THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR1981/2023
In the matter between:
MICHAEL BOSHOFF Applicant
and
COMMISSIONER NTOMBEKHAYA SESANI N.O. Applicant Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
TRSS GUARDING (PTY) LTD Third Respondent
Heard: 19 February 2026
Delivered: 31 March 2026
Summary: Dismissal as envisaged in section 186(1)(e) of the LRA –
Commissioner found that the employee was not dismissed – principles and
requirements for establishing a claim for constructive dismissal considered –
applicable test restated – review application dismissed.
JUDGMENT
PHAKEDI, AJ
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] The Applicant approached the Court in terms of section 145 of the Labour
Relations Act 1 (the LRA), seeking to review and set aside the arbitration
award (the award) issued by the First Respondent on 3 October 2023 under
case number GAJB2154- 23. The review application was filed within the
prescribed period on 09 October 2023, and the record was subsequently filed
together with the notice in terms of Rule 7A(8) of the Labour Court Rules2. on
19 December 2023.
[2] The Third Respondent filed its answering affidavit together with a condonation
application on 29 January 2024. In its application, the Third Respondent
explained that it only received the founding affidavit together with the
transcribed record on 14 December 2023. Due to festive season holidays,
legal representative only collected the documents on 15 January 2024. On 17
January, the Attorney sought an indulgence from the Applicant’s legal
representative but such a request was declined. The condonation application
was vehemently opposed by the Applicant whose replying affidavit was also
filed way out of time on 19 February 2024. Counsel for the Applicant also took
issue with the third respondent’s late filing of its heads of argument.
[3] Both counsel confirmed that neither of the parties filed a notice of objection as
prescribed in the Practice Manual 3 of the Labour Court objecting to the late
filing of the respective affidavits. Item 11.4.2 of the Manual provides that:
‘Where the respondent or the applicant has filed opposing or replying
affidavits outside the time period set out in the rules, there is no need to apply
for condonation for the late filling of such affidavits unless the party upon
whom the affidavits are served files and serves a Notice of Objection to the
late filing of the affidavits. The Notice of Objection must be served and filed
within 10 days of the receipt of the affidavits after which time the right to
object shall lapse.’
1 Act 66 of 1995, as amended.
object shall lapse.’
1 Act 66 of 1995, as amended.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
3 Practice Manual of the Labour Court of South Africa, effective 2 April 2013 (repealed, effective 17
July 2024).
3
[4] In terms of the Practice Manual, the answering and the replying affidavit have
been considered in the determination of this review application.
Background facts
[5] The Applicant was employed by the Third Respondent in the capacity of an
Operations Director from the 14 th of September 2015 until his resignation on
30th of December 2022. He earned a monthly salary of R62 250.00 which was
processed through payroll (R28 080.00) and invoicing system (R37 170.00).
[6] On 16 December 2022, he issued an invoice of R37 170.00. On the same
day, he received a letter informing him that he will be receiving a R0.00 bonus
through payroll but he will receive R10 000.00 bonus through invoice. He duly
received his R10 000.00 on 20th December 2022. On 19 December 2022 he
sent the following email to the Senior executive of the company, Mr Charles
Urban:
‘Boss please can you withdraw taking the R10K off. I know my personal life
has nothing to do with you but I really need the extra cash, Sindie and I both
agreed to take our bonus and pay off some of our debt. With interest going up
and hospital bills we just make it every month...’
[7] On the 30th of December 2022, he sent the following WhatsApp text to Mr
Urban tendering his resignation:
‘Good Morning
I am resigning with immediate effect , the continued employment relations
have become intolerable. The shouting swearing running me down is one
thing but taking money for my salary I won’t except even after I begged and
explained why. You still decided to take R 10k off my salary. What surprises
me is Hendrik also did not hand in his packs and he was not penalized at all,
this is clear to me you want me out of TRSS.
One thing I can say is that / am not stupid or useless and this is something
you will see now that I am no longer hear, I have always been dedicated and
loyal to you and TRSS.
4
I have handed in all my company things to Rina who will hand them to you
when you are back at the office.
This is something / wont except and will not leave unattended’.
[8] On or about 26 January 2023, t he Applicant referred a dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA) claiming
constructive dismissal. His referral was dismissed and he is now challenging
the outcome thereof.
Arbitration proceedings and the award
[9] The First Respondent was appointed to preside over the proceedings and her
award is the subject of these proceedings . The issue before the
Commissioner was to determine whether the Applicant was dismissed as
envisaged in section 186(1)(e) of the LRA4.
[10] The Applicant testified in his own case and stated that the continued working
relationship was made intolerable by the rude and abrupt attitude of his boss,
Mr Charles Urban. He testified that Mr Urban regularly insulted employees ,
calling them c*nts and would tell them to f#ck off in meetings. Mr Urban used
to insult him in front of with his wife and his daughter and this caused him
great stress and depression. On or about 3 October 2022, he tendered his
resignation and addressed it to Roy Clarke and it was accepted on the same
day. In his resignation letter, he stated:
‘Dear Roy
As hard as this is for me to take this route it is in the best interest of my health
and my family. Please accept this letter as formal notice of my resignation
from my position as Operation Director at TRSS Guarding.
Thank you for giving me the opportunity to work for TRSS guarding for the
last 7 years. I have learnt so much from all and I will never forget this. I
appreciate all the opportunities you have given me. For an efficient and
effective handover to my successor I will be working a 3 month notice period
end date 16 January 2022.
4 Act 66 of 1995, as amended.
5
I will remain dedicated and will give my 100% in training my replacement. I
will remain positive to our staff at TRSS as well as our clients.
Thank you again for the opportunity, and I wish you and TRSS Guarding all
the best for the future.
Your sincerely.
Michael Boshoff’
[11] However, his wife, who was also an employee of the Third Respondent, found
out about the resignation and spoke to Mr Urban about the Applicant’s
frustrations. She then requested him to disregard the resignation and Mr
Urban agreed to meet with the Applicant to discuss his issues . During their
meeting, Mr Urban undertook to stop attacking and insulting him and their
working relationship was restored . However, a week later, Mr Urban went
back to his old ways. One afternoon he asked him why the tracking report was
not handed in, this was despite his earlier statement that the reports should
not be done as they were a waste of time. He then accused him of lying and
stating that he had breached trust and continued to use foul language and
called him names. He then told him that he was going to deduct an amount of
R10 000.00 from his salary due to his failure to submit daily packs. This was
knowing that packs could not be submit ted because there was no printing
paper.
[12] He then pleaded with Mr Urban not to deduct his salary but he ignored his
pleas. He then tendered his resignation as he could not allow the deduction of
R10 000.00 to continue unabated because he knew that Mr Urban was never
going to stop making deductions from his salary . He stated that he could not
file a grievance because Mr Urban was the most senior person in the
company and it would have been a waste of time to lodge such a grievance.
He further stated that he could tolerate the abusive behavior and bullying by
Mr Urban but the deduction of his salary was the last straw for him.
[13] He further testified that he was forced to sign an acknowledgement of debt
agreeing that he was going to pay R50 000.00 as a result of the CCMA award
agreeing that he was going to pay R50 000.00 as a result of the CCMA award
that was issued against the Third Respondent.
6
[14] Under cross examination he conceded that he ought to have represented the
company at the CCMA but he instead submitted a fraudulent medical
certificate hence Mr Urban resolved that he would be liable for the R50 000.00
portion of the amount awarded to the former employee. He further conceded
that during his time with the Third Respondent, he would also raise his voice
to the staff but he would not attack them personally or belittle them.
[15] The Third Respondent called Ms Sonja Van Zeil who was Mr Urban’s
personal assistant. She confirmed that Mr Urban would from time to time raise
his voice and swear at the stuff and he did this to everyone. She further stated
that the Applicant also interacted with the staff in a similar manner and this is
how things were at the Third Respondent’s premises. The Applicant had told
her to f#ck off on numerous times and everyone was subjected to shouting
and yelling of Mr Urban.
[16] She stated that she was part of the management meetings and the Applicant
was informed of the consequences of failing to print daily packs. She was also
aware that the Applicant has signed an acknowledgement of debt but she was
not aware of any other deductions.
[17] At the close of proceedings, the Commissioner found that the A pplicant failed
to prove that he was constructively dismissed. The Applicant is not happy with
the findings of the Commissioner and is challenging the award on the grounds
stated hereunder.
Applicant’s grounds for review
[18] The Applicant submitted that the Commissioner committed gross misconduct
in relations to the conduct of the proc eedings when she chose not to consider
his resignation of October 2022. By so doing, it is submitted that she failed to
give proper weight to the series of events which led to his resignation.
[19] The Applicant further submitted that the Commissioner’s failure to deal with
his closing arguments regarding the Third Respondent’s failure to call Mr
his closing arguments regarding the Third Respondent’s failure to call Mr
Urban as a witness is confirmation that she ignored the submissions and this
is evidence that she committed a gross irregularity in the conduct of arbitration
7
proceedings. Furthermore, the Applicant submitted that he could not have
submitted a grievance because there is no procedure outlining how
grievances were to be dealt with by the Third Respondent. In essence, the
arbitration award is challenged on the basis that the Commissioner reached a
conclusion which a reasonable commissioner could not have reached.
[20] The Third Respondent denied that there are any grounds for the arbitration
award to be reviewed and set aside in that the Commissioner correctly found
on the facts that Mr Urban’s conduct was tolerable and the Applicant only
resigned because of a R10 000.00 bonus deduction and this was the real
reason for his resignation not the abusive language. It was submitted further
that the Commissioner correctly found that the deduction did not make the
working relationship intolerable and the Applicant resigned out of anger . It
was further submitted that the Applicant had other alternatives as opposed to
resignation and there are other legal ways he could have followed to deal with
the unlawful deduction of his bonus payment.
[21] The Applicant persisted with his claim that the conduct of the employer made
the continuous relationship intolerable and sought maximum compensation.
Principles relating to constructive dismissal disputes
[22] Section 186 (1) of the LRA5 reads:
‘Dismissal means that -
…
(e) “an employee terminated employment with or without notice because
the employer made continued employment intolerable for the
employee”.’
[23] What is required in these kind of dismissals is for the employee to prove, on a
balance of probabilities, that he did not terminate the contract of employment
voluntarily but he was forced to leave his employment as a result of the
intolerable working conditions imposed by the employer. The focus is not
5 Ibid.
8
necessarily on the feelings or perceptions of the employee. It must be the
omissions or conduct of the employer which rendered continued employment
intolerable or unbearable for the claim of constructive dismissal to succeed.
[24] The starting point is to first determine whether the Applicant was indeed
dismissed within the meaning of section 186 (1)(e). When dealing with a case
involving constructive dismissal, the Commissioner has to first establish the
existence of a dismissal as this would then grant him/her the necessary
jurisdiction to arbitrate the matter.
6 Once the Commissioner finds that indeed
the Applicant was dismissed, she then moves to determine the fairness of the
dismissal. It is only when the fairness of a dismissal has been determined that
the Applicant will be entitled to invoke the reasonableness test espoused in
Sidumo
7.
[25] The Applicant is aggrieved that the Commissioner failed to take into account
that his resignation was not voluntary but influenced by the conduct of Mr
Urban. In this case, the Commissioner found that the Applicant failed to prove
that he was constructively dismissed. Objectively speaking, the applicable test
in this review application is that of correctness as opposed to reasonableness.
[26] The Labour Appeal Court (LAC) in Solid Doors (Pty) Ltd v Theron N.O
8
restated the test applicable in constructive dismissal disputes and held that:
“The question whether the employee was constructively dismissed or not is a
jurisdictional fact that , even on review , must be established objectively . That
is so because if there was no constructive dismissal – the CCMA would not
have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give
itself jurisdiction by wrongly finding that a state of affairs necessary to give it
jurisdiction exists when such state of affairs does not exist. Accordingly, the
enquiry is not really whether the commissioner’s finding that the employee
enquiry is not really whether the commissioner’s finding that the employee
was constructively dismissed was unjustifiable. The question in a case such
as this one – even on review – is simply whether or not the employee was
constructively dismissed. If I find that he was constructively dismissed, it will
be necessary to consider other issues…”
6 See South African Rugby Players Association v SA Rugby (Pty) Ltd [2008] 9 BLLR 845 (LAC) at
paras 39 - 40.
7 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC).
8 (2004) 25 ILJ 2337 (LAC) at para 29.
9
Analysis and conclusions
[27] The concept of constructive dismissal “conveys a notion that there existed an
implied term in a contract of employment that an employer would not conduct
itself in a manner that is designed to destroy or materially damage the
relationship of trust and confidence that sustains the employment relationship,
which term, if breached, entitles the employee to cancel the contract.”9
[28] The LAC i n Solid Doors (Pty) Ltd Ltd v Theron N.O 10 set out the following
three requirements for establishing that an employee has been constructively
dismissed:
‘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 the 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 made
continued employment intolerable. All 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.’
[29] Furthermore, in Sanlam Life Insurance Ltd v Mogomatsi 11 the approach to
constructive dismissal disputes is as follows:
‘In constructive dismissal disputes, a two stage approach is normally followed.
First, the employee must prove that the employer effectively dismissed him or
her by making her or his continued employment intolerable. It is an objective
test. The employee need not prove that he had no choice but to resign, all
that is required is to prove that the employer made continued employment
intolerable. The conduct of the employer towards the employee and the
cumulative impact thereof must be such that, viewed objectively, the
employee could not reasonably be expected to cope with it…’
9 Maleka v Boyce N.O. and Others [2026] ZACC 7 at para 1.
10 Ibid at para 28.
11 11 BLLR 1166 (LAC) at para 32.
10
[30] The first requirement set out above has been met in that it is not disputed that
the Applicant is the one who terminated his employment relationship with the
Third Respondent without notice. This is evident from the WhatsApp text he
sent to Mr Urban on 30th of December 2022, which reads:
‘I am resigning with immediate effect, the continued employment relations
have become intolerable. The shouting swearing running me down is one
thing but taking money for my salary I won’t except even after I begged and
explained why. You still decided to take R10k off my salary… ’
[31] The question before me is whether the Applicant has shown that the conduct
of the Third Respondent or the conditions of his employment were intolerable
to an extent that he could not have been reasonably expected to continue with
his employment. It is common cause that the resignation of 30 December was
the second one in a period of t wo months, having been preceded by the first
one on 3 October 2022, which was later withdrawn.
[32] Just as the Commissioner did, I also find it difficult to accept that the rough or
foul language used by Mr Urban made the Applicant’s employment
intolerable. The witnesses testified that it was a common language used by
employees, including the Applicant himself. The Commissioner was correct in
finding that the Applicant resigned due to the deduction of the R10 000.00
bonus from his remuneration, and this had very little to do with the attitude or
conduct of Mr Urban, which he had endured for the past eight years prior to
his resignation. The Court is mindful and accepts that Applicant may have
been frustrated in the manner in which he was being treated, shouted at and
belittled by Mr Urban. Particularly because his family was also working with
him and had to witness this assault on his role as a manager, father, husband
and on his dignity. However, to succeed with a claim for constructive
dismissal, more was required.
dismissal, more was required.
[33] The LAC in Miladys (A Division of Mr Price Group Ltd) v Naidoo & others
12
held that employees cannot prescribe the management style of their
superiors:
12 (2002) 23 ILJ 1234 (LAC) at para 33.
11
‘I do not believe that an employee is entitled to make a case of constructive
dismissal out of her own excessive over reaction to a management style with
which she does not agree.’
[34] Generally, an employee who resigns because the employer has refused to
perform some action which would have entailed the perpetuation of the
employment relationship is not entitled to claim constructive dismissal. 13 The
threshold for establishing constructive dismissal is high. The other fact which
has been taken into account is that the Applicant may have resigned on the
fear of the deductions persisting in line with the signed acknowledgement of
debt or for any other reason other than the unprofessional conduct of Mr
Urban. He testified as follows:
‘ADV. ROSSOUW : All right and just explained to the Commissioner your
state of mind at that stage.
APPLICANT : Well, it was not [inaudible - over talking] [0:51:07.1] -
ADV. ROSSOUW : Why was R10 000.00 (ten thousand rand) such an
issue for you?
APPLICANT : So, every time I've had meetings with Charles and it
was an out-blow, it was always personal attacks, like
you know, I "feed" our fat face, and, you're "over paid."
And I didn't see the worth in "worth" in you. Or, you
know, things like that. And when the R10 000.00 (then
thousand rand) was taken off my salary, then I knew, if
I accepted the R10 000.00 (ten thousand rand) being
taken off my salary, it's not going to stop. Where's it
going to stop? I tried to have meetings with Charles on
not to attack me the way he does, that didn't last very
long. So there was no stopping, if he took the ten (10),
there is no stopping him before.
13 See Grogan Dismissal (Fourth edition) (Juta & Co Ltd, Cape Town 2022).
12
ADV. ROSSOUW : Was not receiving R10 000.00 (ten thousand rand) in
December a critical issue for you?
APPLICANT : No, it was critical.’
[35] From the above, it is clear that the Applicant’s resignation was fueled by his
anger due to the deduction of his bonus and he might have pursued a claim
for constructive dismissal when he realized that he was now unemployed and
the Third Respondent was intending to enforce the restraint of trade
agreement. The Constitutional Court has recently confirmed that section 186
(1)(e) of the LRA does not envisage a future or anticipated intolerability but
deals mainly with existing circumstances.
14
[36] Having regard to all the evidence and material filed in this matter, I cannot find
any basis to review and set aside the arbitration award on any of the grounds
submitted by the Applicant. The Commissioner was correct to find that the
Applicant was not dismissed and he resigned out of anger.
Costs
[37] It is trite that the awarding of costs in the Labour Court is discretionary as
envisaged in section 162 of the LRA. Based on the established authorities ,
this court comes to the conclusion that it is in the interests of the law and
fairness that each party be burdened with its own costs.
[38] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
14 Maleka v Boyce N.O. and Others [2026] ZACC 7.
13
_________________
G. C. Phakedi
Acting Judge of the Labour Court of South Africa
14
Appearances:
For the Applicant: Adv GJ Rossouw
Instructed by: V Mohan Attorneys
For the Respondent: Adv A J Nel
Instructed by: Lee & McAdam Attorneys