THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: 2026-059693
In the matter between:
CHARLES PETERSEN Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER STEPHAN CLOETE N.O. Second Respondent
HOUSE OF CLEANING (PTY) LTD Third Respondent
Heard: 2 September 2026
Delivered: 4 September 2026
JUDGMENT
DE KOCK, AJ
Introduction
[1] This is an application in terms of s 145 of the Labour Relations Act 66 of 1995
(the LRA) to review and set aside an arbitration awar d of the second
respondent, Commissioner Stephan Cloete (the Commissioner), issued under
CCMA case number WECT1695-26 and dated 27 February 2026.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised: No
4 September 2026
____________ ______________
Signature Date
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[2] The applicant, Mr Charles Petersen, is a cleaner. He acts in person, having
drafted the review himself . The first respondent is the Commission for
Conciliation, Mediation and Arbitration (the CCMA), under whose auspices the
award was made. The third respondent, House of Cleaning (Pty) Ltd, was the
applicant’s employer and is the only party that opposes the application. The
third respondent was represented at the hearing by Mr du Plessis.
[3] The award dismissed a referral of constructive dismissal on the footing that
the applicant had not proved that he was dismissed at all.
Background
[4] The applicant was employed by the third respondent as a cleaner at the
Dunes/Sasko Bokomo site. His gross pay was about R7 100 a month, R6 200
net, at an hourly rate of R31.69 for a 45-hour week.
[5] In November 2025 an exchange with a team leader over the cleaning of the
applicant’s section, and a crude remark first made by a colleague and then
repeated by the applicant, led to the arrangement of a disciplinary hearing.
The hearing took place on 13 January 2026, chaired by Mr Gideon Basson,
on a charge of any form of aggressive or improper behaviour towards another
employee. The applicant was found guilty.
[6] Having found the applicant guilty, Mr Basson put him to an election: to resign,
or to take the outcome of the hearing. On the applicant’s evidence he was
told:
‘kyk net Mnr Pietersen, die ui tslag van die verhoor is dat jy moet gefire word.
Maar ons gee vir jou ’n keuse, ’n opsie om te bedank...’
[7] On Mr Basson’s own evidence, the position was the same:
‘KOMMISSARIS: U gee hom toe ’n opsie?
MNR BASSON: Opsie om te bedank of uitlewer op uitspraak. Met die
bedanking sit ek vir hom in ’n ander werk in, in ’n ander company. En
sodoende behou hy dan sy inkomste.’
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[8] That the applicant was, after the finding of guilt, put to an election between
resigning and receiving the sanction is accordingly common cause. So is the
reason for the offer: on Mr Basson’s evidence, the alternative was offered so
that the applicant would keep an income. Invited at the close of that evidence
to put questions, the applicant said, twice, ‘Meneer Basson praat alles reg
soos hy praat’, and the Commissioner noted that Mr Basson’s version was
accepted as correct.
[9] There is one dispute of fact. The applicant’s evidence was that Mr Basson
said ‘ons gee jou 12 maande final written warning’, the company undertaking
to telephone the clie nt before confirming. Mr Basson’s answer was not a
denial that the words were used but an inference: ‘As dit die final was dan sou
dit mos onmiddellik gegaan het, geissue gewees het en ek sou gesê het hier
is jou final, teken.’ The award records the dispute at paragraph 12 and does
not resolve it. At the hearing the applicant also disputed the Commissioner’s
statement, at paragraph 14 of the award, that he had been given two days to
consider his position; on his account the sequence was a hearing on 13
January, a telephone call on 14 January and the resignation on 15 January
2026. For the reasons that follow, neither dispute affects the outcome.
[10] On 14 January 2026 the applicant was telephoned and told to take the first
option, because the client did not want him on the premises. On 15 January
2026 he returned, said that he did not want to resign, and was dictated the
words he was to write. His evidence was that he said ‘maar ek willie bedank
nie’ and was answered ‘skryf net daar baie dankie vir die opportunity wat julle
my gegee het maar ek bedank’, which he then wrote. The founding affidavit
says the same and it is not contradicted. He signed a contract with Advanced
Cleaning Services (Pty) Ltd the same day and started there on 16 January
2026, on the same premises and on the same Sasko contract. Mr Basson
2026, on the same premises and on the same Sasko contract. Mr Basson
accepted that Advanced Cleaning Services belongs to the same group: ‘Dis
korrek ja. Ons behoort aan dieselfde HOC group.’
[11] The dispute was referred to the CCMA and heard as a con- arb before the
Commissioner on 18 February 2026, in Afrikaans, the applicant appearing in
4
person and Mr Basson for the company. The award was issued on 27
February 2026.
The award
[12] The award runs to five pages , the analysis being contained in paragraphs 13
to 17.
[13] At paragraph 13 the Commissioner set out the constructive dismissal
principles, citing Solid Doors (Pty) Ltd v Theron NO and Others for the three
requirements, together with Loots, Jooste, Lubbe, Strategic Liquor Services
and Asara Wine Estate. 1 The statement of the law is orth odox and is not
criticised.
[14] At paragraph 14 the Commissioner held that the applicant had presented no
evidence that the employer had made his continued employment intolerable,
that he had lodged no grievances, that one cannot pre- empt the outcome of a
disciplinary hearing, and that he had been given two days to decide whether
to resign or to continue with the disciplinary process. At paragraph 15 he held
that the applicant’s evidence ‘failed to show that the company was a harsh
draconian business with no em pathy for others’. At paragraph 16 he found
that the conduct of the employer did not amount to deliberate intolerable
pressure and that the applicant ‘resigned on his own accord after considering
his options’, and at paragraph 17 that the applicant had not proved that he
was dismissed.
The supplementary document
[15] On 28 August 2026, five days before the hearing, the applicant filed a
document headed ‘Supplementary Affidavit’, with 27 pages of annexures. Mr
du Plessis objected to it in limine : it was filed lon g after the pleadings had
closed and without leave, it raised new factual allegations for the first time,
and the third respondent’s attorneys had written on 21 May 2026 asking
whether the applicant stood by his notice of motion and again on 28 August
1 [2004] ZALAC 14; (2004) 25 ILJ 2337 (LAC) at para 28.
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2026 asking that the document be withdrawn. On examination the document
on the court file is neither signed before a commissioner of oaths nor attested;
it is not an affidavit. The applicant said that he had taken it to a police station
to be commissioned but accepted that the filed copy is not. The Court ruled
that it could not receive the document, filed five days before the hearing
without leave and in a form to which the third respondent could not have
responded, and the applicant accepted that ruling. Nothing in the document or
its annexures is before the Court, and the Court has had no regard to it.
The grounds of review as pleaded
[16] The founding affidavit is an account of the events between November 2025
and January 2026. It does not allege that the Commiss ioner misconducted
himself, committed a gross irregularity, exceeded his powers, or reached a
decision no reasonable decision- maker could reach; beyond the applicant’s
name for the Commissioner in the pro forma space, it says nothing about the
arbitration or the Commissioner’s conduct.
[17] The applicant’s heads of argument, drafted by him, contain for the first time an
account of the arbitration itself. He alleges that the Commissioner asked him
whether ‘a gun was held against my head to resign’ and, if so, that he should
prove it; that Mr Basson was asked to leave the room while the Commissioner
spoke to the applicant alone; that the applicant was then asked to leave so
that the Commissioner and Mr Basson could speak alone; that the
Commissioner told him that if he did not accept what was proposed he would
give his decision, and that if the applicant were found guilty he would have to
pay the costs; and that the Commissioner and Mr Basson exchanged email
addresses while the applicant was not asked for his.
[18] None of that appears in the founding affidavit, and none of it was given on
oath. A ground of review may not be raised for the first time in argument, and
oath. A ground of review may not be raised for the first time in argument, and
its factual foundation must appear in the founding or a supplementary
affidavit; a review applicant is bound by the grounds in the review application
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(Kunene v Sithole NO and Others ).2 The ‘gun to the head’ question, the costs
warning and the exchange of email addresses are, moreover, nowhere in the
transcript; the only reference to a gun in the record is the applicant’s own
about people being shot at in the early morning. Those allegations, being both
unpleaded and unsworn, cannot be established on this record, and the Court
makes no finding upon them. Mr du Plessis was right to say so, and right to
say that on the papers as pleaded the review discloses no ground of review at
all.
[19] The Court nevertheless allowed the applicant, as an unrepresented litigant,
considerable latitude to explain his case at the hearing, and has considered
what he said. His case, put si mply, is that he did not want to resign, that he
was talked into it by being told that he would otherwise be dismissed and
would have a bad record, and that he signed because he is the breadwinner
in his household. He said that the Commissioner asked him whether a gun
had been held to his head and that he answered that it had not, ‘but they
talk[ed] me into resigning’ . The Court has treated that as the applicant’s
argument that the Commissioner’s conclusion that he was not dismissed is
wrong.
The test
[20] Whether an employee was dismissed is a jurisdictional fact. If there was no
dismissal, the CCMA had no jurisdiction to arbitrate, and a commissioner’s
finding on the question is not a matter of discretion or of reasonableness but
of correctness. The Labour Appeal Court so held in Solid Doors:
‘… the question whether the employee was constructively dismissed or not is
a jurisdictional fact that – even on review – must be established objectively.
That is so because if there was no constructive dismissal - the CCMA would
not have the jurisdiction to arbitrate.’3
2 [2021] ZALCJHB 196 at paras 20 to 21; Mtyala v Motor Industry Bargaining Council and Others
[2023] ZALCJHB 352 at para 12, citing Northam Platinum Ltd v Fganyago NO and Others [2009]
[2023] ZALCJHB 352 at para 12, citing Northam Platinum Ltd v Fganyago NO and Others [2009]
ZALCJHB 55. See also Mpe v Polokwane Local Municipality and Others [2024] ZALCJHB 426 at
paras 12 to 16.
3 Id fn 1 at para 29.
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[21] The Constitutional Court has recently confirmed the point in Maleka v Boyce
NO and Others (Maleka), holding that a finding that an employee has been
constructively dismissed is a matter of fact, and that ‘the test to be applied …
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’.
4 That is also the position on
jurisdictional rulings generally: a tribunal that is a creature of statute cannot
decide its own jurisdiction, and on review the question is whether, objectively,
the jurisdictional facts existed (South African Rugby Players Association and
Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v South African
Rugby Players Union and Another).
5
[22] The Court raised the point with Mr du Plessis, whose submissions had been
directed to the reasonableness standard in Sidumo . He did not contend
otherwise, and, as correctly anticipat ed, the standard makes no difference to
the result in this case. The Court has accordingly asked itself not whether the
Commissioner’s conclusion was one a reasonable commissioner could reach,
but whether it was correct.
[23] Three requirements must be established for a constructive dismissal under s
186(1)(e) of the LRA: the employee must have terminated the contract of
employment; the reason for the termination must be that continued
employment had become intolerable for the employee; and it must have been
the employer that made continued employment intolerable.
6 The threshold of
intolerability is a high one. Conduct which results in a difficult, unpleasant or
stressful situation for the employee is not enough; the employee must show
conduct that can objectively be construed as unendurable.
7
Was the Commissioner correct?
[24] The first requirement is met. The applicant wrote and signed the resignation.
4 [2026] ZACC 7; (2026) 47 ILJ 839 (CC); [2026] 6 BLLR 519 (CC); 2026 (5) BCLR 453 (CC) at paras
54 and 55.
5 [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC); (2008) 29 ILJ 2218 (LAC) at paras 39 to 41.
6 Solid Doors, id fn 1, at para 28.
7 Maleka, id fn 4, at paras 70 and 73.
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[25] The second and third are not, and the reason lies in the applicant’s own case.
The applicant did not leave the third respondent because his employment
there had become unendurable. On his own evidence, and on what he told
the Court, he wanted to keep his job. He had no warnings, he was happy
when he thought he had been given a twelve-month warning, and he said that
if they had wanted to dismiss him they should have done so. He left because,
having been found guilty at a disciplinary hearing on a charge which the
record shows was properly brought, he was given a choice between the
sanction that would follow and resignatio n coupled with immediate re-
employment in a group company on the same site and at the same rate of
pay, and he chose the latter. That is what the Commissioner found at
paragraph 16 of the award: the applicant ‘resigned on his own accord after
considering his options’.
[26] Mr du Plessis put the point in a way that the Court accepts. The applicant told
the Court that if he were disrespected at a workplace he would stay away and
look for other work; and he told the Court, emphatically, that he did not want
to leav e the third respondent. Both things cannot be true of an intolerable
workplace. An employee who wishes to remain has not been driven out.
[27] The applicant’s real complaint is different. It is that the choice he was given
was an unfair one; that he was told he would be dismissed and would have a
bad record; that the alternative offered to him was not what it was later made
out to be; and that he signed under the pressure of having a family to support.
The Court has sympathy for that complaint, but it is not a c omplaint of
constructive dismissal. An employer which, after a finding of guilt, tells an
employee what sanction is under consideration and offers him an alternative
to it does not thereby make his continued employment intolerable; it offers him
a way of avoiding the consequences of his own misconduct. The applicant
a way of avoiding the consequences of his own misconduct. The applicant
was free to decline the offer, to take the sanction and, had that sanction been
dismissal, to challenge its fairness before the CCMA on the strength of his
clean record and the nature of the misconduct. That, as the Court explained to
him at the hearing, is the case he might have had. By resigning he took a
different course, and the question before the Commissioner became whether
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he had been forced to do so. He had not. The pressure he describes is the
pressure of a hard choice honestly put, not the conduct, characterised by the
Constitutional Court as unendurable, that s 186(1)(e) requires.
[28] Neither of the two disputes of fact identified above alters that. If the applicant
is right that he was tol d on 13 January 2026 that he would receive a twelve-
month final written warning, and that the company reversed itself the next day
after speaking to the client, that goes to the fairness of the employer’s conduct
and not to whether the applicant’s employment had become intolerable; and
on either version the applicant was told, before he resigned, that the
alternative was dismissal or a warning and that re- employment in the group
was available to him. If he is right that he was not given two days to consider ,
the interval was still overnight, and he returned on 15 January 2026 and
signed a new contract of employment the same day. The Commissioner’s
conclusion that the applicant was not dismissed was, on the record, correct.
[29] The Court records two matters on which it makes no finding. The first is
whether a resignation tendered in answer to an election between resignation
and sanction, put after a finding of guilt, is properly analysed under s
186(1)(e) at all, or whether the termination in such a case is better
characterised as one at the instance of the employer. The second is where
the Commissioner, before closing argument, invited the applicant to speak to
him alone again, and proposed to do so after going off the record. Neither
matter was pleaded, neither was argued, and neither party was asked to
address them. The Court raises neither of its own motion, because the
applicant confined his case at the hearing to his founding papers and the third
respondent was entitled to meet that case and no other. Nothing in this
judgment should be read as a view on either.
Conclusion
[30] On the papers as pleaded the review discloses no ground of review. On the
Conclusion
[30] On the papers as pleaded the review discloses no ground of review. On the
case the applicant put at the hearing, the Commissioner’s finding that the
applicant was not dismissed was correct. The application must be dismissed.
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Costs
[31] The third respondent seeks costs against an unrepresented cleaner who
earned about R7 100 a month and who is, on his own account, now
unemployed. It cites Zungu v Premier of the Province of KwaZulu- Natal and
Others8 and Long v South African Breweries (Pty) Ltd and Others 9 correctly
and submits that a costs order is nevertheless warranted. Mr du Plessis
added that the third respondent was put to the expense of preparing to meet
the supplementary document, which the applicant declined to withdraw when
asked. That is so, and the Court has taken it into account. Section 162 of the
LRA requires the Court to have regard to the requirements of the law and of
fairness. The applicant is a lay litigant who has lost his employmen t, who
pursued a case that the CCMA told him to bring, and whose document of 28
August 2026 was the product of ignorance of the rules rather than of any
design to burden the third respondent. It is difficult to see what fairness would
be served by a costs order against him, and there will be none.
[32] In the result, the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
________________________
C de Kock
Acting Judge of the Labour Court of South Africa
8 (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); [2018] ZACC 1 at para 24.
9 (2019) 40 ILJ 965 (CC); [2019] 6 BLLR 515 (CC); [2019] ZACC 7 at para 29.
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Appearances:
For the Applicant: In person
For the Third Respondent: D du Plessis
Instructed by: JJ Jacobs Attorneys Inc