THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2413/23
In the matter between:
MANHATTAN PROCESS ENGINEERING (PTY) LTD Applicant
and
CHARLENE NARSH BACHISI Respondent
Heard: 01 July 2025
Delivered: 01 July 2025
Edited: 16 October 2025
EX TEMPORE JUDGMENT
D VENTER, AJ
[1] This is a review application in which the applicant seeks the review of
an arbitration award in terms of which the commissioner found that the
applicant in the CCMA proceedings, Ms Charlene Narsh Bachisi, was
constructively dismissed.
[2] The grounds of review, as pleaded in the founding affidavit in support
of the review application have been divided into five grounds.
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[3] The first ground is pleaded as an error of law, in that the
commissioner failed to consider that the respondent did not lodge any
formal grievances.
[4] The second ground of review is pleaded as a gross irregularity
committed by the commissioner, in that the commissioner took into
account the subjective perceptions and feelings of the respondent in
order to arrive at the conclusion.
[5] The third ground is an error of law committed by the commissioner in
failing to consider the onus of proof in order to prove a constructive
dismissal.
[6] The fourth ground is pleaded as a gross irregularity by the
commissioner failing to remain objective and impartial during the
proceedings.
[7] The fifth ground is in respect of the compensation awarded, where the
applicant is taking issue with the amount of compensation awarded to
the respondent.
[8] It is trite that the review test in relation to a constructive dismissal
dispute is correctness, as opposed to reasonableness. The grounds of
review as to errors of law and gross irregularities are not grounds of
review that the Court will take into account in determining whether or
not an award by a commissioner in a constructive dismissal dispute is
subject to review.
[9] In Browns The Diamond Store (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration & Others ; 2023 (10) BLLR 1033 (LC),
Nkutha-Nkontwana J, stated as follows:
"Tritely, the review test in relation to constructive dismissal
cases is correctness as opposed to reasonableness. The
enquiry turns on the jurisdiction of the CCMA, a notion well
explained in Solid Doors (Pty) Ltd Commissioner Theron and
Others, where the Labour Appeal Court (LAC) held that:
'Having established what the requirements are for a
constructive dismissal, it is necessary to make the
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observation at this stage of the judgment that the
question whether the employee was constructively
dismissed or not is a jurisdictional fact that - even on
review - must be established objectively. That is so
because if there was no constructive dismissal, the
CCMA would not have the jurisdiction to arbitrate. A
tribunal such as the CCMA cannot give itself jurisdiction
by wrongly finding that a state of affairs necessary to give
it jurisdiction exists when such state of affairs does not
exist. Accordingly, the enquiry is not really whether the
commissioner's finding that the employee was
constructively dismissed was unjustifiable. The question
in a case such as this one - even on review - is simply
whether or not the employee was constructively
dismissed. If I find that he was constructively dismissed,
it will be necessary to consider other issues. However, if I
find that he was not constructively dismissed, that will be
the end of the matter and the commissioner's award will
stand to be reviewed and set aside.’”
[10] At paragraph 17, the learned judge stated as follows:
"That being the case, as stated in HC Heat Exchangers (Pty)
Ltd v Araujo and others , “t he Labour Court is entitled, if not
obliged, to determine the issue of jurisdiction on its own accord.
In doing so, the Labour Court determines the issue de novo in
order to decide whether the determination by the arbitrator is
right or wrong.'
[11] The test to determine whether there has been a constructive dismissal
is also trite, and I am going to quote from the same judgment,
paragraph 30:
"In Gold One Limited v Madalani and Others , this Court
sanctioned the well -established principle that: 'Intolerability is a
high threshold, far more than just a difficult, unpleasant or
stressful working environment or employment conditions, or for
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that matter an obnoxious, rude and uncompromising superior
who may treat employees badly. Put otherwise, intolerability
entails an unendurable or agonising circumstance marked by
the conduct of the employer that must have brought the
employee’s tolerance to a breaking point.' The principle was
recently concretised by the Constitutional Court, albeit in a
context of reinstatement, in Booi v Amathole District
Municipality and others, where it was stated that:
'It is accordingly no surprise that the language, context
and purpose of s 193(2)(b) dictate that the bar of
intolerability is a high one. The term 'intolerable' implies a
level of unbeatability , and must surely require more than
the suggestion that the relationship is difficult, fraught or
even sour.'"
[12] As the Court on review, I am required to determine de novo whether
or not a constr uctive dismissal has been established. What is the
approach in a constructive dismissal? The approach is also trite, and I
quote from another judgment, Sanlam Life Insurance v Mogomatsi &
Others; 2023 (11) BLLR 1166 (LAC):
"In constructive dismissal disputes, a two- stage approach is
normally followed. First, the employee must prove that the
employer effectively dismissed him or her by making her or his
continued employment intolerable. It is an objective test. The
employee need not prove that he had no choice but to resign.
All that is required is to prove that the employer made continued
employment intolerable. The conduct of the employer towards
the employee and the cumulative impact thereof must be such
that, viewed objectively, the employee could not reasonably be
expected to cope with it. Second, after the dismissal had been
established, the Court will then evaluate whether the dismissal
was unfair. The two stages may overlap and be interrelated."
[13] In the present case, t he evidence that was before the commissioner
was the undisputed and unchallenged evidence by the respondent. I
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will go through certain parts of the record which demonstrates the
respondent’s unchallenged and undisputed evidence.
[14] The respondent led evidence before the commissioner that she was
subjected to unfair treatment. In this regard I quote at page 142 of the
record:
"Okay, what led to my resignation like what I was saying
before is, the company was treating me unfairly, the
company was accusing me falsely. This all started when
the supplier gave me a bottle of wine as a Christmas
present."
[15] The respondent confirms that this was the incident that led her to
resign, she testified that this is "When I had the last of it".
[16] The respondent was "painting a picture" of the resignation, the
incident that led to her resignation, however, there was a history
behind the act that led to her resignation. The respondent’s e vidence
was that she ha d been subjected to unfair treatment, that there were
false allegations made against her.
[17] The respondent led evidence that she received gifts from a supplier,
and the accusations then started that she had received bribes. At line
41 on page 143 of the record, the respondent testified as follows:
"So a lot of abusive languages would be used on me. Ever
since I got these presents, I was suspected of taking bribes
from suppliers. I was taken to endless polygraphs, and on all
those polygraphs I would be asked if I am taking bribes from
suppliers, and there is even one time that, like I am saying, I
miscarried because of stress. At one time I was made to write a
statement in duress by the polygrapist."
[18] This evidence of the respondent was unchallenged and remain ed
undisputed. On page 145 of the record the respondent led evidence,
and I am not going to read it into the record, it is on the record, she
leads evidence that she made an error, she rectified the error, which
then led to a polygraph, where more accusations were made against
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her. She leads evidence that she was called "useless" by her boss, I
quote:
"Those accusations, they were just becoming too much for me .
On the other side the boss will be shouting at you using abusive
language. You can go to bundle 5, I put all the messages, the
abusive messages the boss would use on me. He would use
words like "nonsense", "silly". Imagine how much I was making
just for a mere salary of R8 000. I was multi- tasking, bringing a
lot of weight, which R8 000 was not even enough salary for the
amount of work I was doing because I was flooded with work. I
would be given more responsibilities too, which were out of my
job description...."
[19] The respondent led further evidence that she was called on public
holidays and early in the mornings. On page 145 of the transcript the
respondent testified as follows:
"The boss would even send me a message at nine in the
evening. Go to page 2, bundle number. I want you to see the
times when the boss would send me messages at night. Even if
I would take leave and people standing in for me made
mistakes, I would be asked to be responsible for those
mistakes. If you go to bundle 2, on the 10 April, it was a public
holiday, the boss woke me up with a call at 06:00 about work
issues, asking me to source sales for the company. Supplier
report, Bundle No 2. Yes. O n the 10th April. That is the one,
page on top. He called me at 06:00 in the morning asking me to
get sales for the company at 06:00 in the morning. I didn’t even
have time to rest even when I got home. If the boss sent you a
message and you just spent five minutes without answering it,
maybe you are busy attending to people, the abusive language
he would use on you. You will see all that, if your refer to
Bundle 5 number 5. You will see all the abusive languages I
received from the boss. So since I was now labelled a
"fraudster, who is taking bribes from suppliers", even other
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people from other departments were now abusing me. I laid
grievances with the manager, Mr Sava s. You will see them on
Bundle number 4. I told Mr Savvas, I’m not happy with the way I
am being treated here.”
[20] As to the grievances, I just want to refer to them, they are at volume 1,
pages 95 to 98 of the record of proceedings This is the evidence of
the respondent’s grievances, where she was bringing to the attention
of her employer that she was being ill- treated, and that she was
overworked. I am not going to read those messages into the record,
they are on record.
[21] At page 149 of the bundle the respondent testifies that she was tired
of the abuse. I am going to read the following into the record, from
page 148, page, sorry, line 206. This is the respondent testifying:
"Let me show you, I think it is on the other side. W here he wrote
procurement office changes when I was about to leave the
company. B ecause I gave the company one month's notice. I
told them, in the one month that I am going to serve the notice. I
want you to gather all the information since you are accusing
me of taking bribes from suppliers . Can you please gather all
the information? I am not running away. Put them on the table
for me before this month ends . And hand me over to the police.
Why been you’ve treating me so bad ? Interrogating me,
victimising me with polygraphs . Just because I made a simple
mistake, go to polygraph. And when you go to polygraph, you
are interrogated, you are forced to make a statement on
something you did not even do. I was just tired of the abuse .
Extra workloads which are out of your job description, when you
are at home, you do not rest, it is phone calls, it s messages,
weak messages, even if it is a public holiday. When you come
back to work, the boss is abusing you.
Workload, there is a lot of people coming in the office, I cannot
manage. I even told them that pleas e, s ometimes I do’n t
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answer the phone, not because I am not responding to the
messages. There will be people who I will be serving."
[22] I have to emphasise that this evidence of the respondent was
unchallenged. On page 150 of the transcript the respondent goes
further and testifies as to the abuse she was subjected to by her boss
if she was not answering a phone, how she was told to answer the
phone even after knock-off time when she was at home. I am going to
read this into the record, it is page 150, line 250:
"I could’n t take it anymore. This was after knock- off time .
Bundle 5. And the boss was saying, 'Answer your phone'. It was
after four, I ’m already at home, forcing me to answer my
phone., It’s past working hours . I am forced to answer my
phone. It’s a public holiday, I ’m called at 06:00 in the morning .
Even if it is at 9h00 in the evening, I ’m forced to give answers ,
for mistakes that happened when I was on leave. People who
did’nt order their things in time from the shelves . It was all on
me."
[23] That is the respondent’s evidence. The respondent's evidence was
that she did not lodge an internal grievance. She gave evidence why
she did not lodge an internal grievance. Although that evidence was
challenged, it is not a requirement for a constructive dismissal that a
formal grievance be lodged.
[24] At page 162 of the record, the respondent under cross -examination
gave further evidence that she was being taken advantage of because
she is a foreigner. The respondent testified as follows:
"Let me tell you one thing, sir. The money that was paid and the
job that I was doing, if you can Google now and check how
much Procurement Officers are paid, there is no one who can
stoop to the salary that I was getting. By taking the advantage
that I’m a foreigner, I am desperate for the job. Why is it that the
boss tells me that I cannot find a replacement for you, because
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there is no one who is willing to do my job with that amount of
money."
[25] What is further concerning in this matter is the response by the
applicant's own witness, who is an HR officer, her name is
Sharon Pretorius. Sharon Pretorius is the HR manager for the
applicant.
[26] Sharon Pretorius admits or concedes in cross -examination that the
applicant did raise issues with her, did raise grievances with her
specifically as to the fact that she was overworked. What is worrying is
her response, and I am going to read from the record, page 165.
Stephan Hoffman asks Sharon Pretorius:
"Q: Did the applicant ever approach you in an informal way
and said she is flooded and she cannot do this work and she is
stressed?
A: She did, yes.
Q: And your answer to her, how did you, what did you reply
to her?
A: I do not think we had a conversation where she said that
she is overworked. I cannot remember verbatim, but yes, it was
the conversation."
[27] I do not quite understand Ms Pretorius' evidence here, she appears to
contradict herself, but she has conceded that there was a
conversation at least. Mr Hoffman then says:
"Sure, but I mean, what was your guidance in that sense?"
[28] And this is the response Ms Pretorius gives:
"We are all under a lot of pressure. I do not know if it was on
that occasion where I said: 'Get your CV out there, start looking
if you are not happy'."
[29] The approach of the applicant from its own HR manager was if you
are not happy, leave. There was no attempt by the applicant to deal
with the grievances lodged by the respondent , or at least the
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grievances that Ms Pretorius was aware of. Her attitude was: if you do
not like it, you can leave.
[30] Under the circumstances of this matter, specifically where the
evidence of the respondent was unchallenged and undisputed and
further considering the record, I am of the view that the
commissioner's decision that there was constructive dismissal is
correct, and that the award is not subject to review and being set
aside.
[31] On the issue of costs, the applicant came to Court on the incorrect
test. Under those circumstances, I am inclined to award the
respondent costs.
Therefore, the order I make is the following:
Order
1. The review application is dismissed.
2. The applicant is ordered to pay the first respondent's costs on a
party and party scale.
_______________________
Deirde Venter
Acting Judge of the Labour Court of South Africa
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Appearances
For the applicant : Mr C Higgs of Higgs Attorneys
For the respondent : Mr T Magoma of Sato Attorneys