In Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others [2020] 11 BLLR 1123 (LC), the employees were employed as special needs teachers by the Centre for Autism Research and Education (the School). Both employees resigned from the School on one month’s written notice. Thereafter, the employees referred a constructive dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA), contending that they had been forced to resign as a result of being bullied by the School’s owner, Ms Riback.

The employees alleged that Ms Riback’s conduct consisted of the following:

• She portrayed significant mood swings and subjected the employees to abusive language, lewd behaviour and discriminatory remarks. She would commonly refer to the employees as a ‘screaming queen’ and ‘goblin’, respectively.
• She made unauthorised deductions from the employees’ salaries and imposed unreasonable and unlawful demands on the employees.
• When travelling for work purposes, she insisted on sharing a bedroom and a bed with one of the employees concerned and insisted on keeping an interleading door between the bedrooms open, commenting on the employees’ bodies while they were required to dress in front of her.
• She threw tantrums and screamed at the employees in public areas, including at conferences and in restaurants, stating that they were ‘disgusting’, ‘pathetic’ and ‘dumb’.

In broad terms, the requirements to be met to establish a constructive dismissal are that –

• the employee must have terminated the contract of employment;
• the reason for the termination must be that the continued employment had, objectively, become intolerable; and
• that it was the employer who made continued employment intolerable.

At the CCMA, both employees testified. The School closed its case without leading evidence. Having regard to evidence led by the employees, the Commissioner found that Ms Riback’s behaviour towards the employees and other teachers was ‘shockingly unacceptable’ and her conduct continuously impaired the dignity of the two employees concerned. The Commissioner had no doubt that Ms Riback’s behaviour towards the employees caused their employment to have become intolerable.

While the Commissioner observed that an employee is required to exhaust all possible internal remedies prior to resigning and claiming a constructive dismissal, he noted that Ms Riback was the employees’ ‘final point of call’ and she had been dismissive of prior attempts by the employees to raise issues with her. In the circumstances, the Commissioner found that the resignations of the employees’ constituted a constructive dismissal and awarded them compensation equal to four and six months’ remuneration, respectively.

The School sought to review and set aside the Commissioner’s award on the basis that, inter alia, the –

• Commissioner had ignored the fact that the employees had not lodged a grievance prior to their resignation; and
• the fact that the employees resigned on notice was irreconcilable with the conclusion that their continued employment had become intolerable.

The Labour Court noted that the employees had made serious allegations against Ms Riback, none of which were properly contested in cross-examination, and Ms Riback elected not to attend the arbitration. The employees’ evidence, therefore, had to be accepted. The court found that the evidence portrayed a workplace operated by a narcissistic personality whose offensive and unwelcome conduct created a toxic working environment for the School’s employees. Ms Riback’s conduct amounted to persistent workplace bullying, which constituted harassment and had rendered the employees’ employment intolerable.

Insofar as the School contended that the employees’ failure to lodge a grievance was fatal to their claim, this was not necessarily the case. The court held that while it is so that employees who claim that employment is intolerable should file a grievance before resigning, this is not an inflexible rule; each case must be decided on its own facts. In the present case, this was not an option available to the employees, particularly as the person against whom their grievance was directed was Ms Riback, the owner of the School. To have lodged a grievance in these circumstances would accordingly have been futile.

As regard to the School’s submission that the employees’ resignation on notice was incompatible with any notion of intolerability, the reason the employees chose to work their notice period was out of a sense of duty towards the learners in their care. In any event, both employees had been escorted off the School’s premises immediately after handing in their resignations and were not permitted to work their notice periods.

In conclusion, the court found that the School had rendered the employees’ continued employment intolerable and the Commissioner’s decision that the employees had been constructively dismissed was correct.

Turning to costs, the court demonstrated its disapproval at Ms Riback’s conduct by awarding a punitive costs order. The costs the employees had to incur by defending the review had consumed much of the compensation granted by the Commissioner. The court noted that had the employees brought a cross-review against the compensation awarded, serious consideration would have been given to increasing it.

The review was dismissed with costs on the attorney-client scale.

Theft in the workplace

In Aquarius Platinum (SA) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2020] 11 BLLR 1071 (LAC), the employee was employed as a shaft engineer by Aquarius Platinum (the Company). The employee wished to mount a TV aerial at his mine residence at a great height to avoid any vandalism. In order to do so, the employee sought to use discarded scaffolding poles at the mine shaft.

The employee approached the mine manager and informed him that he wanted to borrow the scaffolding poles. The mine manager authorised him to do so, subject to the employee complying with the Company’s waybill procedure required to remove any Company property. The employee then instructed a subordinate to cut pieces of the scaffolding poles, worth about R 1 000, which were then removed by the employee. The employee did not, however, prepare the necessary waybill nor did he return the scaffolding poles to the mine.

Consequently, the employee was dismissed for, among other things –

• dishonesty in that he misappropriated Company property and abused and misused his position of management by using mine labour to perform private tasks; and
• failing to comply with the Company’s waybill procedure. The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA Commissioner found the employee guilty of failing to comply with the waybill procedure. In addressing the other charges, the Commissioner concluded that there was no ‘dishonesty’ by the employee and that there had been inconsistent application of discipline by the Company. On these findings, the dismissal was held by the Commissioner to be unfair. The Company sought to review the Commissioner’s award.

On review, the Labour Court (LC) disagreed that the employee had been treated inconsistently. However, similarly to the CCMA Commissioner, the LC was not persuaded that the employee had been ‘dishonest’ when removing the Company property as he was not secretive in doing so and executed his conduct in an open manner. The court held that the employee could, therefore, not have been found guilty of theft, rather his conduct amounted, at best, to a misappropriation of Company assets, an offence, which did not warrant dismissal. Aggrieved by this finding, the Company took the matter on appeal.

The Labour Appeal Court held that the LC’s finding that theft or dishonesty requires secrecy or concealment was misplaced. Neither is an element of the crime of theft. All that is required is that a person deliberately deprives another of their property permanently. The court went further to state that the idea that secretiveness is a necessary attribute of theft or dishonesty overlooks the fact that theft sometimes takes place quite brazenly. One common example is where senior employees abuse their authority by taking possession of Company property for private use. The facts of the present case illustrated this exact scenario.

The court noted that while employers frequently charge employees suspected of theft with ‘unauthorised possession’, this is merely to cater for situations where an intention to steal cannot be proved. Having said this, the court found that the honest misappropriation of property is a contradiction in terms. To describe the deliberate retaining of property to which the employee is not entitled to retain is not, conceptually, distinguishable from theft. It is conceivable that a person may intend to return an item at the time of borrowing it but later changes that intention. The change of intention would, however, have to be inferred from the evidence. In the present case, the employee had not provided any explanation and an inference could be drawn that the employee intended not to return the Company property.

Even if an intention to return the Company property had been proved, the court found that the employee was guilty of another serious form of misconduct – the brazen abuse of his status and seniority by using a subordinate’s labour for private use. Having regard to the employee’s seniority, he was obliged to set a good example, which he did not. In the circumstances, the court found that dismissal was an appropriate sanction for such abuse.

The appeal was upheld.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2021 (Jan/Feb) DR 44.