CCMA find Lackay was not 'constructively dismissed'

2017-12-08 22:00
Adrian Lackay (Cornél van Heerden, Netwerk24)

Adrian Lackay (Cornél van Heerden, Netwerk24)

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Johannesburg – The Commission for Conciliation, Mediation and Arbitration (CCMA) has found that former South African Revenue Service (SARS) spokesperson Adrian Lackay was not constructively dismissed.

Lackay, who had worked at SARS for nearly 12 years, resigned in February 2015, alleging that the organisation had "made his continued employment intolerable".

ALSO READ: Former SARS spokesperson enjoyed benefits from Pillay, CCMA hears

CCMA Commissioner Joyce Nkopane handed down judgment in Lackay's case this week and found that he had not lodged a formal grievance and was not able to prove that his employer made his working conditions intolerable.

"Thus, for the employer to be culpable at least there must be knowledge or the employer ought to have known that the conduct complained of is making the working conditions of the employee intolerable," Nkopane said.

"Thus, it is not sufficient to, without any evidence, make allegations that one could not do the job and submit that this constituted constructive dismissal," she said.

The CCMA found that Lackay didn't necessarily have to raise a grievance, but he had the responsibility of raising the issues that he claimed made it intolerable for him to continue working at SARS.

Terminated services for 'personal reasons'

During a previous appearance at the CCMA in Johannesburg, Lackay revealed a lot of what went on behind the scenes at SARS when its commissioner Tom Moyane first started, in the midst of the onslaught of the rogue unit debacle in 2014 and 2015.

Lackay argued that Moyane changed offices, making himself inaccessible and that he (Lackay) was increasingly being left out of the loop on important events at SARS.

"It appears that the nature of the relationship between Lackay and [the] previous SARS commissioners was friendly to the extent that he would be informed of many things, even those that need to be communicated to the media," Nkopane said.

READ: Ex-SARS spokesperson's job advertised twice while he was still on duty

"Based on the past experiences, he expected Moyane, who did not know that this is how they related or worked, to work in the same way as they did… Lackay even wanted Moyane to use the office at Lehae La SARS, but did not communicate this to him," she said.

The commission found that there was no evidence of any conduct on the part of SARS that made Lackay's continued employment intolerable.

"If subjectively, Lackay felt that he was entitled to information or was supposed to be part of decisions that the commissioner did not even intend communicating, the expectation was, in my view, not reasonable," Nkopane said.

"On the totality of the evidence I find that the applicant has failed to discharge the onus and prove that he was constructively dismissed. I find that he terminated his own services for personal reasons and other prospects of employment opportunities."

Read more on:    ccma  |  sars  |  adrian lackay

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