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  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”.
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.
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  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.
It’s an unfortunate reality that in this day and age of massive unemployment, certain employees have scant regard for, or appreciation of, their otherwise secure employment. All too often, employees behave in a manner which defies all logic and comprehension. Such was the case of the case of the light blue hairclip and a fair dismissal.
Our story starts in a Pick n’ Pay franchise in Brackenfell, where Xolelwa Ntantiso was employed as a cashier. Xolelwa had an otherwise good relationship with her manager. She had none the less received a written warning for insolence earlier in the month in which Hairpingate occurred, although toward a different manager, and in different circumstances.
The employer had a policy governing the personal appearances of staff, one aspect of which was that hair accessories had to be navy blue or black. Let’s pause for a moment. One would think that it would not cross an employee’s mind that this was an unreasonable rule, nor indeed a rule worth repeatedly and defiantly refusing to comply with, thereby putting one’s job security in jeopardy. Well, that’s exactly what Xolelwa inexplicably did.
On the morning in question, her supervisor observed her wearing a light blue hairpin, and asked her to remove it. Xolelwa refused to do so “pointing to another staff member whose hairpin similarly did not comply with the policy”. The supervisor the instructed the other employee to remove her hairpin, which she did. Yet Xolelwa continued to refuse to remove her hairpin, after which an altercation ensued and she was disciplined and ultimately dismissed.
Xolelwa was of the view that her dismissal was unfair, and she lodged an unfair dismissal dispute at the CCMA.
The arbitrator acknowledged that Xolelwa’s failure to wear the correct colour hairpin, in and of itself, was only a breach of a minor rule governing the wearing of hair accessories. However, she had been dismissed for “serious, persistent and deliberate” insubordination. The arbitrator dismissed Xolelwa’s submission that she was in fact unaware of the policy, as on a previous occasion when she had worn the wrong colour hairclip, she had removed it without question. When originally instructed to remove her hairpin on this occasion, she had demanded an explanation from the supervisor why she should do so.
The supervisor’s instruction to remove the hair pin had been repeated several times, after which “an audible altercation arose between them in full view of customers and other staff”. This altercation caught the attention of the manager who called them both to his office. The manager then instructed Xolelwa to remove her hairpin; once again, she refused to do so, shouting at the manager, and alleging that the he was victimising her.
According to Xolelwa, she felt that she needed the hairpin in the same way that she needed her glasses. Unsurprisingly, the arbitrator concluded that simply wearing the correct colour hairpin would have resolved the problem.
The arbitrator further found that Xolelwa “must have realised that her defiant refusal to carry out the instruction even when it was issued a number of times, was putting her job at risk. She could easily have complied. It was not merely a failure to carry out a reasonable instruction but her deliberate and persistent challenge” to management’s authority to issue such an instruction, remembering that this took place in full view of customers and other staff members, intentionally undermining company discipline.
The arbitrator found Xolelwa’s expectation that she only be issued a final written warning “misconceived the seriousness of her insubordination”, and the employer could not be expected to tolerate such persistent and defiant defiance.
As such, the arbitrator held that her misconduct justified dismissal, noting that “The Applicant’s refusal to carry out a very simple instruction shows her defiant attitude to the authority of her manager, which she repeat when the store manager instructs her to remove the hairpin. This was preceded by her written warning for being insolent to a different manager that same month. The Applicant remained obstinate and argumentative at the disciplinary inquiry, and at arbitration never once conceding that she may have been in breach of the company’s uniform policy. To have been so recklessly insubordinate while on a written warning for insolence towards another manager, suggests an entrenched pattern of defiant behaviour towards management which, from the company’s point of view, makes continued employment intolerable”.
The Labour Court review application failed, and the dismissal was upheld.
The CCMA comes in for quite a bit of flack. Let’s face it, half of the parties in arbitration cases lose, and the CCMA and its Commissioners are the easiest, and closest targets. In our experience, however, you normally pretty much get the arbitration award you deserve. But not always. There are indeed occasions when arbitration awards are wrong. That’s not unique to CCMA Commissioners though. It is precisely for this reason that our legal system has a series of review and appeal processes, across all fields of law, not just employment dispute resolution channels.
To be fair to CCMA and Bargaining Council Commissioners, employer cases are often lost due to defects in how a disciplinary hearing was conducted by an employer. Training can go some way to reducing poorly applied internal disciplinary processes.
That said, CCMA can err in their judgments, and be found to have committed irregularities in their arbitration awards.
Such was the case in San Michele Home NPC v Mahlangu D. & others (Case number JR1692/19, in a recently published Labour Court judgment.
The background to this case was that on 9 January 2019, “singing and dancing” union members had confronted an employer Administrator “in his office and handed him a letter of grievances, and demanded that he should leave the premises. He was subsequently escorted out of the premises”. An unprotected strike the ensued, during which “employees who were not party to the strike were equally subjected to intimidation by the striking employees”.
The employer obtained a Labour Court interdict on an urgent basis, on 17 January 2019, in light of the striker’s conduct. Needless to say, as is so often the case, “the unprotected strike and unlawful conduct had persisted”.
“The employees were subsequently charged with and dismissed for intimidation, participating in an illegal removal of two employees (Administrator and Social Worker) from the premises, and insubordination. Thirty other employees who were members of NUPSAW were also dismissed for similar misconduct”.
At arbitration, the Commissioner held that the dismissal of the two employees dismissed for intimidation and the illegal removal of two employees, were substantively and procedurally unfair on grounds that (1) there was no evidence of intimidation, (2) the two employees allegedly evicted by the strikers had testified that they had “played along with the strikers in order to save themselves from potential if not actual harm, (3) the alleged offenders had shown no intention of participating in the unprotected strike, and (4) that the two dismissed employees had long service, and, in essence, acted out of fear of union member retribution if they did not act as they did.
The employer took the arbitration award on review to the Labour Court.
The judgment was scathing of the Commissioner’ arbitration award. For example, the judgment notes that “ .. the glaring evidence before the Commissioner was that indeed the employees had not only participated in the unprotected strike action, but were also positively identified as part of the employees who had also committed acts of misconduct”, continuing that “Further to these factors is that the employees were part of a mob that had unlawfully and in an intimidating and unconscionable manner, removed officials of the applicant (a home for the mentally handicapped) who were going about their primary duties”.
The judgment also noted that neither of the two dismissed employees had shown any form of contrition for their actions, or taken stock of the consequences thereof”.
Turning to the arbitration award’s remedy of the reinstatement of the two dismissed employees, the Labour Court Judge noted that “I fail to appreciate how the Commissioner could possibly have concluded that a reinstatement with no consequences was appropriate”.
The Judge was finished. He continued that “Having regard to the above and the overall approach of the Commissioner, it is apparent that he clearly made contradictory findings, and other than that, he had relied on speculation rather than the discernible facts that were before him … the Commissioner had misconceived the nature of the enquiry he was called upon to undertake, had completely ignored relevant evidence, had failed to properly apply his mind to material issues at hand, and had committed various other irregularities in the conduct of proceedings”.
The Court substituted the arbitration award of the Commissioner in holding that the dismissal of the two employees was substantively fair.
Disciplinary procedures are, first and foremost, a process to attempt to correct unacceptable employee behaviour. There are of course many occasions when dismissal for a first offence is fair and justified, such as in cases of gross dishonesty, breaches of safety protocols and assault. However, as a general observation, employers tend to utilise disciplinary action more for dismissal than correction.
As a rule of thumb, alleged unfair dismissal cases are easier to defend at the CCMA and bargaining Councils if there is a history of progressive discipline, than is the case when the employee, at face value, has no history of progressive discipline.
Item 3 (2) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) states that “The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them”. Importantly, it continues that “Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings”.
We see in practice that less serious, and occasionally, regular acts of relatively minor misconduct are frequently overlooked by employers. Yet, as we see all too often, an employee may commit the same act of relatively minor misconduct once too often in the eyes of the employer, who then seeks the dismissal of the employee for repetition of the minor act of misconduct over time. Such an example could include habitual late-coming. The employee may indeed have a horrendous poor time-keeping record, but if no prior, timeous corrective or progressive disciplinary sanctions were applied in those instances, this employee with a poor time-keeping record has an unblemished disciplinary record, when they ought to have, for example, had a final written warning for this offence on file.
All too often we see employers rue the fact that they did not apply prior progressive discipline.
Item 3(3) of the Code of Good Practice: Dismissal confirms that “Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious or repeated misconduct may call for a final warning, or other action short of dismissal”.
Item 3(4) of the Code of Good Practice: Dismissal emphasises the importance of progressive discipline even further in stating that “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable”.
The issuing of progressive disciplinary warnings is relatively simple. There are typically three levels of disciplinary warnings, verbal warnings (typically valid for three months), written warnings (typically valid for six months) and final written warnings (typically valid for twelve months). Before any warnings are issued, the employee should be given an opportunity to explain themselves, before the employer decides whether the employee is ‘probably’ guilty of the misconduct, prior to selecting an appropriate sanction (warning).
No formal disciplinary hearings are necessary before issuing a disciplinary warning.
In the final analysis, disciplinary warnings are an attempt to bring an employee’s attention to unacceptable conduct, in the hope that they will refrain correct their conduct going forward. Whilst most employees will correct unacceptable conduct with simple counselling and informal measures, other employees will not do so until such time as disciplinary steps are taken against them more formally.
It is generally accepted that employers should develop a disciplinary procedure and code which outlines the employer’s in-house disciplinary procedures, and establishes a company disciplinary code which as appropriate for the nature of the employer’s business.