REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

Case No.: LCA 50/2015

In the matter between:

CONSTANSIA HITJEVI BANDA APPLICANT

and

NAMIBIA TRAINING AUTHORITY FIRST RESPONDENTLABOUR COMMISSIONER SECOND RESPONDENT

Neutral Citation: Banda v Namibia Training Authority (LC 170/2015) [2018]

NALCMD 15 (06 JULY 2018)

CORAM: UEITELE J

Heard: 8 September 2017Delivered: 6 July 2018

Flynote: Labour Law – Constructive Dismissal – Whether or not the appellant

was constructively dismissed by the respondent is the issue on appeal – Employee

bears the onus of showing that the employer dismissed employee by making her

continued employment intolerable – Once established, second enquiry is whether

the dismissal was unfair – Two stage enquiry not independent of each other –

Court satisfied that appellant satisfied the two stage enquiry.

Summary: The appellant was employed by the Namibia Training Authority as a

Quality System Auditor. After returning from her studies from the United States she

resumed her employment. However, she alleged that she was isolated and unfairly

discriminated against because she was not provided with work and because she

was not given the necessary equipment to effectively carry out her duty. She thus

called for a grievance hearing.

The grievance was heard during July 2014 but no conclusion was reached at the

hearing of July 2014. The appellant asked for further meetings with the

respondent, but she never got an opportunity to have a further hearing. The failure

to secure a further hearing led to her resigning from the respondent’s employment.

Appellant thereafter referred a dispute of, amongst other matters, unfair labour

practice to the Office of the Labour Commissioner. The arbitrator found that the

appellant failed to prove that the respondent indeed advised her to resign. From

there, the appellant appealed to the Labour Court.

Held that an employee who leaves a place of employment bears the onus of

showing that the employer effectively dismissed the employee by making her

continued employment intolerable.

Held further that once this is established, a second stage must be applied and this

concerns an evaluation of whether the dismissal was unfair.

Held further that section 33(1) provides that an employer may not dismiss an

employee without ‘a valid and fair reason’ and without following a fair procedure.

The court is of the view that, in assessing whether an employer constructively

dismissed an employee constitutes an assessment of whether the employer

committed unfair labour practice for the purposes of s 48(2).

ORDER

1. The respondent, Namibia Training Authority, has constructively dismissed

the appellant, Constansia Hitjevi Banda.

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2. The respondent, Namibia Training Authority, must pay to the appellant,

Constansia Hitjevi Banda, an amount equal to the monthly remuneration which the

appellant would have earned had she not been so unfairly dismissed from the date

of dismissal (that is 24 September 2014) to the date that the arbitrator issued her

award (that is 18 August 2015).

3. The amount of remuneration mentioned in paragraph 2 of this Order must

include the adjustment, either upward or downward which took place at the

respondent’s place of employment over that period (That is the period 24

September 2014 to 18 August 2015).

4. There is no order as to costs.

JUDGMENT

UEITELE J:

Introduction

[1] The appellant, Ms Constansia Hitjevi Banda,1 was employed by the Namibia

Training Authority,2 from 10 June 2010 until 24 September 2014 when she

tendered her resignation and resigned from the Namibia Training Authority’s

employment. The second respondent in this matter is the Labour Commissioner.

Since the Labour Commissioner did not participate in these proceedings, I will, in

this judgment, refer to the first respondent as the respondent and where necessary

to the Labour Commissioner simply as the “Commissioner”.

[2] On 2 October 2014 the appellant, in terms of s 86 of the Labour Act, 2007

referred a dispute of organizational rights, unfair discrimination, unfair labour

practise, disclosure of information, sexual harassment and Namibia Training

Authority advising her to tender resignation, to the office of the Commissioner in

1 Ms Constansia Hitjevi Banda is the appellant in this appeal and is, in this judgment, referred to as ‘the appellant’.

2 The Namibia Training Authority is the first respondent in this matter.

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Windhoek. Pursuant to the referral of the dispute, the Commissioner set down the

matter for conciliation during 7 November 2014. When conciliation failed, the

matter was referred to arbitration. The arbitration proceedings were conducted

over six court days over the period of 15 March 2015 to 15 July 2015.

[3] On 18 August 2015 the arbitrator delivered her award. In her award, the

arbitrator found that the appellant failed to prove that the respondent advised her to

resign and that ‘the applicant’s (i.e. the appellant) claims do not hold water at all

and therefore deserve to be dismissed in totality’. Aggrieved by the award, the

appellant on 10 September 2015 launched a review application in terms of which

she amongst other reliefs, sought an order reviewing and setting aside the

arbitration award delivered by the arbitrator on 18 August 2015.

[4] At the time when the appellant launched the review proceedings, she was

unrepresented and she accordingly drafted and filed the notice of motion and the

supporting affidavit without the assistance of legal advice. During June 2016 the

appellant was granted legal assistance by the Directorate of Legal Aid in the

Ministry of Justice. After perusing the documentation filed in the review application,

the appointed legal practitioners advised the appellant to pursue an appeal instead

of a review. The appellant thus filed an appeal together with an application for the

condonation for the late filing of the appeal. This Court condoned the late filing of

the appeal and granted the appellant leave for her to prosecute her appeal. What

is before me is thus the appeal against the arbitration award issued on 18 August

2015.

[5] The respondent opposed the appeal. The respondent was represented by

Mr Amupanda-Kamanya of Amupanda Kamanya Incorporated. The matter was

then placed on the roll on 16 December 2016 for the hearing of the appeal by

Justice Usiku. Justice Usiku could not hear the appeal and the matter was placed

on my roll on 3 March 2017. On that day it transpired that the respondent had not

filed its heads of arguments and the grounds of opposing the appeal as required

under Rule 17(16) of the Labour Court Rules. The respondent was thus barred

from participating in the proceedings. I nonetheless (on that day) postponed the

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matter to 7 April 2017 to enable the respondent to bring an application to uplift the

bar.

[6] The 7th day of April 2017 came and passed without the respondent having

filed its application to uplift the bar, even worse the respondent’s legal practitioners

did not appear in Court on that day. On 7 April 2017 I issued an order in terms of

Rule 53(2) of the High Court Rules striking the respondent’s opposition from the

roll and postponed the matter to 7 June 2017 for a status hearing. By 7 June 2017

the respondent had still not filed any application to allow it to participate in the

appeal, I accordingly postponed the matter to 8 September 2017 for hearing the

appeal. On that date (8 September 2017) I heard the arguments in respect of the

appeal from the appellant’s legal practitioners only. With this brief introduction, I

now proceed to give the background to the appeal.

Background

[7] As I have indicated above, the appellant commenced employment with the

respondent on 01 July 2010 as an Office Administrator, on 1 October 2011 she

was appointed as a Quality System Auditor. From the record that was placed

before me, it is clear that sometime during her employment (i.e. during 2012), but it

is not clear as to exactly when, the appellant secured a Humphrey Scholarship to

pursue a research study in the United States of America (USA). It was a condition

of the scholarship that her employer, the respondent, must be willing to secure the

appellant’s permanent position and to re-employ her upon her completing her

studies.

[8] The appellant completed her studies in the USA, and sometime during June

2013 she returned to Namibia. On 8 July 2013 she resumed her work. She alleges

that upon her resuming her employment, she found that her conditions of

employment were unilaterally changed in that, Mr Ian Gicheru, her direct

supervisor, did not re-assign, integrate or bring her up to date on the work progress

or what was expected of her.

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[9] The appellant, furthermore, alleges that for a period of four months after she

had resumed work, no work or instructions were given to her, she thus states that

she accordingly had the feeling that she was being worked out as an employee. In

addition, the appellant alleges that she asked her supervisor to give her back the

files (which she previously worked on before she left for studies to the United

States of America) and work duties. She furthermore alleges that her supervisor

did not take her seriously in comparison to other staff members, she thus felt

isolated at the work place.

[10] The appellant furthermore states that as part of her job as Quality System

Auditor, she was required to travel and to receive a laptop for her to perform her

functions. The laptop was not provided to her, which made it impossible for her to

travel and to perform her work to the best of her ability. She states that her

colleagues on the same level and even staff members at ranks lower than that

which she occupied were provided with laptops, mobile telephones, 3G internet

contracts and car allowances. She also alleges that some of the files that were

returned to her were damaged and clients’ histories given to her were incomplete

resulting in mistakes as a result of which clients became angry and upset with her.

[11] She further alleges that another staff meeting took place on 14 November

2013 and out of frustration, because from July 2013 to November 2013, no files or

duties were allocated to her she, at that meeting, raised the issue of allocating

work to her. After that meeting her colleagues allocated two files to her and she

also inherited seven files from a retired employee, a certain Mr Namene.

[12] One year after she had resumed her work, she formed the view that her

working conditions had not improved for the better, she accordingly, during May

2013, launched an informal grievance against her supervisor, Mr Gicheru, with the

Chief Operating Officer, a certain Mr Beukes. An informal grievance meeting

between her, Gicheru and Beukes was called for on 4 July 2014. Nothing came of

this meeting and on 8 July 2014 she lodged what she termed an “emergency

grievance” against her immediate supervisor, Mr Gicheru, with the Chief Operating

Officer, Mr Beukes.

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[13] In the grievance letter, of 8 July 2014, the appellant refers to matters that

she raised at a meeting held on 20 May 2014 with the Chief Operating Officer. She

further stated that she felt that she was being discriminated against, felt unfairly

treated by her supervisor, felt she was being sexually harassed and that she was

being psychologically and emotionally tortured. She accordingly requested: an

emergency grievance hearing within 48 hours, the intervention by a mediator from

the Human Resources Department and representation by a representative of her

choice.

[14] The respondent’s General Manger: Human Resources enlisted the service

of Mr Clement Daniels, an external legal practitioner, to chair the grievance hearing

that was requested by the appellant. The grievance hearing was scheduled for and

took place on 18 July 2014 at the respondent’s head office. After the appellant

presented her version at the grievance hearing, Gicheru was also given an

opportunity to present his side. The chairperson, after listening to both the

appellant and Gicheru, gave the appellant the opportunity to propose the way

forward. The minutes of the grievance hearing amongst others read as follows:

‘Closing Remarks

Employees issues to be dealt with timeously to continue with the working relationship; the

grievances should not lead to victimization but also that the aggrieved employee is correct.

Mr Daniels will write a report but said that he will wait on Ms Banda for two weeks. He

suggested that the matter stands over. Mr Banda can send an email or he will contact her

in two weeks.

Mr Daniels thanked everybody present and closed the meeting.’

[15] By the end of July 2014 (on 30 July 2014) the appellant addressed an email

to the respondent’s General Manger: Human Resources, a certain Ms Bernadette

Imelda Sam (I will, in this judgement, refer to her as Ms Sam) that email in material

terms reads as follows:

‘This is a follow-up on the Grievance Hearing Meeting to discuss the way forward

as unanimously agreed at the initial hearing which took place on July 18 th, 2014. The

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agreement was that all parties involved are to meet again on August, 01st, 2014. As such

is it possible for you to email an invitation meeting calendar to all parties as a reminder

with time and venue information, please I will appreciate this.’

[16] Ms Sam responded on the same day, in her response she indicated that

she will double check with Mr Daniels, the chairperson of the grievance hearing

and revert to the appellant. On 31 July 2014 Ms Sam wrote another email to the

appellant that mail, amongst other things, reads as follows:

‘Mr Daniels indicated that 1 August 2014 was the date he gave to you to reply to

him on a certain issue. Once he has your reply he will schedule a meeting with all parties.

Mr Daniels requested that you please forward your reply to him by 1 August 2014 so that

he can finalise his report and the next meeting date.’

[17] On the same date the appellant responded to Ms Sam, her response reads

as follows (I quote verbatim from the email):

‘I appreciate you following up hereto with Mr Daniels.

I am aware that, I was requested to make my own decision on the way forward as far as

the proceedings of the grievance hearing went. So I have requested a two weeks’ time

period to think about what it is that I want. Therefore, it was agreed that, August 1st was

the next scheduled meeting to present my decision. And everyone else was requested to

verify their availability to Mr Daniels because Mr Gicheru and yourself were not sure.

I say this in advance I still stand to be corrected. But and unfortunately, I do not remember

an arrangement made for me to respond in writing and forward my decision to the

chairperson, Mr Clement Daniels. Neither has Mr Daniels advised me and my Workplace

Union Deputy Chair Mr Moses Tjirare as my representative on the process he wanted me

to hand in my decision response to him. Instead, I gave him my email and contact number

in case he needed to verify a change of date for the agreed next scheduled meeting once

Mr Ian Gicheru ( Quality Assurance Manager /Accused) and yourself ( Ms Bernadette

Sam, General Manager HR/Meeting Observer) confirmed your availability to him.

Thereafter, this meeting only then will Mr Daniels finalise each and directly outcome

against the respective individuals through a report draft.

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And still, it is my humble suggestion that, I should be allowed to respond my decision on

the way forward with NTA through a meeting process with all parties involved, please.’

[18] Still on the same date, i.e. the 31 July 2014, Ms Sam responded to the

appellant indicating that she is forwarding the appellant’s mail to Mr Daniels for

information and for his guidance. By 5 August 2014 Mr Daniels had not yet

responded to the appellant’s email. The appellant on 5 August 2014 addressed a

mail to Mr Daniels in which she lamented the treatment she received from the

respondent. In that email she amongst other things writes that:

‘…I therefore, am proposing that I would rather part ways with the NTA in an

orderly and on an amicable terms in resolving fully and finally all the matters between us.

Also I am hoping that you would understand my reasons for leaving and consider my

conditions to be released.’

[19] Mr Daniels replied to the appellant’s mail on 7 August 2014 in which he

informed the appellant that he is not part of their unfinished grievance hearing and

she should have addressed the mail to her employer. He (Mr Daniels) stressed

that he was merely the facilitator/chairperson of the appellant’s grievance hearing.

He further more said to her:

‘With regards the grievance, during our meeting of 18 July 2014 you indicated that

you needed two weeks to consider a response on one of the subjects of your grievance

and undertook to communicate same to me by 01 August 2014. I have not received your

response to date, instead you unilaterally wanted to call a meeting on 01 August 2014,

which unfortunately did not fit my schedule on that particular day. I have communicated

your undertaking to respond to the grievance in writing by 01 August 2014, but from your

email communication it appears that you are disputing your undertaking.

I wish to iterate that you are holding up the finalisation of the grievance process by not

abiding by your undertaking of 18 July 2014. In the circumstances I hereby give you a final

opportunity to send your response before close of business on Friday, 08 August 2014. If I

do not receive your response I shall finalise my report on the grievance.

Finally, I strongly disagree with you that you have exhausted the grievance procedure,

because you are the one that is delaying the finalisation of the grievance process.’

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[20] The appellant responded, by email, to Mr Daniels letter on the same date

(i.e. on 7 August 2014). In that mail she suggested to Mr Daniels that it may be in

the interest of both parties that they revisit the recordings and the minutes of the

meeting of 18 July 2014, because it appears to her that she is the only person who

recalls that at that meeting it was unanimously agreed that a follow up meeting had

to take place on 1 August 2014. She furthermore stated the following in her reply to

Mr Daniels (I quote verbatim):

‘Mr Daniels is it not possible for you to arrange a meeting please? I am not

comfortable at all communicating through emails for the following reasons to: 1 I am rather

honestly confused right on what is it exactly that, you wanted me to decide on if not

according to my understanding it was my work relationship with NTA. 2. Also since I was

not informed of any other ways than the meeting platform where I should have respondent

through to you. 3. Including not being informed on which resounding decision I was

expected to address to NTA as my employer and not to you as a facilitator.

In the meantime, I wish to say that, regardless if this is a miscommunication it adds more

to my unresolved problem and at present is making me feel mentally drained and

physically weakened to show my presence at NTA. Also without being selfish I could only

imagine that nor are other individuals and yourself involved in this situation feeling

comfortable. As a result I would appreciate it, and hope you will consider my request for

you to please arrange a meeting to take place at your earliest convenient available time.’

[21] From the documents filed of record Mr Daniels did not respond to the

appellant’s mail of 7 August 2014, instead Ms Sam, responded on 14 August 2014

to the appellant’s letter of 5 August 2014. In that letter Ms Sam, informed the

appellant that her letter of resignation was not addressed to the NTA as the

employer and she should therefore consider to discuss her concerns with her

employer particularly, Mr Amalwa and Jerry Beukes, and if she does not want to

engage in further discussions and she still wants to resign she must address the

letter of resignation, for the attention of Mr Beukes or Mr Amalwa, to the

respondent as employer. In that letter Ms Sam drew the attention of the appellant

to s 30(1)(c) and 31(3) of the Labour Act, 2007.

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[22] It furthermore appears from the documents filed of record that, the

chairperson of the conciliation meeting, Mr Daniels resigned as such on 6 August

2014 and submitted his report to the respondent on 18 August 2014. It furthermore

appears that, on 20 August 2014, a meeting took place between the appellant, Ms

Sam and a certain Mr Mukoya. The appellant alleges that at that meeting, Ms Sam

and Mukoya indicated to her that the respondent will provide the appellant with a

list of possible positions within the range of her qualifications from which she can

choose to be redeployed to. She alleges that she was promised that the list of the

positions will be made available to her within two weeks from the date of the

meeting (i.e. two weeks from 20 August 2014).

[23] According to the appellant, the two weeks passed without communication

from the respondent. When the ‘two weeks period’ passed, the appellant with the

assistance of her union representative insisted on a further meeting, which meeting

took place on 12 September 2014. At that meeting the appellant was offered a

position of data typist, which would have been a demotion to her. Apart from the

fact that the position of data typist would have been a demotion, the respondent

did not indicate to the appellant in which department the position of data typist was.

After the meeting of 12 September 2014, the appellant tendered her resignation

from the respondent’s employment. She gave one months’ notice from 21

September 2014 to 21 October 2014.

[24] The workplace trade union representative who has been representing the

appellant then reported the appellant’s matter to the head office of the recognised

trade union, Namibia Public and Allied Union. The Deputy Secretary General of the

union thereafter had consultation with the appellant after which he advised the

appellant to retract her resignation. On 25 September 2014 the appellant

addressed a letter to the respondent in which she withdrew her resignation. The

respondent’s acting Chief Executive Officer, Ms Ester Anna Nghipondoka, replied

to the letter of resignation and the letter of the withdrawal of the resignation on 30

September 2014. In the letter of 30 September 2014 the respondent indicated that

it will not accept the withdrawal of the resignation and that it had waived the notice

period and the last working day for the appellant was 30 September 2014.

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The arbitration and the arbitration award

[25] I indicated above in the introductory part of this judgment that the appellant

referred a dispute of, amongst other matters, unfair labour practice to the Office of

the Labour Commissioner. I also indicated that the Office of the Labour

Commissioner referred the matter to arbitration and that the arbitration took place

over a period of six court days.

[26] The arbitrator found that the appellant failed to prove that the respondent

indeed advised her to resign and that ‘the applicant’s (i.e. the appellant) claims do

not hold water at all and therefore deserve to be dismissed in totality. The arbitrator

said the following:

‘It is imperative at this juncture to mention that although the issue of constructive

dismissal featured so much during the arbitration proceedings, there was not dispute of

constructive dismissal referred to the Labour Commissioner and as result I will not dwell

much on it.

It is also imperative to mention that most of the issues presented in the evidence adduced

before me were the same issues that were part of the grievance hearing which took place

in July 2014 which process according to the evidence before me was never completed due

to the applicant’s resignation from respondent company. It is thereof crystal clear that the

respondent’s internal remedies were not fully exhausted.

At least applicant was supposed to wait for the grievance hearing to be completed and if

she was not happy with the outcome then move on to the next level.

I should also mention that arbitration tribunal is under no circumstances a substitution of

the employers’ internal remedies and it must really be the final resort. Furthermore, it is not

the intention of the legislature to substitute employers’ internal remedies with the

arbitration process and it is a process to be resorted to after the parties have exhausted

the internal remedies and such remedies have not yielded positive results…

… If found that applicant decided to abandon the internal proceedings granted to her and

such decision was a frolic of her own… I further find no wrongdoing by respondent for

requesting applicant to indicate her resignation notice period. An employee cannot just

indicate her intention to resign without being specific as to when such resignation will

become effective, thus leaving employer in limbo.

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I therefore find that applicant failed to prove that respondent indeed advised her to resign.

In the final result I found that applicant claims do not hold water at all and therefore

deserve to be dismissed in totality.’

The grounds of appeal against the arbitration award

[27] The appellant appeals against the finding of the arbitrator on the following

grounds:

(a) The appellant contends that the arbitrator relied on information not material

to the issues presented at the arbitration hearing relating to the issues of

unfair discrimination and constructive dismissal.

(b) The arbitrator could not in the circumstances have reasonably have come to

the conclusion she arrived at in law if she had regard to the correct factual

issues presented before her relating to unfair discrimination, sexual

harassment and constructive dismissal including inter alia salary

discrepancies of the appellant and other colleagues with the first

respondent.

(c) The arbitrator erred in law in arriving at the conclusion she did. She would

not have reached a conclusion that the appellant was not constructively

dismissed had she properly considered the facts presented by the appellant

relating to unfair discrimination sexual harassment and constructive

dismissal.

(d) The arbitrator erred in law by not applying the correct legal principles to the

facts presented to her at the arbitration. Had the arbitrator properly applied

the applicable legal principles relating to unfair discrimination and sexual

harassment, she would have found that the applicant had made out a case

for constructive dismissal and unfair discrimination based on sex.

[28] With the introduction and background that I have set out in the preceding

paragraphs, I am of the view that the question of whether or not the appellant was

constructively dismissed by the respondent is central to this appeal. I will therefore,

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in the ensuing paragraphs, briefly set out the legal principles relating to

constructive dismissal.

The legal principles relating to constructive dismissal

[29] In the matter of Transnamib Limited v Swartz3 this Court held that

constructive dismissal occurs where:

‘… an employee terminates the employment, or agrees to the termination, but this

termination or agreement was prompted or caused by the conduct of the employer…’

[30] The court in that case (i.e. the Transnamib Limited v Swartz matter) further

approved the submission that constructive dismissal takes place when the

employer renders the relationship with the employee so intolerable that the

employee (feels that he) has no option (but) to resign, the termination of the

contract becomes that of the employer.

[31] In the matter of Kavekotora v Transnamib Holdings Ltd and Another4 this

court accepted the concept of constructive dismissal as eloquently explained by

Cameron JA in the South African Supreme Court of Appeal in the following way.5

'8 In employment law, constructive dismissal represents a victory for

substance over form. Its essence is that although the employee resigns, the causal

responsibility for the termination of service is recognised as the employer's unacceptable

conduct, and the latter therefore remains responsible for the consequences. When the

labour courts imported the concept into South African law from English law in the 1980s,

they adopted the English approach, which implied into the contract of employment a

general term that the employer would not without reasonable and proper cause conduct

itself in a manner calculated and likely to destroy or seriously damage the relationship of

confidence and trust with the employee: breach of the term would amount to a

contractual repudiation justifying the employee in resigning and claiming compensation

for dismissal.'

3 NLLP 2002(2) 60 (NLC).4 2012 (2) NR 443 (LC). Also see Kasuto v Namibia Wildlife Resort (LCA 23/2013) [2013]

NALCMD 37 (6 November 2013).5 Murray v Minister of Defence 2009 (3) SA 130 (SCA) ([2008] 6 BCLR 513; [2008] 3 All SA 66)

at para 8. I have omitted the square brackets in the numbering in order to avoid confusion.

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And:

'12 In detailing this right, the parties freely invoked the carefully considered

jurisprudence the labour courts have evolved in dealing with unfair employer-instigated

resignations under the labour relations legislation of the past three decades. These

cases have established that the onus rests on the employee to prove that the resignation

constituted a constructive dismissal: in other words, the employee must prove that the

resignation was not voluntary, and that it was not intended to terminate the employment

relationship. Once this is established, the inquiry 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 in 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 put up with it.

13 It deserves emphasis that the mere fact that an employee resigns because work

has become intolerable does not by itself make for constructive dismissal. For one thing,

the employer may not have control over what makes conditions intolerable. So the

critical circumstances must have been of the employer's making. But even if the

employer is responsible, it may not be to blame. There are many things an employer

may fairly and reasonably do that may make an employee's position intolerable. More is

needed. The employer must be culpably responsible in some way for the intolerable

conditions: the conduct must (in the formulation the courts have adopted) have lacked

reasonable and proper cause. Culpability does not mean that the employer must have

wanted or intended to get rid of the employee, though in many instances of constructive

dismissal that is the case.'6 (Underlined for emphasis)

[32] In order to determine whether a constructive dismissal has been

established, the South African Labour Appeal Court, in the matter of Solid Doors

(Pty) Limited v Commissioner Veron and Others,7 held as follows:

‘... [T]here are three requirements for constructive dismissal to be established. The

first is that the employee must have terminated the contract of employment. The second is

that the reason for termination of the contract must be that continued employment has

6 Also compare with the case of Cymot (Pty) Ltd v McLoud, 2002 NR 391 (LC). 7 (2004) 25 ILJ 2337 (LAC) at para 28.

15

become intolerable for the employee. The third is that it must have been the employee’s

employer who made continued employment intolerable. All these three requirements must

be present for it to be said that a constructive dismissal has been established. If one of

them is absent, constructive dismissal is not established.’

[33] In the matter of Pretoria Society for the Care of the Retarded v Loots8 the

South African, Labour Appeal Court said the following:

‘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.’

[34] In the matter of Smithkline Beecham (Pty) Ltd v CCMA & Others9 the court

said the following about the decision in Pretoria Society:

‘What is clear from the aforesaid decision of the Labour Appeal Court [i.e. Pretoria

Society for the Care of the Retarded v Loots] is that the test for determining whether or not

the termination of employment constituted a constructive dismissal is an objective one.

The subjective apprehensions of an employee can therefore not be a final determinant of

this issue. The conduct of the employer must therefore be judged objectively. It would be

unfair to an employer to allow the subjective perceptions of an employee of its conduct,

particularly when these perceptions turn out to be incorrect, to be the determining factor in

penalizing the employer…’

[35] When does the relationship become intolerable? As the authors point out in

South African Labour Law:10

8 (1997) 18 ILJ 981 (LAC) at 984E – F.:9 [2000] 3 BLLR 344 (LC).10 Taylor, Steenkamp & Kantor: “Unfair dismissal: misconduct, incapacity and automatically unfair

dismissals” in Thompson & Benjamin, South African Labour Law Vol 1 (Juta, 2010) at AA1-408.

16

‘The word 'intolerable' indicates a significant level of breakdown in the employment

relationship.… It means that the employee could not continue to endure the employment

relationship.’

[36] The South African Constitutional Court remarked in Strategic Liquor

Services v Mvumbi NO & Others11 that the test for constructive dismissal does not

require that the employee has no choice but to resign, but only that the employer

should have made continued employment intolerable.

[37] From the above authorities, the law in our jurisdiction in respect of

constructive dismissal may be summarised as follows, an employee who resigns

from his or her employment bears the onus of showing that the employer

effectively dismissed the employee by making his or her continued employment

intolerable. Once this is established, a second stage must be applied and this

concerns an evaluation of whether the dismissal was unfair. In my view the courts

have correctly held that the two stages that I have set out above are however not

independent stages.

‘They are two stages in the same journey and the facts which are relevant in regard to the

first stage may also be relevant in regard to the second stage’12.

In summary, when faced with a case of constructive dismissal, an employee, bears

an initial onus of showing, on an objective standard, that the employer has

rendered the employment relationship intolerable, it is not sufficient for an

employee to allege that she genuinely believed that the employment relationship

had become “intolerable”, the employee must satisfy the arbitrator that her

subjective mind-set was reasonable in the circumstances.

Discussion

[38] I now turn to the facts of this case. It is common cause that, as at 21

September 2014 when the appellant resigned from the respondent’s employment,

an employment relationship was in existence between the appellant and the

11 (2009) 30 ILJ 1526 (CC); [2009] 9 BLLR 847 (CC) at para [4].12 Sappi Kraft (Pty) Ltd t/a To Gain Mill v Majake N.O. & Other,(1998) 19 ILJ 1240 at 1250.

17

respondent. It is furthermore common cause that the employee, the appellant in

this case, brought the contract of employment to an end. What remains to be

determined is whether the reason for the appellant’s resignation was that of the

employer, the respondent, who rendered the prospect of a continued employment

“intolerable”.

[39] The bulk of the background information that I provided in this judgment was

derived from the evidence that the appellant gave at the grievance hearing of 18

July 2014 and at the arbitration proceedings held between March 2015 and July

2015. I therefore do not find it necessary to rehearse the evidence of the appellant.

There is no dispute in this matter that, when the appellant returned from her

studies and took up employment with the respondent she was, for a period of four

months (that is from July 2013 to November 2013), literally ignored, no work or

assignments were given to her, she testified that all that she did during that period

of four months was to read her emails.

[40] There is also no dispute that as part of her job as a Quality System Auditor,

the appellant was required to travel and to receive a laptop for her to perform her

functions. The laptop was not provided to her. The appellant testified that her

colleagues on the same level and even staff members who ranked lower than her

were provided with laptops, mobile telephones, 3G internet contracts and car

allowances.

[41] The appellant’s direct supervisor, Mr Gicheru’s, explanation ( at the

arbitration hearing) to the above was that the appellant’s work was taken from her

and allocated to other colleagues when she went to the United States to undertake

studies. He said that in her absence, work could not stand still and as a result, the

files that were allocated to her were distributed among the rest of the colleagues.

Mr Gicheru testified, at the arbitration hearing, that it was not appropriate to let the

work wait until the appellant had returned from her studies as they were dealing

with clients as well as sensitive matters and could not allow those files to remain

dormant. He went on to explain that upon the appellant’s return, he advised the

staff members in his department to return the files that the appellant worked on,

prior to her leaving for her studies, to her.

18

[42] He, however, stated that there was a particular file where substantial work

had been done in her absence by another colleague and he felt that giving such

file back to the appellant would be retrogressive. He explained that he thus gave

instructions that that particular file must not be returned to the appellant because

the process was nearing completion so the person who was working on that file

should continue until she had completed work on that file.

[43] In respect of the allegations pertaining to the laptop, he testified that he had

made arrangements with the procurement team to provide the appellant with a

laptop but unfortunately, because of the procurement processes which are outside

his control; her laptop did not come in good time. He added that appellant in the

meantime had a desktop from which she could have done her job and again there

was no way he could have said she should not be provided with a laptop.

[44] There is equally no dispute that the appellant attempted to address all these

irritations, frustrations and tension in the employment relationship, with her

supervisors on an informal basis (there were the meetings of 14 November 2013,

20 May 2014, and 4 July 2014). Her attempts to address these irritations,

frustrations and tension at her workplace culminated in her filing what she termed

an ‘emergency’ grievance leading to a grievance hearing on 18 July 2018. The

grievance that the appellant lodged did not resolve her dissatisfaction.

[45] The respondent through its witness Mr Daniels, who was the chairperson of

the grievance hearing, of 18 July 2014, testified, at the arbitration hearing that the

grievance proceedings were not concluded because the appellant reneged on her

undertaking to provide the chairperson with her proposal as to the way forward.

[46] It is on the basis of, amongst other evidence, this evidence that the

arbitrator found that ‘although the issue of constructive dismissal featured so much

during the arbitration proceedings, there was not a dispute of constructive

dismissal referred to the Labour Commissioner’ and as result she will not dwell

much on it. The arbitrator did thus not consider the question of constructive

dismissal. In my view the arbitrator misconceived the nature of the enquiry before

19

her. The appellant referred a dispute of unfair labour practice to the Labour

Commissioner’s office.

[47] Unfair disciplinary action against an employee is regulated by s 48 of the

Labour Act.13 That section provides that the provisions of s 33 of the Act, which

apply to unfair dismissal, shall, ‘read with the necessary changes, apply to all other

forms of disciplinary action against an employee by an employer’ and s 48(2)

states that disciplinary action taken against an employee in contravention of s 33

constitutes an unfair labour practice.

[48] Section 33(1) provides that an employer may not dismiss an employee

without ‘a valid and fair reason’ and without following a fair procedure. I am

accordingly of the view that, an assessment of whether or not an employer

constructively dismissed an employee, constitutes an assessment of whether the

employer committed unfair labour practice for the purposes of s 48(2). The

arbitrator had a complaint of unfair labour practice before her, she was thus duty

bound and obliged to consider whether the appellant’s complaint of constructive

dismissal was valid or not. The decision by the arbitrator not to consider the

appellant’s complaint of constructive dismissal is thus perverse.

[49] I indicated above that in this instance, the appellant resigned from the

respondent’s employment. On 5 August 2014 she authored a letter which was

addressed to the chairperson of the grievance hearing, in that letter the appellant

conveyed her reasons for her resignation, she said:

‘…I am resigning from my position as Quality System Auditor for Namibia Training

Authority (NTA) with immediate effect. Please accept this letter as a formal constructive

dismissal notice and termination of my contract of employment with the company.

13 Section 48 of the Labour Act, 2007 reads as follows:‘Unfair disciplinary action 48. (1) Section 33 in so far as it applies to the dismissal of an employee, does, read with the necessary changes, apply to all other forms of disciplinary action against an employee by an employer.

(2) Disciplinary action taken against an employee in contravention of section 33 constitutes an unfair labour practice.’

20

First and foremost; I appreciate and am grateful for the opportunity given to me to work at

NTA. Although I have been subjected to incredible various discrimination experience

throughout these past 4 years I have been with the organisation.

Secondly, I feel that, I have been left with no option to leave because my work

environment, trust and general relationship with NTA is beyond intractable for me to

remain. Also, the NTA’s involvements in the current grievance, including other

subsequent grievances processes resulted in it making multiple mistakes. Therefore, I am

confident that, I have reasonably acted and exhausted the grievance procedures while I

remained an employee.

Thirdly; notwithstanding, I content that, in my opinion Mr. Ian Gicheru’s guilt of admission,

and that, NTA has acted , including omitted to protect me on a continually basis up to

present date form an out of control systematic campaign of discrimination; unfair

treatment; unsafe work environment which amounted to sexual harassment. These are

situations I consider presently high risks, and foreseeing more detrimental treatments

endangering upon my mental and physical well-being….’

[50] From the above letter and the fact that the appellant did lodge complaints of

discrimination and sexual harassment with her employer and the respondent’s

failure to decisively address the complaints, I am satisfied that, the appellant’s

resignation was not voluntary and that she did not intend to terminate the

relationship. In my view the appellant’s resignation was induced by her feeling that

she was being discriminated against and that the employer did not protect her

against the ‘systematic’ discrimination meted out against her and rendering her

work situation intolerable. The follow up question is whether her feeling of being

discriminated against was, objectively viewed, reasonable.

[51] In my view the appellant’s feeling was, on the evidence that was placed

before the arbitrator, reasonable. I say so because the acts or omissions that led to

the appellant feeling discriminated against were those of the respondent’s

employees, the respondent employer thus had control over what made the

appellant’s working conditions intolerable. In my view the respondent employer’s

failure to effectively address the appellant’s complaints made it to be culpably

responsible for the intolerable working conditions. I can find no reasonable and

proper cause why the respondent did not effectively address the appellant’s

21

complaints. I thus conclude that the respondent constructively dismissed the

appellant.

[52] I am aware of the cases of Oelofse v New Africa Publications Ltd14 and

Value Logistics Ltd v Basson and Others15 where employees resigned and

subsequently attempted to withdraw their resignations. In considering their claims

for constructive dismissal, the arbitrators in those two cases found that the

attempted withdrawal of the resignations was inconsistent with a claim that the

employment relationship had become intolerable and the claims for constructive

dismissal failed. In this matter, the attempt to withdraw the resignation was not

born out of the desire to mend the working relationship as was the case in the

Oelofse and Value Logistics Ltd matters. In this case the attempted withdrawal of

the resignation was based on the wrong advice that the appellant received that she

stood a better chance for a case of constructive dismissal while she was in the

employment. The attempted withdrawal of the resignation was in this case

consistent with the allegation that the work relationship had become intolerable.

[53] The second leg of the enquiry is whether the dismissal of the appellant was

fair. The arbitrator made the finding that the grievance hearing which took place

during July 2014 was never completed due to the applicant’s resignation from

respondent’s company. It is therefore crystal clear, the arbitrator held that the

respondent’s internal remedies were not fully exhausted. ‘At least applicant was

supposed to wait for the grievance hearing to be completed and if she was not

happy with the outcome then move on to the next level’, said the arbitrator.

[54] In my view, the arbitrator did not have a full appreciation of the evidence

presented to her. She found as a fact that on the evidence that was presented to

her the grievance hearing of 18 July 2014 did not reach conclusion because the

appellant resigned from respondent employer’s employment. In my view this

conclusion is not born out by the evidence that was placed before the arbitrator.

[55] The evidence that was placed before the arbitrator is that on 18 July 2014

the appellant’s supervisor, Mr Gicheru, stated that, if he had failed to protect the

14 [2001] 10 BALR 1098 (CCMA).15 (C1025/09) [2011] ZALCCT 10; (2011) 32 ILJ 2552 (LC) (26 May 2011).

22

appellant from aggressive clients and if he had discriminated against her, he

apologised to her. Upon that statement by Mr Gicheru, the chairperson of the

grievance hearing enquired whether the appellant accepts the apology. The

appellant’s reply was in the negative. It is then that the chairperson enquired what

way forward the appellant would suggest. The appellant requested two weeks to

think about the way forward. I quoted16 the chairperson of the grievance hearing as

saying that he will write a report but that he will wait on Ms Banda (the appellant)

for two weeks and that Ms Banda can send an email or he will contact her in two

weeks.

[56] The two weeks after 18 July 2014 would have expired on 1 August 2014.

When that date was nearing the appellant addressed an email to the respondent’s

General Manager of Human Resources requesting a date for the continuation of

the grievance hearing. The chairperson of the grievance hearing was of the view

that there was no need for a hearing; the appellant just had to put her proposal as

to the way forward in writing. The appellant kept on begging for a hearing where

she would discuss her way forward.17 It is only when she was accused of

‘unilaterally’ demanding a meeting and holding up the conclusion of the grievance

hearing that she authored the resignation letter of 5 August 2014 in which she

stated that her way forward with the respondent employer was for her to amicably

part ways.

[57] The evidence that was placed before the arbitrator further indicates that the

employer did not accept the appellant’s resignation of 5 August 2014, because the

letter conveying the resignation was not addressed to it but to the chairperson of

the grievance hearing. When it became clear that her resignation was not

accepted, the appellant continued to work and further continued to engage the

respondent employer to find a solution to her irritations and frustrations. The

engagements continued on 14 August 2014 and again on 20 August 2014. The

evidence placed before the arbitrator is furthermore that on 20 August 2014 the

respondent’s General Manager Human Resource, Ms Sam and a certain Mr

Mukoya, had undertaken to find another position in the respondent’s employment

16 See paragraph [14] of this judgment.17 I have in paragraphs [15] and [16] of this judgment extensively quoted from the exchange of

the emails between the appellant and the General Manger Human Resources and Mr Daniels.

23

to which the respondent could be transferred. When by 21 September 2014 the

Human Resources Manager and Mr Mukoya had not reverted to the appellant with

a position and the department to which the appellant could be transferred the

appellant tendered a second letter of resignation.

[58] The evidence put before the arbitrator was furthermore that the reason why

an external person in the person of Mr Clement Daniel was appointed to hear the

appellant’s grievance is the fact that everybody in the respondent’s employment,

including the Chief Operating Officer and the acting Chief Executive Officer, were

at one point or the other involved in the hearing of the appellant’s informal

grievance hearings. I have read the record and I perused it and I could nowhere

find the Grievance Procedure of the appellant. I am therefore of the view that the

arbitrator’s finding that the grievance hearing of 18 July 2014 was not concluded

because the appellant had resigned from the respondent’s employment as

perverse. In my view the respondent’s failure to decisively address the appellant’s

grievances was unfair, thus rendering the dismissal of the appellant as unfair.

The appropriate relief.

[59] Having concluded that the appellant was constructively dismissed and that

such dismissal was unfair, what remains to be determined is the relief that may be

granted by this Court. Section 86(15) of the Labour Act, 2007 empowers an

arbitrator to make any appropriate arbitration award including an order of

reinstatement of an employee or an award of compensation. The section confers a

discretion on the arbitrator. The arbitrator has a discretion to determine whether

compensation should be awarded at all, and if so, to determine what amount is

reasonable. This court in turn is entitled to confirm, vary or set aside an order of

the arbitrator according to the requirements of the law and fairness.18

[60] In the present matter, the appellant resigned from the respondent’s

employment on 24 September 2014. The appellant’s complaint to the Labour

Commissioner was resolved on 18 August 2015 when the arbitrator served her

award on the appellant. The appellant, at the arbitration hearing, indicated that she

18 See section 89 (10) of the Labour Act, 2007.

24

does not seek reinstatement because, in her view the employment relationship has

irretrievably broken down. It follows that I will not consider the option of ordering

the respondent to reinstate the appellant.

[61] With respect to compensation, Parker19 opines that an arbitrator must award

such amount of compensation as he or she considers reasonable, fair and

equitable, regard being had to all circumstances of the case. Therefore, in

determining the amount of compensation, the courts have taken into account the

extent to which the claimant's own conduct contributed to the dismissal. The courts

have also taken into account the view that compensation must not be calculated in

a manner aimed at punishing the employer, or at enriching a claimant because it is

awarded based on the principle of restitutio in integrum.20 It must be borne in mind

that discretion is not the equivalent of caprice. I am bound to exercise a discretion,

and to do so within the limits imposed by the Act.

[62] If I choose to award compensation as I have done in this matter, what I

award must be compensation properly so called. Compensation is not synonymous

with a gratuity. In its ordinary meaning, the term envisages an amount to make

amends for a wrong which has been inflicted.21 The primary enquiry must

accordingly be to determine what that loss is. The loss in this case is the

remuneration over the period of the unfair dismissal of the appellant and it is that

loss that must be made good.

[63] In the matter of Pep Stores (Namibia) (Pty) Ltd v Iyambo and Others22 this

Court held that where an arbitrator awards compensation that is equal to the

amount of remuneration that would have been paid to the employee had the

employee not been dismissed, it is not necessary for the employee to lead

evidence to establish the amount involved. Gibson J said:

‘It is common cause that the respondents had all been in the appellant's

employment. The question of what the appellant paid the respondents was not in issue. It

was a circumstance which could easily be ascertained without the need for formal

19 Collins Parker: Labour Law in Namibia. Unam Press (2012) at 193.20 Also see the case of Novanam Ltd v Rinquest 2015 (2) NR 447 (LC).21 See Novanam Ltd v Rinquest (supra) at para [18].22 2005 NR 372 (SC).

25

evidence from the respondents as it lay exclusively within the purview of the appellant's

domain. The failure to lead the formal details is more of a technicality. There cannot be

prejudice to the appellant in mere failure to depose to the salaries paid to the workers.’

[64] I am therefore of the view that it is just and fair to order the respondent to

compensate the appellant by paying her (appellant) the remuneration that she

(appellant) would have received over the period which she remained unfairly

dismissed (that is from September 2014 to 18 August 2015). The amount of

remuneration must include the adjustment, either upward or downward which took

place at the respondent’s place of employment over that period (That is the period

24 September 2014 to 15 August 2015).

[65] Consequently, the appeal succeeds. For the avoidance of doubt, the award

of the arbitrator dated 18 August 2015 is set aside and replaced with the following

order:

1. The respondent, Namibia Training Authority, has constructively dismissed

the appellant Constansia Hitjevi Banda.

2. The respondent, Namibia Training Authority, must pay to the appellant,

Constansia Hitjevi Banda, an amount equal to the monthly remuneration which the

appellant would have earned had she not been so unfairly dismissed from the date

of dismissal (that is 24 September 2014) to the date that the arbitrator issued her

award (that is 18 August 2015).

3 The amount of remuneration mentioned in paragraph 2 of this Order must

include the adjustment, either upward or downward which took place at the

respondent’s place of employment over that period (That is the period 24

September 2014 to 18 August 2015).

4 There is no order as to costs.

---------------------------------

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S F I Ueitele

Judge

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APPEARANCE:

APPELLANT: E M Angula

Of AngulaCo Inc, Windhoek Namibia

RESPONDENT: No appearance.

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