THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1629/21
In the matter between:
SIMON MAXWELL JACOBS Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION & ARBITRATION First Respondent
LUNGILE MATSHAKA N.O Second Respondent
BRAKPAN BUS SERVICES Third Respondent
Heard: 16 April 2026
Delivered: 05 May 2026
Summary: Opposed review application – claim of constructive dismissal –
employee resigned after twenty years’ service due to his new Line Manager
not responding to his communication – threshold of intolerability not met
JUDGMENT
MKWIBISO, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] In this matter, the applicant (the employee) seeks to have the award of the
second respondent (the Commissioner), issued under the auspices of the first
respondent, the Commission for Conciliation, Mediation and Arbitration (the
CCMA), reviewed and set aside. In terms of this award, the Commissioner
found that the employee’s resignation with notice on 04 January 2021 did not
constitute a constructive dismissal of the employee by the third respondent
(the employer).
[2] The issue is whether the Commissioner’s decision, dismissing the employee’s
claim of constructive dismissal, was correct. The employer filed an answering
affidavit opposing the relief sought by the employee but did not appear in
Court when the matter was heard. The employee appeared in person and
explained that he did not have the financial means to ensure that his legal
representatives argued the matter on his behalf.
Relevant facts and evidence
[3] The employer is an entity of the City of Ekurhuleni Metropolitan Municipality
(the City ) and its business is to operate bus services in terms of which
members of the public are transported by buses within a designated area
under the jurisdiction of the City.
[4] As at the date of his resignation, the employee had been employed by the
employer for twenty years. He occupied the position of Financial Manager and
reported to the Managing Director of the employer.
[5] In October 2018, the employer suspended the employee in order to
investigate allegations of misconduct against him . The suspension was
uplifted in June 2020 and he was never charged for the allegations that led to
his suspension. The employee took no steps to challenge the fairness of his
suspension. During argument before me, he confirmed that he had been
advised by his attorneys to not challenge his suspension.
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[6] Upon his return from suspension, the employer did not have a Board, and a
new Managing Director (Mr Teboho Jele) was appointed on an acting basis .
There were significant operational issues that needed the attention of the
Acting Managing Director. One of the issues concerned a cash leakage that
the employee had identified, with a suspicion that Cashiers working under him
were responsible for stealing the employer’s money. A second issue
concerned the payment of service providers. One of the service providers was
supposed to be paid in order to repair the ticket software system that enabled
the employee to track the issuing of tickets to passengers and the movement
of money received from passengers who use employer’s buses . Another
service provider had to be paid in order to print the payslips of employees of
the employer. A further service provider had to be paid after delivering goods
(laptops) to the employer.
[7] The employee had reported these issues to the Acting Managing Director,
who had failed to deal with the issues by approving the documents that were
necessary for payment to be made. The employee faced complaints from
colleagues who were paid their remuneration without payslips and he believed
that he could not properly perform his duties without the Acting Managing
Director’s approval of the necessary payments to service providers.
[8] The Acting Managing Director went on annual leave on or about 14 December
2020. When the employee believed that the Acting Managing Director was not
dealing with his concerns, he lodged a grievance with the Executive Mayor
and City Manager of the City on or about 24 December 2020, based on the
understanding that the Acting Managing Director reported to the Executive
Mayor. This grievance was not attended to by the City’s officials with the
speed that the employee desired. As a result, the employee submitted a letter
of resignation on 04 January 2021, indicating that his last day of work would
be 04 February 2021.
be 04 February 2021.
[9] The letter of resignation read as follows:
“To Mr Teboho Jele
From Mr Maxwell Jacobs
4
Date 04 January 2021
LETTER OF RESIGNATION
It is with great disappointment to inform you that as from tomorrow, the 05 th of
January 2021, I will be serving notice until the 04 February 2021. I will always
be grateful for having gotten the opportunity to work for Brakpan Bus
Company (BBC) for the past twenty years.
There are many reasons behind my resignation and daily it became more
unbearable to work for BBC under these circumstances.
1. For many years I have been saying that I am actually doing the job of
three positions at BBC which are the CFO position, Financial Manager
position and the Supply Chain Manager position. This was proved
when the board approved the company organogram which has all
three positions. Furthermore, when I returned to work from suspension
on the 15 th of June 2020, I discovered that there were three different
people who were collectively doing my duties. Moses Mpjane was
seconded to be the CFO, Hugh Skhalela was ac ting as Financial
Manager and Gloria Hoffman was heading payroll. Upon my return to
work, all the said duties were done by me only.
2. According to section 89 of the MFMA, the City must set the upper limit
of the salaries of the CEO and senior managers who report to the
CEO. All BBC managers are paid according to the upper limit set by
the City excluding myself. As a result, all other managers are earning
more than me despite the fact that they all have less than two years
working at BBC and I have more than twenty years. We have signed
the settlement agreement with the company at CCMA in July 2018, in
trying to resolve this imbalance, but the company has disregarded it.
3. On the 30
th of October 2018, a day before the due date of the
settlement agreement implementation, I was suspended without any
valid reasons. I have spent money paying lawyers for twenty (20)
months, trying to get supporting documents for the allegations made
against me. After 20 months the company withdrew the charges
against me. After 20 months the company withdrew the charges
without any explanation and without considering any of my expenses
incurred with regards to the unfounded allegations and legal costs.
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4. The allegations made by the company in that charge sheet have
brought my name into disrepute. Furthermore, they made more
allegations against me at SARS.
5. All confidential reports of cash leakage sent to Mr Jele, in his capacity
as the Acting Managing Director, were distributed to the junior staff in
an attempt to create animosity between myself and the junior staff. As
a result, the staff that reports to me who were also mentioned in the
reports decided not to come to work without me signing their leave
forms. This has made my work difficult since I am unable to finalise
my mid-year reports without the information I am supposed to get from
them.
6. Mr Jele has, once again, created animosity between me and other
employees by refusing to authorise the purchase of payslips which
resulted in employees getting salaries without payslips in the month of
December 2020.
7. I am unable to review the reports on the ticket system due refusal to
repair it. This makes it difficult to perform my duties.
8. Workers are exchanging their modules among themselves and are
sharing passwords. This is making the revenue controls weaker. I
have reported this many times before, but nothing has been done thus
far.
9. Mr Jele seems to be creating wasteful expenditure and irregular
expenditure unnecessarily and there is no apparent reason for him
doing so. Afterwards, I am the one who is expected to explain these
irregularities to all oversight committees as the head of finance”.
[10] The employee indeed served his notice. He referred an unfair dismissal claim
to the CCMA, claiming that his resignation constituted a constructive
dismissal. This dispute was ultimately arbitrated by the Commissioner.
[11] At the arbitration, the employee testified on his behalf and the Acting
Managing Director testified on behalf of the employer.
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[12] The employee stated that he was not happy with the pace with which the
Acting Managing Director was attending to the issues. He confirmed that he
knew the City would replace the Acting Managing Director and he did not
want to be charged for failing to do his work by the person who would replace
the Acting Managing Director. He did not want a situation whereby he has to
spend a lot of his own money trying to defend himself by proving that it was
the Acting Managing Director who was making it difficult for hi m to do his
work.
[13] The employee referred to emails that were sent to the Acting Managing
Director requesting him to approve payments to service providers, which were
ignored by the Acting Managing Director. One of the invoices that had to be
paid related to the printing of payslips, which created animosity between him
and his colleagues as employees were paid their remuneration without
payslips that explained their benefits.
[14] The employee said he sent the first cash leakage report to the Acting
Managing Director on 20 November 2020. He sent another cash leakage
report to the Acting Managing Director on 13 December 2020. The Acting
Managing Director failed to respond to his reports of employees stealing
money from the employer.
[15] The employee referred to an email that the Acting Managing Director had sent
circulating his confidential report to colleagues who were implicated in the
report. He said this resulted in his juniors failing to report for duty in retaliation.
[16] The employee referred to an email that was sent by Mr William Magwele
complaining about the non- payment of suppliers, which non- payment Mr
Magwele said had become a huge risk to him and his family. The employee
further referred to an email from a supplier who had delivered laptops but was
not paid. He forwarded this email to the Acting Managing Director requesting
payment due to the negative image that non-payment had on the employer.
payment due to the negative image that non-payment had on the employer.
[17] After referring to his resignation letter, the employee was asked whether he
would have resigned had the Acting Managing Director responded, either
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negatively or positively, to any of the emails he had sent to him. His response
was that he would not have resigned:
“APPLICANT REPRESENTATIVE: Thank you Sir. So if Mr Jele had
responded, either in a negative or a positive way to any of the emails that you
sent, highlighting the issues that you were experiencing. If he had responded,
would you have resigned, Sir?
MR. SIMON MAXWELL JACOBS: No, I wouldn’t have resigned”.
[18] It suffices to state that the Acting Managing Director testified and denied that
the employee’s resignation constituted a constructive dismissal.
[19] The Commissioner issued his award on 28 June 2021, dismissing the
employee’s referral on the ground that he was not dismissed but had
resigned. The Commissioner found that the employee had not given the
employer enough time to deal with his grievance. The employee had not
approached the employer’s Human Resources Department to exhaust his
internal remedies in terms of the employer’s internal policies but had instead
approached the City, and had not waited for the City to respond before he
resigned.
[20] The Commissioner further found that the employee’s resignation was with a
month’s notice, which was inconsistent with a claim of intolerability. He
referred to the Labour Court’s judgment in Volschenk v Pragma Africa (Pty)
Ltd
1 in support of this finding.
[21] The Commissioner furthermore found that the employee had sought the
remedy of a transfer to another department of the employer, which was
inconsistent with an official who was disillusioned with the employer. The
Commissioner concluded that the employee had failed to prove on a balance
of probabilities that the employer had made his employment so intolerable
that the only option was to resign.
[22] Unsatisfied by the outcome of the CCMA, the employee approached this
Court with a review application seeking to have the award against him set
1 Volschenk v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC).
8
aside. The employee only filed one founding affidavit and did not file a
supplementary founding affidavit making reference to the record once he had
secured the transcript of the arbitration proceedings. His grounds of review
are stated in the following vague terms:
“32.1 The Second Respondent did not properly, rationally, and justifiably
apply his mind to the facts and/or law in this instance;
32.2 The award rendered by the Second Respondent is not justifiable in
relation to the reasons given for such award and such award is also
not rational or justifiable in its merits or outcome;
32.3 The Second Respondent failed to properly, justifiably and reasonably
determine and assess the evidence properly before him;
32.4 The Second Respondent had not considered relevant considerations
and/or had taken irrelevant considerations into account;
32.5 The decision reached by the Second Respondent is not a decision
that a reasonable decision-maker would reach in the circumstances of
this case”.
[23] In a further attempt to set out grounds of review, the employee stated the
following in his founding affidavit:
“33. It is my respectful submission that the Second Respondent gave
preference to the Third Respondent’s version and did not even
attempt to establish the Applicant’s version fully
34. Be that as it may, the Second Respondent did not attempt to establish
the true state of affairs from the Applicant himself or ignored what was
presented during the proceedings
35. It is my humble submission that the Second Respondent did not give
due consideration to the fact that Applicant discharged the onus
placed on him.
36. Therefore, in the circumstances, it is submitted that the award by the
Second Respondent, in this instance, constitutes a defect as
contemplated by section 145 of the LRA and/or constitutes a ground
9
for review as contemplated in section 158(1)(g) of the LRA and should
accordingly be reviewed and/or set aside”.
[24] The employer opposed the review application on the basis that the
Commissioner was correct in finding that the employee was not dismissed.
Analysis
[25] The employee approached the CCMA with a complaint that he was dismissed
by the employer and that his dismissal was unfair . His averment that he was
dismissed was based on the definition of “dismissal” in section 186(1)(e) of
the Labour Relations Act
2 (the LRA).
[26] Section 186(1)(e) of the LRA defines “dismissal” in the following terms:
“(1) “Dismissal” means that –
…
(e) an employee terminated employment with or without notice
because the employer made continued employment intolerable
for the employee”.
[27] When the CCMA dismissed his claim, he approached this Court with a review
application seeking to have the arbitration award against him set aside. As
can be seen from his grounds of review, he made no reference to the
arbitration record, which is inappropriate and incompetent when one is
challenging a decision-maker on the ground of a failure to apply one’s mind to
the evidence that served before him. Surely such a challenge should be
mounted with refere nce to the actual evidence that it is alleged was
misconstrued instead of making vague allegations of a failure to apply the
mind.
[28] The test for review is trite. The issue is whether the Commissioner’s decision
that the employee’s resignation did not constitute a dismissal was correct ,
based on an objective assessment of the evidence. The review test of
reasonableness as enunciated in Sidumo and Another v Rustenburg Platinum
2 Act 66 of 1995.
10
Mines Ltd and Others 3 does not apply to a Commissioner’s findings on
jurisdiction or lack thereof.
[29] The requirements or elements of a constructive dismissal claim were set out
by the Labour Appeal Court in Solid Doors (Pty) Ltd v Commissioner Theron
and Others, in the following terms:
“[28] … there are three requirements for constructive dismissal to be
established. The first is that the employee must have terminated the
contract of employment. The second is that the reason for termination
of the contract must be that continued employment has become
intolerable for the employee. The third is that it must have been the
employee’s employer who had made continued employment
intolerable. All these three requirements must be present for it to be
said that a constructive dismissal has been established. If one of them
is absent, constructive dismissal is not established”.
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[30] In Gold One Limited v Madalani and Others , the Labour Court dealt with the
requirement of intolerability by stating that “ 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”.5
[31] This approach has been confirmed recently by the Constitutional Court in
Maleka v Boyce NO and Others.6 The apex court defined “intolerability” in the
following terms:
“[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
3 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para
110.
4 Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC), para 28.
4 Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC), para 28.
5 Gold One Limited v Madalani and Others (2020) 41 ILJ 2832 (LC), para 46.
6 Maleka v Boyce NO and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026) at para 73.
11
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”.
[32] The Constitutional Court confirmed that resignation should be a measure of
last resort:
“[74] It follows that termination in these circumstances must be a measure
of last resort. As I pointed out already, and as the authorities show,
the threshold for establishing intolerability under section 186(1)(e) of
the LRA is high. And so it should be. 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. Such a situation would
be at odds with the prescripts of fairness in labour practices, which
requires that “an employee who is dissatisfied with his employer’s
conduct, at first, offers the employer an opportunity to redress the
dissatisfaction. Employees should refrain from hastily resigning and
then arguing that the employment relationship had become
unbearable”.
[33] The Constitutional Court considered the duration between the act that
allegedly caused intolerability and the act of resignation, as a relevant factor
in determining the existence of intolerability:
“[84] Given the relatively short duration of the period between
December 2016, when Mr Clarkson made the announcement, and
23 March 2017, when Mr Maleka submitted his letter of resignation, it
is difficult to conceive that the employer would have embarked on a
deliberate and concerted effort to make continued employment for
Mr Maleka so intolerable so as to force him to resign. It seems more
likely that his resignation had more to do with an anticipated
likely that his resignation had more to do with an anticipated
intolerability rather than an existing one, namely the new reporting
lines that would come into operation upon the implementation of the
FSG takeover”.
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[34] On the facts of the current matter, it is my view that the employe e may have
felt aggrieved by w ork conditions that caused difficult, unpleasant and
stressful situations for him in the workplace. He needed service providers to
be paid in order for services to be rendered to the employer, which services
were related to his line of work . The conduct of the Acting Managing Director
may have been unbecoming to the extent that he did not respond to emails or
speedily approve payments to service providers. The employee’s colleagues
may have put pressure on him by constantly inquiring about matters that were
beyond his control , due to the Acting Managing Director ’s failure to act
speedily on matters that required his approval.
[35] In my view, the conduct that caused the employee to be aggrieved was not
sufficient to break the camel’s back, as it were. In other words, it was not
sufficient to render his resignation an act of last resort. Importantly, just as the
reasons for dismissal are to be gleaned from a letter of dismissal, the reasons
for resignation must be gleaned from the resignation letter where such a letter
ventures into providing reasons for resignation.
[36] The employee had other alternative methods available to him of dealing with
the issues he set out in his resignation letter.
[37] If he had a complaint about doing work that fell outside his job description
without being remunerated adequately , then he could have requested a job
evaluation and grading of his position or referred an unfair labour practice
dispute relating to the provision of benefits . It seems he did refer a dispute to
the CCMA and a settlement agreement was concluded, which means he
could have enforced the terms of the settlement agreement as permitted by
sections 142A and 158(1)(c) of the LRA.
[38] If he believed his suspension from work was unfair, he could have challenged
the suspension at the CCMA and sought an order of compensation for the
unfairness.
the suspension at the CCMA and sought an order of compensation for the
unfairness.
[39] If junior officials had retaliated against the employee by being absent from
work without authorisation, then the employee could charge them for
misconduct as their superior, in the same way he had charged an official
13
whom he suspected of stealing money prior to his suspension. In argument
before me, the employee complained that the disciplinary process was too
slow.
[40] In relation to the employee’s inability to do his work due to service providers
not rendering services to the employer as a result of not being paid, then the
employee could have raised his concerns against the Acting Managing
Director in a formal grievance, following the employer’s policies and
procedures.
[41] In Maleka v Boyce NO and Others (supra), the Constitutional Court dealt with
a situation involving the lodging of a grievance against an official who was the
highest person of authority in the business. The Court held the following:
“[93] I am unable to agree with Mr Maleka’s assertion that lodging a
grievance procedure would have been a futile attempt to resolve his
grievance. If a grievance had been lodged against Mr Clarkson, the
ethical choice for Mr Clarkson, in my view, would have been to
exclude himself from those processes and to nominate someone of
similar status to oversee the finalisation of the issues. If Mr Maleka
was, at that point, still concerned that he would not be given a fair
opportunity to be heard, a reasonable expectation of an executive in
his position would have been to propose the appointment of an
independent person to oversee the finalisation of the grievance or to
seek legal advice. Therefore, to render the outcome of a grievance
process in this context as a fait accompli (an accomplished fact)
without any attempt to utilise those internal dispute mechanisms
provided for is, in my view, an incorrect understanding of the purpose
of workplace policies”.
[42] If the employee had evidence of the Acting Managing Director being
responsible for fruitless and wasteful expenditure, then he could have
reported this to the City and oversight committees and this would have been
sufficient. He could also have lodged a grievance internally, following the
sufficient. He could also have lodged a grievance internally, following the
employer’s grievance procedure, in which case the Acting Managing Director
14
would have had to exclude himself from the administrative and oversight
processes relating to that grievance.
[43] Ultimately, the employee made it clear that had the Acting Managing Director
responded to any of his emails, meaning even a single email, then he would
not have resigned. This demonstrates that the difficult, unpleasant and
stressful situations that the employee experienced as a result of the conduct
of the Acting Managing Director were not enough to trigger his resignation, as
all he needed was a speedy response or reaction (whether negative or
positive) from his Line Manager. When the employee’s issues were not
addressed at the speed he desired, he decided to hastily resign. In his
testimony at the arbitration hearing, he mentioned that the Acting Managing
Director made his work difficult (as opposed to impossible). Perhaps this is
why the employee was prepared to work through his notice period after he
had resigned.
[44] The time factor must also be considered. The employee seems to have had
issues with the Acting Managing Director from September 2020 and he
resigned on 04 January 2021, which is a period of four months. It is difficult to
conclude that the employer deliberately sought to make his employment
intolerable in such a short period.
[45] It is probable that the employee resigned as a result of anticipated
intolerability of the possibility of being charged in the future for problems that
he believed were caused by his Line Manager, which anticipation was
unreasonable because he had done all he could by following- up on
requisitions that required approvals and reporting the conduct of the Acting
Managing Director to the City. H e could not reasonably be expected to act
without authorisation or approve requisitions that fell outside of the scope of
his powers if his Line Manager was failing to act . The employee’s fear of
having to spend his hard-earned money on legal fees in the event of having to
having to spend his hard-earned money on legal fees in the event of having to
defend himself against unfounded allegations against him is unfounded, as he
did not have to approach legal practitioners every time he faced challenges in
the workplace and legal practitioners are generally not allowed in internal
15
workplace disciplinary processes. After all, he was able to appear in Court
unrepresented in this matter.
[46] The Commissioner’s decision was correct. The employee’s resignation was
not caused by the working environment being made intolerable by the
employer. There was simply no intolerability. As a result, the employee’s
resignation did not constitute a constructive dismissal, and his referral of an
unfair dismissal claim was correctly dismissed on the ground that there was
no dismissal.
[47] In light of the above, the employee’s review application stands to be
dismissed.
Costs
[48] The general rule is that costs do not follow the result in this court and there
are no valid reasons why I should deviate from this rule.
[49] In the premises, the following order is made:
Order
1. The applicant’s review application is dismissed.
2. There is no order as to costs.
_________________________
VG Mkwibiso
Acting Judge of the Labour Court of South Africa
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Appearances:
For Applicant : In Person
For Third Respondent : No Appearance
(Mdzikwa Attorneys on record)