The modern workplace is characterised by all sorts of conflict. The extent of operational demands on the employer and employee is ever increasing. Traditionally competitors were confined to a limited and easily identifiable group. However, as it is often mentioned by very important persons, ‘The world has become a global village’, or words to that effect. Writer’s limited grasp of ‘the global village’ argument, which apparently has its roots in scientific research and findings by renowned economists, is that companies compete internationally for a slice of the ever shrinking proverbial cake.
As a consequence and in order to remain a viable and profitable entity the captains of industry expect employees to perform or perish. The potential for conflict within the workplace is perpetually on the increase and ever so often unfortunate incidents occur that eventually lead to the dismissal of employees for various reasons, albeit for misconduct, poor work performance/incompetence and ‘retrenchments/lay-offs’, as well as other reasons.
Dismissed employees often contest the dismissal by lodging a claim, in accordance with relevant labor legislation in the form of an ‘unfair dismissal’ based on various grounds, for example unfair discrimination, victimization, harassment, ‘bullying’ and within the South African context a ‘constructive dismissal’ [which ‘dismissal’ would be addressed more fully hereunder].
Suffice it to at this juncture disclose that in terms of Section 186(1)(e) of the SA Labour Relations Act, 66 of 1995 (the LRA) a ‘Dismissal’ means that – ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’ [Emphasis added].
The phenomenon of an ‘intolerable’ or unbearable workplace is not confined to South Africa. In an article by Brenda Craig ‘Microsoft to pay $2 Million in Workplace Bullying Case’ (2014) Lawyers and Settlements.com ‘The judge in the Texas employment labour law case, Tim Sulak, has issued a Final Judgement ordering Microsoft to pay $2 million in compensatory and punitive damages and legal fees. Judge Sulak found the tech giant guilty of “acting with malice and reckless indifference” in organized office retaliation against salesman Mercieca.’ [Emphasis added].
At this juncture it is important to record that from a SA legal perspective it is notoriously difficult for an employee to prove constructive dismissal. The reported judgments handed down by the Courts and arbitration awards by Commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) show that an Applicant rarely succeed by discharging the onus that the workplace became ‘intolerable’. [See: Section 186(1)(e) of the LRA referred to supra]. Furthermore, the Courts and Arbitrators have on occasion recognised or to an extent took ‘judicial notice’ of the operational demands and potential for conflict inherent within the modern workplace.
Marcus C commented as follows on the “stressful nature” attributed to the “modern workplace” in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA): “A modern workplace is not heavenly garden of smiling Buddhas focused on the welfare of others. More often than not it represents the contrary picture of a highly stressful and robust environment in which the pressures to perform on staff and even more so, members of management who carry the can, can on occasion contribute to managers conducting themselves in a manner that is less than desirable… managers are after all infallible. They are subject to human limitations like the rest of us and cannot reasonably be expected to perform to the standards of a saint in their conduct towards staff…”
Unfortunately and due to many reasons, some which may be attributed to poor legal advice, misleading advertisement on television wherein a distorted message is projected as if a constructive dismissal claim would with relative ease succeed or simply due to opportunism on the part of an employee, in that the employee would terminate the contract impetuously in response to an argument with a supervisor or as a ‘pre-emptive move’ or stratagem designed to avoid the possibility of a dismissal due to misconduct or poor work performance. What normally follows the pre-emptive resignation is a claim of constructive dismissal in that the workplace supposedly became ‘intolerable’.
As was mentioned above, the SA Courts on occasion by means of admonition alerted employees that the decision to tender resignation should not be done in undue haste or in response to the slightest experience of conflict within the workplace. In Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others  JOL 29127 (LC); also reported (2012) 33 ILJ 363 (LC), Steenkamp J held and made the following observation: “It may be that Van Rooyen subjectively felt that his continued employment had become intolerable. Rahmann had lost trust in him and said so. He had been suspended. Rahmann overreacted by sending the SAPS to his house to recover the documents he had removed from the cellar. But I do not think that these actions by the employer, objectively speaking, were enough to make it culpably responsible for the termination of the employment relationship. The test remains an objective one.
To use a winemaker’s analogy, the court cannot consider whether, subjectively speaking, an employee with a thin skin like the Pinot Noir grape may have found employment intolerable. It has to look at the situation objectively, and an employee has to be somewhat more robust and vigorous when there are still options open to him – more like the Cabernet Sauvignon cultivar”. [Emphasis added]. In Asara Wine Estate & Hotel at 34, Steenkamp J, held that in order to discharge the onus that there was a constructive dismissal the employee must show that there were no reasonable alternatives to resignation in existence.
The sentiments expressed by Byrne, C in Arries // The Effectiveness Company  4 BLLR 373 (CCMA) at  are apposite in that the Senior Commissioner succinctly noted that to prove constructive dismissal, an employee must show that conditions were not merely “uncomfortable”, but that they were “intolerable”. In a recent important, and as of yet unreported judgment, Volschenk v Oragma Africa (Pty) Ltd (C414.13) Delivered: 27 May 2014, Steenkamp J. [Courtesy: LexisNexis BLLR – November Preview] the Applicant chose, what could be described as ‘the road less travelled’, by referring a constructive dismissal dispute, couched in the form of a breach of contract, for adjudication to the SA Labour Court.
After an argument with his employer, Volschenk [the Applicant] resigned from the company on two months’ notice, although he was employed on an indefinite contract requiring one month’s notice. “Applicant claimed ‘constructive dismissal’. He did not refer a dispute the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section 186(1)(e) of the Labour Relations Act, as one might expect. Instead, he referred a contractual claim to this Court, apparently in terms of s 77(3) of the Basic Conditions of Employment Act, relying on breach of contract” [at 2]. The Applicant relied on five contractual damages claims: [3.1] Commission payable; [3.2] Leave pay; [3.3] Future loss of earnings; [3.4] Performance bonus; and [3.5] Shares in an employees’ share unit scheme. The Respondent raised five exceptions. It claimed that the Applicant’s statement of case did not set out a cause of action for his various claims.
After an argument with the Respondent, the Applicant gave two month’s notice of termination [the contract only required one month’s notice] and approached the LC for relief. The Judge noted that the Rules of the Labour Court required statements of claim to contain clear and concise statements of the facts on which the applicants rely, as well as of the legal issues raised. Applicant failed to set out legally relevant facts which disclosed a cause of action.
To make matters worse, the Applicant equated a claim for “damages” with that of compensation as if the same [sort of claim]. Then a further problem was that he failed to quantify the claim for “future loss of earnings”. The Court held that a claim for compensation for an alleged constructive dismissal was a remedy afforded under the LRA, not a contractual claim. Finally – Applicant could not persuade the Judge that he was “constructively dismissed”; especially in that he graciously gave two month’s notice, instead of the contractual one month’s notice period. The Judge found the two month’s extended notice irreconcilable with a claim that the employment relationship had been rendered intolerable. The Court upheld all the Respondent’s exceptions, and dismissed the matter with costs.
One could only express the hope that South African employees, if not all employees should keep in mind that a termination of an employment contract is generally regarded as a unilateral act by the employee and could not be retracted ex post facto by contending that it was done ‘in the heat of the moment’ or by lodging a claim based on the ground of a ‘constructive dismissal’. As was set out above the test of ‘intolerability’ would not easily be satisfied.
Johann Scheepers 09/11/2014
In a judgment delivered on October 16, 2014 in the matter Metropolitan Health Risk Management v Majatladi and Others (CA15/2013)  ZALAC 56 (16 October 2014) the SA Labour Appeal Court (LAC) held that the conduct by the Appellant [employer] rendered the employment relationship intolerable. The resignation by the employee was found to constitute a ‘constructive dismissal’ .
The proven conduct of the employer in Metropolitan Health that led to the resignation of the employee ‘were enough to make it culpably responsible for the termination of the employment relationship’. [See: Steenkamp J, Asara Wine Estate & Hotel supra].
In Metropolitan Health the employee agree to act in a certain capacity for a fixed term and a written contract was ratified to that effect. Prior to the pre-determined termination date of the contract the employee indicated to the employer that she no longer wished to act in said position after the expiry of the termination date. Following thereon the employee took annual leave and upon commencement of leave the employer’s HR manager transmitted an e-mail to the employee notifying that the leave was revoked and an instruction to report for duty.
Upon arrival at work an unfortunate series of events occurred. Employer’s HRM attempted to persuade the employee to agree to an extension of the acting contract, however the employee would have non of it. The HRM then gave the employee what is known as a ‘Hobson’s choice’ [an option of either accepting what is offered or nothing]. The ‘choice’ in casu was ‘agree to a further temporary contract or face dismissal’. The employee remained unwilling whereupon the employer deduced that such conduct was tantamount to refusal of an instruction. The employee was suspended pending the outcome of a disciplinary enquiry.
The employee in response thereto lodged a grievance which was not entertained and the enquiry proceeded where the chairperson showed remarkable wisdom in that a finding of ‘not guilty’ was made. However, the employee was found to have committed an offence termed as ‘conduct unbecoming’ and received a final warning.
Following thereon an appeal was lodged and the grievance was referred to the CEO. The outcome of the grievance was an instruction by the CEO that the employee should continue in the acting position until a replacement was found. Following a period of absence due to ill health and upon her return another suspension was instituted pending a second disciplinary enquiry. On this occasion the allegation was couched as ‘gross insubordination for refusing to obey a reasonable and lawful instruction to report for duty’.
The employee wrote to the employer and contended that the instruction under the guise of operational requirements was not reasonable or valid and the company was unlawfully forcing her to accept a demand under the threat of being disciplined.
When the employer informed that the enquiry would proceed the employee tendered resignation and lodged a constructive dismissal claim. Although an Arbitrator found that she was the author of her own misfortune, the SA Labor Court held that the charges brought at the second hearing were the same as the charges in the first hearing and the hearing would have been so obviously unfair that the work environment as a consequence became intolerable. In the circumstances, the court awarded compensation in the amount of six months’ salary to the employee.
On appeal the LAC inter alia found that there was a pattern of harassment of the employee. The LAC also found that it was hardly surprising that this harassment, resulted in a second charge on the very same issue on which the employee had been found not guilty. The conduct of the employer made the continued employment relationship intolerable and the resignation amounted to a constructive dismissal. The appeal was accordingly dismissed.
November 14, 2014
The modern workplace is characterised by all sorts of conflict. The extent of operational demands on the employer and employee is ever increasing. Traditionally competitors were confined to a limited and easily identifiable group. However, as it is often mentioned by very important persons, ‘The world has become a global village’, or words to that effect.
Writer’s limited grasp of ‘the global village’ argument, which apparently has its roots in scientific research and findings by renowned economists, is that companies compete internationally for a slice of the ever shrinking proverbial cake.
As a consequence and in order to remain a viable and profitable entity the captains of industry expect employees to perform or perish. The potential for conflict within the workplace is perpetually on the increase and ever so often unfortunate incidents occur that eventually lead to the dismissal of employees for various reasons, albeit for misconduct, poor work performance/incompetence…
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