Niland v Ntabeni NO and Others (PR33/16) [2017] ZALCPE 6; [2017] 5 BLLR 521 (LC); (2017) 38 ILJ 1686 (LC) (24 February 2017)

80 Reportability

Labour Law

Brief Summary

Review — Constructive dismissal — Employee alleging constructive dismissal after discovering employer's affair with his wife — Employee failed to prove that employer made continued employment relationship intolerable — Arbitrator's finding upheld that employee did not discharge the onus of proof for constructive dismissal as defined in section 186(1)(e) of the LRA.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a review application in the Labour Court in which the applicant sought to have a CCMA arbitration award reviewed and set aside under section 145 of the Labour Relations Act 66 of 1995 (LRA). The underlying dispute was whether the applicant had been constructively dismissed as contemplated in section 186(1)(e) of the LRA.

The parties were Mr Bruce Desmond Niland (the applicant and former employee), Commissioner Given Ntabeni N.O. (the first respondent, being the CCMA arbitrator who issued the award), the CCMA (the second respondent), and Mr Gregory Ernest Harvey (the third respondent and employer).

The procedural history was that the applicant resigned from employment and referred a dispute to the CCMA alleging constructive dismissal. The commissioner found that the applicant had failed to prove constructive dismissal. The applicant then approached the Labour Court on review, additionally seeking declaratory relief that he had been constructively dismissed and that he was entitled to monetary compensation calculated at the equivalent of 12 months’ remuneration, together with interest and costs associated with the arbitration.

The general subject-matter of the dispute lay at the intersection of a personal relationship breakdown and employment law, specifically whether the employer’s conduct rendered continued employment intolerable so as to justify the applicant’s resignation being treated as a dismissal in law.

2. Material Facts

The court accepted as common cause that the applicant terminated the employment relationship, notwithstanding that he did not sign a resignation letter. The applicant had been employed by the third respondent from 2003 in the context of a hunting and farming operation, organising hunting trips. In 2010, he acquired a 49% membership in Huntershill Safari cc, with the third respondent holding the remaining 51%.

The applicant married Guida in 2006. The couple lived on a farm owned by the third respondent, in relatively close proximity to the third respondent’s household. In 2009, Guida began doing marketing work connected to the business. At some stage thereafter, Guida and the third respondent began an affair, though the precise commencement date was unclear on the evidence.

A significant undisputed fact was that in April 2013, the third respondent’s spouse informed the applicant about the affair. Following this, the third respondent left the farm for a period and, upon return, sought forgiveness from the applicant. The court treated it as established that the applicant continued working thereafter and that there was a degree of reconciliation in the relationship at that time. It later emerged that the affair in fact continued for a further period, though the applicant did not know this at the relevant earlier time.

In 2015, rumours arose that the affair was continuing. The applicant asked the third respondent to take steps against a person allegedly spreading such rumours. The court also accepted that the applicant was exploring alternative employment with another person, Mr Osborne, connected to a different game reserve.

A material disputed fact concerned an alleged verbal altercation in April 2015. The applicant alleged that the third respondent taunted him in a bar about Guida. The third respondent denied making the remarks attributed to him. The court treated the dispute as not determinative in the applicant’s favour, particularly in light of subsequent conduct and timing.

On 14 July 2015, the applicant met with the third respondent and stated that it was time for “a parting of the ways”. The applicant did not mention the affair as the reason for leaving at that time. He refused to sign a resignation letter due to a disagreement about the ownership of two vehicles, but left employment nonetheless. Shortly thereafter, he took up employment linked to Mr Osborne and sought to pursue business opportunities elsewhere. He also remained a member of the close corporation for a time after leaving employment.

These facts were treated by the court as central to assessing whether the resignation was caused by employer-created intolerability, or whether the applicant left for other reasons.

3. Legal Issues

The central legal questions were whether, on the evidence, the applicant established that he was constructively dismissed in terms of section 186(1)(e) of the LRA, and, as a consequence, whether the CCMA had jurisdiction to entertain an unfair dismissal dispute.

Closely connected to this was the review question: whether the award was reviewable due to the commissioner’s failure to consider the applicant’s written submissions, and what the appropriate remedy should be once reviewability was established (remittal to the CCMA versus final determination by the court).

The dispute primarily concerned the application of law to facts (the constructive dismissal test applied to the employment relationship and events), together with an evaluative assessment of whether the employment relationship was objectively intolerable and whether the employer was responsible for that state of affairs.

4. Court’s Reasoning

The court first addressed the review ground based on the commissioner’s failure to consider written submissions. Counsel for the third respondent conceded that this omission rendered the award reviewable, and the court accepted that the award should be set aside on that basis. However, the court reasoned that remitting the matter to the CCMA would serve no practical purpose. The court characterised constructive dismissal, in this context, as essentially a jurisdictional question, and held that it was in as good a position as another arbitrator to decide it because the record was complete, the parties were represented, and extensive submissions had been made.

Turning to the merits of constructive dismissal, the court applied the established requirements for a resignation to amount to a dismissal under section 186(1)(e). In the court’s summary of the applicable test, the employee must show not only that the employee terminated the relationship, but that the termination occurred because the employer made continued employment intolerable, that the complained-of conditions were the main cause of the resignation, and that the employer’s conduct caused and was blameworthy for the intolerability.

The court placed weight on the chronology and the applicant’s own conduct after learning of the affair in 2013. Although the affair was clearly serious and personally harmful to the applicant, the court reasoned that the applicant’s continuation in employment for approximately two further years after learning of it was inconsistent with a conclusion that the employment relationship had become intolerable at that earlier stage. The court accepted that, on the evidence, the applicant had forgiven the third respondent at that time and had continued the relationship without treating it as unworkable.

Regarding the disputed April 2015 bar incident, the court reasoned that it could not function convincingly as the “last straw” that made employment intolerable, given two considerations the court regarded as decisive. First, the applicant remained employed for three months thereafter without escalating the issue. Second, the applicant’s evidence in cross-examination undermined reliance on this incident as the operative trigger for resignation. The court also noted that the applicant did not, prior to resignation, confront the third respondent with specific complaints or seek rectification of allegedly intolerable conditions.

The court then evaluated the probabilities concerning the true cause of the resignation. It inferred from contemporaneous conduct—particularly the applicant’s public statement about moving on to “bigger thinking,” the quick transition to alternative employment, and the advance discussions with Mr Osborne—that the applicant left for reasons not confined to employer-created intolerability. In this analysis, the court did not treat the existence of the affair as irrelevant; rather, it concluded that the applicant failed to prove that the affair (or related conduct) was the main cause of resignation at the time it occurred in July 2015, and failed to prove that the employer’s conduct rendered continued employment objectively intolerable in the legal sense required.

The court also considered causation and blameworthiness. It reasoned that the third respondent was not solely responsible for the situation because the applicant’s spouse was “at least as blameworthy” in relation to the affair, and constructive dismissal requires proof that the employer’s conduct brought about the intolerability driving the resignation.

Ultimately, the court concluded that the applicant did not discharge the onus to show a constructive dismissal. Because the matter failed at the jurisdictional stage (no dismissal), there was no need to proceed to fairness.

On costs, the court took into account that the applicant succeeded in having the award set aside (prayer 1) but failed in the substantive declaratory and monetary relief. Applying the statutory fairness standard for costs in labour matters, the court concluded that no costs order was warranted.

5. Outcome and Relief

The Labour Court reviewed and set aside the CCMA award on the basis that the commissioner failed to consider the applicant’s written submissions.

However, the court substituted the outcome by issuing a declaration that the applicant was not dismissed as contemplated by section 186(1)(e) of the LRA, thereby refusing the applicant’s substantive claim that he had been constructively dismissed and declining the related monetary and ancillary relief sought.

The court made no order as to costs.

Cases Cited

Strategic Liquor Services v Mvumbi NO [2009] 9 BLLR 847 (CC).

Murray v Minister of Defence [2008] ZASCA 44; [2008] 6 BLLR 513 (SCA).

Jooste v Transnet Ltd [1991] 5 BLLR 1 (LAC).

Value Logistics v Basson [2011] 10 BLLR 1024 (LC).

Asara Wine Estate v Van Rooyen (2012) 33 ILJ 363 (LC).

Legislation Cited

Labour Relations Act 66 of 1995, section 145.

Labour Relations Act 66 of 1995, section 186(1)(e).

Labour Relations Act 66 of 1995, section 162.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that although the arbitration award was reviewable and fell to be set aside due to the commissioner’s failure to consider written submissions, the applicant nevertheless failed to prove the jurisdictional requirement of a dismissal. On the evidence, the applicant did not establish that the employer made continued employment intolerable, nor that the employer’s conduct was the main cause of the resignation. The court therefore declared that the applicant was not constructively dismissed under section 186(1)(e) of the LRA and declined to grant compensation or related declaratory relief in the applicant’s favour. No costs order was made.

LEGAL PRINCIPLES

Constructive dismissal under section 186(1)(e) of the LRA requires proof that the employee terminated employment because the employer made continued employment intolerable, and that the employer’s conduct caused, and was blameworthy for, the intolerability that drove the employee to resign.

The constructive dismissal enquiry is treated as a two-stage process: the employee must first establish the existence of a dismissal (a jurisdictional prerequisite), and only if that is established does the enquiry proceed to whether the dismissal was fair.

Where an arbitration award is reviewable but the record is complete and the decisive question is jurisdictional, the Labour Court may determine the issue finally rather than remit the matter, particularly where remittal would cause further delay and costs without practical benefit.