In the recent judgment of Gold One Limited v Madalani and Others , the Labour Court confirmed that intolerability is a high threshold in constructive dismissal matters.
The Court held that, “Intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions”.
In this matter, the employee was employed by Gold One on 1 January 2013 and held the position of a Contract Manager at Constantia Park, until she was transferred to a different province. The transfer entailed that the employment conditions were not affected. The employee further received a relocation allowance.
Subsequent to the transfer, the employee’s direct supervisor became aware that the employee would normally leave the premises during lunch times. Having investigated the employees clocking history, it was ascertained that the employee was not clocking out when leaving the premises during the day, and arrived late to work on various occasions, thus failing to adhere to the employer’s policy on time-keeping. The employee was issued with a verbal warning for poor time-keeping.
The employee’s direct supervisor later requested the employee to participate in a formal counselling session. After the session, there was an exchange of correspondence between the employee and supervisor. The employee viewed the counselling session as a charade and a clear attempt to make the employee's continued employment intolerable.
The employee then elected not to report for duty and referred an unfair dismissal dispute to the CCMA claiming constructive dismissal.
Key legal principles
The Labour Court restated a number of key legal principles on constructive dismissal. The court said that there are three requirements for constructive dismissal to be established and they are that: “The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who made continued employment intolerable.”
All three requirements must be present if one is absent constructive dismissal is not established.
Further, the test for constructive dismissal is an objective one and as such the evidence must show that the conduct of the employer towards the employee, viewed objectively, is such that the employee could not reasonably be expected to cope with. Resignation must be a reasonable step for the employee considering the circumstances of the matter.
The Court held that, “It is well-accepted that intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious rude and uncompromising superior who may treat employees badly…intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.”
On the facts of this matter, the Labour Court found that the employee failed to show that the employer was to blame for making her continued employment intolerable. The employee had suitable alternative remedies and mechanisms that were available to her to resolve the cause of her resignation and circumvented the process that was meant to address the complaints.
The employee thus failed to show that the employment relationship had become so intolerable that she had no other reasonable option other than to resign.
It does not assist an employee to unjustly claim constructive dismissal where such an employee has suitable available alternatives to resolve the cause of the intolerability, before resorting to resignation.
Intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.
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