The Labour Appeal Court has reminded litigants of the heavy burden of proof that employees face when alleging constructive dismissal and the necessity of placing relevant information before both employers (internally) and commissioners (at arbitration).
Briefly, Mr Mogomatsi, a former Sanlam employee, resigned on 30 May 2019 and then referred a constructive dismissal dispute to the CCMA.
At the arbitration, Mr Mogomatsi gave evidence concerning a number of events over the period from December 2018 to May 2019 which he argued gave rise to his alleged constructive dismissal. These events included a poor KPI assessment, being overlooked for a conference in Las Vegas, being issued with a final written warning and being accused of not being a team player.
Crucially, during the arbitration, Mr Mogomatsi did not mention his mental health as the reason for his resignation. He also suggested that the employer’s actions had exacerbated his condition. The Commissioner ultimately found that Mr Mogomatsi had failed to prove constructive dismissal and that he had resigned.
Mr Mogomatsi subsequently brought an application for review to the Labour Court. The Court set aside the Commissioner’s decision finding that the Company’s actions had made the employment relationship intolerable because of its impact on his mental health. Mr Mogomatsi was awarded 4 months’ salary as compensation.
Sanlam approached the Labour Appeal Court on the basis that Mr Mogomatsi’s mental ill health was not put before the Commissioner and that the Labour Court erred in deciding the matter on that basis.
The Labour Appeal Court confirmed that constructive dismissal arises when an employee terminates employment because the employer made continued employment intolerable. The court referred to the case of Murray V Minister of Defence [2008] ZASCA 44 where the SCA had re-iterated that the mere fact that an employee subjectively finds the situation intolerable is insufficient and the employer must be blameworthy in some way.
The LAC noted that mental ill health may be a justified reason to terminate employment, when dealing with constructive dismissal cases the facts must point to the employer being aware (or that the employer ought to have been aware) of the mental distress of the employee.
The Labour Appeal Court found that although Mr Mogomatsi had suffered stress or depression during October 2018, he had not disclosed his condition to his employer. He also did not inform his employer of his mental condition as a reason for his resignation nor did he allege conduct on the employer’s part which exacerbated it.
Ultimately the Labour Appeal Court held that the Labour Court had misdirected itself when it determined the review based on the evidence that was not before the Commissioner. In any event, there was insufficient evidence to conclude that the employer had made continued employment intolerable.
The Labour Appeal Court noted that the court a quo had lost sight of the heavy onus on the employee claiming constructive dismissal. Parties should consider specialist legal advice before resorting to such claims (if possible before resigning).
