a teacher was appointed in her post (the replacement teacher referred to above), although the exact status of the teacher was not known to her.

3.14 18 September 1997 she went to the regional office in Pietermaritzburg to see Doctor Lotter to discuss her position. Lotter telephoned Mr Hlope. Ntanzi’s superior, and asked him to investigate the case. The details of this discussion were not given.

3.15 29 September 1997 she wrote a letter, addressed to the principal, formally requesting to be considered as a displaced teacher.

3.16 She also consulted an attorney who sent a letter, dated 30 September 1997, to the head of the district office, Zwelisha circuit. For the purposes of this hearing the following important issues and allegations were stated in the letter, namely that Ntanzi had not informed her about the displacement procedure, that she had withdrawn her resignation in letters dated 13 August 1997, that she had attempted to deliver one of the letters to the circuit inspector but he had refused to accept it, that she had delivered a similar letter to the principal and had faxed a similar letter to the regional office 18 August 1997 and that she had been replaced. The letter requested confirmation of the Grievant’s status, that is, whether her services had been terminated or not and whether she had been replacement by the other teacher. The department failed to respond to this letter.

3.17 the Grievant wrote a further letter 19 November 1997 to the Personnel Department, Ladysmith. The salient points in the letter is that it was headed “unfair dismissal” and the Grievant again brought attention to her resignation, the letters of withdrawal of the resignation and to whom she had allegedly handed the letters to. The Grievant requested to be reinstated in her position. The department failed to respond to this letter as well.

3.18 The principal of the school also gave evidence. According to him he only received the Grievant’s resignation letter and never received her letter of withdrawal.

3.19 It was common cause that a new teacher was appointed in the Grievant’s position. Although the department stated that the teacher assumed duties 11 August 1997, according to a computer printout from the personnel department, she only formally commenced employment 1 April 1998 and she was employed as a temporary teacher.

4 . ANALYSIS OF EVIDENCE AND ARGUMENT

4.1 The onus is on the employee to establish that she was forced to resign and was constructively dismissed.

4.2 In Smithkline Beecham (Pty) Ltd v CCMA & others (2000) 3 BLLR 344 (LC) the Labour Court held that the test for determining whether the resignation of an employee amounts to a constructive dismissal is objective. The subjective perceptions of the employee cannot therefore be allowed to colour the assessment or otherwise of an employer’s actions. The requirement of “intolerability” suggests that constructive dismissal should be deemed to have taken place only when the employer behaved in a deliberately oppressive ,manner and left the employee with no option but to resign in order to protect his or her interests.

4.3 In the book, SA Law of Unfair Dismissal, page 86,PAK Le Roux and A Van Niekerk, write that the industrial court has held that resignation is a unilateral act by an employer and cannot be withdrawn without the consent of the employer. However they state that there are some decisions where the court has indicated that it may regard the unreasonable refusal of an employer to accept a withdrawal of a resignation as an unfair labour practice. In Mahlangu v four Winds Transport Co (Pty) Ltd (1193) 2 LCD 65 (IC) the Court held that the common law position that a resignation could not be withdrawn unilaterally should not strictly apply in the sphere of labour relations, where the conduct of parties is evaluated against the resilient concept of fairness and where lawfulness is not decisive. Thus is held that an employer’s refusal to accept a withdrawal of resignation was potentially unfair.

4.4 In Dyer v Nelspruit Industries (1994) 7 BLLR 67 (IC) the Court held that even if it is found that a resignation was under protest or a resignation under protest was forced, if the resignation is unconditional and voluntary, there is no dismissal. The onus is on the employee to prove that she or he resigned voluntarily.

4.5 I find that the Grievant has not convinced me that the employer behaved in a deliberately oppressive manner and left her with no option but to resign. In this regard the probabilities favour Ntanzi’s version that he did inform her about the displacement procedure but that she wanted things to happen immediately – either as a transfer or an immediate displacement. And it seems that when he refused she attempted to his force his hand by resigning. When this failed to have such an effect she changed her mind and attempted to withdraw the resignation. The following corroborates his version :

4.5.1. In her letter of 15 November the Grievant mentions that Ntanzi told her to write a letter within 5 days explaining the intimidation incident and her absence – a provision set out in the displacement procedure. Why explain this to her and not the rest or why explain this to her if he had no intention of informing her about the displacement procedure. Ntanzi struck me as a classical bureaucrat – dry procedures and rules govern his conduct and personal discretion or views do not enter the process. It would have been typical of him to state the rules and procedures to the Grievant in response to any complaint or query, irrespective of his views and conclusions about the matter;

4.5.2. In the few days after the incident she persistently asked him and his superiors for a transfer – this was confirmed by the Grievant herself and to an extent lends weight to Ntanzi’s evidence that she was not only interested in a transfer and not the replacement procedure;

4.5.3. The Grievant did make a formal application to be displaced 29 September 1997 – she claims that she only found out then about the procedure from her mother. If her mother knew of the displacement procedure she probably informed her about it earlier on;

4.5.4. Ntanzi’s evidence about the husband trying to persuade the Grievant not to resign and the husband’s reasons therefore do not strike me as made up by Ntanzi – why point out such a witness, who is obviously loyal to the Grievant, to the discussions between himself and the Grievant. The husband was presented at the arbitration and could have disputed this.

4.5.5. In his letter dated 23 November 1998 to the department, Ntanzi mentions that the Grievant wanted to be “displaced” immediately;

4.5.6. It was contended that it would not have been prejudicial for the Grievant to follow the displacement procedures, therefore she had no reason to lie that she had not been informed of the procedures. I disagree. Its obvious that subjectively the Grievant felt intimidated – in these circumstances it is most probable that she wanted to leave the area immediately and not rely on the replacement procedures which may or may not find in her favour. Its therefore follows that, Ntanzi claimed, she probably demanded to be immediately transferred and refused to follow the displacement procedure.

4.6 I accordingly find that the Grievant has not convinced me that she was forced to resign and/or that she had no option but to resign. Her option was to apply in terms of the displacement procedures and therein put her case.

4.7 However the matter does not end there. It is clear that the Grievant delivered on or about the 13 August or 18 August 1997 at least two letters to the department, which clearly showed a wish to withdraw her resignation. She also informed Ntanzi of this wish and tried to give him one of the letters. Although I accepted Ntanzi’s version regarding the circumstances which led to the resignation, I find the Grievant’s version more probable regarding her withdrawal thereof. (In this regard I rely on the case S v Khosola 1962 (2) SALR 162 (O) which supports the view that one can accept that a witness can lie and tell the truth regarding parts of his/her evidence). As her representative stated, if the Grievant wrote three letters, why would she not deliver all three and most obviously why would she not go back to the very person she gave her resignation letter to – Ntanzi. It was obviously important that he be informed of her decision. And as she stated he did not want to accept it because she had already resigned and had implied in the withdrawal letter that he had not informed her of her rights. Ntanzi therefore knew on or about 13 August 1997 that the Grievant wanted to withdraw her resignation.

4.8 Even if Ntanzi was not given the letter of withdrawal or informed about her decision to withdraw her resignation, there is adequate proof that the department itself received the letters – the fax transmission slip and the fact that both letters were in the possession of the department. The Grievant did not keep copies. Ntanzi himself confirmed that Snyman had received the letters.

4.9 Most significantly this evidence also shows that her wish to withdraw was known by the department by at least 18 August 1997. And if not then, it was brought to the attention of Lotter by the Grievant September 1997 and by Ntanzi and Snyman October 1997. Her withdrawal was also brought to the attention of the department by her attorney 30 September 1997.

4.10 Taking this in consideration, the circumstances under which she had obviously resigned, namely the intimidation incident at school, and the fact that the department, including her principal, Ntanzi, Martin and Lotter, knew about this incident and how it had affected the Grievant, I find the department’s total lack of response to her withdrawal and their failure to accept it, insensitive and unreasonable. There was never any claim that she had not been intimidated or threatened at the school. Further, at all times from about 13 August 1997, through her withdrawal letter and the doctor’s certificate, she had indicated a desire to withdraw her resignation.

4.11 There would have been no prejudice to the department in responding to and accepting her withdrawal since there is no evidence that the replacement teacher had been employed permanently from 11 August 1997. She was employed as a temporary teacher and her appointment, still as a temporary teacher, was only confirmed on 1 April 1998. In any event, the obvious trauma that the Grievant had experience should have been a strong determining factor in her favour, irrespective of the status of the replacement teacher, especially since the intimidation incident was not of the Grievant’s making.

4.12 The Grievant may be criticised for staying away even after 18 September 1997 but there was nothing stopping the department from contacting her and ascertaining the reason for her further absence and/or placing her on terms, namely advising her to return to school by a set date or calling upon her to explain her absence.

4.13 While an employer is not obliged to accept a withdrawal of a resignation, in special circumstances its refusal may amount to a constructive dismissal and unfair labour practice. I find that these special circumstances, described above, existed in the case of the Grievant.

4.14 I therefore find that she was constructively dismissed in circumstances that were substantively and procedurally unfair on or about 13 or 18 August 1997. It was substantively unfair because there was no good reason not to accept the withdrawal of her resignation and because she was not given an opportunity to make any representation on the issue.

4.15 There being no evidence to show that a reinstatement order would be impractical and since her dismissal was substantively and procedurally unfair, I find that it would be fair to grant the Grievant full reinstatement retrospective to 18 August 1997.

5 . AWARD

5.1 The Grievant was dismissed 18 August 1997 in circumstances that were substantively and procedurally unfair;

5.2 The employer, the Department of Education and Culture, is directed to reinstate the Grievant retrospective to the date of her dismissal, namely 18 August 1997.

________________________
BENITA WHITCHER
ARBITRATOR
13 OCTOBER 2000

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 10/99-0755 KZN
APPLICANT MRS N M BUTHELEZI
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR BENITA WHITCHER
DATE OF ARBITRATION 4 SEPTEMBER 2000
VENUE DURBAN

REPRESENTATION:

APPLICANT MR E J MBEJE
RESPONDENT MR A S MBONGWE

AWARD:

1 The Grievant was dismissed 18 August 1997 in circumstances that were substantively and procedurally unfair;

2 The employer, the Department of Education and Culture, is directed to reinstate the Grievant retrospective to the date of her dismissal, namely 18 August 1997.

DATE OF AWARD 13 OCTOBER 2000