HELD AT MASERU LAC/REV/36/02
MUSO ELIAS TSEUOA APPLICANT
PREVENTION AND RESULUTION 1ST RESPONDENT
GARMENTS (PTY) (LTD) 2ND RESPONDENT
DATE : 10TH MAY, 2004
ASSESSORS 1. MR. KOLOBE
2. MR. LEROTHOLI
This is an application for review of the award made by the DDPR Arbitrator on the 8th July 2002. This review is before this court in terms of Rule 15 of the Labour Appeal Court Rules of 2002.
The delay in hearing this matter is much regretted. Delay had occurred due to some unavoidable logistical and administrative hurdles facing the Directorate of Depute Prevention and Resolution (DDPR) in the preparation of the record of proceedings before this court could determine the issues involved.
This matter involved a dispute of right, a matter which fell within the jurisdiction of the DDPR. In the main application, the applicant was claiming that he had been “constructively dismissed” by the second respondent. It had been referred to the DDPR under ref. No. A648/02.
1. The applicant had originally been engaged by the second respondent as a Personnel Manager on the 9th October 2001 and after a brief stay at the Maseru head office applicant had been posted as Personnel Manager to the Mafeteng Branch.
2. It seems the contract of employment was not written down hence its non-production in the arbitration proceedings.
3. From the beginning of his employment it seems serious misunderstanding arose between the applicant and the management over the disciplinary procedures and this ultimately resulted in the summoning of the applicant to the head office of the second respondent on the 13th May, 2002.
4. On the 13th May 2002 the applicant departed from his Mafeteng depot and travelled to the Maseru head office and having reported himself at the gate, he was escorted to Mr. Lieu – the General Manager – by one Mr. Moerane a security guard thereat.
5. Mr. Lieu then told applicant “your case will be handled by Peter” (Mokheseng)
6. The applicant alleges – and this is not denied - that he waited for Peter Mokheseng till lunch when he left having not met Mokheseng.
7. It is common cause that at or near the Maseru Station railway line, the applicant and Mokheseng had casually met that morning at about 7 am – but before Lieu had met both the applicant and Mokheseng.
8. Mokheseng said in his evidence that he thought that applicant was going to a DDPRworkshop and did not know that Mr. Lieu had called the applicant – nor did he know that Lieu later designated him to deal with the applicant’s case.
9. Upon this misunderstanding, Mokheseng proceeded to Mafeteng on other business the applicant being made to wait and idle at the gate. He ultimately departed having not met Mokheseng.
10. On the 14th May 2002, the applicant again returned to the gate of the second respondent and requested to see Mr. Mokheseng and the reply that came was “Mr. Mokheseng will see you often he has attended to other employees.”
11. Applicant says that later he saw Mokheseng moving out of the gate. They did not talk.
12. All this treatment made the applicant angry because, understandably as he says, he felt snubbed and humiliated by being made to stand unattended to on those two days.
 Applicant then went away and wrote a letter of resignation. It reads as follows:
15TH MAY, 2002
Mr. John Lieu
P&T Textile (Pty) Ltd.,
P.O. Box 859
Re: MY RESIGNATION
Last week, you told Mr. N. Monyane by telephone, to tell me to come to your office at Precious Garments. On the 13.05.2002 when I reported to you, you said to me: “Your case will be handled by Peter”. He did not see me. I waited at the premises gate from 07.30 until I left. On Tuesday the 14.05.2002 from the time I arrived, at 07.00 until I left your premises gate, I was not received or guided into any office, for services. I still do not know why you drew me away from my usual work area. The above is a culmination of a series of other events. I am compelled by these circumstances to resign forthwith and I, therefore, expect to be paid, by you, all my due monies today, on the 15.05.2002, in terms of Labour Code Order No.24 of 1992, Section 34 (1). Tell me where I should go and receive my monies: whether it will be at P&T Textile (Pty) Ltd or at Precious Garments.
‘MUSO ELIAS TSEUOA”
 Constructive dismissal
Under the 1992 Labour Code Order “constructive dismissal” is a term used to describe termination of a contract of employment by resignation by the employee who reigns because of the unreasonable conduct of the employer. Section 68 (c) of the Labour Code Order No.24 of 1992 reads:-
Definition of “dismissal”
For the purposes of section 66 “dismissal” shall include
(c) resignation by an employee in circumstances involving such unreasonable conduct by the employer as would entitle the employee to terminate the contract of employment without notice, by reason of the employer’s breach of a term of the contract.”
 It is important to note that unlike in cases of unfair dismissal where the onus in upon the employer to show that dismissal was fair, in constructive dismissal cases, the onus of proving that continued employment was rendered intolerable by the unreasonable conduct of the employer rests upon the employee and must be discharged on a balance of probabilities as shown by the facts of the case. It is also necessary also to show that the unreasonable conduct was wilful and that the employee had no reasonable alternative other than to resign. The conduct of the employer must be objectively unacceptable to a reasonable man. Constructive dismissal is an extraordinary and special form of dismissal and the employee must satisfy the Court about the existence of special circumstances. See Van Jaarsveld van Eck – Principles of Labour Law (1998) at p.510.
 In the South African Labour Appeal Court case of Jooste v Transnet Ltd t/a SA Airways – 1995 ILJ629 it was held that in constructive dismissal cases the primary onus is upon the employee on a balance of probabilities to show that he did not resign voluntarily but had been placed under undue pressure to resign. It is therefore a factual inquiry whether constructive dismissal has occurred or whether the employee resigned voluntarily.
 The chronology of the events preceding the appellant’s resignation indicate misunderstanding or disagreement about matters of disciplinary procedures and the intended meeting on the 13th May 2002 probably to address this issue never materialized because the applicant was made to wait at the gate on two consecutive days.
The applicant was indeed justified to feel snubbed and humiliated by being shunned but my Panelists hold the view that the resignation by applicant in those circumstances was rash and ill-considered in that it was made when the applicant was still in anger over the shabby treatment meted to him the on those two consecutive days.
The cumulative impact of other factors like the salary underpayment and disagreement is also to be looked at. Section 227 of the Code provides that salary underpayments grievance shall be settled through arbitration and not through resignation.
The panelists are of the view that the applicant failed to prove that at the time when he purported to resign the employer had not made continued employment intolerable and that no reasonable alternative, other than resigning, existed. In the circumstances of the case the applicant as an aggrieved employee should have written a grievance letter to the general manager notifying him that his “unacceptable” conduct could lead to a forced resignation.
This court, having perused the record and having heard the submissions of the applicant and of the respondent holds that the applicant did not discharge the onus that rests on him to show that conduct of the respondent on the 13th and 14th May 2002 was such that a reasonable employee would have no alternative except to resign. The panelists hold the view that the act of resigning was rash in the circumstances of the case. The applicant states that he had been greatly offended by what he considered snubbing he had endured at the gate.
The application is therefore dismissed and the award of the arbitrator is confirmed. There is no other as to costs.
S. N. PEETE
JUDGE OF LABOUR APPEAL
Section 66 (2) of the Orders
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