2 July 2008 by

Duty to consult when offering an alternative position

In Murray v Minister of Defence, the Labour Appeal Court considered a claim of constructive dismissal and the constitutional guarantee of fair labour practices.

In 1984, Mr Murray joined the navy as a petty officer. When the events which led to his resignation took place, he was the officer in charge of the Simonstown military police station. From 1992, members of Mr Murray's unit accused him of several improprieties. Despite investigations and two court martials, none of the charges was upheld. At the time of the second court martial Mr Murray was removed from his position in Simonstown and placed in a position at the naval college in Muizenberg. Following the second court martial the navy informed Mr Murray that he could not return to his position at Simonstown as the allegations against him had tarnished his operational ability. The navy then offered Mr Murray an alternative position, which he declined.

Mr Murray then resigned from the navy's employment. He alleged that he had been forced to resign and claimed damages from the navy. The High Court found that Mr Murray had not resigned from the navy's employment on the grounds that the navy had rendered his continued employment intolerable, and dismissed his claim. Mr Murray launched an appeal against the decision.

As the Labour Relations Act is not applicable to the South African Defence Force, the parties agreed that Mr Murray could rely on his right in terms of the Bill of Rights to fair labour practices. The Court stated that the position under the Labour Relations Act in relation to constructive dismissal is in any event the same as that under the common law as constitutionally developed. The parties relied on the findings of the Labour Court in constructive dismissal cases. These cases have established that the employee must prove that he or she was forced to resign.

Once the employee proves this, the court then considers whether the employer without reasonable and proper cause conducted itself in manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. The Court stated that the fact that the employee resigned because his or her work had become intolerable is not enough. The employer must have control over what makes conditions intolerable and in addition, must be to blame for the conditions. The employer's conduct must have lacked reasonable and proper cause.

Having regard to the above, the Court held that at the time of Mr Murray's resignation his position at work was intolerable. The Court went on to find that whilst the employer was responsible for this - in that the Mr Murray was subjected to investigations and court martials - it was not to blame for this. The navy had not acted unfairly in investigating these matters. The Court further held that the decision that Mr Murray could not return to his original position after the second court martial was fairly justifiable.

However, the Court held that the navy had acted unfairly when it offered Mr Murray an alternative new position. Mr Murray made no enquiries as to the nature of the position and simply refused the position on the advice of his superior. Mr Murray suspected that he was being set up for failure and that the position was outside of his capabilities. Whilst the Court held that this was an error on Mr Murray's part, it held that the error on the part of the navy was even greater. The Court held that the navy made no effort to explain the position to Mr Murray, to outline its challenges and ambit and allow him to properly consider the position. In so doing the Court held that the navy had failed to fulfill its responsibility to consult fully with Mr Murray and share information to enable him to make an informed decision. As a result of the navy's failure and its breach of its duty of fair dealing, Mr Murray had been constructively dismissed.

Gillian Lumb, Director in the Employment Law practice, and Riyaaz Parker , Associate, Cliffe Dekker Hofmeyr.

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