Council of the Municipality of Windhoek v Brandt (SA 72-2021) NASC [2023] (22 November 2023)
Facts
The respondent terminated her employment by resignation with the appellant, Council of the Municipality of Windhoek (the Municipality) on 27 June 2016, and claimed in a dispute that her termination of employment amounted to a constructive dismissal. The respondent, as Manager of Parks for the Municipality, was in charge of overseeing a contract for the digging of graves, which was awarded to a business concern known as Utase Dynamic Enterprise CC (Utase). This contract (in particular the failure on the part of Utase to perform in accordance with its contractual obligations), became the underlying cause for the friction which developed between the respondent and Ms. Mupaine (to whom the respondent reported) and other municipal employees (i.e., the incident between the respondent and Mr Kazombiaze, her subordinate section head who reported to her).
What was contested between the parties was whether the circumstances culminating in the respondent’s resignation amounted to a constructive dismissal. The Municipality resisted that claim, and the matter proceeded to arbitration. At arbitration, the arbitrator found in favour of the Municipality, holding that the respondent had not established a constructive dismissal, and that she had resigned voluntarily. The respondent appealed against that award to the Labour Court.
On appeal to the Labour Court, the Municipality raised a preliminary point against the award. The point concerned the heading of the award where the Municipality was merely referred to as the ‘Windhoek City Council’ in the heading. Although it was conceded that the Municipality was correctly cited in the dispute as the Council of the Municipality of Windhoek, the Municipality contended that the incorrect description of the Municipality in the heading of the award resulted in the award being a nullity. It was argued on behalf of the Municipality that the Labour Court should have dismissed the appeal without considering the merits because of this error in the heading of the award. The court a quo pointed out that the Municipality was correctly cited in the arbitration proceedings, and its legal personality had remained the same throughout the proceedings and on appeal. The court found that the mere incorrect designation in the award’s heading did not render it a nullity, finding that the incorrect description was a technical point devoid of any prejudice. The court a quo held that the matter fell to be determined on the real issues in dispute justly, speedily and efficiently in accordance with the overriding objects of the court. On the merits, court a quo considered the requirements in establishing a claim of constructive dismissal to be threefold:
Firstly, the employee bears the onus of establishing that, even though terminating the employment relationship, the termination came about due to the conduct of the employer. Once that is established, the enquiry would shift to determine whether the conduct of the employer ‘was calculated or likely to destroy the trust relationship with the employee’, causing her to resign. The third leg of the enquiry, the court held, is whether the employer was culpably responsible for the intolerable conditions. The court a quo found that all the three requisites for a constructive dismissal had been met by the respondent. Her appeal succeeded, and the Municipality was ordered to pay the respondent 24 months of her annual remuneration of N$932 280 less statutory deductions. That court also directed the Municipality to pay the respondent severance pay, representing one week’s pay for each year of continuous service with the respondent.
The Municipality appealed against that judgement.
Issues for determination, arguments and discussion
In issue on appeal to the Supreme Court was whether the respondent was constructively dismissed from her employment position with the appellant. Counsel for the Municipality again raised the same preliminary point which the court a quo rejected. Counsel submitted that the court’s finding that the mistake was a mere technicality was wrong, and would have the practical effect of causing ‘anarchy in the administration of justice’. Counsel argued that the preliminary point should be upheld and the decision of the Labour Court be set aside, and the appeal succeed on this basis alone. The Municipality further argued that by the time the respondent resigned, the issues were resolved because the Utase contract was coming to an end, and Ms Mupaine was going on retirement in the near future. The Municipality further accepted that the respondent had made out a case for constructive dismissal if she were to have resigned in April 2016, but argued that her failure to resign then and only two months later deprived her of her cause of action, particularly because the contract with Utase had by then come to an end.
The respondent argued that the Municipality failed to call material witnesses (i.e., Ms. Mupaine and the then Mayor, given the manner in which the Mayor involved himself in the appeal against the outcome of the second grievance filed by the respondent shortly before it was heard, and then served upon the panel determining the outcome of that appeal).
The Supreme Court also took issue with the state of the appeal record – directing a letter to the Municipality’s legal practitioner of its non-compliance with rule 11(1)(h) of the Rules of the Supreme Court, and requesting the non-compliance to be rectified on 2 October 2023 before the hearing of this appeal on 24 October 2023. Despite this, the Municipality’s practitioner instead merely filed an affidavit seeking to explain the failure to comply with rule 11(1)(h) and the clear directive of this Court. Counsel for the Municipality acknowledged that the documents forming exhibit ‘A’ were not in the same sequence as filed in the record of the arbitration proceedings. It was stated that the reference to documents in counsel’s heads of argument would reflect the current numbering in the appeal record and that the respondent’s practitioner had not raised the issue, and was not prejudiced. The court found that the Municipality’s practitioner’s brazen non-compliance of the rules was not limited to the appalling state of the record. Counsel’s heads were 61 pages long, exceeding the 40-page limit provided for in rule 17(4)(k), in the absence of a direction by a judge permitting him to exceed that length. Counsel acknowledged that no such approach was made. The written argument was also replete with lengthy quotations from both the record and especially from authorities, which is expressly proscribed by rule 7(d). Nor were any reasons provided for the citing of more than one authority for the same propositions of law as required in rule 7(c).
SMUTS JA (MAINGA JA and UEITELE AJA concurring) considered the matter and held that:
The evidence which served before the arbitrator includes a vast number of references to documents forming part of Exhibit ‘A’, comprising its 491 pages with reference to the page numbers in that bundle. But those page numbers do not correspond to the numbering on the documents in the appeal record. In order to prevent this highly undesirable state of affairs, rule 11(1)(h) was promulgated. It requires in peremptory terms that ‘all references in the record to page numbers of exhibits must be transposed to reflect the page numbers in the appeal record’. This important provision was disregarded.
A court of appeal is called upon to determine a matter with reference to an appeal record. That record is prepared for the court in the first instance, although of course also for the protagonists. The respondent’s counsel may not have raised the issue because he represented the respondent in the arbitration, appeared to be well-conversant with all the documents in question, and had not been prejudiced in preparing his argument. Members of the court are of course not in the same position, and do not have that advantage. Members of the court were instead required repeatedly to rummage through 491 pages of Exhibit ‘A’ to search for documents referred to in evidence, a very time-consuming exercise which wasted a great deal of judicial time.
This Court has time and again emphasised that practitioners who take on work in this Court have a duty to acquaint themselves with the rules of this Court. This Court has also repeatedly stressed that the work of this Court is adversely affected by the abject disregard of the rules by practitioners in the preparation of appeal records. Repeated warnings have been made that adverse punitive costs orders will be made as a consequence. Unprofessional conduct of this nature will not be countenanced, and the range of orders which may be given include a practitioner being precluded from charging fees for preparing and/or perusing a defective record. In the future, similar orders may also be considered in respect of written argument which comprehensively fails to comply with rule 17.
The Municipality had been properly cited in the proceedings, as is reflected in the record and acknowledged by its counsel. The minor error made on the arbitration award did not render the entire award a nullity, as was correctly found by the Labour Court. This point was devoid of both prejudice and substance.
Dismissal is not defined in the old Labour Court Act 6 of 1992 or the new Labour Act 11 of 2007 (the Act). Under the common law of contract, which originally governed much of employment law, constructive dismissal would arise where the termination of the agreement arose from a breach of an implied term where employers, ‘without reasonable or proper cause, conducted themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’. In the absence of a definition in the Act, the Labour Court has both under the previous Act and the current Act held that a constructive dismissal arises where an employee terminates the relationship due to the unjustified conduct of an employer driving an employee to leave.
In examining the legal framework and following the adoption of the Act (and its predecessor), a constructive dismissal fell within the scope and concept of unfair dismissal in s 33 of the Act and that of its predecessor. The structure of s 33 contemplates that, in instances where it is in dispute that there was a dismissal, s 33(4)(a) provides that the onus is upon an employee to establish the existence of a dismissal, namely that the resignation was not a voluntary act, and was not intended to terminate the employment relationship. Once that is established, then the onus shifts under s 33(4)(b) where it is presumed that, unless the contrary is proved by an employer, the dismissal was unfair.
The cumulative impact of Ms. Mupaine’s conduct, supported by subordinates and condoned by the executive management, given their failure to address the issues, amounted to the respondent experiencing intolerable working conditions. The Municipality’s counsel correctly conceded that a case for constructive dismissal had been made out as of April 2016.
With regards to events after April 2016, the continuation of the conduct, coupled with the culpable inaction on the part of the executive management which was fully conversant of the conduct, meant that the respondent established that she had been constructively dismissed, and the conduct against her amounted to unfairness on the part of the Municipality represented by its executive management, including Ms. Mupaine and those who failed to address her culpably unfair conduct towards the respondent. Importantly, the respondent had exhausted internal remedies available to her to address these intolerable conditions by formally lodging grievances, and pursuing those procedures to finality by appealing against the outcome of the grievance, which received no attention.
Conclusion
‘[150] It follows that the appeal is dismissed with costs, which include a further order made in respect of the record. The order of the Labour Court is furthermore to be rectified in the respect set out in this order.’
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