THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2025-076355
In the matter between:
ROYALE ENERGY (PTY) LTD Appellant
and
COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
COMMISSIONER DHELIWE MAVUMA N.O Second Respondent
ELAINE PHUMZA BAVUMA Third Respondent
Heard: 05 May 2026
Delivered: 25 May 2026
Coram: Djaje AJA; Masipa AJA and Moshoana AJA
Summary: The question whether a dism issal as defined in section 186(1) of
the Labour Relations Act, 66 of 1995 (LRA) has or has not occurred is one that
goes to jurisdiction. Where a dismissal as defined did not happen, the
Commission for Conciliation, Mediation and Arbitration (CCMA) lacks
jurisdiction to arbitrate a dispute. In order for a constructive dismissal to
happen, the following requirements must be present; namely; (a) the employee
terminates employment with or without notice; (b) the reason for the
termination must be that the employer made continued employment
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
LABOUR APPEAL COURT
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intolerable for the employee. In terms of section 192 of the LRA, in any
proceedings concerning any dismissal, the employee must establish the
existence of the dismissal. Should an employee fail to establish the existence
of a dismissal, there is no onus on the employer to prove that the dismissal is
fair.
The requirement that the employer must have made continued employment for
the employee to be intolerable, involves an application of an objective test. In
other words, the question is whether any reasonable employee would have
tolerated continued employment or not. In this matter, for a period spanning
five years or so, the respondent employee alleged that the Group Chief
Executive Officer ( GCEO) of the appellant made her continued employment
intolerable. Having endured the identified intolerability, on 3 September 2020,
after the one incident of 27 August 2020, the respondent employee lodged a
grievance against the GCEO with the chairperson of the Board of the
appellant. The Board undertook to investigate the allegation that gave rise to
the alleged intolerability and indeed appointed an external investigator.
Following a consultative meeting – which was part of the investigative process
– certain solutions were proposed.
The respondent employee opted for the mutual separation option and
suggested payments to her self. The appellant rejected the suggested mutual
separation and called upon the respondent employee to return to work and
report to a different person. Instead, the respondent employee for her own
reasons rejected the call to return and report to someone. She instead
instructed her legal team to request a copy of the investigation report. Upon
being informed that the investigation report does not exist because the
investigations were incomplete, the respondent employee on 25 September
2020 terminated her employment. Whereafter, she referred a dispute to the
CCMA and alleged unfair dismissal. The CCMA found that she was unfairly
CCMA and alleged unfair dismissal. The CCMA found that she was unfairly
dismissed and ordered the appellant to compensate her. Displeased thereby,
the appellant launched a review application, which application was dismissed
by the Labour Court.
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On the objective facts, the respondent employee was not dismissed. The
respondent employee sought to rely on anticipated intolerability since in her
subjective view, the GCEO will not change his ways, even if she were to report
to someone else. This anticipated intolerability is speculative and a reasonable
employee would not rely on such an intolerability for the purposes of
terminating employment. The allegation that the respondent employee will
continue to work with the GCEO on specific projects is also speculative in that
the new person she was to report to could decide to not allocate her to the
project at all. Most importantly, the G CEO could be removed from the project
by the Board. On her own version, if she were allowed to work from home, the
intolerability would not have continued. Accordingly, the requirement of
intolerability, has not been established, as such the respondent employee was
not dismissed within the meaning of section 186(1)(e) of the LRA. The CCMA
lacked jurisdiction to arbitrate the dispute. The CCMA wrongly assumed
jurisdiction over the dispute. The Labour Court erred by not reviewing and
setting aside the arbitration award.
Held: (1) The appeal is upheld. Held: (2) The order of the Labour Court is set
aside and it is replaced with an order that: (a) The arbitration award of the
CCMA is reviewed and set aside; (b) The employee was not constructively
dismissed; (c) The CCMA lacked jurisdiction to arbitrate the dispute. Held: (3)
There is no order as to costs.
JUDGMENT
MOSHOANA, AJA
Introduction
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[1] This Court in Solid Door (Pty) Ltd v Theron N.O 1, expressly laid down the law
in the following terms:
‘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 jurisdiction to arbitrate. A tribunal such as the CCMA cannot give
itself jurisdiction by wrongly finding that a state of affairs necessary to give it
jurisdiction exists when such state of affairs does not exist. Accordingly, the
enquiry is not really whether the commissioner’s finding that the employee
was constructively dismissed was unjustifiable. The question in a case such
as this one – even on review – is simply whether or not the employee was
constructively dismissed. If I find that he was constructively dismissed, it will
be necessary to consider other issues. However, if I find that he was not
constructively dismissed, that will be the end of the matter and the
commissioner’s award will stand to be reviewed and set aside.’
[2] The above legal statement remains trenchant to this day. Recently, the above
statement of law received an imprimatur of the Constitutional Court in Maleka
v Boyce N.O and Others (Maleka)2. That said, before us is an appeal that
reached this Court after leave to appeal was granted by this Court on 13
February 2025. The present appeal is opposed by the third respondent, Ms
Elaine Phumza Bavuma, the former employee of the appellant, Royale
Energy (Pty) Ltd. The appeal is against the whole order of the Labour Court
made on 20 August 2024, in terms of which, the review application launched
by the appellant was dismissed. Additionally, the Labour Court ordered the
appellant to pay the respondent employee an amount of R1 149 288.00 as
compensation.
Preliminary issue
[3] The appellant delayed in delivering the record. As such, it was prompted to
[3] The appellant delayed in delivering the record. As such, it was prompted to
seek condonation for the delay. The application seeking condonation was not
1 (2004) 25 ILJ 2337 (LAC) at para 29.
2 (2026) 47 ILJ 839 (CC) at para 54 and 55.
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opposed. At the commencement of the hearing of the appeal, this Court
condoned the delay and proceeded to hear the appeal on its merits.
Background factual matrix pertinent to the present appeal
[4] Royale Energy (Pty) Ltd (hereafter the appellant) is the largest privately
owned, licensed petroleum wholesalers and distributors in South Africa. Ms
Elaine Phumza Bavuma (hereafter Bavuma) commenced employment with
the appellant on 03 January 2013 as a General Manager: Mpumalanga South
Cluster. She reported to the Group Chief Executive Officer of the appellant,
Mr Stephan Nothnagel. The difficult relationship between Bavuma and Mr
Nothnagel emerged for the first time on 14 June 2015, when Bavuma
addressed an email to him following his rude, derogatory, contemptuous and
appalling behaviour towards her. Regarding this difficulty, Bavuma adopted an
attitude of moving on and thought Mr Nothnagel as a seasoned professional
would take cognisance of her displeasure and self-correct.
[5] I interpose, to mention that Bavuma did not bring this difficulty to the attention
of the powers that be at the appellant. It follows axiomatically that the rude,
derogatory, contemptuous and appalling behaviour did not render continued
employment intolerable for her. Almost two years went pass, when around
December 2017, Mr Nothnagel had a one -on-one session with one of the
direct reportees of Bavuma. She was unhappy with this conduct. The direct
reportee believed that Mr Nothnagel stepped out of his boundaries and he
resigned as an employee of the appellant. Bavuma somewhat took up the
cudgels for the direct reportee. I interpose again to mention that Bavuma only
approached Mr Nothnagel, who did not think there was anything wrong in his
conduct, and did not bring that to the attention of the powers that be.
[6] Almost two years later another incident happened. An emotional outburst took
place at the Management meeting held on 21 October 2019. The meeting
place at the Management meeting held on 21 October 2019. The meeting
related to the Leandro Caltex Service Station incident of the installation of the
new operator. The emotional outburst involved Mr Nothnagel being rowdy and
rude and asked Bavuma to leave the appellant. This after Bavuma raised
issues relating to one Mr Johan Becker about the process of the new retailer
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installation. In response to this rowdy and rude behaviour Bavuma was
resolute and threw down the gauntlet on Mr Nothnagel. Resultantly, on 6
November 2019, the new process of the new retailer installation took place
without any hindrance from Mr Nothnagel. I again interlude and mention that
this incident was not brought to the attention of the powers that be.
[7] Some few months later, on 26 June 2020, another incident emerged involving
Astron, d ealing with the unclear WhatsApp communication between Astron
and the appellant ., Mr Nothnagel in a rough tone reminded Bavuma that she
was employed by the appellant and if she thought otherwise, she must leave
the appellant. Yet again, Bavuma stood her ground and reminded Mr
Nothnagel that it was her responsibility to manage the commercial agreement
to avoid any breach from the Branded Market agreement with Astron. I again
interlude, this skirmish was not brought to the attention of the powers that be.
[8] The last incident that apparently became the straw that broke the camel’s
back happened on 27 August 2020. At this incident, Mr Nothnagel, without
being provoked, blew up in a confused and furious outburst and undermined
Bavuma in front of her colleagues. When she was attempting to explain the
issue being discussed, Mr Nothnagel stood up and charged towards her and
frantically wiggled his finger in a violent and aggressive manner in close
proximity to her face. Again, Nothnagel dared her to leave the appellant.
[9] Few days after the incident, Bavuma lodged a grievance on 3 September
2020 and requested a way forward before close of business on 4 September
2020. She also called for the Board’s immediate intervention, to work from
home to avoid further confrontation with Mr Nothnagel until the Board has
remedied the situation. She stated that she was amenable to return to the
office and ready to subject herself to ‘ any process that seek s to resolve the
office and ready to subject herself to ‘ any process that seek s to resolve the
issue at hand’. I interpose to mention that, at this point, there is no indication
that continued employment will be intolerable. Instead, she was actively
looking for a solution to the issue at hand.
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[10] Given the view I take at the end of this matter, it is apposite to record in full,
the response of the appellant to the grievance. The Chairperson of the Board
responded as follows
3:
‘We take note of your communique dated 03 September 2020 and wish to
advise as follows:
1. Our staff contingent is of utmost importance to the board. The
wellbeing: fair treatment and alike is of utmost importance as without
our brilliant people we cannot sustain our business. We are dependent
on our staff, as they are on us.
2. We do not wish for any person to be mistreated, victimized or other;
but also understand that every situation, argument or disagreement
between our staffing compliment holds its own merits.
3. To this end a decision was made to appoint an external agent to assist
in the resolution of the matter. The person appointed and tasked with
resolving the process is R. Jansen van Rensburg appointed as
Director by Law Emporium (Pty) Ltd.
4. A request was made for you to meet with Mr Jansen van Rensburg on
Tuesday, 08 September 2020 at the office of Royale at 13:00 for
discussion on the matter.
We trust you find the mentioned in order.
Yours Faithfully
Mr Makhaza ZE
Chairperson
[11] It is common cause that on 8 September 2020, as arranged, Bavuma met with
Mr van Rensburg. The only record of the discussion between the two is the
letter penned by her on 9 September 2020. It may not be necessary to
regurgitate the contents of the recordal. It suffices to mention that Bavuma
3 The letter appears to have been mistakenly dated 7 August 2020. However, the letter was
despatched to the respondent employee on 7 September 2020.
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dealt with all the three proposals made at the consultation meeting. She, for
her own reasons rejected two of the proposals. I pause to mention that the
question whether her reasons for rejection are valid or not is of no moment.
Regarding the mutual separation, she proposed to be paid an amount of over
R4 million which would include a bonus payment as well as outstanding leave
pay out.
[12] Again, it is of some needful significance to record the response of the
appellant to the proposal:
‘1 The organisation has considered your proposal to part ways and does
not accept this proposal.
2 The board has considered other avenues to see what best would
address your perceived grievance and prevent your exit from the
organisation. As such a decision is made that you would report to
Johan Ferreira in the interim.
3 It is of essence that you report to the office of the Employer and for
duty effective 16 September 2020 at 8:00 for a handover meeting and
to resume normal duties.
We trust you find the mentioned in order.
Yours sincerely
Mr Makhaza ZE
Chairperson
[13] Instead of considering and or accepting the interim suggestion, Bavuma
enlisted the services of a Labour Relations Consultant. The consultant
demanded an investigation report of Mr van Rensburg. I pause to mention
that this posture is at odds with the one stated in the penultimate paragraphs
of the grievance letter of 03 September 2020 – to subject herself to any
process that seek s to resolve the matter at hand. The letter from the
consultant does not advance any basis that will account for this volte face or
chameleonic posture.
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[14] That notwithstanding, the consultant was advised that the proceedings were
not finalised, the outcome would be presented to the Board and alternative
reporting arrangements are in place until the matter is resolved. This advice
was repeated to the consultant twice. That notwithstanding, on 25 September
2020, Bavuma terminated her employment with the appellant. It is significant
for the purposes of this judgment to extract some portions of the resignation
letter. Bavuma stated the following:
‘2 It should not be a surprise that I am resigning, as the process that has
been followed by the office of the chairperson in dealing with my
grievance has been impulsive, flawed and arbitrary resulting in further
gross injustice on the part of the Board…
3 In that regard, both the conduct of Mr Nothnagel and the Board have
been instrumental in creating a continuous intolerable environment,
which has rendered the continuation of my employment relationship at
Royale Energy untenable and my working conditions intolerable,
leaving me with no option b ut to resign in response to your breach of
my employment contract. The working conditions, intimidation,
victimisation, harassment, and abuse of power are intolerable. This
leaves me with no option but to resign because of being forced to
work in a threatening environment.’
[15] I pause to reflect that it is apparent from the contents of the resignation letter
that the resignation wa s propelled by (a) the impulsive conduct of the
chairperson; (b) conduct of Mr Nothnagel. Clearly, there is a visible
embellishment suggesting victimisation and harassment, which was not
detailed in the grievance of 3 September 2020. I comment in passing that I
observe a sleight of hand in the contents of the resignation letter.
Nevertheless, nothing turns on this. It is interesting to note that Bavuma
alleges that she was forced to work in a threatening environment. On the
alleges that she was forced to work in a threatening environment. On the
objective facts, since June 2015, she, on her own volition, continued to w ork
despite the happenings of the incidents complained of. From 3 September
2020, she stopped working from the offices of the appellant and failed to
return to the offices despite an offer to report to someone else. Since she
LABOUR APPEAL COURT
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never returned, the alleged threatening environment is a matter of anticipation
and or speculation.
[16] On 3 October 2020, Bavuma referred a dispute alleging unfair dismissal to the
CCMA. As indicated at the dawn of this judgment, the dispute was resolved in
Bavuma’s favour.
Arbitration award
[17] The commissioner concluded that there was a reasonable period within which
the appellant could have attended to the serious complaints raised by a senior
employee implicating another senior employee. Based on that conclusion, the
commissioner reached a finding that the appellant dismally failed to deal with
the matter despite being afforded an opportunity to do so. Because of this
dismal failure, the commissioner concluded that the appellant created the
intolerable working conditions with particular emphasis on the fifth incident.
[18] On the objective facts, it is difficult to comprehend the reasoning of the
commissioner on the finding of intolerability. Although Bavuma found it to be
convenient on 3 September 2020; to lump together five incidents, all those
incidents occurred in a space of two years or months in between. If the
continuation of employment was truly intolerable, why would Bavuma tolerate
what happened to her for years and in some instances months ? This is truly
perplexing and is devoid of any t apestry of intolerability in my considered
view. The Constitutional Court in Maleka
4 held as follows:
‘[68] It is clear from the above 5 that the inquiry into intolerability is an
objective one, which requires a fine-tooth comb approach to determine
the presence of intolerable conduct or working conditions. Grogan
states:
4 Id fn 2 at para 68.
5 The above being what was stated in Sanlam Life Insurance Ltd v Mogomatsi (2023) 44 ILJ 2516
(LAC) – “In constructive dismissal disputes, a two -stage approach is normally followed: First, the
employee must prove that the employer effectively dismissed him or her by making her or his
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 be expected to cope with it”.
LABOUR APPEAL COURT
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“To discharge the onus of proving that they were constructively
dismissed, employees must prove that it would have been intolerable
to remain in employment. The employer need not be shown to
repudiate the contract in a formal sense; all that is needed is that the
employer behaved in a deliberately oppressive manner and left the
employee with no option but to resign.”
[19] In seeking to invigorate the reasoning of dismal failure, the commissioner
placed reliance on the judgment of this Court in Western Cape Education
Department v GPSSBC and others 6. With considerable regret, the reliance
was misplaced. That case involved temporary incapacity leave and ill health
retirement applications which were not processed by the Department over a
period of two years. Involved herein was a resolution of a grievance lodged by
Bavuma. Bavuma expressed that she would subject herself to any process
which will lead to the resolution of the issue at hand. When interim measures
are proposed, Bavuma makes a volte face. Insisting on a report when only
one consultation between her and the investigator happened was an
unreasonable demand. On Bavuma’s own version, on 8 September 2020,
other than her providing the investigator with annexures to her grievance no
proper discussions happened, which would have enabled a production of a
report. In her letter of 9 September 2020, she recorded that she was advised
as follows:
‘2.2 that the Board has sought the services of Law Emporium (Pty) Ltd
with a view of overseeing the process, gathering information and
conducting interviews with all relevant parties and witnesses in order
to evaluate the merits of my grievance and provide advice and/or
recommendations to the Board accordingly.’
[20] Regard being had to the fact that the allegations made in the grievance sp ans
a period of over five years, it was unreasonable to expect the process to have
been processed and completed over a period of less than a month. It was
been processed and completed over a period of less than a month. It was
Bavuma who called for the immediate intervention of the Board and also
undertook to subject herself to any process. Yet when the Board suggest ed a
6 (2014) 35 ILJ 3360 (LAC).
LABOUR APPEAL COURT
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process, she failed to co-operate and hurried to resignation. She clearly did
not afford the appellant an opportunity to find a resolution of issues she had
tolerated for years and months.
[21] In light of the above objective facts, the commissioner failed to adopt a fine
comb approach to the presence of the intolerability issue. Intolerability implies
the quality of being unbearable or impossible to endure. The Court in Maleka
7
had put it thus:
‘[70] The question that arises is what type of conduct on the part of the
employer would be deemed intolerable? In other words, what
constitutes intolerability? The Labour Appeal Court in Solidarity held
that the word “intolerable” means a situation which is beyond that
which can be tolerated or endured; or insufferable. The Court went
further to say that it is “something which is simply too great to bear,
not to be put up with or beyond the limits of tolerance”. This means
that the threshold test to establish intolerability is high.
[71] This Court in Booi held that the term ‘intolerable’ implies a level of
unbearability, and must surely require more than a suggestion that the
relationship is difficult, fraught or even sour…’
[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 situation for an employee). It would not
be enough that the employer’s conduct is merely rude
uncompromising or unbecoming… 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.’
[22] When the five incidents are viewed objectively, they did not bring about
intolerability, hence Bavuma managed to continue with employment even
after they had happened. In some instances, Bavuma was able to stand her
after they had happened. In some instances, Bavuma was able to stand her
ground and throw down the gauntlet on the difficult Mr Nothnagel . The fact
7 Id fn 2 at paras 70 to 73.
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that she was not guaranteed that Nothnagel’s conduct will change is of no
consequence.
[23] Overall, the commissioner was not correct when he concluded that Bavuma
was subjected to intolerable working conditions.
The Labour Court judgment
[24] In Maleka8, the Court held as follows:
‘Therefore, when the Labour Court was confronted with Maleka’s appl ication
for review, the two questions that Court had to ask itself were, firstly, whether
Mr Maleka was constructively dismissed (a jurisdictional issue) and second, if
he was, whether the constructive dismissal was unfair (a merits issue). On the
first question, the test is for all purposes, objective correctness….
[25] A proper reading of the Labour Court judgment suggests that it applied a
wrong test in dealing with the issue of the alleged constructive dismissal of
Bavuma. At paragraph 30 of the Labour Court judgment, the learned judge
expressed himself as follows:
‘[30] …I must first be satisfied that her decision is outside the band of
reasonableness, which no reasonable decision maker could have
arrived at on the material evidence before her’
[26] Clearly, the Labour Court missed the first step, which requires objective
correctness. In dealing with the question of intolerability, the Labour Court
regrettably directed itself to a wrong question. It held:
‘[55] It is my considered view that the failure by the Applicant to investigate
the matter as well as taking no steps against Mr Nothnagel was
intolerable, especially considering his position as a Group CEO.’
[27] There is a clear misalignment between the conduct complained of in the
grievance letter of 3 September 2020 and the alleged failure to investigate
and the taking of steps. The intolerable conduct must be one or all of the five
8 Id fn 2 at para 61.
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incidents outlined in the grievance letter and not what occurs when remedial
steps are taken. If the incident of 27 August 2020 was intolerable, such should
have left Bavuma with one option – to resign. However, Bavuma did not
resign. Such implies that she tolerated the conduct. It is thus incongruent to
conclude that a failure to investigate and act on the “intolerable” conduct is in
of itself an intolerable conduct.
[28] The grievance process was followed as an attempt to remedy the conduct
complained of. In Maleka
9, the Court held:
‘In circumstances where an employee elects not to follow such internal
procedures, the employee cannot, as a matter of principle, claim constructive
dismissal, unless of course the employee is able to prove circumstances that
make it appropriate for him to be absolved from this obligation.’
[29] Thus, it cannot be correct that seeking alternatives to resignation could
symbiotically serve as another avenue for intolerability. The reason why
Bavuma invoked the grievance process was stated by her to be the following;
(a) seeking the Board’s immediate intervention on the behaviour she
experienced from Mr Nothnagel; (b) the Board to remedy the situation; and (c)
to subject herself to any proposed process that seeks to resolve the issues at
hand. As a matter of principle, had she not invoked remedial steps, she could
not claim constructive dismissal. As held in Solidarity obo Van Tonder v
Armaments Corporations of South Africa (SOC) Ltd
10 and approved in
Maleka, the grievance process hopes to find workable remedial solutions.
Accordingly, in my considered view, the Labour Court erred when it
considered what is aimed at finding a workable solution as an avenue for
intolerability. That being so, it cannot be that when the appellant was seeking
to find a solution it was exposing itself to a potential claim of intolerability.
[30] It was, in my considered view, fundamentally wrong for Bavuma to weaponize
[30] It was, in my considered view, fundamentally wrong for Bavuma to weaponize
the remedial process as an intolerability avenue after having invoked it for the
sole purpose of remedying what she considered to be an intolerable conduct.
9 Id fn 2 at para 89.
10 (2019) 40 ILJ 1539 (LAC).
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[31] The weaponization received the Labour Court’s approval when it held:
‘[60] It is therefore apparent that the Applicant made the continued
employment relationship intolerable by not investigating the grievance.
The fact that the Applicant indicated in their letter that they do not wish
to lose the Third Respondent cannot be believed to be correct
because even after she resigned, they were aware of the reasons for
such resignation but never attempted to intervene.’
[32] With considerable regret , the above reasoning of the Labour Court is very
difficult to comprehend. The objective facts are that as early as 7 September
2020, the appellant intervened as requested by Bavuma. An investigator by
the name of Mr van Rensburg was appointed. The process to be followed was
laid bare to Bavuma. Considering that the process had to look as far back as
five years ago, it does not require a rocket science to observe that it was to be
an involved process. On 8 September 2020, a consultative meeting took
place. As of 23 September 2020, Bavuma was advised in writing that the
investigation is on- going. It must be mentioned that the intervention of the
Board was at the behest of Bavuma in order to remedy her complaints. Thus,
once she terminated her employment relationship on 25 September 2020, it
became a futile exercise for the appellant to continue with the investigation –
remedial steps. What is there to remedy? Whether the investigation was
complete or incomplete at the time of her resignation , it was of no moment
since termination of employment – unilateral act – had already happened.
The fact that she resigned before the remedial process initiated by her is
completed can only suggest that she resigned hastily and prematurely.
Therefore, she placed herself in a similar situation of an employee who
resigned without invoking the remedial steps. In principle such an employee
cannot claim constructive dismissal, Maleka held.
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[33] The Supreme Court of Canada, in the matter, quoted with approval in Maleka,
of General Motors of Canada Limited v Johnson (General Motors) 11 held
amongst others as follows:
‘[72] …Dissatisfaction with the results of a legitimate grievance process
cannot anchor a claim for constructive dismissal.’
[34] Similarly, a dissatisfaction that the grievance was not processed within the
unreasonable time periods of the griever cannot anchor a claim for
constructive dismissal.
[35] The Labour Court found that another issue that rendered the employment
intolerable was that Nothnagel was not going to change. This is nothing but
an anticipated intolerability. It is based on pure conjecture and nothing
concrete. Regarding anticipated intolerability, the Court in Maleka
12 expressed
the following:
‘[85] I do not believe that section 186(1)(e) envisages a future or
anticipated set of circumstances that might result in intolerability
entitling an employee to resign. This would be stretching the bounds
of intolerability too far . In his resignation letter, Maleka stated that he
was concerned about something that would only happen in the future.’
[36] Surely, the question whether Mr Nothnagel would change or not belongs to
the future. It is truly perplexing for Bavuma to have believed that Mr Nothnagel
would not change when, in relation to the 2015 incident , she held a view that
as a professional he will with time mend his way s. Nevertheless, as an interim
step, the appellant arranged that she would report to someone else. It falls
within the realm of speculation for her to conclude that she would still work
with Mr Nothnagel on the Astron project. What if the new supervisor would
have removed her from the Astron project owing to the difficult relationship
she had with Mr Nothnagel? All of these fall in the realm of anticipated
intolerability. The fears harboured by Bavuma are nothing but a subjective
11 2013 ONCA 502 (CanLII).
12 Id fn 2 at para 85.
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feelings. Perhaps had she reported to work under a new supervisor and still
experienced the wrath of Mr Nothnagel, speculation would recede to the
background.
[37] To the extent that the Labour Court employed the reasonableness test as
expounded in Sidumo and another v Rustenburg Platinum Mines Ltd and
others
13, in dealing with the jurisdictional question whether the respondent
employee was constructively dismissed, the Labour Court was in complete
error and its judgment and order is liable to be set aside on appeal. That the
Labour Court indiscriminately employed the reasonableness test is explicit
from the following:
‘[81] In all the circumstances, the conclusion that the arbitrator reached is
one that a reasonable decision-maker would have come to and I am,
therefore, unable to conclude that his decision was one that a
reasonable decision-maker could not reach.’
Analysis
[38] As discussed above, when the arbitration award and the Labour Court
judgment were considered, it is crystal clear that this appeal oscillates to a
greater detail on the relevant question of whether the appellant rendered
continued employment of Bavuma intolerable or not. As held in Solid Door ,
there are three requirements that need to be established before a claim of
constructive dismissal may succeed. For the sake of convenience, those
requirements are: (a) the employee must have terminated the contract of
employment; (b) The reason for the termination of the contract must be that
continued employment has become intolerable; and (c) the employee’s
employer must be the one to have made continued employment intolerable.
[39] It is common cause in this matter that the first requirement was met. On 25
September 2020 Bavuma, in writing, terminated her employment contract.
The conundrum presents itself with the second requirement. Section 186(1)(e)
of the LRA , employs the word because for identifying the basis of the
13 [2007] 12 BLLR 1097 (CC).
LABOUR APPEAL COURT
18
termination of the employment contract. The word because means for the
reason that. In other words, for reason that the employer made continued
employment intolerable for the employee, the employee terminated the
contract of employment. To my mind, this calls for the causal connection
between making of continued employment intolerable and the termination of
employment.
[40] It is of some significance to observe that what is made intolerable is not
merely employment but continued employment. In other words, the conduct
must be one that renders continuation of employment intolerable. Thus, if an
event or conduct happens but an employee continues with employment, it is
oxymoronic to, months or years later , claim that the event or conduct
rendered a continued employment intolerable. Similarly, anything that is likely
to happen in the future is incapable of rendering a continuation of employment
intolerable. Equally, it is oxymoronic to suggest that remedial steps are
capable of rendering continued employment intolerable. Remedial steps –
grievance process/investigation – are more often than not ignited by an
employee who faces or faced an ‘intolerable’ conduct from an employer.
[41] In General Motors , the following was stated, which applies with sufficient
vigour on the required element of intolerability.
‘[66] Workplace becomes poisoned for the purposes of constructive
dismissal only where serious wrongful behaviour is demonstrated… A
plaintiff’s subjective feelings or even genuinely held beliefs are
insufficient to discharge the onus . There must be evidence that, to the
objective reasonable bystander, would support the conclusion that a
poisoned workplace environment had been created…
[67] Moreover, except for particularly egregious stand-alone incidents, a
poisoned workplace is not created, as a matter of law, unless serious
wrongful behaviour sufficient to create a hostile or intolerable work
environment is persistent or repeated…’
environment is persistent or repeated…’
[42] The five incidents complained of, were ostensibly not considered to be serious
by Bavuma as and when they occurred. They were so sparse over a period of
LABOUR APPEAL COURT
19
months and years. The fact that Bavuma continued employment after they
happened lends credence to lack of hostility, intolerability and poison on the
part of the incidents. Otherwise, the lodging of a grievance needed not to wait
for the single event of 27 August 2020.
[43] In General Motors, the following was said:
‘[91] … Further, in order to establish a claim of constructive dismissal, an
employee must prove that the employer’s conduct constituted a
repudiation of the contract of employment, such that the employer no
longer intended to be bound by the contract.’
[44] Logic dictates that if an employee does not ignite the grievance process, an
employer or its delegate may not be kicked into gear . All of which that
happened after 7 September 2020 up to and including 25 September 2020,
was a process initiated at the behest of Bavuma, which was solely aimed at
resolution of the five incidents which caused Bavuma grief. Bavuma wished to
have the grief removed so that she can continue with employment as she did
until 3 September 2020, when she suggested to work from home. The
suggestion to work from home simply meant that her continued employment
would not be rendered intolerable when she worked from home. Ostensibly,
she continued to tolerably work from home until her quest to obtain an
investigation report was re buffed for reasons that the investigations were on -
going. It must axiomatically follow that the grief as of 3 September 2020 was
the five incidents and nothing else.
[45] To then suggest that the alleged “delay” in investigating rendered continued
employment intolerable is not o nly oxymoronic but it is also at odds with the
law. The Court in General Motors aptly remarked as follows:
‘[94] Even if GM’s investigations of Johnson’s racism complaint were
imperfect, the investigations did not reveal any intention by GM to
repudiate its employment contract with Johnson…
[95] Nor as a matter of law, did Goard’s position concerning Johnson’s
[95] Nor as a matter of law, did Goard’s position concerning Johnson’s
potential return to work constitute a repudiation of the employment
LABOUR APPEAL COURT
20
contract. GM, through Goard, offered Johnson two employment
opportunities outside the assembly plant body shop. These offers of
continuing employment are inconsistent with the notion that GM was
resiling from its employment relationship with Johnson. In fact, GM
concluded that Johnson himself had effectively elected to terminate
his employment relationship with GM only after Johnson declined to
accept the employment positions offered by GM, failed to return to
work and failed to provide GM with current medical evidence to
support his claim of continuing disability.
[96] The trial judge appears to have concluded that GM repudiated
Johnson’s employment contract by failing to provide him with a
discrimination free employment. With respect, this misconceives GM’s
obligations in the circumstances.
[46] Strikingly similar to the General Motors case is the fact that the appellant
offered Bavuma an interim alternative reporting but she failed to report for
duty, over an extended period after the offer, until she resigned. There was no
obligation on the part of the appellant to immuni ze Bavuma from any future
contact with Mr Nothnagel . Again, the Court in General Motors dexterously
expressed itself as follows:
‘[99] GM, however, was not obliged to immunize Johnson from any future
contact with Markov or other body shop employees … In any event,
the mere possibility of contact with body shop employees, including
Markov, does not alone establish that such exposure would result in
future discriminatory treatment of Johnson…’
[47] Similarly, the fact that Bavuma could have been in contact with Mr Nothnagel
does not in of itself repudiate an employment contract nor lead to any form of
intolerability. This Court is not convinced that the four incidents before 27
August 2020 could have caused intolerability. As the Court in Maleka found,
intolerability must result in difficult, unpleasant or stressful situation for the
intolerability must result in difficult, unpleasant or stressful situation for the
employee. The fact that Bavuma continued with employment for months and
sometimes years after the incidents can only mean that those were tolerable
incidents. This becomes so because she did not once report any of those four
LABOUR APPEAL COURT
21
incidents to the powers that be. The Court in Maleka borrowing from foreign
jurisdiction, in particular General Motors case, accepted the following:
‘[72] … what is evident is that a claim for constructive dismissal must be
objectively scruti nised in order to ascertain, from the facts, whether
the conduct or series of acts by the employer have “poisoned the
environment” or is such that it constitutes the “last straw” which broke
the employment relationship, thereby justifying employee’s
resignation.’
[48] The question whether intolerability had set in, involves an objective factual
assessment. It may well be that the management style of Mr Nothnagel is one
that is harsh at times, but there is clear evidence that in response, Bavuma
was able to throw down the gauntlet and plead her own case. In
consummating the case, the Court in General Motors stated the following:
‘[103] There is no reason to question that Johnson genuinely believed that
he had been the victim of racism in his workplace. I accept that his
perception of events unfortunately led to stress and mental anguish.
However, I also conclude that the evidentiary record in this case does
not support the trial judge’s findings of racism, a work environment
poisoned by racism and, hence Johnson’s constructive dismissal.’
[49] Turning to the last incident of 27 August 2020. Inasmuch as Bavuma
considered the conduct to be threatening, unlike with the past incidents, she
did the right thing by bringing it to the immediate attention of the appellant. In
terms of the Disciplinary Code of the appellant, threatening violence, assault,
intimidation or victimization could result in summary dismissal but only after a
formal disciplinary enquiry. A formal enquiry happens if a disciplinary hearing
is initiated which will be conducted by the chair person of the disciplinary
investigation
14.
[50] Of significance, at the formal enquiry Mr Nothnagel would be afforded an
14.
[50] Of significance, at the formal enquiry Mr Nothnagel would be afforded an
opportunity to place before the disciplinary investigation his version of the
events. But before all of that could happen, Bavuma resigned. This
14 Clause 5.2 of the Disciplinary Code of Royale Energy (Pty) Ltd.
LABOUR APPEAL COURT
22
unjustifiably denied the appellant an opportunity to find a workable solution.
Accordingly, it does not lie in the mouth of Bavuma to state that a situation of
intolerability was created when a solution was ultimately not found. When she
resigned, termination of employment was not a measure of last resort. The
fact that in her resignation letter she threw all the phrases that paints a
horrible picture does not magically sprout intolerability.
[51] The Court in Maleka
15 remarked as follows:
‘[94] …It cannot be that every time an employee’s feelings are hurt or they
are undermined or unfairly treated, they are entitled to resign and
claim a constructive dismissal, without having attempted to resolve the
grievance with the employer. This would not only have a devastating
effect on the employee, but it would also adversely affect employers
and the economy as a whole.
[52] To my mind, Bavuma should have waited to see how ultimately the appellant
deals with the events of 27 August 2020 before resorting to resignation. It is
apparent from the facts of this matter that since 3 September 2020, Bavuma
was not reporting for duty until her resignation, which seem to have been
prompted by the absence of the investigation report. On the objective
assessment of the facts of this case, it is not far -fetched to surmise that had
the appellant acceded to the mutual separation terms, Bavuma would not
have resigned and claimed constructive dismissal . It was soon after the
rejection of the proposal that a demand for the investigation report suddenly
emerged like dew in the morning.
[53] Accordingly, this Court is not satisfied that the fifth incident was, when
objectively viewed, one that was intolerable to lead to a termination of
employment. Therefore, Bavuma was not constructively dismissed. To the
extent that the Labour Court found otherwise, it was in error.
[54] There is a challenge on the issue of validity of the compensation value
[54] There is a challenge on the issue of validity of the compensation value
awarded by the commissioner. Given the view I take at the end, it is
15 Id fn 2 at para 94.
LABOUR APPEAL COURT
23
unnecessary to decide that issue in this appeal. For the sake of posterity, I do
state in passing that awarding of compensation involves an exercise of a true
discretion. A Court of appeal interferes with the exercise of a true discretion
sparingly. The interference is often guided by application of wrong principles,
mala fides and capriciousness. These factors are absent in the present case
with regard to the award of compensation.
Conclusions
[55] On the objective assessments of the facts of this case, it is not objectively
correct that Bavuma was subjected to constructive dismissal. Accordingly, the
CCMA lacked jurisdiction to deal with the dispute and its award is a nullity in
that regard and ought to have been set aside by the Labour Court. The order
of the Labour Court falls to be set aside as well.
[56] Because of all the above reasons, the appeal must be upheld.
[57] In the premise, the following order is made:
Order
1. The appeal is upheld
2. The order of the Labour Court is set aside and replaced with the
following order:
2.1 The arbitration award dated 22 June 2021 issued by
Commissioner Dheliwe M avuma under case number
GATW12790-20 is hereby reviewed and set aside
2.2 The third respondent, Ms. Elaine Phumza Bavuma, has not
been constructively dismissed.
2.3 The CCMA lacked jurisdiction to entertain the dispute alleging
unfair dismissal.
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24
3 There is no order as to costs.
_______________________
G. N. Moshoana
Acting Judge of the Labour Appeal Court of South Africa
Djaje AJA and Masipa AJA concurring.
APPEARANCES:
For the Appellant : Mr PH Kirstein
Instructed by: Grosskopf Attorneys, Pretoria.
For the Respondent : Mr M Mbada
Instructed by: Fenyane & Associates Inc
Attorneys, Midrand.