THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1796/2023
In the matter between:
MASOKO SOFONIA MOKWALASE Applicant
and
FIDELITY SECURITY SERVICES (PTY)
LTD
First Respondent
NATIONAL BARGAINING COUNCIL
FOR THE PRIVATE SECURITY
CENTRE (NBCPSS)
Second Respondent
COMMISSIONER PATRICK PERCY
MAKGOPELA N.O.
Third Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
(CCMA) RUSTENBURG
Fourth Respondent
Heard: 4 September 2025
Delivered: 09 September 2025
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JUDGMENT
DE WITT, AJ
Introduction
1. This is a n application to review and set aside the decision of the third
respondent dated 23 October 2022 under reference number NWRB 1045-22.
Background facts
2. The applicant was employed by the first respondent from about 11 December
2007 in the position of Operational Manager and in terms of which he was given the
task of managing approximately 28 sites, including a site for Engen.
3. The applicant was given notice to attend a disciplinary hearing on or about 12
November 2021. The applicant was charged with gross insubordination and gross
insolence (two counts). The applicant was found guilty with a sanction of dismissal
(suspended for 12 months) on 15 December 2021. The applicant subsequently
appealed against the suspended dismissal which resulted in the third charge being
set aside (as it occurred more than three months prior to the hearing) but the
sanction and decision otherwise being upheld on 28 January 2022.
4. The only relevance hereof is that the applicant was still subject to the 12-
month suspended sanction at the time when he resigned and claimed a constructive
dismissal.
5. The facts surrounding his resignation are as follows: The applicant received
an email on 11 February 2022 from the Regional General Manager of the first
respondent, Mr Ba artman, on 16 February 2022 wherein Mr Baartman advised the
applicant that “ there is an investigation in progress. You are hereby instructed to
withdraw with immediate effect until the investigation is concluded. Failure to adhere
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to this instruction will lead to the initiation of your suspended dismissal. ” The
investigation was initiated by Engen and the applicant was asked to withdraw from
Engen’s site.
6. On 16 February 2022, the applicant tendered his written resignation which
provided as follows:
“This letter serve to confirm that, I am resigning from the company with
immediate affect due to the following reasons
I was investigated by the client without letting me know that I am under
investigation.
I am reliable informed by the officers working on site at Engen that they are
being forced to write a false statements regarding me.
Which goes to suspended dismissal that was not warranted, so now it’s a way
of actually dismissing me with false accusation.
So it is clear that Fidelity does not want me anymore so rather I leave before it
gives an unfavourable image on myself and also such incidents make it hard
for me to work anymore as I’ve been targeted.
So I am making things easy for all and leaving you in peace. Today is my last
day of work.
7. On 22 April 2022, the applicant referred the matter to the CCMA, the fourth
respondent. The CCMA, per Commissioner Danisa, condoned the late referral on 1
June 2022 and issued a certificate of non- resolution. The CCMA received the
applicant’s request for arbitration, and the dispute was heard before the third
respondent. The third respondent held that the applicant had not been constructively
dismissed.
8. In this review application, the applicant contends that the third respondent did
not (i) take due regard to his reasons for the termination and the fact that his reasons
for resignation were due to the duress resulting from the intolerable conduct (sic) in
which he was placed at his employment, (ii) the first respondent’s representative, Mr
Loui Kluin persistently threatened the proceedings and threatened to take actions
(sic) against the third respondent if the outcome did not favour him or the first
(sic) against the third respondent if the outcome did not favour him or the first
respondent and (iii) the third respondent did not take due regard to the sequence of
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events and the complete reasons which gave rise to his resignation.
9. The applicant in his supplementary founding affidavit added that the third
respondent had disregarded WhatsApp communications which were indicative of
harassment on the ground that the WhatsApp communications were hearsay, but the
third respondent allowed the first respondent to rely on an email without raising the
issue of it being hearsay.
The applicable legal principles
10. A constructive dismissal occurs when an employee is the one who terminates
the contract of employment and he does so owing to the continued employment
having been intolerable for him due to the conduct of the employer. The concept of
constructive dismissal is defined in s 186(1)(e) which in part reads as follows:
“Dismissal’ means that –
(a) …..
(b) an employee terminated a contract of employment with or without
notice because the employer made continued employment intolerable for the
employee.”
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11. There are three requirements for constructive dismissal to be established. 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. All
these three requirements must be present for it to be said that a constructive
dismissal has been established. If one of them is absent, constructive dismissal
is not established. Thus, there is no constructive dismissal if an employee terminates
the contract of employment without the two other requirements present.
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12. The correctness standard applies because “dismissal” (including constructive
1 Solid Doors (Pty) Ltd v Thereon and Others (CA4/03) [2004] ZALC 69 (22 September 2004) at para
26
2 Solid Doors (Pty) Ltd v Thereon at para 28
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dismissal) is a jurisdictional fact. Where the commissioner’s jurisdiction turns on
whether a dismissal occurred, the reviewing court asks whether that fact objectively
existed (not whether the arbitrator’s view was merely reasonable).3
13. The onus rests on the employee to prove that the resignation was not
voluntary, constituted a constructive dismissal and was not intended to terminate the
employment relationship. 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. The court must 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 test does not require that the employee have no
choice but to resign, but only that the employer should have made continued
employment intolerable.4
The merits
14. The test on review remains whether the fact that the applicant was
constructively dismissed objectively existed – not whether the third respondent’s
view was merely reasonable.
15. 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. The court
must 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.
16. What conduct on the part of the first respondent is relied upon by the
applicant? The fact that the applicant was subject to an investigation by Engen at a
time when he already had a suspended dismissal is not conduct on the part of the
3 Solid Doors (Pty) Ltd v Thereon at para 29; SA Rugby Player Association and Others v SA Rugby
(Pty) Ltd; SA Rugby Players Association (2008) 29 ILJ 2218 (LAC) at para 39-41.
4 Nokeng Tsa Taemane Municipality v Louw (JA7/16) [2018] ZALAC 37 [2019] BLLR 35 (LAC) at para
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first respondent as envisaged in the test. Its conduct in requiring the applicant to
withdraw from site pending the conclusion of the investigation was legitimate,
appropriate and defensible and of an order that the applicant might reasonably be
expected to put up with it.
17. The nub of the applicant’s complaint , however, is that Mr Baartman, in his
email quoted fully above, referred to the investigation being conducted and
“threatened” the applicant with dismissal if he did not obey the instruction to withdraw
from site immediately. As correctly pointed out by the first respondent, Mr
Baartman’s email served two purposes (i) to inform the applicant of the investigation
and to instruct him to withdraw from site and (ii) to remind him of the consequence
that would follow should he not obey the instruction – that is, given the suspended
dismissal, if the applicant did not immediately obey, it could trigger his dismissal.
18. The third respondent found that there was no wrongdoing on the part of Mr
Baartman in reminding the applicant about the suspended dismissal. I must agree.
There was no threat implicit in the email – rather a lawful instruction accompanied by
a statement of fact as to the prevailing circumstances ( that is, as a fact, the applicant
had a suspended dismissal sanction which he must remain cognisant of).
19. As to the WhatsApp conversations relied upon by the applicant, the question
remains whether, having regard thereto, I can conclude that the first respondent,
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 first respondent and the applicant. The first observation is that the
WhatsApp discussions occurred the day after the first respondent resigned. He
submitted that it nonetheless provides context as to the circumstances with which he
was faced at the time. The WhatsApp communications allude to employees “not
was faced at the time. The WhatsApp communications allude to employees “not
knowing anything” but being told to “write statements” and “tell the truth”.
20. It seems, having regard to the WhatsApp conversation, that the applicant
considered the outcome of the investigation to be a fait accompli, but that is not at all
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apparent from the WhatsApp. By resigning, the applicant pre- empted the possibility
of a proper investigation and determination of any misconduct on his part. The
applicant made an informed decision to resign in order to avoid disciplinary action
and having made his choice, the applicant cannot now claim that he was
constructively dismissed.
21. Mr Kluin’s behaviour in the arbitration and him having apparently intimidated
the third respondent is also irrelevant given that I consider the review by applying the
correctness standard – objectively assessed. In doing so, I find that the applicant
resigned so as to avoid the disciplinary action consequent upon the Engen
investigation. There was conduct on the part of the first respondent that the applicant
could not be expected to put up with.
22. In considering whether to award costs and in exercising my discretion based
on the requirements of law and fairness, I do not consider this an appropriate case to
mulct the applicant in costs despite being unsuccessful in his review application. In
the circumstances, there is no order as to costs.
Order
1. The application for review is dismissed.
2. There is no order as to costs.
C De Witt
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Mokwalase
For the First Respondent: Ms T Runciman
Instructed by: Hinrichsen Attorneys