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[2011] ZALCCT 21
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Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen and Others (C 272/2010) [2011] ZALCCT 21; (2012) 33 ILJ 363 (LC) (24 August 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C 272/2010
In
the matter between:
ASARA
WINE ESTATE & HOTEL (PTY) LTD
…............................................
Applicant
and
JC
VAN ROOYEN
…............................................................................
First
respondent
CCMA
….........................................................................................
Second
respondent
TARIQ
JAMODIEN N.O.
….................................................................
Third
respondent
Heard
:
10 August 2011
Delivered
:
24 August 2011
Summary: Review –
constructive dismissal
JUDGMENT
STEENKAMP
J
Introduction
This case
raises the question when an employer can be said to have made the
employment relationship intolerable, ie when a constructive
dismissal
as contemplated in s 186(1)(e) of the LRA
1
can be said to have taken place.
The
question arises in the context of a review application in terms of s
145 of the LRA. The arbitrator, Tariq Jamodien (the third
respondent)
found that the employee (the first respondent) had been
constructively dismissed. He ordered the employer to pay the
employee
compensation equivalent to 12 months’ remuneration, amounting
to R269 640, 00; as well as the employee’s
costs. The
employer seeks to have that award reviewed and set aside.
Background facts
The
applicant, Asara Wine Estate and Hotel (Pty) Ltd, carries on business
as a wine farm and upmarket hotel outside Stellenbosch.
It sells its
wines locally and internationally. Its flagship wine, the Bell Tower,
is a five-way Bordeaux blend that is a regular
prizewinner; the 2005
vintage was awarded four stars (out of a possible maximum of five) by
the Platter South African Wine Guide.
The current owner, Markus
Rahmann, bought the property – dating back to 1691 – in
2001.
Jan van
Rooyen, the first respondent, was employed by the applicant as its
winemaker. He was responsible for the Bell Tower and
other wines,
including the Ebony range. He lived in a house on the estate.
In July
2009 the applicant’s Rahmann received a complaint from an irate
German customer that a container of Asara Ebony (amounting
to about
12000 bottles) purchased from the applicant was oxidised.
Rahmann
took the matter up with Van Rooyen. Various discussions took place
between Rahmann and Van Rooyen over the next few days,
on 15, 16, 20
and 21 July 2009, regarding what action was to be taken against Van
Rooyen as a result.
On 22 July
2009, after Van Rooyen had taken legal advice, his then attorneys,
Cluver Markotter, sent a letter to the applicant,
care of its labour
consultant, one Bertus du Toit of Danshaw Consulting. The letter
stated that Rahmann had confronted Van Rooyen
on 15 July 2009 about
the oxidised batch of wine; and that:
“
Our
client [Van Rooyen] was given an ultimatum by Mr Rahmann to either
accept a severance package equal to payment to the end of
August
2009, or to face summary dismissal for gross misconduct and/or
professional negligence”.
On 23 July
2009 the applicant’s attorneys, CK Friedlander, wrote to Van
Rooyen’s attorneys. They denied Van Rooyen’s
version of
events, stating that Rahmann had told him that he could no longer
trust him as the estate’s winemaker; and that
he had “discussed
three alternatives” with Van Rooyen, viz:
“
1.
The Estate will follow a disciplinary procedure which may very well
result in Mr van Rooyen’s dismissal;
2. They
schedule a pre-dismissal arbitration with the CCMA;
3.
Alternatively to the above, Mr van Rooyen could submit a proposal to
Mr Rahmann on how the issue should be resolved.”
The letter
further stated that Van Rooyen was suspended on full pay, pending an
enquiry into his conduct and performance.
The letter
was sent at 17:14. Cluver Markotter did not receive it on that day.
Instead, the South African Police Services gave it
to Van Rooyen at
his house on the farm after midnight. This was after he had collected
some documents from the cellar; the security
guards had told him that
he wasn’t allowed to; and Rahmann had enlisted the services of
the SAPS.
Together
with this letter of 23 July, the applicant’s attorneys sent
Cluver Markotter (Van Rooyen’s attorneys) another
letter marked
“without prejudice”. However, that letter has been
disclosed by the applicant and is an annexure to Rahmann’s
founding affidavit. In that letter, they say:
“
1.
Our open letter of even date [sic] refers.
2. The settlement proposal contained in your without prejudice letter
of the 22nd July 2009 addressed to Mr Bertus du Toit of Danshaw
Consulting is rejected.
3. However, our client is prepared to allow your client to resign
with immediate effect.
4. Our client will pay your client until the 31
st
August
2009 as well as any other amounts to which your client may legally be
entitled. In addition your client will be allowed
to occupy the house
until the 31
st
August 2009.”
On
Saturday 25 July 2009, before formal disciplinary charges had been
laid, Van Rooyen resigned. He did so by way of an email referring
to
the letter from CK Friedlander of 23 July 2009 and stating that he
accepted the conditions in that letter.
On Monday
27 July 2009, Van Rooyen’s attorneys (Cluver Markotter) again
wrote to the applicant’s attorneys. They stated
that “our
instructions are to request that”:
“
(a)
Our client’s termination is dealt with as a retrenchment.
(b) Our client is furnished with a certificate of service reflecting
the reason for termination being operational requirements.
2
(c) A settlement agreement is reduced to writing in full and final
settlement of any and all claims that the parties may have against
each other.”
The
applicant rejected that request and its attorneys stated in a
response dated 28 July 2009 that it had accepted Van Rooyen’s
resignation. It also stated that it would honour its offer, accepted
by Van Rooyen, that he could stay on in the house on the farm
until
31 August 2009.
Van Rooyen
subsequently referred an alleged constructive dismissal dispute to
the CCMA, claiming
inter alia
that:
“
It
was suggested to me that I resign or face charges.”
Van Rooyen
remained in occupation of the house on the farm until 31 August 2009.
The test on review
At the
commencement of the argument of this matter, Mr
Leslie,
who
appeared for the applicant, submitted that the well-known review test
of unreasonableness as set out in
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
3
does not apply in the review of an arbitration award concerning
constructive dismissal. This is so, he argued, because the prior
question is whether the employee was dismissed; if not, the CCMA had
no jurisdiction, and the question whether the CCMA had jurisdiction
is not to be decided on the grounds of reasonableness, but simply
whether the commissioner was right or wrong. Mr
Duminy,
for
the first respondent, did not take issue with this submission.
Authority
for this proposition is to be found in the judgment of the Labour
Appeal Court in
SA Rugby Players Association & others v SA
Rugby (Pty) Ltd & others.
4
Although the court in that case had to consider s 186(1)(b) of the
LRA
5
,
it dealt with it as a species of constructive dismissal and held as
follows:
6
“
The
issue that was before the Commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then the CCMA
had no jurisdiction to entertain a dispute in
terms of section 191 of
the Act.
The CCMA
is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court.…
The
question before the court a quo was whether on the facts of the case,
a dismissal had taken place. The question was not whether
the finding
of the Commissioner that they had been a dismissal of three players
was justifiable, rational or reasonable. The issue
was simply whether
objectively speaking, the facts which would give the CCMA
jurisdiction to entertain the dispute existed. If
such facts did not
exist, the CCMA had no jurisdiction, irrespective of its findings to
the contrary."
Section
192 of the LRA provides that:
"(1)
. In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2) If the
existence of the dismissal is established, the employer must prove
that the dismissal is fair."
In most
unfair dismissal cases, the existence of the dismissal is common
cause and the enquiry at arbitration – or on review
by the
Labour Court – is whether the dismissal was fair; and whether
the finding of the arbitrator in this regard was reasonable.
In the
case of an alleged constructive dismissal in terms of section 186
(1)(e), though, the prior question is whether there was
a dismissal.
The onus is on the employee to prove that his resignation amounted to
a dismissal. In order to decide whether there
was a dismissal, the
commissioner has to investigate the full merits of the case. Only
then can the commissioner decide if there
was a dismissal as defined.
If so, the commissioner must still decide whether it was fair. If
not, though, the CCMA did not have
jurisdiction in the first place,
even though the Commissioner can only make that finding
ex post
facto
.
Anomalous
as this may seem, I am bound by the authority in
SA Rugby
.
7
This court also applied
SA Rugby
in
Member of the Executive
Council, Department of Health, Eastern Cape v Odendaal & others.
8
In that case, dealing with a constructive dismissal, Basson J
explicitly held that the question of whether a dismissal had taken
place goes to jurisdiction and that the review test as laid down in
Sidumo
does not find application in reviewing a jurisdictional
ruling.
The test I
have to apply, therefore, is not whether the conclusion reached by
the Commissioner was so unreasonable that no commissioner
could have
come to the same conclusion, as set out in
Sidumo
9
,
but whether the Commissioner correctly found that Van Rooyen had been
dismissed.
The test for constructive dismissal
Section
186(1)(e) of the LRA defines a constructive dismissal. The section
states that:
“
Dismissal means that –
(e) an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable
for
the employee”.
The test
for determining whether or not an employee was constructively
dismissed was set out in
Pretoria Society for the Care of the
Retarded v Loots
10
.
Although that case was decided under the 1956 LRA, the principles
remain the same. In
Loots,
the court held that
“
the
enquiry [is] whether the [employer], without reasonable and proper
cause, conducted itself in a manner calculated or likely
to destroy
or seriously damage the relationship of confidence and trust between
the employer and employee. It is not necessary
to show that the
employer intended any repudiation of a contract: the court’s
function is to look at the employer’s
conduct as a whole and
determine whether…its effect, judged reasonably and sensibly
is such that the employee cannot be
expected to put up with it”.
The court
held
11
further that when an employee resigns or terminates the contract of
employment as a result of constructive dismissal, such employee
is in
fact indicating that the situation has become so unbearable that the
employee cannot fulfil his/her duties. The employee
is in effect
saying that he or she would have carried on working indefinitely had
the unbearable situation not been created. He
does so on the basis
that he does not believe that the employer will ever reform or
abandon the pattern of creating an unbearable
work environment. If he
is wrong in this assumption and the employer proves that his/her
fears were unfounded, then he has not
been constructively dismissed
and his/her conduct proves that he has in fact resigned.
The
Constitutional Court recently remarked in
Strategic Liquor
Services v Mvumbi NO & others
12
that the test for constructive dismissal does not require that the
employee have no choice but to resign, but only that the employer
should have made continued employment intolerable.
In
Eagleton & Others v You Asked Services (Pty) Ltd
13
this Court considered the three requirements that an employee must
prove in order to claim constructive dismissal. These requirements
are that:
the
employee terminated the contract of employment;
continued
employment had become intolerable for the employee; and
the
employer must have made continued employment intolerable.
In
Chabeli
v Commission for Conciliation, Mediation and Arbitration &
others
14
the court held that in order to prove a constructive dismissal, the
employee has to show that the employer had made the continued
employment relationship intolerable and that, objectively assessed,
the conditions at the workplace has become so intolerable that
he had
no option but to terminate the employment relationship.
15
As I recently stated in
Value Logistics (Pty) Ltd v Basson &
others
16
,
I doubt that this strict test survives the formulation by the
Constitutional Court in
Strategic Liquor Services (supra).
The test
remains, though, that the conduct of the employer must be judged
objectively.
17
Mr
Leslie
,
for the applicant, further submitted that where a reasonable
alternative to resignation exists, there can be no constructive
dismissal.
18
Accordingly, where the employee has the option of facing a
disciplinary hearing, but resigns, there can be no talk of
constructive
dismissal.
19
This appears to me to be a correct statement of the law, unchanged by
the
dictum
in
Strategic Liquor Services.
I also
have regard to the recent
dictum
of the Labour Appeal Court in
Jordaan v CCMA
20
,
where the court cited with approval its earlier decision in
Old
Mutual Group Schemes v Dreyer
21
where Conradie JA said:
“
Buitendien
sou so ‘n werknemer wat uit die bloute bedank dit gewoonlik
moeilik vind om ‘n hof te oortuig dat hy werklik
konstruktief
ontslaan is. Die bewyslas rus op die werknemer... Die bewyslas is nie
‘n ligte een nie... Dit is nie vir ‘n
werknemer maklik om
aan te toon dat ‘n werkgewer die voorsetting van sy diens
onuithoudbaar gemaak het nie. Hy kan hom nie
maar net op frustrasies
en irritasies verlaat en hom bekla oor reëls wat vir alle
werknemers geld, maar hom nie aanstaan nie.
Net soos ontslag is ‘n
gedwonge bedanking ‘n allerlaaste opsie. Dit is ‘n uitweg
wat ‘n werknemer nie mag
volg terwyl daar nog ander uitweë
is nie.”
And Davis
JA continued:
“
This
dictum represents a salutary caution that constructive dismissal is
not for the asking. With an employment relationship, considerable
levels of irritation, frustration and tension inevitably occur over a
long period. None of these problems suffice to justify constructive
dismissal. An employee, such as appellant, must provide evidence to
justify that the relationship has indeed become so intolerable
that
no reasonable option, save for termination is available to her.”
Mr Leslie
further submitted, after I had drawn his attention to
Strategic
Liquor Services
and he had filed a supplementary note on
argument, that the Constitutional Court’s remarks in paragraph
[4] of that judgment
were obiter. In a footnote to these remarks, the
court referred to
Murray v Minister of Defence
22
.
In turn, paragraph 12 of
Murray
cites a number of cases cited
in this case, including
Jooste
,
Loots
,
Smithkline
Beecham
and
Mafomane
.
The
authorities referred to above seem to me to establish that, where a
reasonable alternative to resignation exists, it cannot
be said that
the employer has made continued employment intolerable for the
employee. By referring to these authorities, the Constitutional
Court
appears to have affirmed this principle, while at the same time
pointing out that the employee need not establish that he
or she had
no
choice whatsoever but to resign. The emphasis is on whether
a reasonable alternative exists.
In
Murray
v Minister of Defence
23
-- cited with approval by the Constitutional Court in
Strategic
Liquor Services
-- the Supreme Court of Appeal emphasised that
“the mere fact that an employee resigns because work has become
intolerable
does not by itself make for constructive dismissal. For
one thing, the employer may not have control over what makes
conditions
intolerable. So the critical circumstance must have been
of the employer’s making. But even if the employer is
responsible,
it may not be to blame. There are many things an
employer may fairly and reasonable do that make an employee’s
position intolerable.
More is needed: the employer must be culpably
responsible in some way for the intolerable conditions: the conduct
must have lacked
‘reasonable and proper cause’.
The Labour
Court, in
Eagleton & Others v You Asked Services (Pty) Ltd,
noted that in terms of section 192(1) of the LRA, the employee bears
the onus to prove a ‘dismissal’.
24
Only once this is done does the employer bear the onus to prove that
the dismissal was fair.
25
In particular, in a constructive dismissal, the court held that it
was essential that the employee should make a factual allegation
that
he had resigned.
26
Thus, a constructive dismissal is a two stage enquiry.
In the
same case, the court considered whether an employee was automatically
entitled to the relief provided for in the LRA once
constructive
dismissal had been proved.
27
The court held that “
proving a constructive dismissal merely
proves that there has been a ‘dismissal’ as contemplated
by s 186 of the LRA.
Once a dismissal has been proven the enquiry
will proceed to the second stage which is a consideration of the
‘fairness’
of the dismissal.”
As such, the
court found that an applicant is not entitled to claim compensation
once he has established the existence of a ‘dismissal’.
28
Rather, an employee will only be entitled to compensation once it is
found that the constructive dismissal was also unfair.
29
Resignation in the face of poor performance management does not give
rise to a constructive dismissal claim.
Applying the law to the facts
As I
mentioned above, it was held in
You Asked Services (supra)
that
resignation in the face of poor performance management does not give
rise to a constructive dismissal claim. What about resignation
in the
face of possible dismissal following a disciplinary hearing? In terms
of the
dictum
in
Smithkline Beecham
30
,
an applicant who resigns pending a disciplinary hearing would
have a hard case to meet in order to prove constructive dismissal.
And was the employer culpably responsible for Van Rooyen’s
resignation, as required by the Supreme Court of Appeal in
Murray
31
?
From his
own referral document before the CCMA, it is clear that Van Rooyen
was aware that he had an alternative to resignation
– he could
have faced disciplinary charges.
There is a
dispute of fact as to precisely what transpired in the discussions
between Rahmann and Van Rooyen. Van Rooyen claims
that he was told to
either resign or “to let legal action take its course”.
Rahmann
testified that he presented Van Rooyen with three options, namely:
(a) an investigation into the affair; (b) pre-dismissal
arbitration
before the CCMA; or (c) Van Rooyen could propose an alternative
solution.
Even
though the employer could have stated it more clearly –
possibly by advising Van Rooyen in terms of a date for a disciplinary
hearing to be held -- on either version a disciplinary hearing was
one of the options. The employer was still busy with an investigation
and its attorneys told Van Rooyen so, at the latest on 23 July 2009.
There could have been no doubt in his mind that, should that
investigation point to culpability on his side, he would be able to
contest the allegations in a disciplinary hearing or, if he
preferred, a pre-dismissal arbitration in terms of s 188A of the LRA.
This option would have removed any fear on the side of Van
Rooyen
that an internal hearing would have been prejudged.
Instead,
Van Rooyen elected to resign on 25 July 2009. At the same time, he
accepted the applicant’s offer (which had accompanied
the 23
July letter) that he be paid until the end of August and that he
remain on the farm until 31 August 2009.
Van
Rooyen’s attorneys subsequently sought to sweeten the deal –
and to mislead the fiscus – by requesting that
his resignation
be treated as a dismissal for operational requirements, and that such
agreement be in full and final settlement
of all claims between the
parties. This was not acceptable to the applicant.
Since
there was a reasonable alternative available to Van Rooyen, his
resignation was premature and could not be construed as a
constructive dismissal.
The
commissioner, in finding that Van Rooyen had done all that could have
been expected of him short of resignation, failed to consider
the
obvious “alternative” of simply attending his
disciplinary hearing or, had he been apprehensive about an internal
hearing, a pre-dismissal arbitration in terms of s 188A of the LRA.
This was a gross misdirection.
The
commissioner proceeded to find that Van Rooyen was not guilty of
misconduct. This illustrates that the commissioner misconceived
the
nature of the enquiry before him. Van Rooyen had resigned before a
disciplinary enquiry could be held. In the arbitration proceedings,
it was not incumbent on the applicant to prove its case on
misconduct. In line with the authorities cited above, it was
sufficient
to illustrate
prima facie
that there was a case for
Van Rooyen to answer, and accordingly that it was reasonable to take
disciplinary action against him.
It was not
unreasonable for the employer to believe that, at least
prima
facie
, there were grounds to suspend Van Rooyen pending a
disciplinary hearing. By apparently requiring the applicant to prove
the charges
against Van Rooyen on a balance of probabilities, the
commissioner exceeded his powers by asking himself the wrong
question.
Much is
made in the award of the fact that Van Rooyen allegedly felt
threatened by the police attending at his house (which was
on the
farm) in the night of 23 July 2009. The applicant's, and specifically
Mr Rahmann’s actions, are certainly open to
criticism. To
enlist the services of the SAPS – who have their hands full
with serious crime – to confront the senior
winemaker, with
whom Rahmann worked closely, in the middle of the night in order to
retrieve documents, borders on the bloody-minded.
It is also an abuse
of public resources. Yet that in itself is not enough to make the
employment relationship intolerable.
Van Rooyen
was not physically threatened by the police. He testified only that
one of the policemen had “threatened”
to obtain a search
warrant of the house that he was occupying. His claim that he and his
family feared for their safety is further
belied by the fact that he
was content to remain in the house on the farm until 31 August 2009.
Unnecessary as Rahmann’s
actions were to call in the SAPS, Van
Rooyen’s allegation in this regard appears to me to be gilding
the lily and does not
make the employer culpably responsible for his
resignation. Yet the commissioner accorded the aspect of Van Rooyen
feeling unsafe
a great deal of weight in the award. This was
unjustified and irrational.
In light
of the aforegoing, the finding that Van Rooyen was constructively
dismissed is unsustainable.
Conclusion
It may be
that Van Rooyen subjectively felt that his continued employment had
become intolerable. Rahmann had lost trust in him
and said so. He had
been suspended. Rahmann over-reacted by sending the SAPS to his house
to recover the documents he had removed
from the cellar. But I do not
think that these actions by the employer, objectively speaking, were
enough to make it culpably responsible
for the termination of the
employment relationship. The test remains an objective one. To use a
winemaker’s analogy, the
court cannot consider whether,
subjectively speaking, an employee with a thin skin like the Pinot
Noir grape may have found employment
intolerable. It has to look at
the situation objectively, and an employee has to be somewhat more
robust and vigorous when there
are still options open to him –
more like the Cabernet Sauvignon cultivar.
On 24 July
2009, armed with the letter from the applicant’s attorneys,
there could have been no doubt in Van Rooyen’s
mind that the
one option open to him was to have the applicant’s view –
ie that he had committed misconduct or had
been grossly negligent –
tested in an internal disciplinary hearing or a pre-dismissal
arbitration. He had engaged the services
of attorneys and could take
advice on these options. Yet he chose to offer his resignation in
writing the next day, coupled to
the condition that he be allowed to
remain on the farm until 31 August. Only afterwards did he, through
his attorneys, attempt
to extract a more favourable deal by
structuring his termination as a retrenchment; and it is only after
the employer rejected
that request that he referred a constructive
dismissal dispute to the CCMA.
I find
that Van Rooyen was not dismissed, but resigned voluntarily. The
arbitration award falls to be reviewed and set aside.
Costs
The
applicant has been successful in having the arbitration award
reviewed and set aside. Yet I have to consider both law and fairness,
in terms of s162 of the LRA. Van Rooyen was armed with an arbitration
award in his favour. When the applicant took it on review,
he had
little choice but to oppose it in these proceedings. In doing so, he
had to incur further legal costs in circumstances where
he no longer
had the security of income or residence on the estate. In fairness,
he should not be held liable for the applicant’s
costs.
Ruling
The
arbitration award of the third respondent dated16 February 2010 is
reviewed and set aside.
There is
no order as to costs.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT: G A Leslie
Instructed by CK Friedlander Shandling Volks Inc., Cape Town
FIRST RESPONDENT: W Duminy SC
Instructed by Laubscher & associates, Bellville.
1
The
Labour Relations Act, Act 66 of 1995.
2
This
request, if acceded to, would have been based on a patently untrue
premise. In argument, I put it to Van Rooyen’s counsel
that
his then attorneys attempted to perpetrate a fraud on the South
African Revenue Service whereby his client would have been
able to
secure a tax-free payment, based on a so-called retrenchment that
had patently not occurred. But that is not part of
the case before
me and those attorneys are no longer representing Van Rooyen.
3
(2007)
28
ILJ
2405
(CC).
4
(2008)
29
ILJ
2218
(LAC).
5
Section
186(1)(b) provides that dismissal means that – “an
employee reasonably expected the employer to renew a fixed-term
contract of employment on the same or similar terms but the employer
offered to renew it on less favourable terms, or did not
renew it.”
6
At
paras [39] – [41].
7
Supra
.
8
(2009)
30
ILJ
2093 (LC) para [6].
9
Supra.
10
(1997)
18
ILJ
981 (LAC) at page 985. See also
Woods v WM Car
Services (Peterborough)
(1981) ILR 347 at 350.
11
(1997)
18
ILJ
981 (LAC) at page 984.
12
(2009)
30
ILJ
1526
(CC);
[2009] 9 BLLR 847
(CC) at para [4]
13
(2009)
30 ILJ 320 (LC) at para 22.
14
(2010)
31 ILJ 1343 (LC).
15
(2010)
31 ILJ 1343 (LC) at para 17. See also
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others
(1998)
19 ILJ 1240 (LC) and
Secunda
Supermarket CC t/a Secunda Spar & another v Dreyer NO &
others
(1998) 19 ILJ 1584 (LC);
[1998]
10 BLLR 1062
(LC).
16
Case
no C1025/09 (Labour Court, Cape Town, 26 May 2011).
17
Smithkline
Beecham (Pty) Ltd v CCMA
(2000) 21 ILJ
988 (LC) 997B;
Kruger v CCMA &
Another
[2002] 11 BLLR 1081
(LC)
1085D;
Lubbe v ABSA Bank Bpk
[1998]
12 BLLR 1224
(LAC) para 8;
Mafomane v
Rustenburg Platinum Mines Ltd
[2003]
10 BLLR 999
(LC) para 49.1.
18
Smithkline
Beecham (supra)
997D-E and 998D,
wherein it was held that if the employee is too impatient to await
the outcome of the employer’s attempts
to find a solution to
the perceived intolerable solution, and resigns, then constructive
dismissal is almost always out of the
question. See also:
Lubbe
(supra)
para 8;
Kruger
(supra)
para 14;
Smith
v Magnum Security
[1997] 3 BLLR 336
(CCMA) 341G
19
Old
Mutual Group Schemes v Dreyer & Another
(1999)
20 ILJ 2030 (LAC) para 18;
Tsupa v
Security Officer’s Board
[2002]
12 BALR 1376 (CCMA);
Nokonya v Weiner
[2003] 11 BALR 1294 (CCMA).
20
[2010]
12 BLLR 1235 (LAC) 1239 B-E.
21
(1999)
20
ILJ
2030
(LAC) 2036.
22
(2008)
29 ILJ 1369 (SCA) paras 12 and 67.
23
(2008)
29 ILJ 1369 (SCA) at para 13. The position of the SCA was confirmed
in the case of
Daymon Worldwide SA Inc
v Commission for Conciliation, Mediation and Arbitration &
others
(2009) 30 ILJ 575 (LC) at paras
27 and 40.
24
(2009)
30
ILJ
320 (LC) at para 25. See also
Pretoria Society for
the Care of the Retarded v Loots
(1997) 18
ILJ
981 (LAC)
at 983.
25
supra
at para 25.
26
supra
at para 25.
27
supra
at para 34.
28
supra
at para 35.
29
supra
at para 35.
30
Supra
at para 45.
31
Supra.