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[2026] ZALCCT 108
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Fry v Commission for Conciliation, Mediation and Arbitration and Others (C452/23) [2026] ZALCCT 108 (9 July 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case
No:
C452/23
(1)
Reportable: No
(2)
Of interest to other Judges: No
9
July 2026
In the matter between:
PAMELA
MARGARET ANNE FRY
Applicant
and
THE
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION
First Respondent
ANDRE SIEBERT
N.O
Second Respondent
GENERAL PUBLIS
SERVICES SECTORAL
BRIEF DO NOT TRADE AND
INVESTMENT 197
t/a BRIDOON CAPE
TOWN
Third Respondent
Heard:
26 November 2025
Delivered:
9 July 2026
Summary:
An application to review and set aside
an award dismissing a constructive dismissal claim. The employee
contends that the finding
that she was not constructively dismissed
is incorrect and liable to be set aside, and that it should be
replaced with an order
that she was constructively dismissed, that
the dismissal was unfair, and that compensation be awarded. The
employee failed to
make out a case that her continued employment was
rendered intolerable.
JUDGMENT
GANDIDZE,
J
Introduction
[1]
The
review application by Pamela Fry (Fry), brought in terms of section
145 of the Labour Relations Act
[1]
(LRA), seeks to review and set aside an award issued by the second
respondent commissioner, under the auspices of the Commission
for
Conciliation, Mediation and Arbitration, dated 8 August 2023, in case
number WECT131791–22. The award dismissed an alleged
constructive dismissal claim brought by Fry against her then
employer, Bridoon Trade and Investment 197 t/a Bridoon Cape Town
(Bridoon), a franchise of Nashua (Pty) Ltd (Nashua Limited). If the
award is set aside, Fry seeks an order finding that she was
constructively dismissed and that the dismissal was unfair. She seeks
compensation as she has since reached retirement age.
[2]
Bridoon opposed the application and sought
the dismissal of the review application.
Background
[3]
Fry resigned from Bridoon on 15 July 2022,
on a month’s notice. Her employment history with Bridoon, which
is relevant to
this application, can be summarised as follows.
[4]
She commenced employment with Bridoon on 1
September 2003 in the Technical Division. Initially, she was a
Service Administrator,
and in 2015 she was promoted to Service
Administration Manager, which was later renamed Technical
Administration Manager.
[5]
In 2014, Francois Koekemoer was appointed
MD of Bridoon Cape Town. Fry and two other Technical Managers, namely
Charne Arendse and
Whitney Sharnick, reported to Koekemoer.
[6]
Fry testified that, after his appointment,
Koekemoer took a dislike to her because she challenged his thinking
and strategy. The
award records instances in which Koekemoer
displayed his dislike for Fry, as testified to by Fry.
[7]
In
2021, Arendse was appointed Technical General Manager. Fry and
Sharnick now reported to Arendse.
[2]
Sharnick was retrenched in 2021, leaving only Fry reporting to
Arendse.
[8]
In July 2021, Fry underwent a disciplinary
hearing and was issued a final written warning.
[9]
A month later, on 11 August 2021, Fry was
transferred from the Technical division to the Finance division. She
now reported to De
Jager, the Finance Director. Although Bridoon
contended that the transfer was for operational reasons, that Fry had
been consulted,
and that her status, remuneration, and benefits
remained unchanged, Fry denies any operational reasons, admits the
merger with
another Nashua franchise, and regarded the transfer as a
demotion.
[10]
In October 2021, Fry’s attorneys
assisted her in lodging a grievance with Nashua Limited’s Chief
HR Officer, challenging
the transfer. The attorneys were referred to
Bridoon, Fry’s employer.
[11]
Fry lodged a grievance with Bridoon in
November 2021, but no response was received.
[12]
On 10 November 2021, Fry referred an unfair
labour practice dispute to the CCMA, challenging both the final
written warning and
her transfer to the Finance division, which she
regarded as a demotion. In the absence of opposition, the CCMA issued
a default
award on 2 December 2021. Bridoon successfully rescinded
the default award on 11 February 2022.
[13]
During or about April 2022, Mr Tiaan
Petersen, the Training and Development Manager (who was standing in
for the HR Manager), De
Jager and Fry met. Bridoon contends that the
purpose of the meeting was to ‘have an exploratory discussion’
about Fry’s
new job description, but Fry denies this, stating
that the meeting was intended to persuade her to withdraw the dispute
referred
to the CCMA. She further states that thereafter she met with
Petersen alone, ‘
who was unable to
assist and undertook to revert to me
’.
[14]
On 4 May 2022, the parties entered into a
settlement agreement, in terms of which it was agreed,
inter
alia
, that the validity of the final
written warning was reduced to 9 months and that ‘
a
job description will be drawn up and discussed with [Fry] in order to
sign a completed job description of her present position
by for June
2021’
.
[15]
Pursuant to the settlement agreement, on 19
May 2021, Petersen requested a copy of Fry's latest job description,
which was provided.
[16]
On 3 June 2022, a meeting was held between
Fry, Petersen, Arendse (Fry’s previous line manager), and De
Jager (Fry’s
manager in the Finance Division). After the
meeting, De Jager sent Fry an e-mail attaching a document titled
‘Finance duties’
outlining additional responsibilities,
which could be expanded as the teams grow and the workflow increases.
[17]
Fry refused to sign the document because it
did not reflect the abilities and capabilities that formed the basis
of her employment
in 2003.
[18]
On 2 June 2022, Petersen invited Fry to
propose amendments to the duties. She did not propose any amendments
but contended that
she understood De Jager to have invited her to use
her previous job description as a template and to use the additional
responsibilities
to make alternative proposals for the wording of the
new job description.
[19]
On 6 June 2022, Petersen invited Fry to a
meeting to discuss her proposals for the job description, but Fry
declined. Bridoon contends
that Fry stated she was ‘not going
to entertain a conversation’ about changing her duties, whereas
Fry’s version
is that she stated she would not entertain a
conversation in which she would be looking at a job that was a shadow
of what she
used to do and did not represent a job.
[20]
On 24 June 2022, Fry applied to the CCMA
under section 142A of the LRA, which provides for the conversion of a
settlement agreement
into an arbitration award, thereby enabling
enforcement.
[21]
On
27 June 2022, Petersen sent Fry a revised job description and
requested her feedback. Fry responded that she did not agree with
the
changes to her job functions and had not participated in the
decision-making process. She also stated that the job description
was
unacceptable because it did not reflect her abilities or the work she
was employed to do. Fry further stated that an application
was
pending before the CCMA.
[3]
[22]
On 29 June 2022, Fry sent an email to
Petersen, De Jager and the HR Manager, Colleen Gordon, in the
following terms:
‘
Hi
Tiaan
I have a strong feeling
that I may be followed, listened to and tricked into making a mistake
which is extremely discomforting.
However, I am sure I must be
mistaken?’
[23]
Petersen responded to Fry the same day and
stated the following:
‘
Hi
Margaret
I trust you are well. I
can guarantee you that you are treated the same way as any other
employee, there is no reason for you to
speak about things as
mentioned in your first email. I would advise that you stay focused
on your duties as per normal. Please
inform us should you have any
uncertainties as we will discuss this as we usually do.’
[24]
In the early hours of 30 June 2022, Fry
sent an e-mail to her legal representative and Petersen, copying De
Jager and Gordon. The
e-mail is lengthy to reproduce. In it,
inter
alia
, Fry advised that she would lodge
a charge of vertical harassment with the CCMA, as she had endured
unfair treatment by Koekemoer,
who followed her around; that Petersen
was eavesdropping on her; that the Finance division had been excluded
from a discussion
regarding roles; that the changes to her job
functions had not been communicated to her or staff; and that she
proposed working
from home and coming in for meetings until the
matter is resolved, while she considered whether to obtain a
protection order.
[25]
Petersen responded,
inter
alia
, by instructing Fry to return to
work, as she did not have management approval to work from home.
[26]
On
1 July 2022, Fry reported for work. She was described as visibly
shaking and very emotional. She met with Petersen, De Jager
and
Koekemoer. When asked about the accusations she had made against
Koekemoer and Petersen, she stated that she suffers from
depression.
[4]
[27]
Fry was instructed to obtain a medical
certificate confirming her fitness for work. She consulted a
physician the same day and was
certified fit for work. She provided
the medical certificate to Petersen, who instructed her to go home
and return the following
day.
[28]
Bridoon contends that when Fry submitted
the medical certificate on 1 July 2022, Bridoon had already arranged
for Fry to consult
a psychologist via Discovery Health's Health and
Wellness scheme, with the earliest available consultation date set
for 13 July
2022.
[29]
Fry returned to work on 2 July 2022 and met
with Petersen, Koekermoer and Gordon. Petersen told Fry to stay at
home until she had
consulted a psychologist and that an appointment
had been made for her on 13 July 2022. Fry left the room in tears,
and Petersen
followed her.
[30]
On 6 July 2022, Fry sent Petersen an e-mail
requesting permission to work from home. Petersen responded that Fry
should rest until
she had consulted with the psychologist.
[31]
On 12 July 2022, following an inquiry, Fry
was informed that the days she was at home would be treated as sick
leave.
[32]
Fry attended the appointment with the
psychologist on 13 July 2022, and was informed that the medical
report would be available
by 14 or 15 July 2022.
[33]
On 13 July 2022, Petersen sent Fry an
e-mail stating that, upon receipt of the psychologist’s report,
a meeting would be held
with her to discuss the way forward.
[34]
On 15 July 2022, Fry sent an email to
Bridoon, in which she recorded,
inter
alia
, the following:
‘
However,
in an attempt to resolve this matter internally, I am giving 30 days'
notice.
[5]
My last working day
will be the 15
th
August, pending a satisfactory resolution to the matter, whilst
reserving my rights to bring a claim for constructive dismissal
in
due course.’
[35]
There was no response to the letter.
[36]
Bridoon accepted her resignation on 18 July
2022, and she was instructed to complete a handover, which she did on
28 July 2022.
[37]
The psychologist's note dated 18 July 2022
records the following:
‘
It
is my opinion that Ms. Fry is committed to her work and would not
purposefully do anything to jeopardize that. The current strife
at
work and resulting demotion has affected her quite intensely. It also
threatens to sour the last month of work as well as the
legacy which
she has built in the 18 years at the company. This is greatly
upsetting to her. I recommend that Ms. Fry continue
to see me and if
you require a full assessment may I recommend an assessment by an
occupational therapist.
[38]
Fry referred the alleged constructive
dismissal case to the CCMA.
The arbitration award
[39]
Initially, Fry represented herself, but
after an application for legal representation, it was granted.
Bridoon was represented by
an employer organisation.
[40]
The award records that, at the commencement
of the proceedings, a ruling was made that the dispute relating to
the final written
warning and the demotion/transfer were addressed in
the Settlement Agreement and would not form part of the constructive
dismissal
dispute.
[41]
Fry gave evidence in her own case.
Bridoon’s witnesses were Petersen, De Jager and Arendse.
[42]
After hearing evidence over six days, the
commissioner rendered an award dismissing Fry’s constructive
dismissal claim. In
dismissing the claim, the commissioner referred
to the ruling made at the commencement of the proceedings that Fry
had settled
the final written warning and the demotion disputes, and
therefore those disputes were not before him. The award also records
that
the commissioner allowed Fry to lead evidence regarding the
demotion, with the caveat that ‘I will see where it leads’,
and that, during her evidence, Fry was cautioned about evidence on
the disputes that had been settled.
[43]
The commissioner found that although Fry
felt strongly that continued employment was intolerable, an objective
test had to be applied
to determine whether this was the case.
Applying that test, the commissioner did not, on a balance of
probabilities, find that
she was ill-treated, harassed, or
humiliated, or that she was prevented from fulfilling her job. He
found that Fry was not constructively
dismissed, and therefore the
CCMA lacked jurisdiction to arbitrate the dispute.
Grounds of review
[44]
Fry submits that, in concluding that she
was not constructively dismissed, the commissioner failed to consider
the evidence cumulatively
and instead analysed each complaint in
isolation. According to Fry, this constitutes a misdirection.
[45]
The submission is further that the
commissioner erred in law by holding that Fry had to show she had no
option but to resign, a
finding inconsistent with section 186(1)(e)
of the LRA and with Constitutional jurisprudence.
[46]
Had
the commissioner applied the objective test of intolerability and the
proper legal standard for constructive dismissal, he would
have
concluded that Fry was constructively dismissed. Therefore, the
commissioner committed a reviewable irregularity as contemplated
in
section 145(2)(a)(ii)
[6]
and
(iii)
[7]
of the LRA.
The legal principles
[47]
The LRA provides as follows:
‘
192
Onus in dismissal disputes
(1) In
any proceedings concerning any dismissal, the employee must establish
the existence of the dismissal.
(2) If
the existence of the dismissal is established, the employer must
prove that the dismissal is fair.’
[48]
When
a dispute over a dismissal arises, the CCMA must determine whether a
dismissal occurred. This is because, unless a dismissal
occurred, the
CCMA lacks jurisdiction to arbitrate the dispute. The CCMA makes a
finding of jurisdiction for convenience, and on
review, this Court
determines
de
novo
whether that finding was correct.
[8]
Therefore, on review, the Court considers all the material
presented to the commissioner and decides
de
novo
whether a dismissal occurred.
[49]
In
Maleka
v Boyce N.O and Others
[9]
(
Maleka
),
the Constitutional Court outlined the review test in constructive
dismissal matters as follows:
‘
[55]
The question on review therefore is whether, objectively
speaking, the employee was constructively dismissed. A finding
that
an employee has been constructively dismissed is a matter of fact and
the test to be applied, as correctly held by the Labour
Court in this
matter, is an objective one that is concerned with correctness and
not reasonableness, because the question “whether
an employee
has been dismissed” rests on the jurisdiction of the CCMA.’
[50]
If
an employee resigns involuntarily because the employer made continued
employment intolerable, this constitutes a dismissal, as
defined in
section 186(1)(e) of the LRA. The three requirements that must be met
to determine that a constructive dismissal has
occurred are, namely,
(a) termination of employment by the employee, (b) because continued
employment was rendered intolerable,
and (c) by the employer.
[10]
[51]
In
Strategic
Liquor Services v Mvumbi NO & Others
[11]
,
it
was stated that an
employee
need not prove that they had no choice but to resign, only that the
employer rendered continued employment intolerable
[12]
,
and that the employer’s conduct was such that an employee could
not reasonably be expected to put up with it.
[13]
[52]
Intolerable
means beyond that which can be tolerated, or endured, or
insufferable, too great to bear, not to be put up with, and
beyond
the limits of intolerance. (See
Solidarity
on Behalf of van Tonder v Armaments Corporation of SA (Soc) Ltd &
Others
[14]
(Solidarity obo Van Tonder).
[53]
In
Booi
v Amathole District Municipality
[15]
,
the
Constitutional Court held that ‘the term ‘intolerable’
implies a level of unbearability, and must surely require
more than
the suggestion that the relationship is difficult, fraught or even
sour’.
[54]
In
Maleka
[16]
,
the Court stated the following:
[2] …The
standard of proof is an objective one. Therefore, the focus is not on
the employee’s subjective feelings
and perceptions but rather,
on the actions, or lack thereof, of the employer that rendered the
employee’s continued employment
intolerable. It is not enough
that the employment relationship has become inconvenient or
uncomfortable…
[55]
The
court in
Maleka
[17]
also stated that the threshold for whether a constructive dismissal
has occurred is high:
‘
[73]
In my view, intolerability means something more than just
conduct (on the part of the employer) or working conditions,
which
simply result in difficult, unpleasant or stressful situations for
the employee. It would not be enough that the employer’s
conduct is merely rude, uncompromising or unbecoming. Likewise, “even
a breach of the employment contract, deductions from
salary, or
unfair disciplinary actions would not per se establish
intolerability”. The employee would need to show that such
conduct is characterised by what can objectively be construed as
unendurable or agonising and he or she must show that the perpetrator
is their employer. In other words, it must be clear that the
employer’s conduct was the cause for complaint and that it
brought the employee’s tolerance to a breaking point. This
position is consistent with what has been followed by the labour
courts since
Solidarity.
[74] ….
This is to avoid an unhealthy situation in a workplace where
employees, who have become disgruntled and dissatisfied
for flimsy
reasons, would simply walk out and thereafter claim a constructive
dismissal….Employees should refrain from hastily
resigning and
then arguing that the employment relationship had become unbearable.
[56]
The review application will be considered
against these principles.
Fry’s
submissions
[57]
Fry submits that the employment
relationship began to deteriorate in August 2021, when she received
the final written warning, followed
by a transfer to the Finance
division. She was promised a detailed, updated job description in the
coming weeks. After her transfer,
she had very little to do at work,
as most of her duties had been reassigned to others. Her requests to
be allocated work to fill
her time and make use of her skills and
knowledge were ignored. She no longer had staff reporting to her.
This left her feeling
humiliated, bullied, harassed and forced into a
corner.
[58]
She lodged a grievance with Nashua Limited
and then with Bridoon, but the dispute remained unresolved, prompting
her to file unfair
labour practice claims with the CCMA. The disputes
were settled on the basis that a job description would be drawn up,
discussed,
and signed by 4 June 2022. At the 3 June 2022 meeting,
vague proposals were made, and no job description was provided. Only
after
she invoked section 142A of the LRA did she ‘suddenly’
receive a job description on 27 June 2022, and she was asked
to
comment. She informed Petersen that the proposed job description
affected her dignity, and Petersen responded dismissively,
saying she
could follow internal processes. Her e-mail of 30 June 2022, stating
that she had been excluded and marginalised, led
to her being called
to the office, where she was instructed to submit a medical report
confirming that she was fit to work. Despite
submitting the requested
medical report, she was sent home. When she reported the following
day, she was again sent home pending
a psychologist's examination on
13 July 2022. This left her feeling insulted. Her requests to return
to work or work from home
in the meantime were denied.
[59]
Fry takes issue with Bridoon’s
concern for the safety of its staff, citing her loud outbursts
towards other staff members
as a sudden cause for concern, even
though there had been at least 10 such outbursts previously.
Petersen’s account that
he felt unsafe after her e-mail of 30
June 2022 did not explain why he feared being physically attacked by
her. There was no reason
to keep her away from work. She resigned
because no resolution was reached on 13 and 14 July 2022. Her
resignation letter made
it clear that she remained open to resolving
the matter, yet Bridoon did not respond.
[60]
The resignation was not impulsive but the
final step in a protracted attempt to resolve her grievances. She had
consistently engaged
with the CEO of Nashua Limited, Bridoon, lodged
formal grievances, retained legal representation, and referred
disputes to the
CCMA. She was informed that Petersen’s patience
with her was running out when she refused to withdraw the dispute.
She settled
the disputes to continue her employment, but the employer
did not comply with the settlement agreement. When she sought to
enforce
the settlement agreement, she was instructed to provide proof
of fitness for work, yet she was still excluded from the workplace.
When she resigned, the outcome of the psychological assessment, which
had been promised to her on 14 or 15 July 2022, had not yet
been
provided. She still did not have a job description. Resignation under
those circumstances was reasonable. She did not have
to show that she
had no other option but to resign. In her resignation letter, she
indicated a willingness to have the dispute
resolved but received no
response.
[61]
The cumulative pattern of demotion,
marginalisation, and ultimately her exclusion from the workplace
rendered continued employment
intolerable.
[62]
Reliance
was placed on the decision in
Western
Cape Education Department v General Public Service Sector Bargaining
Council and others
[18]
,
which
held that the facts in that matter were analogous to those in
Murray
v
Minister
of Defence
[19]
(Minister of Defence),
which
held that the employee’s subjective condition of suspicion,
demoralisation and depression, evident to all who dealt
with the
employee, was relevant to how the employer ought to have dealt with
the employee, and the employer’s conduct as
a whole, judged
reasonably and its cumulative impact, was such that the employee
could not be expected to put up with it. Reliance
was also placed on
the decision in
Makombe
v Cape Conference of the Seventh-day Adventists and others
[20]
(Makombe),
which followed the approach in
Minister
of Defence,
that
an employer’s conduct must be looked at as a whole and its
cumulative impact on an employee determined.
Bridoon’s
submissions
[63]
Bridoon contends that Fry was transferred
to the Finance division for operational reasons, which were discussed
with her. She was
transferred to an important role that was highly
demanding and would have kept her busy. She retained many of the
technical duties
from her old role; her new role remained senior, and
a large portion of the technical team still reported to her.
[64]
Fry’s assertions that she was
bullied, unfairly disciplined and unfairly demoted were not supported
by the facts. As regards
bullying, it was unclear what this referred
to. In any event, these assertions did not constitute grounds for
review.
[65]
The disputes relating to the alleged unfair
discipline and the final written warning were settled on the basis
that the validity
of the final written warning was reduced from 12
months to 9 months. The transfer and/or demotion dispute was settled
on the basis
that Fry would be provided with a job description. This
meant that Fry accepted that she would remain in the position to
which
she was transferred, and all that remained was for her to be
furnished with a job description. Her consent to that job description
was not required. What was required was for the job description to be
discussed with her. Therefore, Fry’s contention that
Bridoon
did not comply with the settlement agreement is misguided. She
entered into the settlement agreement, compromising her
claim, while
acting on legal advice. The settlement agreement remained binding on
the parties, which explains why Fry instituted
proceedings to enforce
its terms. Fry is attempting to re-introduce issues that were settled
through the back door.
[66]
In her pleadings, Fry alleged that her
continued employment became intolerable after 4 May 2022.
Accordingly, the grievance she
lodged with Nashua Limited in November
2021 was irrelevant, as it predated the May 2022 settlement
agreement. That grievance was,
in any event, not lodged with the
employer, and Fry was tarnishing Bridoon by publishing grievances to
other companies rather than
addressing them internally.
[67]
Similarly, the CCMA referrals and the
settlement agreement could not be relied on to establish that
continued employment was intolerable,
as they predated 4 May 2022.
[68]
What's left is that, in the first place,
Fry contends that continued employment was rendered intolerable
because her duties in her
new role were different to what they had
been before her transfer and/or she was not satisfied with the duties
that she had to
perform. Second, Bridoon did not comply with the
settlement agreement in that she was not provided with a job
description. Third,
she was not allowed to return to work until she
had consulted with a psychologist.
[69]
As regards the change in duties, Bridoon
submits that it took place in August 2021, when Fry was transferred
to the Finance division,
and did not occur after 4 May 2022. In
addition, the dispute over the alleged demotion was settled.
[70]
As regards the job description, Bridoon
submits that it had already engaged with Fry in May 2022, before the
settlement agreement
was signed. After the settlement agreement, Fry
obstinately refused to make concrete suggestions about the content of
her job description
and elected to invoke section 142A of the LRA,
prompting Bridoon to provide her with the job description it had
unilaterally prepared
on 27 June 2022. Even then, Fry was
dissatisfied, contending that the duties set out therein were
purportedly being performed by
other employees, leaving her with
nothing to do. Bridoon disputes the merit of that contention, as Fry
has not provided the specifics
of the duties being performed by other
employees or which employees. It also contends that Fry could have
ring-fenced those duties
for herself.
[71]
It is Bridoon’s further submission
that if Fry was of the view that Bridoon had acted in breach of the
settlement agreement,
she should have pursued the section 142A LRA
dispute to a final determination rather than resigning. The
contention that, because
Bridoon did not comply with the settlement
agreement, ‘I was left with no avenue to complain and nowhere
to go’ has
no merit.
[72]
With reference to Fry’s pleaded case,
Bridoon submits that she resigned ‘in a desperate attempt to
get [Bridoon] to
allow her to return to work’, which undermines
the argument that non-compliance with the settlement agreement
rendered continued
employment intolerable. The submission is that if
she had no work and found her duties unfulfilling, she would not have
resigned
in a desperate attempt to return to work. Bridoon also takes
issue with Fry working out her notice period, despite alleging that
the working relationship was intolerable.
[73]
As regards the contention that Fry was
prevented from returning to work, Bridoon contends that Fry was
instructed to work from home
for her safety and that of other
employees. She was paranoid, and when confronted, she explained that
she suffered from depression.
She had a history of ‘poor mental
health’ and had taken time off for a psychological issue for
which she was periodically
medicated, ‘to take the edge off’.
She later sent the e-mail of 30 June 2022 alleging that Koekemoer
spied on her by
looking at her twice, and that Petersen took time off
work to follow and spy on her during her lunch hour. Fry did not
contend
that this was rational behaviour or that it was not a cause
for serious concern for Bridoon.
[74]
Bridoon
was not compelled to accept the general practitioner (GP) medical
report. It could rely on common sense and deductive reasoning
to
ensure that its interests and those of its employees were not
prejudiced by insisting that she consult a psychologist. Fry was
suffering from what appeared to be a psychological affliction,
leading her to believe she was being spied on and followed. In this
regard, case authorities were cited. First,
AECI
Explosives Ltd (Zomerveld) v Mambalu
[21]
,
which held that an employee could be dismissed for malingering even
if they produced a medical certificate. Second,
Mgobhozi
v Naidoo NO and others
[22]
,
which
called on courts to scrutinise medical certificates given their
widespread abuse. Lastly,
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[23]
,
which
upheld a chairperson’s decision to reject a medical certificate
on the grounds that the employee was malingering. The
most rational
and reasonable response was to refer Fry to a psychologist.
[75]
Fry had alternatives to resigning. She
could have filed a grievance with the CCMA challenging the forced
sick leave or brought an
unfair suspension claim, as advised by her
attorneys.
[76]
Fry could not rely on the resignation
letter, in which she called on Bridoon to resolve her grievances and
reserved the right to
refer a constructive dismissal claim to the
CCMA should Bridoon fail to do so. The submission is that resignation
is a unilateral
act and that an employee cannot demand the resolution
of a grievance on pain of lodging a constructive dismissal claim,
particularly
where the employee has legal advice.
[77]
Fry did not explore the alternatives
available to her because she realised the complaints lacked merit.
Her decision to resign was
not objectively reasonable, and the
commissioner did not err in finding that she was not constructively
dismissed.
Evaluation
[78]
Fry terminated her employment with Bridoon.
She resigned on 15 July 2022, giving 30 days' notice. At the end of
the 30 days' notice,
she left Bridoon’s employment. The first
requirement for constructive dismissal is met. However, all three
requirements must
be present for constructive dismissal to occur.
[79]
The next question is whether Bridoon
rendered Fry’s continued employment intolerable.
[80]
Although Fry alleged that Koekermoer
ill-treated her from the time he joined Bridoon in 2014, she also
submitted that her relationship
with the employer began to
deteriorate in August 2021, when she was transferred to the Finance
division. I will return to the period
from August 2021 after
addressing Koekermoer’s alleged conduct.
[81]
Bridoon submitted that the alleged
harassment by Koekermoer had not been specified. This is incorrect.
The award lists examples
of the alleged harassment by Koekmoer, as
per Fry’s testimony. It did not lie with Bridoon’s
witnesses to contend that
Koekermoer did not commit the harassment he
was accused of. Their version was also that Koekermoer sometimes came
across as unsympathetic,
rude, and strict. They also testified that
he was the same to everyone. That Koekermoer was ‘rude’
to all employees
did not make his conduct right. Therefore, Fry’s
experience of feeling harassed was not a figment of her imagination.
Nashua
did not process Fry’s grievance against Koekermoer for
reasons never explained, and the franchisor refused to entertain it.
[82]
That
said, the harassment claim was not before the commissioner. If Fry’s
claim related to harassment by Koekemoer, it was
a dispute that ought
to have been referred to the CCMA in terms of section 10 of the
Employment Equity Act
[24]
(EEA) for conciliation. No such dispute was referred to the CCMA.
[83]
Similarly, if Fry’s dispute concerned
being subjected to an occupational detriment for making protected
disclosures, it needed
to be referred to the CCMA for conciliation
under section 186(2)(d) of the LRA, followed by adjudication. No such
dispute was referred
to the CCMA.CMA.
[84]
Returning to the period after August 2021,
Fry contends that she attempted to address her grievances internally
and, when she hit
a wall, lodged them with Nashua Limited, Reunert,
and an independent service provider contracted to handle protected
disclosures,
but still received no assistance.
[85]
Our labour laws protect employees whose
grievances are not addressed internally. Therefore, Fry acted
reasonably in referring the
matter to the CCMA, as she did not accept
the final written warning and the transfer.
[86]
It is common cause that at the CCMA, Fry
settled the two disputes she had referred, which had been
consolidated. It was agreed that
the validity of the final written
warning would be reduced from 12 months to 9 months. As regards the
demotion dispute, it was
agreed that a job description would be
discussed with her and signed by 4 June 2022.
[87]
Consequently, Fry could no longer rely on
the disciplinary action, the final written warning, and the transfer,
which she regarded
as a demotion, to show that continued employment
had become intolerable. She settled all these disputes and
compromised those claims.
If she believed the transfer or the
demotion was unfair, she ought to have persisted with her dispute at
the CCMA, which would
have issued an award on the issue. As correctly
pointed out on behalf of Bridoon, she had legal advice when she
signed the settlement
agreement. Therefore, she compromised her claim
and must accept the consequences.
[88]
The arbitration awards correctly found that
the disputes over the final written warning and the demotion had been
settled, but that
Fry was permitted to testify on those issues,
subject to the commissioner’s discretion to see where it led.
The award also
records that when Fry gave detailed evidence about the
demotion, she was cautioned that a ruling had already been made, but
she
insisted on presenting that evidence because ‘it speaks to
her frame of mind’. The ruling that the final written warning
and the demotion disputes were settled is not sought to be reviewed
in these proceedings. That ruling was correct.
[89]
Paragraph 110 of the award does not find
that Fry was not demoted, contrary to Fry's submission. Instead, it
merely records the
evidence led by Bridoon’s witnesses
regarding Fry’s new role after the transfer to the Finance
division.
[90]
Now that the allegations of harassment by
Koekermoer, and the disputes over the final written warning and the
demotion, have been
ruled out as rendering continued employment
intolerable, what remains are the contentions that Bridoon failed to
comply with the
settlement agreement, and that Fry was prevented from
returning to work despite a GP having certified her fit for work.
[91]
Fry contends that Bridoon failed to comply
with the settlement agreement and that, when she ‘wrote
progressively more agitated
e-mails to achieve this objective’,
she was barred from the workplace without lawful justification. Only
after she resigned
was she permitted to return to work for a handover
process. Bridoon’s conduct in treating her as fit to hand over,
despite
having found her unfit to work, was unfair.
[92]
The first issue is whether the alleged
non-compliance with the settlement agreement rendered continued
employment intolerable. Believing
that Bridoon had not complied with
the settlement agreement, Fry invoked section 142A of the LRA to have
the settlement agreement
made an arbitration award. Once the
settlement agreement had been made an arbitration award, Fry would
have been able to enforce
it as if it were an order of court.
Therefore, Bridoon’s alleged non-compliance with the settlement
agreement did not leave
Fry without a remedy and could not have
rendered continued employment intolerable. Instead of awaiting the
outcome of the section
142A application, Fry resigned. On those
facts, it cannot be said that the non-compliance with the settlement
agreement rendered
continued employment intolerable.
[93]
The next issue concerns the contention that
Bridoon would not allow her to return to work despite her having been
certified fit
for work by a GP. That Bridoon sent Fry home after a GP
had certified her fit for work is undisputed, even if the
commissioner
did not refer to it in the award. An award cannot
possibly refer to all the evidence led during the arbitration
proceedings.
[94]
Fry did not dispute that she had outbursts
in the workplace on at least 10 occasions. That Bridoon had done
nothing about these
previous outbursts did not mean that Fry’s
lengthy e-mail, sent in the early hours of 30 June 2022, and the
allegations it
contained should not have been a cause for concern for
Bridoon. Fry described her e-mail as ‘progressively agitated’.
In oral argument, Ms Myburgh referred to the e-mail as ‘irate’.
It was not disputed that Fry suffered from depression
and took
medication for it. On those facts, it was not unreasonable for
Bridoon to insist that she consult a psychologist. It would
have been
insensitive, if not discriminatory, for Bridoon to insist that she
continue to report for duty when it appeared that
she was unwell. The
submission that Fry’s e-mail was based on ‘deeply rooted
paranoia’ and that this was an observation
was most
unfortunate. All that needed to be said was that, given her history
of depression, it was in her best interests to stay
at home until she
had consulted with a psychologist. Given that conclusion, I do not
deem it necessary to consider Bridoon’s
submission that it
could reject the GP’s medical certificate, save to say that the
submission seems legally correct.
[95]
Fry
was instructed to remain at home pending the outcome of the
consultation with the psychologist. She met the psychologist on
13
July 2022 and was told that a report would be available by 14 or 15
July 2022.
[25]
She resigned on
15 July 2022, before the psychologist could provide the anticipated
report. Fry alleges that the psychologist informed
her that Bridoon
had asked the psychologist to report to them on the session with Fry,
and that the psychologist informed them
she could not do so. She then
states, ‘
I
understood this to mean that Nashua would do whatever it could to
prevent me from either working or returning to a meaningful
position
within the company
’.
[96]
In
the court’s view, resigning before the psychologist's report
was available was fatal to Fry’s case that continued
employment
had become intolerable. The report was available on 18 July 2022 and
recorded that she wanted to work, but that an occupational
therapist
was best placed to determine her fitness to work. It is unknown what
Bridoon would have done upon receipt of the report
had Fry not
resigned in the meantime. It is also unknown whether she would have
been allowed to return to work. Fry’s contention
that she had
no reason to believe Bridoon would change its decision to keep her at
home, regardless of the psychologist’s
report, was speculative
and unreasonable. In
Maleka
,
[26]
the court stated this, which is apposite in this case:
‘
[106]
As this judgment finds, Mr Maleka’s decision to resign
had more to do with what he feared or perceived would
happen in the
future rather than one based on his present circumstances…. To
decide the issue of intolerability on this
scenario, would require
one to look into a crystal ball. This is not what the test envisages.
[97]
Fry
also states that she resigned in a desperate attempt to be allowed to
return to work. In oral argument, Ms Myburgh submitted
that she
decided that ‘maybe they will listen if I resign’, and Dr
Orton retorted that she ‘screamed for help
when she was already
jumping off the cliff’. The point is that Fry resigned before
the psychologist’s report was available.
The decision to resign
while awaiting the psychologist’s report was premature, as the
commissioner correctly found. She resigned
because she was frustrated
by the uncertainty and the forced sick leave, but she could have
waited for the psychologist’s
report.
[27]
As it turned out, the psychologist’s report was available three
days later, but Fry had resigned. That resignation can be
said to be
due to Bridoon making continued employment intolerable.
[98]
The criticism that the commissioner failed
to consider the evidence cumulatively is without merit. The
commissioner was obliged
to determine whether continued employment
had been rendered intolerable, and this could only be done by
considering Fry’s
contentions, ranging from the alleged
ill-treatment by Koekemoer to the instruction to stay at home until
she had consulted a psychologist.
The court has adopted the same
approach, grounded in Fry’s own contentions.
[99]
Makombe
is
of no assistance to Fry’s case, as it was decided on its own
facts, as each case should be.
[100]
The
contention that the commissioner held that the requirement of
intolerability is that Fry had no option but to resign is not
supported by the award. The commissioner held that Fry was required
to show that the employer made the working environment so
‘intolerable’ that she could not be expected to continue
in the employment relationship. Admittedly, the use of the
word ‘
so
’
was unnecessary, but the commissioner applied the correct test,
namely whether the employer rendered continued employment
intolerable. In
Maleka
,
[28]
the court clarified that resignation must be a measure of last
resort.
[29]
[101]
The
contention that, in
Minister
of Defence
,
the court held that an employee's subjective opinions matter was a
reference to how the employer ought to have dealt with the
employee
in that matter. The statement should not be read to mean that an
employee’s subjective opinion that continued employment
has
been rendered intolerable prevails. In fact, the opposite is true. In
Maleka
,
the Constitutional Court held that an employee’s subjective
feelings and perceptions are not the focus of a constructive
dismissal claim, but rather the employer’s conduct.
[30]
[102]
It follows that the CCMA lacked
jurisdiction to arbitrate the matter, and the commissioner’s
finding to that effect was correct.
Accordingly, the award is not
reviewable.
Costs
[103]
Nashua sought costs against Fry, contending
that she was legally represented and therefore had the means, that
there was no relationship
to protect, and that ‘her irrational’
behaviour warranted a costs order. These contentions merely needed to
be stated
to be rejected. In this court, the principle that costs
follow the result does not apply. Instead, costs are awarded in
accordance
with the requirements of law and fairness, as contemplated
in section 162 of the LRA. Even if Fry was unsuccessful in the review
application, one would have thought that after 18 years of dedicated
service she would have received some sympathy, especially
given that
she suffered from depression. Instead, Nashua sought costs based on
what it termed Fry's ‘irrational behaviour’.
An
appropriate order is that each party pays its own costs.
[104]
In the premises, I make the following order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
T.
Gandidze
Judge of the Labour Court
of South Africa
Appearances
For the
Applicant:
Advocate Lynette Myburgh
Instructed
by:
Mr Brandon Schiff of Bargraims Attorneys
For
the Respondent: Dr
RCJ Orton
Instructed
by:
Snyman Attorneys
[1]
Act 66 of 1995, as amended.
[2]
Fry states that she started reporting to Arendse in 2020.
[3]
The award records that Fry testified that Petersen hounded her to
sign off the job description, and she did not agree.
[4]
The award records that Fry testified that Petersen and Koekermoer
confronted her in De Jager’s office, asking who she thought
she was to decide to work from home. She informed them that she had
depression and was on medication, after which Koekermoer
informed
her that she was a danger to herself and other employees, having
regard to the email she had sent earlier that day.
[5]
During the arbitration proceedings she explained that she offered to
work her notice period as she feared being disciplined if
she did
not do so.
[6]
Which refers to the defect of
a
gross irregularity in the conduct of the arbitration proceedings.
[7]
Which refers to the defect of
exceeding
the commissioner's powers.
[8]
SA
Rugby Players Association & Others v SA Rugby (Pty) Ltd &
Others
(2008) 29 ILJ 2218 (LAC) para 39 and 40.
[9]
(CCT
175/23)
[2026] ZACC 7
(24 February 2026). See also
Fidelity
Cash Management Service v CCMA and Others
(2008)
28 ILJ 964 (LAC) at para 101.
[10]
Solid
Doors (Pty) Ltd v Commissioner Theron and others
(2004) 25 ILJ 2337(LAC).
[11]
(2009)
30 ILJ 1526 (CC) at para 4 and
Murray
v Minister of Defence
(2008) 29
ILJ
1369
(SCA);
[2008] 3 All SA 66
(SCA); at paras 12 and 67.
[12]
Ibid at para 4.
[13]
Ibid at para 12. See also
Jordaan
v Commission for Conciliation Mediation and Arbitration and others
(2010)
31 ILJ 2331 (LAC).
[14]
(2019)
40 ILJ 1539 (LAC).
[15]
[2021] ZACC 36
(CC);
2022 (3) BCLR 265
(CC); (2022) 43 ILJ 91 (CC).
[16]
Ibid fn 9 para 104.
[17]
Ibid fn 9.
[18]
(2014) 35 ILJ 3360 (LAC).
[19]
2009
(3) SA 130 (SCA).
[20]
(2025) 46 ILJ 1362 (LC).
[21]
(1995) 16 ILJ 1505 (LAC).
[22]
(2006) 27 ILJ 786 (LAC) at para 27-29.
[23]
2007 (5) SA 552
(SCA); (2007) 28 ILJ 1499 (SCA) at para 18.
[24]
Act 55 of 1998.
[25]
Or 13 or 14 July 2022.
[26]
Ibid fn 9.
[27]
See
also
Royale
Energy (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(A2025/076355)
[2026] ZALAC 26 (25 May 2026), where an employee’s resignation
when an investigation was pending was found
not to constitute
constructive dismissal.
[28]
Ibid fn 9.
[29]
Ibid fn 9 at para 74 and 145.
[30]
Ibid at para 2.