Uncertainty exists as to what legal test a review Court must apply when considering an arbitration award dealing with a constructive dismissal. Litigants show a growing tendency to hang all reviews on the Sidumo1 test for reasonableness. This is not correct.
The Labour Court and the Labour Appeal Court (“LAC”) have consistently applied a correctness test in reviews of constructive dismissal awards. The LAC has held that the question of whether an employee was constructively dismissed concerns a determination of a jurisdictional fact which must be established objectively.2 Therefore, the reviewing court need not concern itself with the arbitrator’s reasoning, the Court must determine whether the employee in question was, in fact, constructively dismissed.
The fundamental requirements that must be established to prove constructive dismissal were set out by the Labour Appeal Court in Solid Doors:
“… It should be clear from the above that there are three requirements for constructive dismissal to be established. 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 these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established…There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace or for a certain company and that is not due to any conduct on the part of the employer.”3
In our view, the Court must, inter alia, consider the mindset of the employee at the time that they resigned when assessing whether a constructive dismissal took place. The Labour Appeal Court in Pretoria Society for the Care of the Retarded v Loots4 held that:
“When an employee resigns or terminates the contract as a result of constructive dismissal such an employee is in fact indicating that the situation has become unbearable that the employee cannot fulfil what is the employee’s most important function, namely to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.”
Recently, in Sanlam Life Insurance Limited v Mogomatsi and Others,5 the Labour Appeal Court explained that:
“The 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 reasonably be expected to cope with it.”
Finally, the determination of whether there was intolerability is gauged from an objective standard. In Mafomane v Rustenburg Platinum Mines,6 the Labour Court held:
“…The conclusion that the question whether the employee’s continued employment has become intolerable in that he or she cannot “reasonably” be required to endure it, must be made from the perspective of a reasonable person in the shoes of the employee, obviously does not mean that the employee’s own views must prevail. The test remains an objective one. The assessment must be made from the perspective of a reasonable person in the shoes of the employee, that is, from the perspective of a reasonable person with the same background, life experience and position.”
Whilst the test for review on constructive dismissals is trite and settled in law, it seems litigants instead still apply the reasonableness test which can be fatal in a review application.
In setting out the grounds for review on these awards, the reasoning of the Commissioner does not play a major role. However, the primary enquiry is whether the decision is correct or not. Therefore, an incorrect decision can never result in a reasonable outcome, hence the enquiry stops at correctness.
Review applications of this nature and unique and require specialist legal guidance. We urge our clients to contact us before issuing review applications to ensure the correct legal standards are applied.
1 Sidumo and another v Rustenburg Platinum Mines Ltd and Others (2007) 12 BLLR 1097 (CC).
2 Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) at para 29.
3 Ibid note 2 at para 29.
4 (1997) 18 ILJ 981 (LAC) at 984D-G.
5 (2023) 44 ILJ 2516 (LAC) at 2517I-J.
6 (2003) 10 BLLR 999 at para 49
