CONSTRUCTIVE DISMISSAL UNPACKED: THE INTOLERABILITY TEST

In the case of BROWNS THE DIAMOND STORE (PTY) LTD V COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION AND OTHERS (JR1091/22) [2023] ZALCJHB 189 (19 JUNE 2023) the employer disputed an arbitration award from the CCMA Commissioner dated 3 April 2022.

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The employee began working as a Sales Consultant in March 2009 at the OR Tambo International Airport store. She resigned on 25 October 2020, alleging unbearable employment conditions.

Earlier in April 2020, the company denied her application for voluntary retrenchment, asserting her importance as a salesperson and their policy against retrenching near-retirees.

This rejection angered the employee, leading to hostile communication with the employer. ?Among her heated remarks, she questioned Larry Brown’s (the employer) attitude towards her and even considered involving the EFF to stage protests.

Though the company directed her towards the grievance procedure, she remained unyielding.

The employer denied scheduling a disciplinary inquiry on 28 September 2020 (a Jewish holiday) to offend her, countering her claims.

The Commissioner dismissed the employee’s justifications for her comments as mere jokes or attention-seeking.

By September 2020, due to her behaviour, the employer sought to charge her, but she responded with medical leave and finally resigned on 25 October.

Her 11-page resignation letter, crafted with legal assistance from Cliffe Dekker Hofmeyr, was influenced by rumours that the company planned to fire her.

Despite clear evidence contradicting this, the Commissioner deemed the employee as constructively dismissed.

On review at the Labour Court (LC), the employer argued that the Commissioner's conclusions lacked the backing of the available evidence.

The conditions to establish constructive dismissal include an employee ending the employment contract because the employer made continuing the job intolerable.

The Commissioner, despite recognising the employee's provocations, grounded her final judgment on irrelevant or highly contested evidence.

Moreover, she did not account for the fact that the employee had been on leave due to the COVID-19 national shutdown.

The Commissioner's claim of insufficient evidence showing the employee’s resignation to evade a disciplinary inquiry was deemed irrational. This is because the employee admitted knowing about a pending disciplinary action.

The bar for proving intolerability is set high. It's more than just a challenging work environment or tough superiors. It signifies unbearable conditions stemming from the employer's conduct.

This perspective has been cemented by higher courts, emphasising that the conclusion of intolerability mustn’t be easily reached. It demands compelling reasons and solid evidence.

In this case, the employee didn't provide a robust justification supported by substantial evidence for her claimed intolerability.

Given these considerations, the LC found the Commissioner's verdict of the employee's dismissal as indefensible.

The award was deemed to be reviewed and set aside as the employee couldn’t conclusively prove her dismissal as outlined in the LRA's section 186(1)(e).