Constructive dismissal claims must be buttressed by concrete evidence

Section 186(1)(e) of the Labour Relations Act defines constructive dismissal to be circumstances in which “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”.  Put differently, the employee resigns and claims that they were, in effect, unfairly dismissed, as they would not have resigned had it not been for the alleged intolerable employment circumstances created by the employer.

One of the interesting facets of such disputes is that, unlike all other alleged unfair dismissal disputes, the starting point is the rebuttable presumption that the employer did not in fact fashion an intolerable employment relationship, and for this reason, the employee, not the employer, has the burden of proof.  Let’s not forget that in the case of all other species of alleged unfair dismissal disputes, the rebuttable presumption at the outset, is that the dismissal was unfair, until the employer proves, if it can, that the dismissal was fair, both procedurally and substantively.

Employees frequently underestimate how exacting the test is in constructive dismissal cases.  The CCMA, bargaining councils and our labour courts are not easily swayed by claims of constructive dismissal, with the statistics on the outcome of such disputes confirming this with employees more often than not, being unsuccessful when it comes to claims of constructive dismissal.

The recent Labour Court case in Shoprite Checkers (Pty) Ltd v Prince Nkosi & others [Case no. JR625/20, emphasised just how high the bar is et when it comes to proving constructive dismissal, when in concluded that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.

In short, the employee resigned, and claimed constructive dismissal in a dispute referred to the CCMA.  The Commissioner found that the employee had successfully proved that he was constructively dismissed.  The employer reviewed the arbitration award in favour of the employee on grounds that the Commissioner had erred as hi conclusions were not supported by the evidence on record.

Without going into the nitty gritty of this Labour Court review case, the Judge, amongst other things, quoted the Labour Court judgment in Gold One Limited v Madalani & others [2021] 2 BLLR 198 (LC) which “sanctioned a well-established principle that “ … intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter n obnoxious, rude and uncompromising superior who may treat employees badly.  Put otherwise, intolerability entails an unendurable or agonizing circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to breaking point”.

This emphasis on the weight of proof required to prove constructive dismissal as similarly addressed in the Constitutional Court judgment handed down earlier this year in Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) – “It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one.  The term ‘intolerable’ implies a level of inbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour … the conclusion of intolerability should not easily be reached”.

The Labour Court judgment in Shoprite summed this up by stating that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.

Mandatory workplace Covid-19 vaccination – the story so far

Mandatory workplace Covid-19 vaccination – the story so far

The debates around mandatory Covid-19 workplace vaccination policies are currently the dominant labour relations conundrum. Compulsory workplace vaccination policies – can you, or can’t you?

It’s a hot topic, and everybody has their own view and opinion on the efficacy and wisdom of vaccination, and the extent to which employers have a right to impose mandatory workplace Covid-19 policies. However, regardless of personal opinions, our courts will ultimately determine how employers are to approach workplace Covid-19 vaccination, in light of the 11 June 2021 Consolidated Directive on Occupational Health & Safety Measures in certain workplaces. Make no mistake, we won’t know for sure until we begin to see Constitutional Court judgments on this issue.

In the meantime, employers have decisions to make, which can’t be delayed until Constitutional Court judgments are forthcoming. So, where do we look for clues on the way forward. Aside from the Consolidated Directive on Occupational Health & Safety Measures in certain workplaces, it does no harm to observe how other democracies around the, with similar human rights law, are dealing with this thorny issue.

What we do know is that the CCMA is ‘red-lining’ vaccination related dismissals, which for now, are being adjudicated by selected Senior Commissioners. At the time of writing, our understanding is that there are approximately 13 current, live cases at the CCMA, although expect this number to rapidly increase.

On 1 September 2021, the New Zealand Employment Relations Authority (Christchurch) passed judgment in the case of GF v New Zealand Custom Service [2021] NZERA 382 3138682. In short, the employer had terminated the employee’s employment on grounds of his refusal to be vaccinated, after it had conducted a thorough health and safety assessment. The court held that the employer “had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker”.

The European Union’s equivalent to the SA Occupational Health & Safety Act is the Safety, Health & Welfare at Work Act (2005) and article 8(1) of the European Convention on Human rights which mirrors many of the human rights found in the Constitution of SA. Importantly, human rights are not absolute in either, meaning that they can be limited when it is reasonable and justifiable to do so.

A study of relevant European case show reveals that in Boffa & others v San Marino (European Court of Human Rights – 26536/95 15) it was acknowledged that that “the interference arising from the compulsory vaccination of the applicant’s children against hepatitis B was justified by one of the legitimate aims enlisted in article 8(2) of the European Convention, namely the need to protect the health of the public and the persons concerned”.

Finally, in Solomakhin v Ukraine (European Court of Human rights – 24429/03 2012) the court recognised the weight which must be attached to public health and the need to control infectious diseases (many say that Covid-19 is not merely infectious, but is in fact contagious). It went on to say that “In the court’s opinion the interference with the applicant’s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region”.

All cases of this nature will be fact-specific, and require evaluation on their own merits.

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The employer Covid-19 vaccination conundrum

The employer Covid-19 vaccination conundrum

The much-anticipated Department of Employment and Labour ‘Direction’ on Covid19 vaccination was Gazetted on 11 June 2021. Mandatory vaccination is permissible; or is it?

Employers across the country are grappling with the decision of whether to make Covid19 vaccination mandatory, ensuring compliance with the 11 June 2021 Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces Gazette.  Annexure C of this Gazette is entirely devoted to mandatory Covid19 vaccination (“Guidelines if an Employer Makes Vaccination Mandatory”).  Helpful as it is, it does not address the question of dismissal in circumstances where an employee persists in their refusal to be vaccinated, if the employer has adopted a mandatory vaccination policy.

Getting the social partners to reach agreement on the question of workplace vaccination considerations can’t have been easy.  In fairness, it is a complex, multifaceted challenge.  On the one hand, the Occupational Health and Safety Act compels employers to promote and ensure workplace safety, health and hygiene, which suggests that workplace Covid19 vaccination should routinely be mandatory.  Yet, on the other hand, our Constitution provides for key human rights such as the right to equality, dignity, bodily and psychological integrity, freedom of religion, belief and opinion, and fair labour practices; all of which lay the groundwork for the contesting of mandatory workplace Covid19 policies.

So, there we have it.  Employers may establish mandatory vaccination policies, or is that may not?  Hence the current almost paralysis in employer ranks on the workplace vaccination policies being pondered throughout commerce and industry.

At face value, some industry sectors will have a stronger argument and justification for establishing blanket mandatory workplace vaccination policies than others.  For example, most health facilities, in all likelihood, will be able to justify a mandatory vaccination policy given the operational difficulty in applying strict social distancing protocols.  The mining sector too should be able to justify a mandatory vaccination policy given the enclosed working environment in mines, other than open cast mines.  It is even quite arguable that in the hospitality sector, such as kitchens and housekeeping, mandatory Covid19 vaccination policies should be able to withstand scrutiny.

However, our observations over a wide cross-section of other industry sectors, is that employers would by and large prefer mandatory vaccination policies, but are reluctant to do so for fear of being one of the first test cases on the question of mandatory vaccination policies.  Because, make no mistake, there will be a test case, or more likely, a slew of test cases, and no employer is particularly enthusiastic about being a party in such a case.

When all is said, and done, there are three options when it comes to concluding a workplace vaccination policy (1) vaccination is non-mandatory, (2) vaccination is mandatory, or (3) vaccination is mandatory for some employees, but not others.

Section 4 of Annexure C of the Gazette highlights that when contemplating a mandatory vaccination policy “a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business”.

An employer’s risk assessment in accordance with sections 8 and 9 of the Occupational Health and Safety Act will largely influence employer decisions regarding mandatory, or non-mandatory workplace Covid19 vaccination policies.  If an employer risk assessment concludes that the workplace is an inherently hazardous environment which is incapable of limiting the likelihood of workplace infection, a mandatory Covid19 mandatory workplace policy will be more justifiable than a workplace which can take steps to minimise the likelihood of infection.  This, of course, applies to both employees and any other third parties who may access the workplace.

On a practical level, the workplace risk assessment would focus on the ability to maintain social distancing, ventilation, sanitising protocols, the staggering of working hours and meal breaks, hygiene protocols and the like.

It is quite possible that an employer makes Covid19 vaccination mandatory for some employees, but not for others.  For example, given the ergonomics of many workplaces, there may be a likelihood that infection will more likely impact on the health of employees, or others, in one area of a workplace, more than another.

Sooner or later, there will be dismissals for refusal to be vaccinated in workplaces with mandatory Covid19 vaccination policies; it’s inevitable.  It’s clear from annexure C of the Gazette that any pre-dismissal procedure will need to include an employer evaluation of the employee’s grounds for refusal, and an assessment of whether it was possible to accommodate the employee in a position that does not require the employee to be vaccinated.  If not, dismissal on grounds of refusal to be vaccinated in a workplace with a mandatory workplace Covid 19 policy will likely amount to dismissal on grounds of either misconduct (refusal to obey a lawful and reasonable instruction), or potentially on grounds of incapacity, in that without being vaccinated, the employee does not have the capacity to meet their employment obligations in not agreeing to be vaccinated.

The tickly beard and the sexual harassment dismissal

Most unfortunately, we will in all likelihood be lamenting the scourge of workplace sexual harassment for some time to come.  The Code of Good Practice in handling of Sexual Harassment Cases in the Workplace could not be clearer – “Sexual harassment in the working environment is prohibited on the grounds of sex and/or gender and/or sexual orientation” (section 3).

Section 4 of the Code provides us with the test for sexual harassment – “Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors, (1) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation, (2) whether the sexual conduct was unwelcome, (3) the nature and extent of the sexual conduct, and (4) the impact of the sexual conduct on the employee”.

It’s not complicated, but here’s the thing.  Firstly, most employees underestimate how broad the definition of sexual harassment is, and secondly, too few employers educate and sensitise employees on sexual harassment in the workplace, and the consequences thereof, for both the victim and the perpetrator.

On 11 May 2021, the Labour Court passed judgement on one such sexual harassment case – Thandani Umlaw v CCMA & 2 others (Case no. JR1466/18).

The facts were quite straight forward.  As recorded in the judgment “The applicant (the alleged perpetrator) was alone in an elevator at work when a female colleague (Ms. S) entered and complimented him on his newly grown beard.  Ms. S added that the beard looked good on him.  After the applicant had thanked her, Ms. S asked him why he had kept his beard long.  The applicant’s response was that he uses it to ‘tickle’ and then proceeded to demonstrate what he meant by holding Ms. S and rubbing his bearded face against her face in a tickling manner, giving her a bear-hug, and a kiss on the neck and face.  On his own version, and for good measure, a further kiss on Ms. S’ forehead followed”.

The judgment continued that “for demonstrating the tickling prowess of his grown beard and other related conduct whilst in the elevator with Ms. S, the applicant was charged and dismissed for sexual harassment”.

Let’s pause a moment.  Most reasonable minded people will have no difficulty in appreciating that the behaviour described is wholly unacceptable.  Be that as it may, the alleged perpetrator, who was dismissed for sexual harassment, after which he referred an unfair dismissal case to the CCMA.

At the CCMA, the dismissal of the alleged perpetrator was held to have been procedurally and substantively, after which he took the CCMA arbitration award on review at the Labour Court, arguing that his dismissal as unfair, and seeking an order that the arbitration award be set aside.

During the course of the Labour Court matter, further details regarding the case came to light, such as the fact that Ms. S reported the incident to her employer, informing them, understandably, that she felt violated and was scared to go back to the office.  According to Ms. S “throughout the experience she remained numb and silent in shock and disbelief”.

The alleged perpetrator acknowledged asking Ms. S about her weekend plans when the elevator stopped at the level where staff vehicles were parked.

In the Labour Court judgment, the Judge noted that “The compliment of Ms. S was clearly innocuous and did not deserve any response other than a simple ‘thank you’ .. not the response she got”.

Tellingly, the perpetrator “ .. failed at the time and even in these review proceedings, to appreciate the enormity of the consequences of his reprehensible conduct”.

Predictably, the review was dismissed and the dismissal was upheld.

Employers interfere with hearing sanctions at their peril

As a rule, employers may not interfere with the outcome of a disciplinary hearing where the chairperson is empowered to make a final decision.  This, was confirmed in South African Revenue Services v Commission for Conciliation Mediation & Arbitration & others [2016] 3 BLLR 297 (LAC), in order to protect employees from arbitrary interference with discipline in a fair system of labour relations.

This issue was addressed in a recent Labour Court case – Technology Innovation Agency v Segopotso Mashapo & 2 others (Case no. JR449/19).

The employee had been issued a written warning for insubordination.  The employee was “displeased” with the written warning, and lodged an internal appeal.  This, puzzlingly, led to a formal disciplinary hearing being convened. As noted in the judgment “It is not apparent from the record as how the appeal process concluded and what happened to the impugned written warning”.

The disciplinary hearing was chaired by an independent chairperson who found the employee guilty and recommended a sanction of a final written warning, valid for a period of 12 months. However, management than corresponded with the employee, informing him that management had ‘expressed its reservation’ on the recommended sanction of a final written warning “and invited him to make written submissions as to why the sanction of final written warning should not be substituted with a sanction of dismissal”.

Notwithstanding the employee’s objection to this, management substituted the final written warning with the sanction of dismissal.

The dismissal of the employee was, unsurprisingly, found to have been substantively unfair, and the employee was awarded 6 months compensation.

The Labour Court judgment concurred with the CCMA Commissioner – “It is inexplicable that a sanction of a written warning would be catapulted into a dismissal when the circumstances that led to the charges remained the same”.

There’s a lesson here for employers.  As we routinely advise clients, always build a managerial appeal into a company appeal procedure. This may not have quite assisted the employer in this case, but it does as a rule afford employers a legitimate opportunity to revisit disciplinary hearing outcomes they consider ill advised.