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[2025] ZALCCT 76
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SAMWU obo Bezuidenhout v Khai-Ma Local Municipality and Others (C08/24) [2025] ZALCCT 76; [2025] 12 BLLR 1279 (LC) (11 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No.: C08/24
In the matter between:
SAMWU OBO TM
BEZUIDENHOUT
Applicant
and
KHAI-MA LOCAL
MUNICIPALITY
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
M. FOBOTYI . N.
O
Third Respondent
Heard:
2 September 2025
Delivered:
11 September 2025
JUDGMENT
KAHANOVITZ, AJ
Introduction
[1]
This is an application brought to review
and set aside an arbitration award issued on 8 December 2023 by the
third respondent (hereafter
“the commissioner”) on behalf
of the second respondent, in which the commissioner found that the
applicant employee’s
dismissal was fair.
[2]
Prior to the hearing of this matter, the
first respondent, represented by Mr. Davis from the Office of the
State Attorney, Kimberly,
filed written argument. Mr. Davis also
appeared at the hearing and made oral submissions.
[3]
The applicant failed to timeously file
heads of argument prior to the hearing, but Adv. Bosman, who appeared
on behalf of the applicant at the hearing,
sought leave to hand up short written heads of argument. There was no
objection from
the first respondent, and I have had regard to his
oral submissions and written heads of argument.
Summary of the
material facts
[4]
The applicant referred a dispute to the
second respondent, alleging a constructive dismissal.
[5]
The
applicant employee was employed in 2013 as an EPWP
[1]
officer.
[6]
He testified that he was, in his opinion,
badly treated by certain of his superiors over a long period of time.
[7]
On 11 April 2023, he sent a letter to the
municipal manager of the first respondent, submitting his resignation
and notifying his
employer that he would continue to work out his
notice. In addition, he noted that he wished to express his thanks or
gratitude
for the 10 years during which he had been employed by the
first respondent.
[8]
The employer wrote back on 14 April 2023,
acknowledging receipt as well as its acceptance of his resignation.
In addition, the first
respondent’s acting municipal manager
recorded the first respondent’s appreciation for his valuable
contribution and
wished him well with his future endeavours.
[9]
The first respondent correctly submits that
there is nothing in this resignation letter to say that the applicant
was resigning
because his working environment was hostile or
intolerable. On the contrary, he thanked his employer for his 10
years of service.
[10]
Under cross-examination, the applicant said
his version was not that his working conditions were unbearable but
rather that they
were hostile. On his version, this hostility had
been present over a long period of time. These working conditions
were, according
to him, bearable but hostile.
[11]
He complained that over this 10-year
period, the employer had hired as many as five municipal managers -
each with his own personal
baggage and own style of management. This
meant that in each case it was up to him to ‘
adapt
or die’
.
[12]
He did not wish to be reinstated on the
same terms and conditions, as he did not like the post that he was in
and would prefer to
instead be put into a position better suited to
his talents.
[13]
He had soldiered on for so long in these
hostile conditions in the hope that one day things would become
better. In cross-examination,
he also said he had been a ‘
deployed
official
’ whose ‘
struggle
credentials
’ had required him to
make the sacrifice of taking this job ‘
as
a leader in society
’ in an
attempt on his part to make a difference. For these reasons, deciding
to resign was not an easy decision for him.
[14]
As I understood his explanation, the
applicant employee wanted to come back provided that the status quo
improved. He clarified
in his evidence that it was his view that the
employment relationship was not ‘
that
much unbearable
’ and he would be
able to return, provided that certain of his grievances would be
properly attended to.
[15]
The Municipality called witnesses to refute
the applicant’s claim. It is not necessary for purposes of this
decision to deal
with their evidence in any detail.
Mr
Isaacs, the former municipal manager, testified that he had had a
good
working
relationship
with the applicant employee, who was the chairperson of the local
labour forum and a shop steward. He testified about
the applicant
employee’s various grievances and the attempts that had been
made to resolve them.
[16]
As
regards
the
visit by the police to the applicant employee’s house, he said
that the Municipality had received information that tools
belonging
to the Municipality, namely jackhammers and a generator, were being
hired out to members of the community by the applicant
employee for a
fee.
[2]
By the time the
Municipality arrived at the applicant employee’s house to
investigate these items had, according to information
received, been
removed. The Municipality had then reported the matter to the police.
The witness did not know what had eventually
become of the police
case, as by that point, he was no longer working for the
Municipality.
[17]
Mr Christians, the Municipality’s
Senior Manager Technical Services testified about his relationship
with the applicant employee.
He noted in particular that the
applicant employee had been absent from work without permission for
prolonged periods and this
had been referred to HR. The applicant
employee had pleaded guilty to some charges and had received a final
warning and suspension
as a sanction. His relationship with the
applicant employee had started cordially but had become strained in
consequence of disciplinary
issues.
The arbitration award
[18]
The
commissioner refers to the test adopted by the Labour Appeal Court
(LAC) in
National
Health Laboratory Service v Yona and Others
[3]
,
namely that the cumulative effect of the conduct of the employer
towards the employee must be such that the employee could not
reasonably be expected to cope with it. The resignation must have
been a reasonable step to escape
intolerable
working
conditions.
[19]
The commissioner found that
none
of the reasons given by the applicant for his resignation included
intolerability. The closest he came to this was to say that
employment, although indeed not intolerable, was hostile. This was
the theme of his testimony throughout the proceedings.
[20]
Despite recording that he had had problems
with certain named officials, there was no record of the applicant
employee having lodged
any grievances against them. This begs the
question as to why he had not complained against the very people whom
he alleged made
his work environment hostile.
[21]
He appeared to be suggesting that because
he was senior politically (that is, outside of the workplace) to
these two gentlemen,
they should have treated him differently.
[22]
Some of the grievances relied on by him to
bolster his claim did not bear out scrutiny, as these had been
resolved years before
he resigned.
[23]
Essentially, so found the arbitrator, he
had resigned not because of intolerability but because he did not
like the management style
of certain functionaries in the
Municipality, people against whom he had additionally never pursued
formal complaints.
[24]
The applicant employee had accordingly
failed to prove that he was constructively dismissed.
The review grounds
[25]
It was contended that the commissioner
applied the wrong legal test in that it was not required for the
applicant employee to prove
that he had no alternative but to resign.
In addition, it was contended that the commissioner failed to give
sufficient emphasis
to the uncontested evidence that the applicant
employee had been maliciously accused of theft, which in turn caused
his home to
be raided by the police.
[26]
The third respondent had misconstrued the
enquiry in that it was not required for the applicant employee to
prove that he had no
alternative but to resign. The proper test was
whether, considering the circumstances holistically, it was
reasonable for the applicant
employee to resign to escape the
intolerable working relationship.
[27]
The commissioner had also erred in finding
that the applicant employee had failed to lodge complaints against
his superiors. The
applicant employee had testified about his
complaints.
The respondent’s
submissions
[28]
The first respondent submitted that the
applicant had not - even on his own evidence - made out a proper
claim for constructive
dismissal. Perceived hostility, which does not
amount to intolerability, is not a sufficient ground for alleging
constructive dismissal.
[29]
Authority
was referred to the effect that intolerability must be the sole
reason, and the continuance of employment following the
alleged
intolerable events or conduct tends to invalidate a claim of
constructive dismissal, especially where the intolerability
was not
even raised with the employer during such period to give him or her
an opportunity to remedy same.
[4]
Discussion
[30]
The case law is clear. Unhappiness at work
is by itself not intolerability. In other words, employees,
especially senior employees,
are expected to have a thick skin.
[31]
The
following paragraphs of the decision in
Eastern
Cape Tourism Board v CCMA and Others
[5]
per
Molahlehi J (as he then was) aptly summarises the relevant legal
requirements:
‘
[14]
Grogan in the Workplace Law (9ed) in [discussing] the concept of
constructive dismissal states as follows:
“
It
seems that on this view any form of serious and continuing misconduct
constitutes ‘repudiation in the wide sense’
by the
employee or employer. In either case, the employment relationship is
rendered ‘intolerable’. An employer can
also repudiate in
this sense by making it impossible for an employee to render the
employment, a situation now recognised by the
concept of
‘constructive dismissal’
.”
A fundamental point made
by the learned author is that:
“
Mere
unhappiness at work is not enough. Managers in particular are
expected to be able to put up with ambiguity, conflict in
relationships,
power struggles, office politics and the demand for
performance where if not delivered no payment is made
.”
[15] In
Pretoria Society for the Care of the Retarded v Loots
(1997)
18 ILJ 981 (LAC), (at 985A-C), the case also relied on by the
commissioner, the Court framed the test for determining the
existence
of constructive dismissal in the following terms:
“
The
enquiry [is] whether the appellant, 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
employer and employee. It is not necessary to show
that the employer
intended any repudiation of the 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 went further at
984D-F to say:
“
When
an employee resigns or terminates the contract as a result of
constructive dismissal such an employee is in fact indicating
that
the situation has become so unbearable that the employee cannot
fulfil what is the employee’s most important function,
namely
to work. The employee is in effect saying that he or she would have
carried on working indefinitely had the unbearable situation
not been
created. She does so on the basis that she does not believe that the
employer will ever reform or abandon the pattern
of creating an
unbearable work environment. If she is wrong in this assumption and
the employer proves that her fears were unfounded
then she has not
been constructively dismissed and her conduct proves that she has in
fact resigned.”
[16]
The onus in a constructive [dismissal] claim rests with the employee
who has to show that the working environment
has been made
“intolerable” and could therefore not be expected to
continue with the employment relationship. The use
of the word
“intolerable” in the LRA has been interpreted to have
introduced a much stricter test than the one which
was applied under
the previous 1956 Labour Relations Act. The word “intolerable”
according to Grogan in Employment
Law observes further (9ed) at 114
suggests that constructive dismissal should be confined to situations
in which the employer behaved
in a deliberate oppressive manner and
left the employee with no option but to resign in order to protect
his or her interests.
There are various situations in which the
employer can be said to have behaved in such a manner that that left
the employee with
no option but to resign.
[17] An
objective test is used in the determination of the existence or
otherwise of a constructive dismissal
claim. Thus the subjective
state of mind of the employee is not a critical factor in the
assessment of the existence or otherwise
of constructive dismissal.
In general in order to succeed with a constructive dismissal claim
the employee must show that he or
she resigned because of coercion,
duress or undue influence. Failure by the employee to use the
internal grievance procedure, although
not a determinative factor, is
an important aspect in the objective assessment of whether or not the
employee was left with option
but to resign.’
[32]
Constructive
dismissal, therefore, amounts to a state of affairs where the
employee terminates the employment contract in circumstances
where
the conduct of the employer compels the termination by the employee.
Accordingly, it is treated as if the termination had
taken place by
way of an act of the employer.
[6]
If the termination is not treated as if the resignation is held to
amount to a dismissal, then one is simply dealing with a resignation
and any questions of the possible unfairness of ‘a dismissal’
do not even arise.
[33]
The decision of the arbitrator, in my view,
falls well within the band of reasonableness. In addition, the
applicant - who bore
an onus on this leg - also did not, in my view,
come close to proving that his working conditions satisfied the
intolerability
test. Indeed, one gains the impression that he decided
to voluntarily resign at a time of his own choosing and then somewhat
opportunistically
decided to change his mind to pursue a claim.
[34]
His contemporaneous interactions with his
employer at the time of his resignation are inconsistent with the
subsequent claims given
by him of an involuntary or forced
resignation. The contents of his letter of resignation, as well as
the fact that he, although
having been a shop steward, did not lodge
formal grievances about his alleged mistreatment, are of significance
in this regard.
[35]
That he no longer liked his job or his
current set of superiors is obviously not a sufficient basis for
alleging constructive dismissal.
I am satisfied that the Municipality
gave a reasonable explanation for why it needed to investigate
allegations about the alleged
abuse of its property and why it was
proper in the circumstances for them to lay a charge with the police.
[36]
I am also satisfied that the commissioner
applied the correct legal test. The award is well reasoned, carefully
constructed and
indeed contains references to a number of relevant
decided cases.
Conclusion
[37]
The application, therefore, stands to be
dismissed.
[38]
Mr. Davis submitted that, were the Court to
dismiss the application, I should consider making a cost order
against the applicant,
but only in respect of the first respondent’s
disbursements.
[39]
I am not satisfied that any cost order can,
in the circumstances of the present case, be made against the
applicant if regard is
had to the prevailing legal authorities.
[40]
In the premises, the following order is
made:
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
C.S. Kahanovitz
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv Bosman
Instructed
by:
Kramer Weihmann Inc, Bloemfontein.
For the First
Respondent:
Mr. Davis, Office of the State Attorney, Kimberly
[1]
This is a reference to the expanded public works programme.
[2]
The
applicant
drew attention to this police visit featuring as part of the buildup
to his decision to resign.
[3]
(2015)
36 ILJ 2259 (LAC) at para 30.
[4]
See:
Niland
v Ntabeni NO and Others
(2017) 38 ILJ 1686 (LC) at para 35.
[5]
[2010]
11 BLLR 1161 (LC).
[6]
Jordaan
v Commission for Conciliation, Mediation and Arbitration and Others
(2010) 31 ILJ 2331 (LAC) at 2335D.