Mr Donald Msiza

In Shoprite Checkers (Pty) Ltd v Nkosi and Others (2022) 43 ILJ 1386 (LC), the issue before the Labour Court (LC) was whether an employee who resigned because he found a workplace difficult to be in was dismissed, and whether such dismissal was procedurally and substantively fair, or whether same amounted to constructive dismissal.

Summary

This matter comes to the Labour Court (LC) as a review application of the finding of the Commission for Conciliation, Mediation and Arbitration (CCMA) against Shoprite Checkers, that the dismissal of the employee, Mr Nkosi, was constructive dismissal. The LC held for the applicant and held that the said dismissal was in fact procedurally and substantively fair.

Facts

The employee was in the employ of the applicant for approximately six and a half years from 1 February 2013 to 30 September 2019 when he tendered his resignation on a month’s notice. During his employment the employee had written numerous letters of complaint, the first of which was written in 2016 in which letter he registered a complaint against his then regional manager but later retracted same after consultation with the human resources department, he was further transferred multiple times from one store to another for various reasons after consultation. In 2018, he was transferred to another branch store (Sontonga) of the applicant and within days of his arrival was charged and informed to appear before a disciplinary committee. He then registered a complaint with the CCMA against the applicant for victimisation, which complaint he later withdrew and accepted a transfer to a different branch (Ridgeway). Shortly after this in December 2018, he was transferred to yet another branch (Alberton North) to help in the manager’s absence.

In January 2019, Mr Nkosi returned to the Ridgeway branch where he was allegedly victimised and intimidated by one Ms Dunn, his then regional manager, when he enquired about his promotion. Ms Dunn allegedly further made racist comments against Mr Nkosi. He registered a complaint with Mr Sibiya, a divisional manager, whereafter he began to receive warnings from his senior managers, of which he refused to sign the warnings, because he believed that he had done nothing wrong, and the warnings were retaliation for his complaints. In response to the warnings, he registered another complaint with the CCMA for unfair labour practice, which complaint he later withdrew to ‘seek legal advice’.

Mr Nkosi agreed to another transfer after he was issued with a final written warning for ‘storming out of a disciplinary enquiry and for not responding to the alarm’. He reported (under contestation, even though he was allowed to leave early for transport purposes) to the Heidelberg branch instead of the Chris Hani branch (as discussed) because the former had no fresh produce manager. When he was not allowed to leave early due to an impending store visit of the divisional team in August 2019, he protested and was issued with three warnings by the branch manager (Mr Nhlapo), which he challenged, and Mr Nhlapo also lodged a grievance of his own with the divisional manager against Mr Nkosi.

Following a meeting held by the then regional manager on 30 August 2019 between Messrs Nkosi and Nhlapo, a commitment was reached to peacefully work together. Notwithstanding, Mr Nkosi still had complaints about how Mr Nhlapo treated him and that he, Mr Nhlapo, demanded to be addressed as ‘Meneer’.

Mr Nkosi resigned on 30 September 2019 and, thereafter, lodged a dispute with the CCMA claiming constructive dismissal.

Legal provisions considered by the Labour Court

In considering whether there was indeed a dismissal and as such whether the dismissal was constructive the court considered the decision in Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC) where the court emphasised that ‘the question whether the employee was constructively dismissed or not is a jurisdictional fact that – even on review – must be established objectively’ because ‘a tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner’s finding that the employee was constructively dismissed was unjustifiable’, effectively holding that where it is found that an employee was not constructively dismissed the commissioner’s findings become reviewable and thus can be set aside.

The court also considered the test for constructive dismissal, which the Labour Appeal Court (LAC) in Solid Doors set out to be that:

‘1. first, the employee must have terminated the contract of employment;

2. second, the reason for termination of the contract must be that continued employment has become intolerable for the employee; and
3. third, the employer must have made continued employment intolerable.’

It must be noted that where one of the requirements as set out above is not present, constructive dismissal cannot be established, the same can be said where an employer terminates their contract of employment merely because they cannot stand working in a particular environment or a certain company unless the resignation can be attributable to a conduct on the part of the employer. The court agreed with the decision of the LAC in National Health Laboratory Service v Yona and Others (2015) 36 ILJ 2259 (LAC), which held that the test for proving constructive dismissal is an objective one, that is, the conduct of the employer should be such that any reasonable person would have not coped with but resigned due to the intolerability caused by the conduct of the employer. This view confirms the decision of the court in Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC) where it was held that the first test was whether, when resigning, there was no other motive, namely, that had it not been for the continued unacceptable conduct of the employer the employee would have not terminated the employment.

In Gold One Ltd v Madalani and Others (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198 (LC) the LC held that intolerability is ‘far more than just a difficult, unpleasant or stressful’ workplace or conditions, or ‘obnoxious, rude and uncompromising superior who may treat employees badly’ maybe even an emotionally or mentally toxic environment, for intolerability is a high threshold. The Constitutional Court in Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC) has held that intolerability ‘implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour.’ In Watt v Honeydew Dairies (Pty) Ltd (2003) 24 ILJ 466 (CCMA) the CCMA emphasised that an employee who resigns and in turn ‘is unable to show the requisite conditions that render continued employment intolerable then the resignation remains valid.’ A resignation is not a dismissal.

Section 186(1)(e) of the Labour Relations Act 66 of 1995 defines the: ‘Meaning of dismissal and unfair labour practice –

(1) “Dismissal” means that –

…

(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.’

Labour Court findings

The employee did not present any evidence to prove that there was a dismissal, much less a constructive dismissal. The commissioner erred when he found for the employee because he failed to consider the contexts of the transfers, the lodging and withdrawal of grievances and the agreements reached thereafter.

The employee resigned because he was dissatisfied with the trajectory of his career, particularly the lack of progression therein. He was ill-disciplined and had a longwinded history of breaking workplace rules.

Mr Nkosi failed thus, to reach the threshold of intolerability in that he could not prove that the underlying reason for his resignation was the conduct of the employer, which conduct would have led any reasonable person to do the same.

Importance of the case

As in Billion Group (Pty) Ltd v Ntshangase and Others (2018) 39 ILJ 2516 (LC) the LC found that the employee had failed to establish that continued employment had become intolerable – his mere sense of foreboding about his continued employment prospects was not sufficient to justify his resignation.

It is pivotal that the employee proves and shows that the employer’s conduct is objectively unbearable. The court found that the employee had to resign within a reasonable time of the trigger event. Employees need to know that just because an environment is hard to work in, that does not make it objectively unbearable.

This article was first published in De Rebus in 2023 (June) DR 10.