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IN THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

CASE NO: JR1579/11

In the matter between:

SOLIDARITY obo B.J.E. VAN TONDER	Applicant
And
ARMAMENTS CORPORATION OF SOUTH AFRICA LTD	Third Respondent
Decided in chambers Date: 11 August 2016

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

RAM, AJ

[1] I considered the grounds of appeal in the Applicant’s application for leave to appeal.

[2] I stand by my conclusions which I have reached in my judgment in respect of the determination of a constructive dismissal referral and my assessment of the facts.

[3] Insofar as my findings on the facts are concerned, I reached such conclusions on evidence which was contained in the transcript.  I herein below indicate how I reached my conclusions on the facts on which the Applicant has based its grounds of appeal and in the footnotes thereto refer to where such facts can be found in the transcript (the Applicant’s grounds of appeal on the facts are stated in paragraphs 6 to 34 of its application for leave to appeal). I reached my conclusions as follows:

3.1. In respect of grounds 6 and 10, it is alleged that I erred in finding that Mr Mkwanazi was the Acting General Manager for 2005/6. In this regard, I stated in my judgment that Mr Mkwanazi acted in such position for the year 2005/6. I was as such referring to the financial year 2005/6. My conclusion that Mr Mkwanazi acted in such position was based on the questions posed to Dr van Tonder by the Commissioner and his union representative, namely, Ms Spies, Dr van Tonder’s own evidence in which he testified that Mr Mkwanazi interfered with his performance bonus for the financial year 2005/6 as well as the evidence of Mr Meiring.[1]

3.2. In respect ground 7, it is alleged that I misstated Dr van Tonder’s qualifications. I came to the conclusion that he holds a BAC, BAC Honours, MSC, DSC in Physics in that he testified that he holds such qualifications.[2]

3.3. In respect of grounds 8 and 9, I took into account that Dr van Tonder testified that in 2004 his department was given the additional responsibility which he called “process assurance” as is apparent from paragraph [8] of my judgment. This, Dr van Tonder, did to support his constructive dismissal referral even though he based his constructive dismissal referral on three categories which he classified as manipulation of his and his subordinates performance contracts and management abnormalities, measurement of performance contracts and inhibiting or interfering with his role in appointing personnel.[3]

3.4. Insofar as it is alleged that I have erred in finding that Dr van Tonder based his constructive dismissal claim on a period of 3 years from 2004 to 2007, the conflict and basis for constructive dismissal started when Mr Mkwanazi was promoted to General Manager in 2006 and such error also created a false basis upon which further legal findings were made (ground 10), Dr van Tonder’s union representative and Dr van Tonder himself in his evidence stated so consequently no errors of such nature were committed by myself.[4]

3.5. In respect of grounds 12 and 13, it is alleged that Messrs Mkwanazi and Mathibe’s evidence should be construed as hearsay alternatively false and Mr Meiring’s evidence was to be deemed expert evidence and that I erred in interpreting Mr Meiring’s evidence to mean that Mr Mkwanazi was allowed to change performance scores and that no other party who was not a party to the assessment had a legal right to make changes to the Pilatus report. In this regard, I state the following:

3.5.1. I provided reasons to what extent I accepted Messrs Mkwanazi and Mathibe’s evidence and why I did not deem their evidence to be hearsay as is apparent from paragraphs [44] to [54] of my judgment.

3.5.2. In terms of evidence in the transcript, Mr Meiring conceded under cross-examination that Mr Mkwanazi could change the performance scores,[5] did not know what changes were made to the Pilatus report,[6] the Board had no power to reject the Pilatus report but could sent it back and could not refute that a General of the client gave an instruction to ignore the criteria and Dr Viljoen got a letter from the General to do so.[7] As such no errors were committed in interpreting Mr Meiring evidence.

3.6. In respect of ground 14, it is alleged that I have misunderstood the qualifications of Ms Crossley, the requirements for the position held by her, that I determined that she did not have the required qualifications and did not lodge a grievance and in so doing reached the incorrect conclusions based on her evidence. In this regard, the transcript reflects under cross-examination that she testified that:

3.6.1. She holds a BA Ed whereas the required qualification to be a process assurer was a BSC degree or an engineering degree (preferably a Honours with 13 years experience which was lowered to 7 years experience which required the candidate to be a matured person within the defence industry).[8]

3.6.2. She did not lodge a grievance but reported it to Dr van Tonder. She could not refute that a General of the client agreed to ignore the criteria in the Pilatus report and although contending that it was irregular as it happened after the fact, she concluded that the process was fair and transparent and she did not “think there was any necessity on their part to change the report unilaterally,”   which I mentioned in my judgment that I interpreted to mean no intention on the parts of Messrs Mkwanazi and Mathibe to change the Pilatus report unilaterally.[9]

3.7. In respect of ground 15, it is alleged that I have selectively quoted evidence on time scales and actions relating to the grievance lodged by Dr van Tonder. In this regard, it was important for me to assess how and whether Mr Mathibe could deal with Dr van Tonder’s grievance whilst Mr Mathibe was overseas and in doing so I found that based on Dr van Tonder’s own witness evidence, namely, Mr Potgieter’s concession under cross-examination that is was indeed not possible.[10] In doing so, I did not selectively quote on time scales and actions relating to the grievance lodged by Dr van Tonder. 

3.8. In respect of grounds 16 to 21, I, inter alia, found that Mr Mathibe did not change the performance scores for the year 2006/7, Mr Mathibe could have done so had there been a reason for him to do so, had this been of concern to Dr van Tonder’s subordinates then they should have all lodged grievances which they did not do,[11] that Dr van Tonder only lodged a grievance in September 2007,[12] Mr Meiring confirmed that Mr Mkwanazi could change the performance scores,[13] and that both Messrs Mkwanazi and Mathibe disputed that Mr Meiring was an authority on performance management.[14] These findings were made on the evidence that was before me, inter alia, the transcript which formed part of the record of proceedings.

3.9. In respect of the ground 22, I found that Dr van Tonder and his subordinates should at least have attempted to meet the new targets then to question it from the outset and that he (Dr van Tonder) only lodged his grievance before he resigned. This finding was based on the evidence that was in the transcript.

3.10. In respect of grounds 23 to 27, I found that neither Mr Meiring nor Ms Crossley could refute that a General of the client gave instructions to change the criteria in respect of the Pilatus report and Dr Viljoen got a letter of consent from the General to do so. In coming to such findings, I took into account that Ms Crossley conceded that the process was fair and transparent and that Messrs Mkwanazi and Mathibe did not change the Pilatus report unilaterally.[15]

3.11. In respect of ground 28, I reached this conclusion on the evidence that was in the transcript, in particular, from the evidence of Dr van Tonder and his witnesses I inferred that he and his witnesses were not comfortable with the changes that needed to be made in addressing employment equity in the Respondent’s workplace. In this regard, one of Dr van Tonder’s grounds on which he based his constructive dismissal referral was management’s role in inhibiting or interfering with his role in appointing personnel and his evidence in respect thereof was that he was forced to appoint staff who could not do the job and prevented from appointing those who could (with reference to affirmative action candidates or appointments).[16] This was also apparent from the evidence of Ms Crossley who testified that affirmative action appointees were inexperienced or unqualified which lowered the standards with the result Dr van Tonder had to spend time mentoring or redoing their work and in doing so sought to justify her assertion that she wrote the examination once and Ms Mcgina who had the requisite qualifications had to write the examination twice and had still not passed.[17]

3.12. In respect of ground 29, Dr van Tonder relied on his grievance not being dealt within the time periods to do so to support his constructive dismissal referral.[18] I found that Dr van Tonder’s grievance was not finalised within the time periods within to do so and that Mr Mathibe was unable to deal with Dr van Tonder’s grievance because Mr Mathibe was going overseas. This was conceded to by Mr Potgieter under cross-examination.[19]  

3.13. In respect of ground 30, I reiterate Dr van Tonder testified that his employment became intolerable over a period of 3 years.[20]

3.14. In respect of ground 31, I considered the fact that Mr Mathibe did not change the scores for the year 2006/2007 and that when there was an impasse reached in respect the performance contract for the year 2007/2008, he (that is, Mr Mathibe) was not obliged to accept Dr van Tonder’s terms and conditions as more relevant.

3.15. In respect of ground 32, the transcript revealed that Dr van Tonder did not  make the necessary appointments, found the affirmative candidates, inter alia, not to be suitable[21] and Ms Crossley testified that she did not deem the changes made to the Pilatus report by Messrs Mkwanazi and Mathibe to be fraud as such the evidence presented by Dr van Tonder and that of his witnesses made it unnecessary for the Respondent to call its Chief Executive Officer or Board members to testify on those aspects.[22]  

3.16. In respect of grounds 33 and 34, I reached the conclusion that the objective facts did not support Dr van Tonder’s claim for constructive dismissal and that the arbitration award should be reviewed and set aside on a basis of the evidence which was in the transcript.

In the circumstances, I make the following order:

I. The application for leave to appeal is dismissed.

II. There is no order as to costs.

Ram AJ

Acting Judge of the Labour Court of South Africa

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