Constructive dismissal: CCMA jurisdiction should first be established.

The CCMA is not a court of law, but is a creature of statute and arrives its powers from the Labour Court. In essence, the CCMA cannot clothe itself with jurisdiction it does not have. In order for the CCMA to arbitrate a dispute, numerous jurisdictional matters should first be assessed before jurisdiction to arbitrate is established.

 Constructive dismissal, or a dismissal in terms of section 186 (1) (e) whereby the employee alleged that the reason for the dismissal is that the employer made continued employment intolerable, can typically be arbitrated by the CCMA once it can be shown that the CCMA does have the necessary jurisdiction to do so. Before the CCMA could accept its duty to arbitrate the dispute, it must first be established that a constructive dismissal exists and satisfy the relevant legal requirements thereof. Unlike challenging the merits of a dismissal, whereby the test is that of reasonableness, the test for matters relating to jurisdiction is correctness. Either the CCMA has the requisite jurisdiction to arbitrate a dispute or it does not. So, what are the grounds to establish the existence of a constructive dismissal?

In Gold One Limited vs Madalani , The Labour Court reiterated the principles affirmed in Solid Doors and stated there are three requirements for a constructive dismissal to be established, which are: 

‘…The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable.

In Gold One, Ms Madalani, a senior employee, habitually arrived late for duty and also left the employer’s premises during her lunch break. Given the circumstances of the mining operations and the importance health & safety has in the workplace, her employer issued her with a verbal warning in order to correct her conduct. This did not bode well with the employee who outrightly refused to adhere to the company’s time keeping and clock in / out policies. In addition, Ms Madalani was convinced that the employer’s request was offending her contract of employment with the company, effecting a unilateral change to her terms and conditions of employment. Ms Madalani threatened to take legal action should her employer not immediately desist in pressurising her in their request to have her adhering to the timekeeping and clock in/out policies.

In an effort to deal with Ms Madalani’s non-compliance, the company requested her to subject herself to a counselling and advised her that the purpose of the counselling is to deal with the timekeeping issue. In addition, they have requested her to subject herself to an induction process that can explain the nature of mining operations (as she was previously transferred from head office to the mining operations) and the inherent dangers involved. She was further advised that during the counselling session she is welcome to hold different views and the counselling session will give the platform for her to share those views and to challenge the fairness of the verbal warning she received.

Not convinced, Ms Madalani responded to the employer arguing that their charade to subject her to a counselling session and an induction program was merely an effort to start a formal dismissal process. Ms Madalani resigned on the 11th of August 2014 and filed a constructive dismissal dispute at the CCMA.

The dispute was setdown for conciliation, which remained unresolved and consequently the dispute was sent to arbitration. The Commissioner found in favour of Ms Madalani due to the sequence and the time within which the incidents that Ms Madalani complained about that Gold One indeed made her continued employment intolerable. Gold One filed for review at the Labour Court on grounds of jurisdiction. Gold One Limited argued that the CCMA did not had jurisdiction to arbitrate the dispute as, in their view, a constructive dismissal was not shown to have existed.

 During review proceedings, the court cited the Labour Appeal Court in National Health Laboratory Service v Yona and Others and stated:

 ‘…a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employee…The test for proving a constructive dismissal is an objective one. The conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances.’

The court agreed that Ms Madalani indeed terminated her employment with the company, however, that the next leg of the enquiry turns on whether the reason for that termination was because Gold One made her continued employment intolerable. The court highlighted the flaw in Ms Madalani’s thinking alleging that the company’s timekeeping policy was offending her contract of employment. Clause 6 of her contract of employment stated:

 ‘6. Hours of work and working conditions 

 6.1. The employee agrees that her appointment is a senior appointment and will necessitate working reasonable hours outside normal hours on regular occasions and therefore the Employee will be required to reside in a close proximity of the Company’s operations.

 6.2. The employee shall satisfy the time requirements of the Company and accordingly, employee may be called upon to work irregular hours.’

The court found that Ms Madalani was a senior employee who had some level of flexibility in terms of her hours of work. However, such flexibility had to be exercised in accordance with the operational requirements of Gold One. A request to keep time by clocking in and out and to work during lunch did not offend her contractual terms. The request was sensible within the context of its mining operation.

In addition, the court further found that it stands to reason that had Ms Madalani attended the induction, a light could have been shed on all her queries pertaining to the hours of work and applicable prescripts in a mining operation. This could indeed have marked the end of her grievances and she would still have been in the employ of the company. Her decision to reject this opportunity was impetuous. Likewise, Ms Madalani could have raised her dissatisfaction with the verbal waning for poor timekeeping during her counselling session.

What triggered her resignation remains a mystery, however, she also failed to establish intolerability. The court stated:

‘It is well-accepted 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.’

Ms Madalani failed to establish that Gold One made her continued employment intolerable. In this context, it does not avail an employee to unjustifiably claim constructive dismissal where such an employee has suitable alternative remedies or mechanisms to resolve the cause of the intolerability, before resorting to resignation. Ms Madalani shunned the counselling session that was meant to resolve the cause of the alleged intolerability.

The court found that Ms Madalani failed to show that the employment relationship had become intolerable and that she had no other reasonable option other than to tender her resignation.

The court ruled that the CCMA had no jurisdiction to entertain the dispute.

What we learn from this case is that before the CCMA has the jurisdiction to arbitrate a constructive dismissal, three grounds should first be established to exist. These are, firstly the employee must terminate the employment relationship. Secondly, the employment conditions must have become intolerable and thirdly, it must be the employer who are responsible for the intolerable conditions. What should be highlighted is that it is not necessary that resignation ‘must’ be the last resort in order to claim constructive dismissal, but that resignation was a reasonable option under the circumstances. Further that the threshold for intolerability is a high threshold whereby it must be shown that the employer brought the employee’s tolerance to a breaking point.

by Tobie Nel