Solidarity obo Van Tonder v Armaments Corporation of SA (Soc) Ltd

Getting your way does not entitle an employee to resign and claim constructive dismissal without allowing the grievance procedure to be completed.

“In our view, there is merit in Armscor’s submission. The appellant in effect resigned before the grievance procedure progressed beyond the first step. Moreover, in terms of the grievance procedure, there was no obligation on Thomo or Mkwanazi to be in attendance at the Step 1 grievance meeting. But most importantly, even if there were merit in his assertion that he justifiably had no confidence in the internal grievance process, his letter of resignation indicates that he was aware of Step 5 of the process which required him to refer the grievance to the CCMA. He resigned before he invoked that remedy. The appellant was too hasty in his decision to resign. His conviction in the merit of his cause, fuelled by his obvious outrage and indignation, may well have been misplaced. His assumption that his superiors’ views about the performance contract outputs and appointments were wrong or unacceptable needed to be objectively tested and there was a legitimate, prescribed remedy available for that very purpose, which he opted not to pursue. In the circumstances, his resignation was petulant, premature and ill-considered. In the premises, it cannot be concluded that he was constructively dismissed.” [para 47]

 

Essence

Getting your way cannot be tolerated when an employee fails to follow the grievance procedure and then resigns and claims that his life was made intolerable.

Decision

JA 76/2016 [2019] JOL 41577 (LAC): 8 March 2019

Disallowed appeal from judgment of labour court and confirmed that former employee was not constructively dismissed.

Judges

JR Murphy AJA (B Waglay JP and K Savage AJA concurred)

Hearing: 19 February 2019

Judgment: 8 March 2019

Related books

Darcy du Toit et al

Van Niekerk and Smit (Managing editors) et al Law@Work 4ed 612 pages (LexisNexis 2018) at 246-249

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at 341, 363

Reasons

‘It may be that the appellant had a legitimate complaint about the performance outputs and appointments to his division. But such matters occur often and are run of the mill points of difference or tension in any workplace. Grievance procedures exist for that very purpose. They are the compulsory means of resolving conflict over run of the mill disagreements between subordinates and their superiors. A proper application of the grievance procedure aims at testing the legitimacy of any difference of opinion and through conciliation hopes to find workable remedial solutions.” [para 45]

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] This is an appeal against the judgment of the Labour Court (Ram AJ) holding that the appellant, Dr BJE van Tonder, was not constructively dismissed by the first respondent (“Armscor”).

[2] At the time of the termination of his employment, the appellant had been employed for approximately 19 years and held the position of Senior Manager: Quality Engineering Services. On 5 October 2007, he tendered his resignation and subsequently referred a dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) claiming that he had been constructively dismissed. He thus alleged that he had terminated his contract of employment because the employer had made his continued employment intolerable.1

[3] On 10 November 2008, the CCMA handed down an arbitration award in the appellant’s favour and ordered Armscor to pay him compensation in the amount of R441 162. Armscor took the matter on review to the Labour Court.
On 28 October 2010, Van Niekerk J set aside the award, remitted it to the CCMA for a fresh determination by another commissioner on the transcribed record of the arbitration proceedings.

[4] The matter was determined by the second respondent (“the commissioner”), who issued a second arbitration award on 26 May 2011, holding that the appellant was indeed constructively dismissed and ordering Armscor to pay compensation in the amount of R594 996.

[5] Armscor took the second award on review to the Labour Court culminating in the judgment of Ram AJ that is the subject-matter of this appeal. The learned Acting Judge correctly applied the test confirmed in Western Cape Education Department v General Public Service Sectoral Bargaining Council and others.2 An applicant seeking review of a finding of constructive dismissal must show that the decision was objectively wrong. The review standard is correctness not reasonableness – as the issue is one going to jurisdiction.3 Ram AJ held that the appellant was not constructively dismissed but resigned from his employment with the consequence that the CCMA lacked jurisdiction to entertain the dismissal referral.

[6] The appellant has consistently maintained that his employment had become intolerable for three reasons, compelling him to tender his resignation. They related to firstly, the changing of performance scores and the negotiation of performance requirements; secondly, alleged interference in the appellant’s division; and thirdly, inhibiting or interfering with the appointment of personnel.

[7] As stated, the appellant was employed as Senior Manager: Quality Engineering Services. His department had a “watchdog” function and was required to evaluate the quality of work done by other departments and to ensure that all contracting processes were compliant.

[8] The appellant’s first grievance arose in the context of performance management. The evidence regarding this matter was poorly presented in the arbitration proceedings. However, it is possible to glean from the somewhat garbled testimony that there was a performance assessment system which involved a measure of self-assessment and scoring. The scores of the assessment were used for the purpose of determining bonuses for the appellant and the members of his department. In 2004/2005, the appellant and his team scored in the region of 110%, reflecting excellent performance exceeding expectations.

[9] The 2004/2005 scores were altered and lowered to 102% by Mr Sipho Mkwanazi, the Acting General Manager of the Quality and IT Department. The appellant was aggrieved by this as he believed that Mkwanazi did not have the authority to make the changes. However, neither the appellant nor any member of his team lodged a grievance regarding this matter. At the time of his resignation, some two years later, the issue had faded in significance and at most persisted as a rankling historic gripe.

[10] After this, Mkwanazi was transferred to another department. The appellant successfully negotiated the performance contract for the next year (2005/2006) with his new Acting General Manager, Mr Kaduka and, in his words, the “employment situation became tolerable again” until the end of September 2006 when Mr Kaduka stopped acting in the position.

[11] In September 2006, Mr Matibe became the Acting General Manager of Quality and IT and the appellant was required to negotiate a new performance contract with him. The negotiations did not go well. According to the appellant, Matibe kept on postponing meetings and there were differences about the scores and the 2007/2008 performance requirements. This resulted in the performance contract not being finalised by midway in the year in question. The appellant was much frustrated by the experience – though it appears in this instance that the scores were not in fact changed.

[12] The appellant’s main concern was that Matibe wanted unacceptable requirements or outputs as part of the performance contract, such as requiring equity appointments to be finalised within unrealistic time frames.

. . . . .

[15] The performance contract issue was not resolved to the satisfaction of the appellant. Without a formal performance contract, the appellant’s work and output could not be defined or assessed. The appellant testified at the arbitration hearing that he had reached breaking-point. He said:

“But yes, this was the point I would say what-waterskeidings point, where it was quite clear that there was a breakdown in relations, that I was not trusted, nothing that I proposed was accepted – well nothing (inaudible) . . . the important problems which I tried to resolve in the performance contract were not accepted, my concerns were ignored and I could not continue this way in the department because there is – I am being managed against something which is vague or which I do not agree with and cannot do.”

[16] The second issue that the appellant maintained rendered his employment intolerable was unwarranted interference in the work of his division. He again referred to historical issues. He complained about subordinates in 2005 being asked to write reports in which he had an interest but could make no input.

. . . . .

[18] The third complaint of intolerability related to the appointment of new staff to the appellant’s division. The appellant (as Senior Manager) was tasked to define the job requirements or specifications of any position. The human resources department would then advertise the vacancies, shortlist and interview potential candidates. The problem of ensuring demographic representivity was the issue that led to conflict.

. . . . .

[23] On 27 August 2007, the appellant addressed the following letter to Matibe:

“After careful consideration of Armscor’s best interests as well as my personal work situation, I came to the conclusion that it would be to the interest of both parties if an amicable parting of our ways can be effected.
I am therefore now prepared to consider an offer from Armscor including early retirement – depending on the terms and conditions included in such an offer. I request that it will be taken into account that I have the commitment to the lifelong caring for my disabled son and therefore had the intention up to now to continue my employment within Armscor until age 65.”

. . . . .

[28] The grievance was a lengthy document written in Afrikaans. It focused primarily on the three areas of concern and frustration subsequently raised by the appellant in the CCMA proceedings. In summary, the appellant alleged, inter alia:

  • (i) unilateral non-compliance with prescribed managerial practice by Mkwanazi;
  • (ii) interference, disempowering and misconception of reporting guidelines and delegations;
  • (iii) non-compliance with contractual performance assessment;
  • (iv) victimisation, false accusations and extortion;
  • (v) compromising of the appellant’s and his department’s professionalism and integrity; and
  • (vi) other procedural and substantive unfairness.

For reasons that will become apparent presently, it is not necessary to examine the appellant’s allegations in any detail. He, in any event, narrowed the scope of his complaints in the CCMA arbitration proceedings as set out earlier in this judgment.

. . . . .

[30] Armscor’s grievance procedure defines a grievance as “any dissatisfaction or feeling of injustice which an employee may have which arises out of and in the course of the performance of his or her work, which is brought to the attention of Management”. Clause 6 of the grievance procedure deals with general principles. The relevant part of it reads:

. . . . .

[33] On 4 October 2007, Matibe met with the appellant in a grievance meeting. A representative from human resources was present and the appellant was represented by Mr Mecer Potgieter. The appellant initially was reluctant to attend the meeting because he was not given sufficient indication of its scope and purpose; he had to be coaxed by his shop steward to do so.

. . . . .

[35] The appellant resigned the following day, 5 October 2007. The letter of resignation sets out the appellant’s grievances. After referring to his prior service, he stated:

. . . . .

[38] It appears thus that the appellant was well acquainted with Armscor’s grievance procedure and acted consciously with it in mind.

[39] As stated at the outset, the question for determination is whether the appellant was in fact dismissed. The existence of a “dismissal” is a jurisdictional fact necessary for the CCMA to determinate the dispute by way of arbitration. If the jurisdictional fact is absent, the CCMA is not entitled to arbitrate the matter.4 Section 186(1)(e) of the LRA essentially defines a constructive dismissal as an employee terminating his or her contract of employment because the employer made continued employment intolerable. The word “intolerable” implies a situation that is more than can be tolerated or endured; or insufferable. It is something which is simply too great to bear, not to be put up with or beyond the limits of tolerance.

[40] The relevant principles were stated many years ago in Pretoria Society for the Care of the Retarded v Loots5 as follows:

“When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee’s most important function, namely to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.”

[41] Thus, employment must objectively have been rendered intolerable in the sense that no reasonable employee could be expected to put up with the conduct of the employer.6 At the same time, the employee must subjectively have found the conduct to be intolerable.

In National Health Laboratory Service v Yona and others,7 this Court held:

“[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 towards the employee, which rendered continued employment intolerable for the employee . . . The test for proving a constructive dismissal is an objective one. The conduct of the employer towards the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Resignation must have been a reasonable step for the employee to take in the circumstances.”

[42] In Albany Bakeries Limited v Van Wyk and others8 this Court emphasised the importance of an employee exhausting reasonable alternatives to resignation. It stated:

“How will an employee ever prove that [the employment had been made intolerable] if he has not adopted other suitable remedies available to him? It is,

  • firstly, also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire.
  • Secondly, from the very concept of intolerability one must conclude that it does not exist if there is a practical or legal solution to the allegedly oppressive conduct.
  • Finally, it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem.”

[43] The appellant’s various grievances arose over a three-year period. They reflect that he was experiencing difficulty in having his way at work. He believed that he knew what was best for Armscor, that his superiors did not and that they acted without due regard to prescribed rules, procedures and practices. This left him indignant and frustrated. He subjectively found the situation to be intolerable. That is however not enough. The authorities just cited make it clear that the situation must be intolerable objectively. Armscor submits that at both a subjective and objective level the continued employment relationship had not become intolerable.

[44] The appellant’s claim of intolerability mostly related to events that transpired in 2004, 2005 and 2006. He acknowledged during his testimony that the previous complaints (regarding issues in 2004, 2005 and 2006) had fallen away because his situation had “become tolerable again”. It was only in April 2007 that he began experiencing similar problems, but this time with different personnel. He filed a grievance in September 2007 when he was not getting his way with the performance contract outputs and the appointment of staff.

No doubt there was a tense and awkward clash over authority and the requirements of Armscor. However, it is more than doubtful that a dispute regarding these admittedly sensitive issues objectively attained the level of intolerability. The appellant evidently struggled to yield to the different perspective advanced by his superiors. The problem then became one of compatibility at senior management level. When he could not get his way, he proposed early retirement as a settlement to resolve the impasse. When his proposals were not accepted, he lodged a grievance.

[45] It may be that the appellant had a legitimate complaint about the performance outputs and appointments to his division. But such matters occur often and are run of the mill points of difference or tension in any workplace. Grievance procedures exist for that very purpose. They are the compulsory means of resolving conflict over run of the mill disagreements between subordinates and their superiors. A proper application of the grievance procedure aims at testing the legitimacy of any difference of opinion and through conciliation hopes to find workable remedial solutions.

[46] Armscor contends that the appellant through his conduct undermined the proper resolution of his grievance.

  • First, he submitted his grievance in Afrikaans, well knowing that Matibe was not sufficiently au fait with Afrikaans. Despite his evincing a high level of comprehension of English in his prior correspondence, the appellant rejected Matibe’s request for him to translate it.
  • In addition, he insisted that the dispute had to be resolved within the prescribed two-day period when it was clear that it was not reasonable to expect Matibe to do so as he was about to take a trip out of the country. He ignored the provision in clause 6.3 of the grievance procedure that extensions of time may be reasonably justified by the circumstances. In his indignant view, the non-compliance with the two-day requirement was a “blatant disregard” of his rights causing him to lose confidence in the internal processes.
  • Moreover, he acknowledged that he had to be coaxed by Mr Potgieter to attend the grievance meeting in the first place.
  • When the matter was postponed to continue the meeting, he tendered his resignation rather than attend.

[47] In our view, there is merit in Armscor’s submission. The appellant in effect resigned before the grievance procedure progressed beyond the first step. Moreover, in terms of the grievance procedure, there was no obligation on Thomo or Mkwanazi to be in attendance at the Step 1 grievance meeting. But most importantly, even if there were merit in his assertion that he justifiably had no confidence in the internal grievance process, his letter of resignation indicates that he was aware of Step 5 of the process which required him to refer the grievance to the CCMA.

He resigned before he invoked that remedy. The appellant was too hasty in his decision to resign. His conviction in the merit of his cause, fuelled by his obvious outrage and indignation, may well have been misplaced. His assumption that his superiors’ views about the performance contract outputs and appointments were wrong or unacceptable needed to be objectively tested and there was a legitimate, prescribed remedy available for that very purpose, which he opted not to pursue. In the circumstances, his resignation was petulant, premature and ill-considered. In the premises, it cannot be concluded that he was constructively dismissed.

[48] Therefore, the Labour Court did not err in its conclusion that there was no dismissal in terms of section 186 of the LRA and that the CCMA accordingly lacked jurisdiction. The appeal cannot succeed. This is not a case in which the appellant should be mulcted in costs. He reasonably sought a determination of his rights, after many years of service, and having secured two arbitration awards in his favour.

[49] In the premises, the appeal is dismissed.