THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C472/2022
In the matter between:
KYLE JORDAN Applicant
and
THE GENERAL PUBLIC SERVICE BARGAINING
COUNCIL First Respondent
KHUDUGA TLALE NO Second Respondent
THE OFFICE OF THE CHIEF JUSTICE Third Respondent
Heard: 16 October 2025
Delivered: 30 March 2026
Summary: A review application to set aside an arbitration award which dismissed an
alleged constructive dismissal claim . The award is correct, hence the application
fails.
JUDGMENT
GANDIDZE, J
(1) Reportable: No
(2) Of interest to other Judges: No
30 March 2026
Signature Date
Introduction
[1] The applicant, Kyle Jordan (Jordan), resigned from his employment with the
Office of the Chief Justice (OCJ) on 31 December 2020 and claimed he had
been constructively dismissed. In an arbitration award dated 2 August 2022 in
case number GPBC159/2021, Commissioner Tlale, appointed by the General
Public Service Sector Bargaining Council (the Bargaining Council) to arbitrate
the dispute, dismissed that claim. These proceedings seek to review and set
aside that arbitration award, and substituting it with an order that Jordan was
constructively dismissed and awarding him compensation equivalent to the
remaining term of his fixed- term contract of employment, calculated from 1
January 2021 to 30 April 2022, including the December 2020 salary that was
not paid, as well as accrued leave days that were unpaid.
[2] Whether the application was unopposed is a preliminary issue that will be
addressed next.
The late filing of the answering affidavit
[3] The OCJ filed its answering affidavit in the review application on 25
September 2025, although it should have been filed within ten days of the
Notice in terms of Rule 7A (8)(b)
1, which was filed in February 2023. In terms
of clause 11.4.2 of the Practice Manual of the Labour Court of South Africa 2
(Practice Manual), when an opposing or replying affidavit is filed late, it is not
necessary to apply for condonation. However, the party served with the late
affidavit may object to the late filing within 10 days, failing which the right to
object lapses. Rule 36(2) and (3) of the Rules Regulating the Conduct of the
Proceedings of the Labour Court
3 (Labour Court Rules) contains a similar
provision.
[4] The heads of argument filed on behalf of Jordan state that a Notice of
Objection to the late filing of the answering affidavit was filed . The Court was
1 The old Labour Court Rules, which applied when the review application was instituted, and were
repealed with effect from 16 July 2024.
repealed with effect from 16 July 2024.
2 Effective from 1 April 2013 until 16 July 2024, when it was repealed.
3 GN 4775, G. 50608 of 3 May 2024.
not directed to the specific page where the Notice of Objection could be
found. Instead, the Court identified a letter from Jordan’s attorneys addressed
to the State Attorney for the OCJ, expressing shock that the answering
affidavit was filed nearly three years after the deadline and without a
condonation application, and reserving Jordan’s rights. A letter is not a Notice
of Objection. If such a Notice had been filed, it would have been included
among the Notices filed in the matter. Since no Notice of Objection was filed
within the 10- day period required, Jordan’s right to object to the late filing of
the answering affidavit lapsed. The answering affidavit is properly before the
Court.
The background facts
4
[5] Jordan was employed by the OCJ as a Law Researcher for the Supreme
Court of Appeal (SCA) on a fixed- term contract set to expire on 30 April 2022.
During that period, he was also undertaking a Doctorate in Law at
Stellenbosch University. He resigned from his position with the OCJ on 31
December 2020, effective immediately.
[6] The events leading to the resignation include the President of the Republic
declaring a State of Disaster in March 2020 due to the COVID -19 pandemic.
Consequently, during alert level (AL) 5, all staff members not designated as
essential services were required to work from home. The OCJ permitted all
the Law Researchers to work remotely during this period.
[7] In June 2020, Regulations in terms of the Disaster Management Act
5 (DMA)
were published 6, outlining the measures employers had to implement to
safeguard the health and safety of workers.
[8] On 18 August 2020, the country shifted to AL2. Workers were advised to stay
at home and, where feasible, continue working remotely. In response to this
4 In the supplementary pre-arbitration minute, the parties agreed that all the correspondence
exchanged by the parties between 31 August 2020 to 21 October 2020, and on 11 December 2020
was admitted.
5 Act 57 of 2002.
6 GN R639 in GG 43400.
development, the OCJ issued Circular 15 of 2020, which addressed the
management of officials under Alert Level 2. The relevant provisions of the
Circular are reproduced hereunder.
‘2.2 In terms of the OCJ COVID -19: Evolving institutional working
arrangements, 80% of staff should be reporting for duty and 20%
should work from home. This does not mean that the same staff will
have to be part of the 80% and others remain working from home as
part of the 20%. The rotational principle should still apply.
2.3 Managers must ensure that all staff are now requested to report for
duty. The implementation of rotational work to continue with service
delivery and to achieve social distancing is however still
recommended.
2.5 The rotation of employees will also assist them not to lose touch with
the work environment, culture and ethics.
2.7 Vulnerable employees should be permitted to work from home where
the nature of their duties and circumstances permit.
7
2.8.8.5 Consider remote working if the officials duties allow for that
and the official is enabled including access to equipment and
internet.’
[9] Jordan’s supervisor, Ms Annamika Premsagar (Premsagar), sent the Circular
to all the Law Researchers via email on 31 August 2020 at 05:29, informing
them that they needed to report for duty from the following day, 1 September
2020, and that those unable to report could discuss leave with her. The email
also mentioned that they would receive further briefings on office
arrangements after the manager's meeting.
[10] Jordan responded to this e- mail on the morning of 1 September 2022, stating
that he had read the email, with much surprise and, inter alia, that :
7 Guidelines were provided on who are vulnerable employees.
10.1 ‘I am not comfortable to return to the SCA at this stage to perform my
duties. In my view, obli ging the Law Researchers to return to work is
inappropriate and also unlawful.
10.2 The Regulations stated that ‘All persons who are able to work from home
must do so’, and that this applied to him as someone capable of working
from home, as he had done since March 2020. This Regulation implied
that he had a choice or discretion to decide whether to continue working
from home or return to the workplace.
10.3 The Regulation stating that ‘However, persons will be permitted to perform
any other type of work outside the home, and to travel to and from work
and for work purposes ’ meant that individuals are entitled to return to the
workplace, and that employers could not force employees to return.
10.4 He believes it is definitely unwise and possibly selfish for him to go back
to work, as it will force him into unnecessary contact with others,
increasing the risk of catching or spreading the virus. s.
10.5 ‘Instead, I choose to carry on working from home for the time being’
8, and
10.6 ‘I would prefer not to return to the workplace at this point, a choice that the
Regulations allow all such persons to exercise. It is safer for me; it is safer
for everybody… ’
[11] All Law Researchers returned to the office on 1 September 2020, except for
Jordan and Ms Bomela. 9 The latter took leave on 1 September 2020 and
returned to the office from 2 September 2020 onwards. Jordan did not return
to the office at all, until he resigned in December 2020.
[12] Premsagar responded to Jordan’s email on 2 September 2020, raising
concerns about its tone and content, which she considered insubordinate,
highly disrespectful, threatening, and aggressive. She stated that the
instruction to report for duty was clear and unambiguous, and that
8 He explains that he had obtained the equipment he needed, that he was consistently delivering,
there had been increased productivity as he did not have to travel, and can start working earlier than
the normal starting time.
9 She was returning from maternity leave.
parameters, precautions, and measures would be discussed. She also
mentioned that Jordan did not fall within the vulnerable category of employees
permitted to work from home. The email concluded by informing Jordan that
failure to comply would be regarded as insubordination and dealt with in
accordance with the department's policies.
[13] On 4 September 2020, Jordan sent Premsagar a weekly report of the matters
he had worked on the previous week, and she expressed her thanks.
[14] In a five- page, normally spaced response, Jordan wrote to Premsagar on 7
September 2020 and copied Ms Martin (Premsagar’s manager and the Court
Manager), the then Judge President of the SCA, and President Mandisa
Maya. Among other things, Jordan informed Premsagar that his concerns, as
outlined in his email of 1 September 2020, had not been addressed, that
Premsagar had not challenged his interpretation of the AL2 Regulations, that
the 80% of staff who should be reporting for duty are those unable to work
from home, that employees were not consulted before issuing the instruction
to return to work, that the instruction was unreasonable, that the matter had
not been referred to a compliance officer, and that he would not return to the
workplace. He also recorded this:
‘To be sure, I am not saying that Circular 15 of 2020 is unlawful. The point I
am making is simply that the AL2 Regulations implore those persons who
are able to work from home to do so. It does this by making it an obligation,
first and then by adding a qualification to the fact that those same persons
are permitted to perform such work outside of their homes and to travel to
and from work and for work purposes. It is thus an accurate illustration of
President Cyril Ramaphosa’s recurring plea urging everyone to remain
within their homes unless it is necessary to leave- and, if possible to work
from home.’
[15] Yet a further paragraph in Jordan’s email reads:
‘I find your response to be aggressive because, after raising valid concerns
‘I find your response to be aggressive because, after raising valid concerns
about the lawfulness of the command for Law Researchers to return to work
when they are decidedly ‘persons who are able to work from home’, you
made it very clear that you do not agree with me, but without explaining your
view. You labelled my email as highly disrespectful , aggressive and
threatening without pointing to even one example of the wording or aspect of
the content that informed your view in this regard. You dee med it sufficient
merely to restate the command, this time including the consequences of me
not adhering thereto, thus implying that the command need not be explained
but must simply be (blindly) complied with. I am certainly concerned if this is
the way that officials are dealt with it at the second highest court in the
country. Do you not think that there is a special duty on courts, in which the
judicial authority of the Republic is vested, and who routinely hand down
judgments interpreting and enforcing all laws - to be an example at least to
all employers all over the country, in respect of its own employment matters?
Do you not think that it is appropriate- indeed welcomed- that a Law
Researcher at the Supreme Court of Appeal, where laws are often amended
or deemed unconstitutional in the cases it decides , raises concerns about
the lawfulness of the decisions that affect them - at least where such
concerns are objectively well -founded? Do you not think it would be
appropriate in line with the country’s decisive move from a culture of
authority to a culture of justification to engage with me on the points raised in
my email 1 September at least by explaining your view, that I might
understand the position and voluntarily comply with the command, instead of
trying to instil fear by b aldly disagreeing with my interpretation and then
informing me of what will happen if I do not comply with the command? How
can I be told to ‘comply’ with the Circular, which states that 80 % of
employees should be reporting for duty, when merely obeying that command
would be in conflict with the Circular itself because it sanctions the
attendance of all (100%) officials on the same day.’
[16] After informing Premsagar that her response was threatening, Jordan wrote”
[16] After informing Premsagar that her response was threatening, Jordan wrote”
‘I, therefore ask, sincerely- with no disrespect, aggression or threats thereto-
that you meaningfully engage with me on this matter , in respect of all the
issues raised.’
[17] The email concluded with a request that Premsagar honour the arrangement
for Jordan to join the Law Researchers meeting scheduled for that day on the
Teams platform.
[18] Jordan received the meeting link. During the meeting, the Law Researchers
complained that Jordan was receiving preferential treatment because he was
allowed to work from his home in Cape Town. Jordan explained that it was
unsafe to work from the office. He believed it was unreasonable to expect
employees to report to the office when the vaccine was not widely available.
The Law Researchers were informed that disciplinary action would be taken
against Jordan or anyone else who failed to follow the instruction to report to
the office.
[19] On 9 September 2020, Martin sent an email to Jordan, questioning why she
(Martin) and the President were copied on the email, contrary to proper
channels, which Martin found unacceptable. Jordan was also informed that
Premsagar would deal with the matter.
[20] On the same day, Premsagar also wrote to Jordan as follows:
‘I hereby acknowledge receipt of your email dated 7 September 2020.
I take note that you did not respond directly to the salient issues of
insubordination and your current absence without permission in my letter ,
but opted to conflate it with irrelevant and unrelated content.
Your continued absence from this office from 1 September 2022 date is in
direct contravention to the Circular and my instruction to report to the office.
The Circular is clear in respect of the 8 0 to 20 principle and the
implementation thereof on a rotational basis . I reiterate that you are not
considered an employee that is categorised is a vulnerable employee.
Thus your absence from 1 September 2020 date is regarded and will be
recorded as leave without pay.
In addition to this disciplinary steps will be taken.’
[21] On 17 and 21 September 2020 , Jordan sent emails to Martin requesting her
to intervene and discuss his concerns, specifically regarding the lawfulness of
the instruction to report for duty at the workplace. Jordan also asked for
clarification on whether the records showed he was absent without leave. In
the email of 21 September 2020 , Jordan mentioned that Mr Aadil Patel, the
National Head of the Employment Practice at Cliffe Dekker Hofmeyr —one of
‘The Big Five’ law firms in South Africa—had responded ‘No’ to the question
whether employees who can work from home can be compelled to return to
the workplace during AL2.
[22] On 21 September 2020 , the country transitioned to AL1, and on 23
September 2020, Premsagar sent an email to the Law Researchers, attaching
Circular 27 of 2020, stating that they were all required to report for duty on a
full-time basis from 25 September 2020 and that the rotation system was
suspended.
10
[23] On 25 September 2020, Jordan sent an email to Martin, referring to the new
instruction issued pursuant to Circular 27 of 2020, which required all
employees to return to work. Jordan maintained that his position, that the
instruction was unlawful and invalid, had not changed since he could work
from home. He stated that his concerns had not been addressed and, instead,
he was accused of disrespect, aggression, threatening behaviour, and
insubordination. He requested Martin to ‘ please engage with me,
substantively, on the points raised in the emails below’.
[24] On the same day, Jordan also sent correspondence to Premsagar stating, ‘ I
have chosen to continue complying with the most recent regulations …, and
will accordingly be working from home.’ He also mentioned his email to Martin
requesting her intervention.
[25] New Regulations were issued in October 2020
11.
[26] From the beginning of October 2020, Jordan was excluded from emails sent
to Law Researchers and was not assigned any work by Premsagar. However,
he continued to receive emails from Judges requesting his assistance with
research or judgments.
10 In terms of clause 3.2 of this Circular, only those employees who were on official leave or with
uncontrolled risks and vulnerabilities were exempted from reporting for duty at the workplace.
11 GN R1031 in GG 43751.
[27] On 6 October 2020, Jordan submitted an application for annual leave from 9
to 30 October 2020, stating that he had been working 16- hour days over the
previous three months and was under physical and mental strain. Premsagar
acknowledged receipt of it.
[28] On 8 October 2020, Jordan followed up with Premsagar regarding his leave
application and asked for the leave dates to be amended to 12- 30 October
2020.
[29] On 8 October 2020, Martins wrote to Jordan as follows:
1. I have noted the contents of your various communications sent to your
direct supervisor Mrs. Annamika Premsagar and myself with great
concern and have found the tenor of your communications sent from 1
September 2020 as highly insolent, unprofessional and impudent.
2. I furthermore find your flagrant refusal to adhere to the clear guidelines
contained in the relevant return to work C irculars issued by this
Department as well as those issued by the Department of Public
Service and Administration (DPSA) tantamounts to gross non -
compliance.
3. I reject your reasons for not wanting to attend to this office due to this
office posing an unnecessary risk to your health and safety as both
devoid of any substance in nothing more than aspersions fabricated by
you to justify continuing working from your home in Cape Town as you
put it, ‘as you have done successfully for the last five months.
4. Your employment contract with this D epartment is clear in that your
place of employment is the Supreme Court of Appeal, Bloemfontein and
not your home in Cape Town and your refusal to attend to this office
tantamounts to gross insubordination and is in breach of the
aforementioned employment contract.
5. You have been informed in writing already that your absenteeism from
this office from 1 September 2020 to date is regarded a s absence
without permission and will be processed as unpaid leave for the full
period to date.
6. Please further note that your continued absenteeism from 1 September
2022 date and the continued written confirmations from you that you
refuse to return to this office tantamounts to desertion, based on the fact
that you have stated expressly that you do not intend returning to the
workplace despite numerous communications sent directly to you to
return to work at the Supreme Court of Appeal in Bloemfontein.
7. As enumerated above, your desertion from this office is effectively a
rejection of your employment contract with this Department and it is for
this reason that your employment contract with this D epartment shall be
requested to be terminated.’
[30] Jordan responded on 13 October 2020. He stated that Martin’s assessment of
his character was incorrect, denied the allegations of, inter alia ,
insubordination, desertion, breach of contract, and the fabrication of facts.
Jordan posed several questions regarding the request to terminate his
contract and denied that the OCJ could withhold or reclaim any part of his
salary. He sought a response by 16 October 2022.
[31] Having received no response by 16 October 2022, Jordan sent a follow-up
letter on 21 October 2020.
12
[32] On the same day, Jordan also sent a letter to Premsagar, following up on his
leave application and raising concerns about his exclusion from emails sent to
Law Researchers.
[33] On 28 October 2020, Premsagar submitted a memorandum to Martin,
motivating for the termination of Jordan’s employment contract in terms of
section 17(3)(a) of the Public Service Act
13 (PSA). The request was escalated
to the Secretary General (SG) of the OCJ.
12 Unlike previous communications, this letter and the ones that followed were on the OCJ letterhead.
13 Act 103 of 1994, which provides as follows:
(3) (a)(i) An employee, other than a member of the services or an educator or a member of the Intelligence
Services, who absents himself or herself from his or her official duties without permission of his or her head of
department, office or institution for a period exceeding one calendar month, shall be deemed to have been
dismissed from the public service on account of misconduct with effect from the date immediately succeeding
his or her last day of attendance at his or her place of duty.
[34] On 1 December 2020, the Law Researchers collectively wrote to the
Chairperson of the Researchers Committee, raising several concerns,
including the unequal and preferential treatment of Jordan, as he had been
allowed to work from home, and that the promised disciplinary action against
him had not materialised. Other concerns involved how Premsagar had
treated some of them.
[35] On 4 December 2020, Jordan contacted Premsagar regarding his
performance review, which he submitted on 6 October 2020.
[36] On 11 December 2020, Jordan received a letter stating that his salary would
be stopped effective from 1 December 2020. On the same day, Jordan
responded, questioning the decision and explaining that he had been
attending to his official duties from home. He did not receive any reply.
[37] On 23 December 2020, the SG of the OCJ approved the request to end
Jordan’s employment contract. Jordan was not informed of the decision at the
time and only learned of it after he had resigned.
[38] On 30 December 2020, Jordan wrote to the Deputy Director and the Assistant
Director of Human Resource (HR) Management, noting that he had not
received a response to his letter dated 11 December 2020. He also informed
them that (i) he had been performing his duties, (ii) no performance issues
had been raised, (iii) he had not been given an opportunity to be heard
regarding the allegations made against him by Premsagar and Martin, and (iv)
no one from HR had contacted him about his situation. Additionally, he
challenged the decision to stop his salary while he had been working, without
warning and on short notice, which he regarded as a breach of his contract.
He further recorded this:
‘3. Please see to it that my salary , along with any benefits that might be
applicable, is fully reinstated with effect from 1 December 2020. If this
is not done by the close of business on Thursday , 31 December 2020
i.e. 17h00 on the last working day of this year , I will be approaching
i.e. 17h00 on the last working day of this year , I will be approaching
the relevant forum for appropriate redress.
4. It bears repeating that I continued to tender my services (as stated
1.1 above) notwithstanding the fact that I have not been remunerated.
5. Nothing in this email should be construed as a waiver or abandonment
of any of my rights.’
[39] On 31 December 2020, Jordan resigned effective immediately, citing this as
the reason:
‘My decision is based solely on the myriad unlawful acts and omissions that I
have endured in the last few months, culminating in the unlawful decision to
withhold my salary, the effect of which has made continued employment
intolerable.’
[40] Although he had resigned, Jordan continued to stay in contact with some
Judges and helped with the tasks he was asked to assist with.
[41] On 29 January 2021, Jordan referred a dispute to the Bargaining Council.
After failed conciliation, it was arbitrated.
The arbitration proceedings and the award
[42] Jordan testified in support of his own case. He also called Ms Sibusisiwe
Ndlela (Ndlela), a fellow Law Researcher, as his witness. Ndlela testified,
among other things, that it was safe at the SCA and that the Law Researchers
faced challenges with what they regarded as a toxic work environment. Ndlela
also resigned from her position as a Law Researcher in December 2020.
[43] Premsagar and Martin testified for the OCJ.
[44] The filed transcript does not include Jordan's or Ndlela’s evidence, only that of
Premsagar and Martin. The Court was informed that the review application
could be decided on the record before it and that the facts were, in any event,
undisputed, but the parties disagreed on their interpretation.
[45] After summarising the evidence and outlining the test for constructive
dismissal, t he commissioner concluded that Jordan had resigned. He found
that Jordan considered the instruction to return to the office during the
pandemic, and the non- payment of his December 2025 salary, to have
created intolerable conditions. After referring to case authorities dealing with
intolerable working conditions for the purpose of establishing whether an
employee had been constructively dismissed, the commissioner found that
Jordan did not refuse to work because of the risk of exposure to COVID -19,
but that he refused to return to the office as he alleged that he would be
exposed to COVID-19, and hence clause 48 of the June 2020 Regulations did
not apply.14
[46] The commissioner then examined whether the OCJ adhered to the
Regulations before requiring employees to return to the office. He responded
affirmatively, stating that a health risk assessment was conducted and the risk
was rated as low to medium. The commissioner also noted that Jordan did not
physically attend the office to assess whether returning was unsafe. He
concluded that instructing employees to return under those circumstances
was reasonable, that it was not for Jordan to decide whether to obey it, and
that Jordan was informed he was not a vulnerable person. He further
determined that Jordan could have returned to the office to challenge the
fairness of the instruction. Therefore, the commissioner stated that resignation
was not the only option, as Jordan could have also raised his concerns with
the Department of Employment and Labour.
[47] Regarding the stoppage of his salary, the commissioner concluded that
Jordan could have sought relief from the relevant forum rather than resigning
and claiming constructive dismissal.
[48] The commissioner concluded that Jordan failed to establish the existence of a
dismissal.
The grounds of review
14 The provision deals with refusal to work when there is reasonable justification to an employee or a
health and safety representative that there are circumstances that pose an imminent and serious risk
of exposure to COVID-10. In such a case, the employee is required to reasonably notify the employer
of the refusal, and the reasons, after which a compliance officer and the health and safety committee
may endeavor to resolve the issue. The provision also states that no employee may be dismissed for
refusing to work as contemplated in clause 48, and that any dispute may be referred to the CCMA for
arbitration.
[49] The founding affidavit sets out the grounds of review broadly, as:
49.1 The commissioner disregarded the nature and extent of the inquiry he
was required to conduct, given the issues in dispute, and exceeded his
powers.
49.2 Ignoring and disregarding material evidence presented by the applicant
during the arbitration.
49.3 Ignoring and disregarding the argument by the applicant’s representative.
49.4 Accepting and relying on material evidence that was not relevant to the
inquiry.
49.5 Reaching conclusions which were not r ationally connected to the material
and evidence that was before him and which no reasonable arbitrator in
this position would or could have arrived at.
49.6 Determining disputes based on fundamentally erroneous interpretations of
the issues and disputes , therefore rendering the award material ly
defective.
[50] Specifically, Jordan challenges the commissioner’s decision that he was not
constructively dismissed, arguing that it is incorrect. He cited the case
authority of Solid Doors Pty Ltd v Commissioner T Theron and Others
15 (Solid
Doors), which outlines the three requirements for constructive dismissal. He
also cited Pretoria for the Care of the Retarded v Loots 16 (Loots), arguing that
it established the principle that an employee may resign if they believe the
employer will never reform or abandon the pattern of creating an unbearable
environment. Additionally, he pointed out that Sanlam Life Insurance Ltd v
Mogomatsi & Others
17 (Mogomatsi), determined that an employee does not
need to prove they had no choice but to resign, only that the employer’s
actions made continued employment intolerable. Also citing Mafomane v
Rustenburg Platinum Mines Ltd
18 (Mafomane), he submitted that the test for
15 (2004) 25 ILJ 2337 (LAC).
16 (1997) 18 ILJ 981 (LAC).
17 (2023) 44 ILJ 2516 (LAC).
18 [2003] 10 BLLR 999 (LC).
whether a person cannot ‘reasonably’ be required to endure intolerable
continued employment is an objective one.
[51] Jordan contends that there was no communication from Premsagar to resolve
the ‘issues in dispute, despite the Applicant’s repeated requests for
clarification of Ms Premsagar’s reasoning’, and that there was also no
communication from Martin.
[52] The further submission was that, based on the facts, it was clear there was a
significant disconnect between Jordan’s supervisors and the HR department,
as well as between the supervisors and the Judges who benefited from his
work.
[53] Relying on a decision of this Court in Aquarian Lifestyle Trading (Pty) Ltd t/a
Vespa South Africa v CCMA and others
19 (Aquarian Lifestyle), it was
submitted that Premsagar and Martin could have done more to maintain the
working relationship. It was contended that they could have engaged Jordan
in proper consultation rather than simply ignoring his concerns , or initiated
disciplinary proceedings against him rather than merely threatening him . The
commissioner is said to have committed a fundamental error by finding that
Jordan’s supervisor’s conduct could not have rendered continued employment
intolerable.
[54] The submission was also that section 17 of the PSA could not be relied upon
to terminate Jordan’s employment, as this was not the third respondent’s case
and not pleaded by the applicant.
20 It was also argued that HR stopped
Jordan’s salary even before the SG of the OCJ approved the request to
terminate the contract.
[55] The commissioner is also said to have committed the fundamental error of
considering whether the OCJ complied with the COVID -19 Regulations, when
this was not the issue. According to Jordan, the issue was whether the OCJ
addressed his concerns fairly and appropriately before stopping his salary
while he was still carrying out his duties. It was also submitted that the
19 [2024] JOL 65500 (LC).
20 It is unclear what pleadings are being referred to.
commissioner’s findings regarding workplace safety were irrelevant because
Jordan did not resign for that reason.
[56] The heads of argument filed on behalf of Jordan also state the following:
‘69. But most importantly , the non-payment and/or refusal by the T hird
Respondent in December 2022 pay the applicant’s salary - coupled
with the total lack of any communication by the Applicant’s supervisors
in the HR department- made the applicant’s continued employment
intolerable.
70. It is submitted that the Third Respondent was not performing its most
important reciprocal obligation in terms of the employment contract,
that is , to pay the salary of the applicant and therefore, in fact,
committed a breach of contract that went to the root of the
employment relationship and the continuation thereof.’
[57] For the submission that non- payment of a salary makes continued
employment intolerable, reliance was placed on Eagleton and others v You
Asked Services (Pty) Ltd 21 (Eagleton). A related submission was that the
commissioner placed the burden on Jordan to resolve the salary stoppage,
when the law did not impose such an obligation on an employee, and that
Eagleton found that an employee can choose to resign if their salary is not
paid.
[58] Ultimately, it was submitted that the commissioner ought to have found that
Jordan was constructively dismissed, and that the dismissal was substantively
and procedurally unfair due to the material breach of the employment
contract, thus the award is reviewable.
Legal principles
[59] The Labour Relations Act22 (LRA), defines what constitutes a dismissal, and
where the onus lies in dismissal cases.
[60] Dismissal is defined as, inter alia:
21 (2009) 30 ILJ 320 (LC).
22 Act 66 of 1995, as amended.
‘186 Meaning of dismissal and unfair labour practice
(1) 'Dismissal' means that-
(e) an employee terminated employment with or without notice because the
employer made continued employment intolerable for the employee;’
[61] As regards onus, the LRA states as follows:
‘192 Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove
that the dismissal is fair.’
[62] When a dispute over a dismissal arises, the Bargaining Council (or the
CCMA) must determine whether a dismissal occurred. This is because ,
unless there was a dismissal, the Bargaining Council lacks jurisdiction to
arbitrate the dispute. The Bargaining Council makes the finding that it has
jurisdiction for convenience, and, on review, this Court determines , de novo,
whether the Bargaining Council’s finding was correct.23 Therefore, on review,
the Court considers all the material presented to the commissioner at the
Bargaining Council and decides de novo whether a dismissal occurred.
[63] Where an employee resigns voluntarily, there is no dismissal, and in such
cases, the Bargaining Council would lack jurisdiction to determine that
dispute.
[64] However, if an employee resigns involuntarily because the employer has
made continued employment intolerable, this counts as a dismissal. In such
cases, the employee must demonstrate that the employer has rendered
continued employment intolerable. If the employee fails to do so, the
conclusion must be that there was no dismissal. Conversely, if the employee
proves that the employer has made continued employment intolerable, then a
dismissal has occurred.
23 SA Rugby Players Association & Others v SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 (LAC)
para 39 and 40.
[65] In Maleka v Boyce N.O and Others 24 (Maleka), the Constitutional Court
outlined the review test in constructive dismissal matters as follows:
‘[55] The question on review therefore is whether, objectively speaking, the
employee was constructively dismissed. A finding that an employee
has been constructively dismissed is a matter of fact and the test to be
applied, as correctly held by the Labour Court in this matter, is an
objective one that is concerned with correctness and not
reasonableness, because the question “whether an employee has
been dismissed” rests on the jurisdiction of the CCMA.’
[66] To establish whether an employee was constructively dismissed, three
conditions must be met. The first is that the employee must have terminated
the employment. The second is that employment was terminated because the
employee found ongoing employment intolerable. The third is that the
employer made continued employment intolerable. In Solid Doors , the Labour
Appeal Court confirmed that all three conditions must be present for a
successful claim of constructive dismissal.
[67] In Strategic Liquor Services v Mvumbi NO & Others
25 (Strategic Liquours), it
was stated that an employee need not prove that they had no choice but to
resign, only that the employer's conduct was such that an employee could not
reasonably be expected to cope with it.
[68] In Loots, the Court stated that c ontinued employment becomes intolerable if
an employee still wants to work, but the situation becomes so unbearable that
they can no longer do so and believe the employer will never reform.
[69] Intolerable means beyond that which can be tolerated, or endured, or
insufferable, too great to bear , not to be put up with, and beyond the limits of
intolerance. (See Solidarity on Behalf of van Tonder v Armaments Corporation
of SA (Soc) Ltd & Others26 (Solidarity obo Van Tonder)).
24 (CCT 175/23) [2026] ZACC 7 (24 February 2026).
24 (CCT 175/23) [2026] ZACC 7 (24 February 2026).
25 (2009) 30 ILJ 1526 (CC) at para 4 and Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA);
[2008] 3 All SA 66 (SCA); at paras 12 and 67.
26 (2019) 40 ILJ 1539 (LAC).
[70] In Maleka27, the Court also referred to conduct by the employer that
constitutes the last straw or breaks the camel’s back. This describes conduct
that causes an employee to decide they cannot continue working beyond that
point. Whether an employee’s situation has reached this point must be
assessed objectively, not based on the employee’s personal views. In Maleka,
the Court stated that the threshold is high:
‘[74] …. This is to avoid an unhealthy situation in a workplace where
employees, who have become disgruntled and dissatisfied for flimsy
reasons, would simply walk out and thereafter claim a constructive
dismissal.’
[71] An employer can be considered to have constructively dismissed an employee
only if it is responsible for the situation the employee finds intolerable. In Loots ,
the Court stated the following:
‘The enquiry then becomes 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 employers
conduct as a whole and to determine whether it is such that its effect, judged
reasonably and sensibly, is such that the employee cannot be expected to
put up with it.’ (My underlining)
Analysis
[72] It is not disputed that Jordan resigned. The next question is whether he
resigned due to intolerable working conditions, and if so, whether the OCJ is
culpable or responsible for those conditions.
[73] Jordan states that he resigned because of ‘the myriad of unlawful acts and
omissions that he had to end ure, culminating in the unlawful decision to
withhold his salary ,’ which rendered continued employment intolerable.
Therefore, the question is whether, objectively, Jordan was subjected to a
myriad of unlawful acts, culminating in the stoppage of his salary, and whether
myriad of unlawful acts, culminating in the stoppage of his salary, and whether
this rendered continued employment intolerable.
27 Para 104.
Unlawful acts before salary stoppage
[74] As I understand Jordan’s case, the alleged numerous unlawful acts
mentioned relate to the instruction to return to the office and the supposed
lack of communication from Premsagar and Martin, with the stoppage of the
salary as the final straw.
[75] Consequently, the first question is whether Jordan was subjected to unlawful
acts, starting with the instruction to report for duty at the offices. Right from
the start, I must say that Jordan’s case on this is hard to follow, as he seems
to waver. As I understand, he presents three mutually exclusive positions that
cannot all be true at once.
[76] The first argument is that the instruction to return to work was unlawful
because it breached the Regulations. He also criticises the commissioner for
ruling that the instruction to report to the office was lawful, when, according to
Jordan, this was not a matter the commissioner needed to decide.
Furthermore, there is the argument that he did not dispute the lawfulness of
the instruction to report to the office. These three arguments cannot all be true
simultaneously.
[77] I start with the contention that the commissioner determined an issue that was
not before him. One of the grounds of review is that the commissioner
considered whether the OCJ complied with the COVID -19 Regulations, even
though this was not the issue. According to Jordan, the issue was whether the
OCJ addressed his concerns fairly and appropriately before ceasing his salary
while he was still performing his duties. Is there merit to this contention?
[78] The referral form
28 records as follows:
‘I have essentially been denied remuneration because of my clear decision
to comply with the Regulations issued under the Disaster Management Act
and continue working remotely because that is what the regulations require
28 In the pre-arbitration minute, the parties agreed that the referral form was the Statement of Case.
from ‘all persons were able to work from home’. The underlying reason for
withholding my salary is thus unfair and unlawful.’29
[79] The pre-arbitration minute also noted that the commissioner was tasked with
deciding whether the instruction for Jordan (and all Law Researchers) to
return to the office was lawful.
[80] In the heads of argument submitted on behalf of Jordan, the narrative that the
instruction was unlawful is maintained. It was argued that the OCJ failed to
comply with the COVID- 19 Regulations. The June 2020 Regulations that are
alleged to have been contravened or not adhered to are Regulations 17
(which concerns conducting a risk assessment before reopening a
workplace), Regulation 18 (which sets out what is required in a risk
assessment plan), Regulation 44 (dealing with ventilation), and Regulations
52 - 54 (which specify what employers are not permitted to do when an
employee refuses to work out of fear of exposure to COVID -19). The October
2020 Regulations that the OCJ is alleged not to have complied with are
Regulations 3– 5 (covering sanitisers, disinfectants, and handwashing) and
Regulations 9– 10 (dealing with measures for workplaces accessible to the
public and ventilation). There was also alleged non- compliance with
Regulations 14(6) - (7) and 15.
[81] If non- compliance with the Regulations was not an issue and the
commissioner should not have addressed the lawfulness of the instruction to
report to the Bloemfontein offices, why do the heads of argument dedicate so
much time to the Regulations that were allegedly contravened? During oral
argument, considerable time was also spent specifying and emphasising the
Regulations that were supposedly not followed. It is because the lawfulness of
the instruction to physically report for duty in Bloemfontein was significant in
Jordan’s case before the commissioner, who was obliged to consider whether
the contention had merit. He determined that the instruction was lawful and
the contention had merit. He determined that the instruction was lawful and
that the Regulations had not been contravened. The Court agrees with that
conclusion and sees no need to address each Regulation allegedly not
29 The Annexure to the referral form makes the same argument that the instruction to physically report
at the Bloemfontein offices was unlawful, given Jordan’s interpretation of the COVID-19 Regulations.
complied with, except for Regulation 49, which the commissioner also
considered in the award, and the Regulation regarding the 80/20% rule.
[82] It was submitted that in his correspondence to Premsagar and Martin, Jordan
had expressed his reservations about returning to work, and that Regulation
49 of the June 2020 Regulations stated as follows:
‘An employee who has refused to perform work in terms of clause 48 must ,
as soon as is reasonably practicable notify the employer either personally or
through a health and safety representative of the refusal and the reason for
the refusal. Every employer must, after consultation with the compliance
officer and any health and safety committee, endeavour to resolve any issue
that may arise from the exercise of the rights in terms of clause 48.’
[83] I agree with the commissioner’s finding that this Regulation was irrelevant,
since Jordan’s case was that he did not refuse to work. In fact, his situation
was the opposite. His case was that he continued working until 25 December
2020, whereas the cited Regulation applied to employees who refused to
work.
[84] Circular 15 of 2020 clearly stated that 80% of employees would report to the
offices, while the remaining 20% would work from home. The Circular also
specified that this arrangement would be implemented on a rotational basis,
which was fair. Furthermore, it included an exception for vulnerable
employees. However, Jordan misinterpreted this instruction to mean he fell
into the 20% category, even though he was not a vulnerable employee, which
led his fellow researchers to complain that he was receiving prefer ential
treatment. The instruction to report to the office was lawful.
[85] As I have already established, both before the commissioner and during these
proceedings, Jordan highlighted the unlawfulness of the instruction, which he
argued contravened the Regulations. However, in his detailed email of 7
September 2020, part of which was reproduced in the chronology, Jordan
September 2020, part of which was reproduced in the chronology, Jordan
stated that he was not disputing the lawfulness of the instruction to return to
the office. In these proceedings , one of the grounds of review is that the
commissioner should not have determined whether the OCJ complied with the
Regulations in instructing employees to return, because the real issue was
whether Jordan had been treated fairly and whether his concerns had been
properly addressed. I mention these two issues only to support the earlier
observation that Jordan’s case regarding the lawfulness or otherwise of the
instruction to return to work is difficult to follow.
[86] The instruction was lawful. Jordan did not comply because, in his own words,
he was uncomfortable returning to the office and chose to work from home.
He felt comfortable and continued working from home until the OCJ withdrew
the salary, an issue discussed below. It is difficult to understand the supposed
intolerable conditions that the OCJ created for Jordan, and how the OCJ was
required to, and failed to, reform.
[87] Jordan’s genuine frustration with Premsagar and Martin arose from their
refusal to engage with his interpretation of the Regulations. Although he knew
they disagreed with his views, he wanted to hold a moot court with his seniors
to hear their opinions. Premsagar and Martin were not obliged to debate or
share their interpretations of the Regulations, and their lack of engagement
did not amount to a failure to communicate or assist Jordan, as argued. It is
incorrect to say that Premsagar failed to communicat e with Jordan. He
communicated, but not on the issue Jordan wished him to address. What
assistance Jordan needed from them remains unclear, and why this lack of
support made continued employment intolerable for him is also difficult to
understand.
[88] Relying on the decision in Aquarian Lifestyle to argue that Premsagar and
Martin could have properly consulted Jordan rather than dismissing his
concerns or could have initiated disciplinary proceedings instead of merely
threatening him, does not assist Jordan’s case. This is because, in Aquarian
Lifestyle, Manewick was laid off during COVID -19. When she wrote to the
company demanding, inter alia, that she be allowed to return to work, the
employer proposed implementing rotational shifts and invited the employee to
employer proposed implementing rotational shifts and invited the employee to
provide information about them. She responded with her proposals, which
included payment of a retrenchment package if the company still faced
financial difficulties. For a month, the employer did not respond, and she
resigned, claiming constructive dismissal. The commissioner upheld the
constructive dismissal claim, and on review, this Court refused to interfere
with that finding, reasoning as follows.
‘[31] What is apparent from the facts is that Marnewick was not consulted
by the Company during the tumultuous period in which it, like all other
employers, found themselves. It acted for instance on a frolic without
consultation/engagement with Marnewick, acted egregiously in
misrepresenting the basis of qualification of the TERS benefit to
induce a layoff agreement, failed to respond to a counter -proposal
made by Marnewick in the grievance process, had another employee
take on her responsibilities and in effect kept Marnewick at a distance
at a time when it should have engaged her to keep her appraised of its
financial position and its impact on staff which ostensibly justified its
difficult position. This would have been a reasonable approach taken
by the Company. Yet this is not how management conducted the
business at the time.’
[89] Manewick’s circumstances are not comparable to those of Jordan. It cannot
be seriously argued that Premsagar and Martin’s refusal to engage with
Jordan’s interpretation of the Regulations created an intolerable work
environment for Jordan. I have already established that Premsagar and Martin
(or even HR) did not have to respond to Jordan’s letters, and their refusal or
failure to respond was reasonable, unlike what happened with Manewick.
[90] Nor can it be claimed that the OCJ’s failure to initiate disciplinary proceedings
against Jordan rendered the working environment intolerable. In fact, the
opposite is likely true.
[91] If Jordan genuinely thought that Premsagar and Martin were treating him
unfairly, he could have lodged a grievance against them. His failure to do so
indicates an acceptance that they had done nothing wrong. The objective test
for constructive dismissal is simply not satisfied.
[92] In conclusion on this issue, f rankly, Jordan’s frustrations with Premsagar and
[92] In conclusion on this issue, f rankly, Jordan’s frustrations with Premsagar and
Martin were misplaced, as they did not author the Circulars instructing
employees to return to work. The decision had been made higher up, and
therefore Jordan was ‘barking up the wrong tree'.
Salary stoppage
[93] After Jordan refused to comply with the instruction to return to the office on 1
September 2020, he was informed that any days he failed to report for duty
would be treated as unpaid leave. Despite this, his salary continued to be paid
until the end of November 2020.
[94] Even if an argument could be made that the salary stoppage in December
2020 was unlawful and constituted a breach of contract, this does not mean
that Jordan was constructively dismissed. In Maleka, the Court stated this:
‘[73] In my view, intolerability means something more than just conduct (on
the part of the employer) or working conditions, which simply result in
difficult, unpleasant or stressful situations for the employee. It would not
be enough that the employer’s conduct is merely rude, uncompromising
or unbecoming. Likewise, “even a breach of the employment contract,
deductions from salary, or unfair disciplinary actions would not per se
establish intolerability”. The employee would need to show that such
conduct is characterised by what can objectively be construed as
unendurable or agonising and he or she must show that the perpetrator is
their employer . In other words, it must be clear that the employer’s
conduct was the cause for complaint and that it brought the employee’s
tolerance to a breaking point. This position is consistent with what has
been followed by the labour courts since Solidarity.’ (My underlining).
[95] In stating the above, the Constitutional Court was endorsing the approach in
HC Heat Exchangers (Pty) Ltd v Araujo and others 30 (HC Heat Exchangers),
that breach of a contract, on its own, does not make continued employment
intolerable. More is required.
[96] I have reviewed the paragraph from the Eagleton decision, cited in Jordan’s
heads of argument, which he interprets as holding that an unpaid employee
may terminate the contract by resigning; otherwise, they cannot claim
constructive dismissal. The Court in Eagleton based its statement on Coetzee
constructive dismissal. The Court in Eagleton based its statement on Coetzee
30 [2020] 3 BLLR 280 (LC).
& Another v Pitani (Pty) Ltd t/a Pitani Electrification Projects & Others
(Coetzee).31 The relevant portion of the Coetzee judgment is as follows:
‘[50] Should an employer that contemplates dismissing employees not
consult with the affected employees in terms of the duty to do so
contained in s 189 of the LRA, the employer is acting in a manifestly
unfair manner towards them. Should such an employer then further
exacerbate matters by committing a breach of contract that goes to the
root of the employment contract, it may very well be that the affected
employees are being placed in an invidious position.
[51] Such employees can, of course, elect to accept the breach of contract
and cancel or terminate the contract of their own accord and claim
contractual damages. More important, however, is the fact that such
employees may become entitled to claim constructive dismissal in
terms of s 186(e) of the LRA.
[52] This subsection defines dismissal as follows (and I quote): 'an
employee terminated the contract of employment with or without notice
because the employer made continued employment intolerable for the
employee'. It would appear that breach of contract by the employer
(even when going to the root of the employment contract) may usually
not be sufficient, in itself, to make continued employment 'intolerable',
because the requirement of 'intolerability' appears to set a higher test
than that of breach of contract per se. However, in my view, such
breach would be a very important factor in assessing the intolerability
of continued employment. Coupled with unfair actions of the employer,
for instance, in the form of a breach of the statutory duties contained in
s 189 of the LRA, circumstances may very well arise where all of these
factors combined make continued employment intolerable, thereby
giving rise to a claim of constructive dismissal in terms of 186(e).’ (My
underlining)
[97] Therefore, Coetzee does not establish a principle that an employee who is not
[97] Therefore, Coetzee does not establish a principle that an employee who is not
paid a salary can simply resign and claim constructive dismissal. Coetzee
echoes the Court's statement in Maleka, that the non- payment of salary per
se does not make continued employment intolerable, and that there must be
31 (2000) 21 ILJ 1324 (LC).
other unfair conduct by the employer, as the test for constructive dismissal is
high.
[98] The correct interpretation of Eagleton is that an employee who is not paid a
salary and wishes to claim constructive dismissal must first resign. This is the
first of the three requirements in a constructive dismissal claim. Whether the
employee will succeed with the claim depends on whether the other two
requirements for a constructive dismissal, as discussed earlier in the
judgment, have also been satisfied.
[99] In Albany Bakeries Ltd v Van Wyk & Others 32 (Albany Bakeries), the Court
clarified the relationship between breaches of contract and constructive
dismissal as follows:
‘[24] If the demotion is a repudiation which would entitle the employee to
cancel the contract, but does not amount to making life intolerable, it is
insufficient; if it is sufficient to make life intolerable, it is relevant.’
[26] It seems that counsel for the appellant, Mr Wesley, is correct in
submitting that the court a quo erred, firstly, by holding that the right
question to ask was whether demotion constituted a repudiation, which
allowed cancellation. Secondly, the court erred in holding that, if the
test was couched in those common-law terms, it constituted a
dismissal, in the absence of such rendering the work relationship
intolerable.’
[100] It follows that an employee who resigns solely because they have not been
paid their salary will find it difficult to prove a case of constructive dismissal.
[101] Therefore, the fact that Jordan’s salary was withheld, even if it constitutes a
breach of contract, does not, on its own, suffice to establish constructive
dismissal. The supplementary submissions made by the parties at the Court’s
request, which addressed whether an employer can withhold salary for
32 (2005) 26 ILJ 2142 (LAC).
misconduct, did not contribute to resolving the central legal issue, which was
already settled by the case authorities cited above.
[102] The salary stoppage was caused by Jordan’s refusal to return to the office,
and the OCJ cannot be deemed culpable or to have acted without reasonable
or proper cause, as the instruction to return to work was lawful.
[103] All Law Researchers obeyed the lawful instruction to return to work, except
Jordan. His refusal to comply with an instruction applicable to all Law
Researchers and the cessation of his salary cannot serve as a basis for
claiming he was constructively dismissed. In Mogomatsi, the Court stated this:
‘[44] .... An employee should not be allowed to rely on the fact that certain
rules which apply to all employees, frustrate, irritate or do not suit him or
her as the basis for a claim of constructive dismissal.’
[104] Additionally, Jordan had recourse if he believed that his salary was unlawfully
terminated. In Albany Bakeries the Court stated this:
‘[28] …Secondly, from the very concept of intolerability one must conclude
that it does not exist if there is a practical or legal solution to the
allegedly oppressive conduct.’
[105] There was a legal option to challenge Jordan’s salary termination. If he
genuinely believed there was no lawful basis for the salary stoppage, he
should have taken that route instead of resigning. Those would have been the
proper procedures to contest the decision as unlawful, especially since it was
made before the SG approved the request to end his salary , as Jordan points
out. The decision to resign must have been informed by the realisation that
the OCJ had a valid and lawful reason for stopping the salary.
[106] Also, not receiving a response to a demand to explain why the salary was
stopped does not make continued employment intolerable.
Miscellaneous issues raised by Jordan
[107] The supposed disconnect between Jordan’s supervisors and HR, and
[107] The supposed disconnect between Jordan’s supervisors and HR, and
between his supervisors and the Judges, is irrelevant to the evaluation of
whether Jordan was constructively dismissed. If anything, the fact that Jordan
continued to perform tasks assigned by the Judges after his resignation
weakens his claim that continued employment had become intolerable.
[108] Another irrelevant submission by Jordan is that the OCJ could not rely on the
PSA to terminate his employment . The argument is irrelevant because it was
common cause that Jordan resigned, not that his employment was terminated
under the PSA. It is Jordan, not the OCJ, who ended the employment
relationship.
[109] Insofar as the commissioner is criticised for stating that resignation must be a
measure of last resort, the most recent decision of the Constitutional Court, in
Maleka, also held that resignation must be a measure of last resort.
33 In
Strategic Liquors, the Constitutional Court stated that the test is not whether
the employee had no choice but to resign, but rather that an employer
rendered continued employment intolerable.
34 Whether the tw o decisions
conflict is an issue that falls outside the scope of this judgment. For the
purposes of this judgment , it suffices to state that the test applied by the
commissioner finds support in several Labour Appeal Court decisions as well
as Maleka.
Conclusion
[110] Premsagar and Martin’s arguments that Jordan was disrespectful and
insubordinate in his communications have merit. The overall impression is
that Jordan was determined to continue resisting the instruction to return to
work and ‘wait and see’. When his demand that HR respond to him by 17H00
on 31 December 2020 was ignored, he threw a tantrum and resigned. This
occurred despite him having stated that he would seek relief from the
appropriate forum if his salary was stopped.
33 At para 74 (majority judgment) and para 145 (minority judgment). See also Albany Bakeries para
27.
34 Para 4, citing Murray v Minister of Defence [2008] ZASCA 44; (2008) 29 ILJ 1369 (SCA); [2008] 3
All SA 66 (SCA); [2008] 6 BCLR 513 (SCA) paras 12 and 67.
[111] The OCJ did not create an intolerable working situation for Jordan. Whatever
understanding Jordan had of the Regulations, or what had been said on
national television by labour law experts, employees take instructions from
their employers unless the instruction is shown to be unlawful. The instruction
to report for duty to the offices was not unlawful.
[112] That his salary was ultimately stopped in December 2020 did not create an
intolerable working situation because, since September 2020, he was
informed that his failure to report to the office would be treated as unpaid
leave. He ignored the warnings, somewhat confident that the threat would not
be carried out. That it took months for the salary stoppage to be implemented
did not mean the threat was withdrawn. The salary stoppage would not have
been a surprise because, since October 2020, Jordan had been exc luded
from emails and had not been assigned any work by his supervisor. That he
received work from the Judges did not change the fact that Jordan’s direct
supervisors drew the line in the sand and ensured that Jordan faced the
consequences of his actions. Jordan was the author of his own misfortune.
[113] The OCJ had a choice in how it responded to Jordan’s conduct. It was not
limited to instituting disciplinary proceedings against Jordan. It could suspend
the salary as it did, and as already stated above, if Jordan believed the
decision was unlawful, he was not without remedy. Resigning and claiming
constructive dismissal were poor decisions on his part.
[114] Although the Court determined the matter de novo, there is no merit to the
contentions that the commissioner’s analysis of the evidence and arguments
appears to have ignored relevant and material evidence placed before him,
and that the award does not show a relational connection between the
material presented and the conclusion reached. There is also no substance in
the criticism of the commissioner’s handling of the evidence, as there were no
the criticism of the commissioner’s handling of the evidence, as there were no
disputes of fact.
[115] Even if the finding that there was no dismissal is incorrect, and it is found that
all three requirements for constructive dismissal were satisfied, a further
question must still be asked, namely whether the dismissal was fair,
substantively. On the facts of this matter, if there was a dismissal, it was for a
fair reason.
Costs
[116] The parties sought costs against each other. In the Court’s discretion, a costs
order in accordance with the requirements of law and fairness, as provided in
section 162 of the LRA, is for each party to pay its own costs.
[117] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate MA McChesney
Instructed by: N Barnaschone of Barnaschone Attorneys
For the Respondent: Advocate MJ Merabe
Instructed by: Acting Deputy State Attorney