In Shoprite Checkers (Pty) Ltd v Nkosi and Others [2022] 5 BLLR 469 (LC) the employer approached the Labour Court (LC) to review an arbitration award by the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of which the CCMA had found that the employee had been constructively dismissed.
In this case, there was a long history of the employee submitting complaints and grievances to management and then management attempting to address the situation by transferring the employee to another store. The employer had commenced employment at a particular store but had raised several complaints regarding challenges that he had with his managers. The employer considered these complaints and transferred the employee to another store. After another complaint regarding his personal safety, the employee was sent back to the original store. He was then later transferred again to a third store. While the employee was working at this third store, the employee was invited to attend a disciplinary hearing. The employee then referred a dispute to the CCMA alleging victimisation. This dispute was withdrawn when he was transferred to another store. At this new store he submitted more complaints alleging that he had been victimised and intimidated because he had inquired about a promotion. He also accused the manager of using racist language and informing him that he would never be promoted. After making this complaint, he received disciplinary warnings. He refused to sign these warnings as he believed he did nothing wrong. At this point he referred another dispute to the CCMA but withdrew it on the recommendation of the commissioner that he refer an unfair labour practice dispute instead, but he took no further steps in relation to this complaint after withdrawing this dispute. The employee was subsequently issued with a final written warning for storming out of a disciplinary hearing and for not responding to the alarm. He then agreed and accepted a transfer to another branch. While working at this new store, he complained about transport and was accommodated by being permitted to leave early each day provided that his tasks had been completed. An incident then arose on a day when he was not permitted to leave early as the store was being prepared for a visit by the divisional team. The employee was issued with three warnings that night and lodged a grievance challenging those warnings. The manager then also lodged a complaint against the employee. A meeting was held at a regional office to deal with both complaints and the outcome was that both the employee and his manager agreed to work together amicably. Thereafter, the employee alleged that he was still being treated badly by the manager as the manager demanded to be addressed as Meneer (sir). He then alleged that his manager and the person who had convened the amicable meeting at the regional office were ‘coming up with tricks’ but no details of the tricks were provided.
The employee then resigned a month later and referred a constructive dismissal dispute after serving his notice period. The CCMA found that the employee had in fact been constructively dismissed.
On review, the LC referred to the well-established requirements for a constructive dismissal, namely –
The court also remarked that the test is an objective one in that the conduct of the employer toward the employee and its cumulative impact, must, when viewed objectively, be such that the employee could not reasonably be expected to cope with such conduct. Resignation must accordingly have been a reasonable step for the employee to take in the circumstances to escape the intolerable working environment.
In the employee’s resignation letter, he cited that the reasons for his resignation were that he had become frustrated because he had not been promoted, he had not been paid overtime, he was unhappy with the outcome of his grievances, and he had to work late when there was no public transport, which was a safety concern.
Reference was made by the LC to the decision in Gold One Ltd v Madalani and Others [2021] 2 BLLR 198 (LC) at para 46 in which it was held that ‘intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.’ Reference was also made to the Constitutional Court decision in Booi v Amathole District Municipality and Others [2022] 1 BLLR 1 (CC), where it was also held that ‘the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult’. It was held that the employee did not meet this threshold.
In this regard, the LC considered the fact that he had withdrawn two of his disputes regarding the grievances and that he had resigned without doing anything about his final complaint to the regional manager. In regard to his complaints about not being promoted, there was no evidence that he had applied for positions. It was found that the employer had tried to deal with the employee’s complaints by transferring him to other stores and had explored possibilities to keep him even though there had been disciplinary issues with the employee. It was, therefore, held that the employee had failed to prove that his employment conditions were intolerable. Furthermore, he failed to prove that the employer was responsible for the alleged intolerable conditions.
It was accordingly held that the commissioner had misconstrued the nature of the inquiry and the arbitration award was accordingly set aside and replaced with an order that the employee had failed to prove that he had been dismissed and, therefore, the CCMA lacked jurisdiction to determine the dispute.
In Muller v Public Investment Corporation (SOC) Ltd and Others [2022] 5 BLLR 458 (LC) the employee was employed by the Public Investment Corporation (PIC) in an executive position. The Minister of Finance (Minister) at the time revised incentive bonuses payable to PIC employees with the effect that the amount that the employee was owed was reduced by almost half and a further amount of about R 2,5 million was deferred to a later date. This revision and deferment resulted in a short payment of the employee’s short-term incentive and a non-payment of his long-term incentive. This aggrieved the employee, and he lodged an internal grievance, which was not resolved to his satisfaction. The employee then resigned from his employment and reserved his rights to sue PIC for damages. Prior to his resignation, the employee had referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in relation to the short payment of the short-term incentive and the non-payment of the long-term incentive.
In terms of the pre-arbitration agreement between the parties the two issues that the CCMA had to determine were whether the CCMA had jurisdiction to determine the dispute and whether the PIC had committed an unfair labour practice. The CCMA held that the Minister should have been joined to the proceedings and dismissed the unfair labour practice dispute.
The matter was then taken on review and the employee alleged that the finding by the CCMA that the Minister should have been joined to the proceedings was a material error of law and the commissioner lacked competence to dismiss the matter. The Labour Court (LC) found that given the pre-arbitration agreement the commissioner was not authorised to determine the issue of non-joinder as that was not one of the issues agreed to in the pre-arbitration agreement. Therefore, this was a gross irregularity. Furthermore, the commissioner’s view that the Minister was an interested party was wrong because the Minister had no substantial interest in the matter and would not have been prejudiced by the successful outcome of the unfair labour practice dispute.
The LC also found that the contract of employment was between the employee and the PIC. The powers of the Minister were to approve the payment of benefits, but he did not have the authority to revise or defer payments. Therefore, the employee’s claim was a claim based in contract. It was held that the employee was deprived of bonuses to which he was contractually entitled because of an invalid instruction by the Minister to revise or defer bonus requirements.
It was held that these incentives are benefits within the meaning of s 186(2)(a) of the Labour Relations Act 66 of 1995. The employee had satisfied all the requirements of the bonus and yet the PIC refused to pay him. It was held that because the Minister did not have authority to revise or defer payments the PIC could not rely on this as a basis for not performing in terms of the contract with the employee. The failure of the PIC to perform its contractual obligations in these circumstances was found to amount to unfair conduct on the part of the PIC and, therefore, amounted to an unfair labour practice. It was found that the commissioner did not reach a reasonable decision because he considered irrelevant considerations and did not apply his mind to the PIC’s failure to pay the benefit and whether that failure was fair. Therefore, the arbitration award was reviewable.
The LC accordingly set aside the arbitration award and replaced it with an order that the PIC committed an unfair labour practice and was ordered to pay the employee the shortfall in the short-term incentive and the amount of the long-term incentive, with interest.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2022 (July) DR 35.
