THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR447/2023
In the matter between:
AGREMENT SOUTH AFRICA Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
DALE SIMON NTSOANE N.O Second Respondent
LERATO MMAPITSI ESTHER MAGOLA Third Respondent
Heard: 11 June 2025
Delivered: 11 November 2025
JUDGMENT
MUSIKER, AJ
Introduction
[1] This is a review application, in terms of which the Applicant seeks to review and
set aside the arbitration award of the Second Respondent (Commissioner)
dated 26 February 2023.
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[2] The review application is opposed by the Third Respondent.
Background
[3] The Third Respondent was employed in the position of Executive Manager :
Technical Services on a five- year fixed- term employment contract. The
employment contract commenced on 1 July 2019 and was due to terminate on
31 July 2024. Prior to the effluxion of the contract, and on 25 May 2022, the
Third Respondent resigned from the employ of the Applicant.
[4] Following her resignation from the Applicant, t he Third Respondent pursued a
constructive dismissal claim against the Applicant in terms of s 186(1) of the
Labour Relations Act
1 (LRA), in terms of which she claimed that the working
environment at the Third Respondent was ‘toxic’ and that she had no alternative
other than to resign.
[5] After adjudicating the arbitration, the Commissioner awarded the following relief
to the Third Respondent:
‘The following award will be fair and equitable:
1. the respondent agreement South Africa [sic] is ordered to pay
the applicant Lerato Mmapitsi Esther Magalo, Compensation
equal to 12 months salary.
2. The aforementioned compensation is calculated as follows
R118 024.52 x 12 months = R1 416 294.24 And it must be
paid into the applicant's bank account minus statutory
deductions on or before 15 March 2023.’
[6] Aggrieved by the finding of the Commissioner, the A pplicant now seeks to
review and set aside the arbitration award. It is this award that forms the basis
of the review application before this Court.
1 Act 66 of 1995, as amended.
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The Third Respondent’s case at the arbitration:
[7] The Third Respondent testified that she had no alternative other than to resign.
In her testimony, she stated inter alia that:
‘MS MAGALO: Commissioner, I tendered my resignation following the
toxicity and the ill -treatment by the employer who
created an unbearable working environment for me. My
intention was to serve my entire term however after
having exhausted all avenues in terms of where I could
request for intervention and assistance I was left with no
option but to leave.
COMMISSIONER: after exhausting?
MS MAGLO: All avenues for me to ask for assistance and intervention
or appeal, I was left with no option but to leave,
commissioner.
MS. CHAUKE: please explain to the commissioner when you tendered
your resignation.
MS MAGALO: When?
MS. CHAUKE: When yes.
MS MAGALO: I tendered my resignation on the 25th of May 2022.’
[8] In her letter of resignation, the Third Respondent stated:
‘I hereby resign from Agrement South Africa effective 25 June 2022.
I joined Agrement South Africa in July 2019, with excitement and enthusiasm
to contribute and add value to an entity I believe carries a very important
mandate. I am happy to have contributed to the development of policies and
procedures, which today have provided structure and guidance for the
Technical Services Team. I am also happy to have contributed to the entity
achieving ISO 9001 certification. I did my best to institute a culture of
performance and compliance.
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The work environment has unfortunately become extremely toxic. I have raised
my concerns plenty at times, but there was no resolve.
I will be concluding my duties on 25 June 2022.
Regards Lerato Magola’
[9] The Third Respondent tendered her services and worked her notice period as
documented in the following exchange:
‘MR CHAUKE: So just to confirm for the commissioner, did you work
your notice period until 25 June 2022?
MS MAGALO: I did, I worked until 25 June, while that was a Friday, a
Saturday, so I stopped 24 June on the Friday.
MS CHAUKE: Okay. If a proposition is put to you, Ms Magalo, that
because you worked the notice the environment was not
toxic enough for you to resign, what would be your
comment?
MS MAGALO: The environment was toxic, Commissioner. Me having
tendered my resignation was purely because I needed
every cent and penny that I would have forfeited, had I
contractually not served my notice period. It does not
take away from the toxicity.’
[10] In explanation of the toxicity of the environment, the Third Respondent testifies:
‘MS MAGALO: Commissioner, there are a number of events that I
referred to as having led to the toxic environment and
the first one is that following dismissal rather, following a
disciplinary inquiry of one of my subordinates, Mr.
Samuel Skosana, where an independent external
chairperson chaired over that or presided over that
disciplinary case found the employee guilty on all five
charges that were leveled against him and the sanction
was a dismissal and one of the charges that were
levelled were incitement of violence against me and he
appealed and Mr. Somanje reinstated him. In reinstating
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Mr. Skosana, Mr Somanje purely considered Mr.
Skosana’s side and had zero regard for my safety.’
[11] The Third Respondent goes on:
‘MS. MAGALO: When Mr. Somanje reinstated Mr. Skhosana he
demoted him to a position that was still within my team
and Mr. Skhosana still formed part of the team that I
managed. Further to that, Mr. Skhosana was given
terms and conditions of demotion, which he also did not
comply with and I was expected to work with Mr.
Skhosana , regardless of the incitement of violence, me
not being considered, must safety not being considered
at all and the environment just got toxic from that point.
Mr. Somanje would not even follow through to check
how things are going, how I am, considering that Mr
Skhosana was still in my team instead he asked me if I
truly believed if I was in danger and must have a
forgiving heart.’
And:
‘MS. MAGALO: ….. And then following that I raised my dissatisfaction
with the reinstatement and Mr. Somanje did not respond
to that, I then raised it further with the Human Resource
Committee of the Board as well as the Auditor -General
Committee Chairperson who then acknowledged receipt
of my e-mail in October, because that is when the case
was finalized.’
Further:
‘MS MAGALO: Three months later there was no meeting that was set
up, excuse me, so I made a follow up in January asking
if a meeting would still be taking place which was then
followed by a meeting in February.
COMMISSIONER: In January of which year?
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MS MAGALO: 2022. Then in February we had an MS Teams meeting
chaired by Ms Ngcobo, accompanied by two other
members of that committee.
MS MAGALO: in that meeting Mr. Somanje was cautioned that as much
as he had the authority to reinstate, he did not have the
empathy in making the decision in that he did not
consider me at all and he was subsequently asked to
apologize.’
[12] Despite her resignation, the Applicant went on to discipline the Third
Respondent for conduct which had taken place months prior to the
implementation of disciplinary action:
‘MS MAGALO: Okay. This is the notice of disciplinary, employee myself
Lerato Magalo, line Manager Mr Richard Somaje.
MS CHAUKE: when was this notice served on you?
MS. MAGALO: On this particular document there is no date, but I recall
it was a Monday and the inquiry was meant to sit on the
17th of June 2022.
MS CHAUKE: on your letter of resignation you indicated that your last
day was 24 June 2022, Your last day of your notice.
MS MAGALO: yes
MS CHAUKE: Please tell the commissioner what was the outcome of
the disciplinary hearing.
MS MAGALO: By the time I had left, having served my notice until 24
June, there was no outcome to the disciplinary. I left with
the case not having been concluded.’
[13] Ms Mabasa was the sole witness for the Applicant and testified regarding the
appeal process of Mr Skhosana that:
‘MR LUHLANGA: There was a case of Mr. Skhosana, I am not sure if you
remember the case of Mr. Skhosana.
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MS MABASA: That is correct
MR LUHLANGA: The evidence before this commissioner was that Mr.
Skhosana was charged and found guilty (indistinct) and
eventually appealed, are you aware of that process that
unfolded?
MS MABASA: Yes, I am aware.
MR LUHLANGA: Can you explain to the commissioner how the appeal
unfolded from (indistinct) by HR?
MS MABASA: So from the HR side when they received the appeal it
was then sent to the CEO, because according to the
policy it must be sent to the CEO who will be the one
who (indistinct) the appeal.
COMMISSIONER: Appeals are sent to the CEO.
MS MABASA: They are sent to the CEO for the CEO to attend to the
appeal.
MR LUHLANGA: Can you explain to the commissioner the parties that
are involved when an appeal is considered?
MS MABASA: So normally when an appeal is considered the parties
that are there are the parties that are affected and if the
employee is the one who has requested an appeal, so
you will have to look at that. I am not sure whether I am
understanding you, I am answering you correctly.
MR LUHLANGA: Yes. From your knowledge is the complainant or the
employer representative involved in the appeal process?
MS MABASA: The norm for Agrement, no, the employe representatives
does not get involved.’
[14] In respect of the disciplinary action taken against the Third Respondent:
‘MR LUHLANGA: Okay. Are you able to relate to the commissioner the
incident, when did the incident happened?
MS MABASA: No, I do not have the exact date, but it was around March
where we had to do an ecoASA launch, ecoASA launch,
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I cannot remember the exact date and Ms Magalo was
the Executive Manager for T echnical Services so that
launch was under her department and she did not come
to the launch with the other employees who were also
part of the preparations.
MR LUHLANGA: Okay, you said around March.
MS MABASA: Around March. I cannot remember the exact date, but
towards the end of March.
MR LUHLANGA: How long away was she eventually charged, do you
remember?
MS MABASA: Although again I would not remember the date, but I
think it was around June.
MR LUHLANGA: Actually the evidence presented is that she was given
the charge on the 13th of June, so it was (indistinct) on
the 13th of June 2022. Are you able to maybe explain
what was happening between March and 13 June 2022?
MS MABASA: So with Agrement we only have one person in the HR
department and then the executive manager, at the time
the executive manager had also just started, so we were
not in the position to do the investigation around that
ecoASA launch, and so we had to reques t assistance
from public works to assist with their employer
representative and also the prosecutor, because there
was no one internally who would be able to do that.’
Analysis
[15] The Following points are common cause between the parties:
15.1 Skhosana, an employee at the Applicant who reported to the Third
Respondent, had threatened and intimidated the Third Respondent;
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15.2 Skhosana was the subject of a disciplinary inquiry, which took place on
11 August 2021 and was found guilty by an external , independent
chairperson and the ultimate sanction of dismissal was recommended.
15.3 Skhosana then appealed the decision of the chairperson. An appeal
hearing was concluded, to which the Third Respondent was invited. The
acting CEO made a unilateral decision to withdraw Skhosana’s dismissal
and demoted him.
15.4 Skhosana was placed, once again, in the Third Respondent’s
department.
15.5 Aggrieved by the decision to reinstate Skhosana, the Third Respondent
lodged a grievance. The grievance was not dealt with immediately and
only some months later did the grievance hearing take place.
15.6 Somanje was asked to apologise to the Third Respondent.
15.7 Skhosana remained in the same department as the Third Respondent.
15.8 The Third Respondent resigned from the employ of the Applicant on 25
May 2022, and during her notice period, she was summoned to attend a
disciplinary hearing which took place on 17 June 2022.
15.9 Upon the expiration of her notice period, there was no outcome
regarding the disciplinary enquiry.
[16] The Third Respondent failed to successfully contest the following:
16.1 The Third Respondent feared for her life, having been threatened with
violence by Skhosana in the past.
16.2 For fear of her life, the Third Respondent implemented additional
security steps to safeguard herself, such as obtaining security (which the
Applicant refused to do) and utilising Uber so that S khosana could not
track her whereabouts.
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16.3 There was no basis for the disciplinary proceedings implemented by the
Applicant against the Third Respondent.
[17] To its own peril, the Applicant failed to call Somanje. The Applicant’s only
witness spoke primarily regarding HR related matters, which, in my view, took
the dispute no further.
[18] The Court in Mogomotsi v Goredema N.O and others2held as follows regarding
the test on review:
‘The test on review for constructive dismissal is whether the arbitrator was
correct on all the evidence before him/her.’
[19] On the meaning of the word ‘intolerable, the court in Solidarity on behalf of van
Tonder v Armaments Corporation of SA (SOC) and others3said:
‘[39] … The word “intolerable” implies a situation that is more than can be
tolerated or endured; Or insufferable. It is something which is simply too
great to bear, not to be put up with or beyond the limits of tolerance...
…
[40] Thus, employment must objectively have been rendered intolerable in
the sense that no reasonable employee could be expected to put up
with the conduct of the employer.’
[20] In National Health Laboratory Service v Yona & others4, the Labour Appeal
Court held that:
‘… 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. Resignation must have been a
reasonable step for the employee to take in the circumstances.’
[21] I believe that the cumulative effect of the Applicant’s actions rendered the
employment relationship between the Applicant and the Third Respondent
2 (2022) 43 ILJ 2063 at para 4.
3 [2019] 8 BLLR 782 (LAC) at paras 39 – 40.
4 (2015) 36 ILJ 2259 [LAC] at para 30.
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intolerable and that the Third Respondent could not be reasonably expected to
cope in the environment created by the Applicant.
[22] I do not believe that the Commissioner can be faulted for having confirmed that
the environment of the Applicant was toxic:
22.1 It is clear that the Applicant prioriti sed the job of Skhosana over the
safety of the Third Respondent, and arguably, other employees . The
Applicant failed in its duty to safeguard the Third Respondent.
22.2 Further, d espite having lodged a grievance against the decision of
Somanje, the Applicant was lackadaisical in addressing the concern,
and when it did, no decisive measures were implemented.
22.3 Finally, there was no evidence before the Commissioner that the
disciplinary charges implemented by the Applicant against the Third
Respondent were any more than conjured -up allegations or that the
implementation of discipline was necessary some three months after the
alleged misconduct.
Costs
[23] I have had regard to the requirements of law and fairness in considering costs,
and having done so, I am of the view that a cost order is not warranted in this
matter.
[24] In the premises, I make the following orders:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
N.S. Musiker
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Wilhelm Bekker
Instructed by: GMI Attorneys
For the Respondent: Victor Mndebele
Instructed by: Molatudi Attorneys