National Health Laboratory Service v Yona (PA 12/13) [2015] ZALAC 33; [2015] 10 BLLR 1002; (2015) 36 ILJ 2259 (LAC) (12 May 2015)  per Ndlovu JA (Waglay JP and Landman JA concurring)

The Labour Appeal Court disallowed the appeal.  The employee’s subordinate was appointed in an acting position in which the employee had previously acted a number of times.  The employee suffered from severe depression and generalised anxiety disorder and was booked off sick.  The evidence showed that the HR Manager failed to advise employee to apply for extended sick leave benefits.  Employee failing to receive fair and compassionate treatment when there was a desperate need and she suffered from a severe work-related mental illness.  Employer’s unfair decision to enforce employee’s absence as unpaid leave.  The employer’s conduct was intolerable and amounted to constructive dismissal.

Evaluation

“[27] To pass muster of judicial review for reasonableness under section 145 of the LRA, an arbitration award must be one falling within the range of decisions which a reasonable decision-maker could have made, given the material presented to the commissioner.[3]

This review test was restated and amplified by the Supreme Court of Appeal in the recent decision of Herholdt v Nedbank (Cosatu as amicus curiae),[4] in which the SCA held as follows:

‘While the evidence must necessarily be scrutinised to determine whether the outcome was reasonable, the reviewing court must always be alert to remind itself that it must avoid “judicial overzealousness” in setting aside administrative decisions that do not coincide with the judge’s own opinions. …A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’[5] [Footnote omitted]

[28] Section 186(1)(e) of the LRA provides that a (constructive) dismissal occurs when

“an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

On constructive dismissal, this Court, in Jooste v Transnet Ltd t/a SA Airways[6] stated the following:

‘In considering what conduct on the part of the employer constitutes constructive dismissal, it needs to be emphasised that a “constructive dismissal” is merely one form of dismissal. In a conventional dismissal, it is the employer who puts an end to the contract of employment by dismissing the employee. In a constructive dismissal it is the employee who terminates the employment relationship by resigning due to the conduct of the employer.

As Lord Denning said in Woods v WM Car Services (Peterborough) [1982] IRLR 413 (CA) at 415

“The circumstances (of constructive dismissal) are so infinitely various that there can be, and is, no rule of law saying what circumstances justify and what do not. It is a question of fact for the tribunal of fact…’[7]

[29] In Murray v Minister of Defence,[8] the Supreme Court of Appeal said:

‘That substance, as was pointed before the 1995 LRA, is that the law and the constitution impose ‘a continuing obligation of fairness towards the employee on … the employer when he makes the decisions affecting the employee in his work’. The obligation has both a formal procedural and substantive dimension; it is now encapsulated in the constitutional right to fair treatment in the workplace.

… These cases established that the onus rest on the employee to prove that the resignation constitutes a constructive dismissal: in other word, the employee must prove that resignation was not voluntary, and that it was not intended to terminate the employment relationship.

Once this is established, the enquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee.

Looking at the employer’s conduct as a whole and its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to keep up with it.’[9] [Footnote omitted]

(Emphasis added)

[30] In other words, a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employee.

Ms Yona terminated her employment relationship with the appellant, by resigning with a month’s notice. She alleged that the resignation constituted a constructive dismissal in terms of section 186(1)(e) of the LRA.

The appellant denied that Ms Yona was dismissed at all. Ms Yona bore the onus to prove her alleged constructive dismissal. The test for proving a constructive dismissal is an objective one. The conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances.

[31] Mr Ram’s submission that Ms Yona was advised to apply for extended sick leave was not borne out by the evidence presented to the commissioner. Nor was it supported by the objective evidence in the appellant’s letters to Ms Yona dated 17 February and 19 April 2010, in which Mr Abraham, respectively, asked Ms Yona to apply only for temporary disability and informed her that “extended sick leave [was] not an option.” There is, accordingly, no basis for this submission.

[32] Mr Ram further submitted that it was clear from the facts of this case that the cause of Ms Yona’s anxiety and depression was that she was not appointed to act as Business Manager when Mr Lucwaba was promoted. He pointed out that this fact was also confirmed by Dr Taylor, the specialist psychiatrist, in his report dated 8 March 2010 in which he, inter alia, recorded the following:

‘Her illness arises solely from work. Above her was the business manager. He got a senior position and was transferred but before he left, he appointed one of Ms Yona’s junior above her head to be business manager. This was a tremendous shock and she feels she is being victimised. She lodged a grievance and the business manager was told to apologise which he did not.

Ms Yona applied for the post but was told in a meeting that someone else was appointed. She lodged a grievance but this was ignored and then Ms Yona went to the CCMA.’

[33] Of course, it was not in dispute that the origin of Ms Yona’s medical problem had its genesis from the time that her junior and subordinate, Mr Gamieldin, was appointed ahead of her to act as business manager, after the then business manager, Mr Lucwaba, was promoted to the position of Executive Manager for the coastal region.

In my view, the appellant was within its right, as the employer, to appoint anyone from its staff to act in the position of Business Manager for the time being, pending the appointment of the permanent incumbent in the post. The fact that Ms Yona had previously always acted in that position whenever Mr Lucwaba was temporarily not available, did not accord her with any vested right to lay claim on the acting appointment as Business Manager or promotion to that position.

Hence, this part of her complaint – the unfair labour practice claim – was correctly dismissed by the commissioner.

[34] However, the issue at hand was in relation to Ms Yona’s alleged constructive dismissal claim and not about her unfair labour practice complaint concerning her non-promotion to the position of Business Manager and/or her non-appointment as acting business manager.

It is clear that while her medical condition may have originated from Mr Gamieldin’s appointment as acting business manager, this was not the direct cause of her resignation. Mr Gamieldin was appointed to act as Business Manager in or about May 2009. Ms Yona did not resign immediately or shortly thereafter.

She resigned over a year later. I am inclined to accept, on the facts, that her resignation was a direct sequel to her not receiving the benefits of extended sick leave, which she was entitled to, or at least to apply for.

She was unfairly denied the opportunity to apply for this benefit by the irresponsible conduct on the part of Mr Abraham who, wittingly or unwittingly, failed to explain to her in the letter of 17 February 2010 that she was entitled to apply for extended sick leave as well.

[35] The appellant’s argument that Ms Yona, as senior managerial employee, had knowledge of the appellant’s sick leave policy and that she should have made an application for extended sick leave benefits without the assistance and intervention of Mr Abraham is not sustainable. In my view, the argument completely and seemingly deliberately overlooks the fact that, at the time, Ms Yona was sick, suffering from a serious mental illness, described as “severe depression and generalised anxiety disorder.” She was in dire need for assistance. At any rate, it begs the question why Mr Abraham decided selectively to explain to Ms Yona (in his letter of 17 February 2010) only about applying for temporary disability, if she knew everything about the appellant’s sick leave policy. . . . “