I can’t stand it anymore!

1. I can’t stand it anymore! The intolerable relationship and constructive dismissal Judge Anton Steenkamp

2. Constructive dismissal Codified in LRA s 186(1)(e): “Dismissal means that – an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

3. Elements • Termination by employee ie resignation • Reason: Employer made relationship intolerable

5. What is ‘intolerable’? • Cf Thompson & Benjamin AA1-408: • “…indicates a significant breakdown in the employment relationship… • It means that the employee could not continue to endure the employment relationship.”

6. Test for constructive dismissal • Pretoria Society for the care of the retarded v Loots (1997) 18 ILJ 981 (LAC) 985 A-B: • “…whether the [employer], without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

7. Pretoria Society for the care of the retarded v Loots • “It is not necessary to show that the employer intended any repudiation of a contract: the court’s function is to look at the employer’s conduct as a whole and determine whether … its effect, judged reasonably and sensibly is such that the employee cannot be expected to put up with it.”

8. Constitutional Court • Strategic Liquor Services v Mvumbi NO & others (2009) 30 ILJ 1526 (CC) para [4]: • test does not require that employee has no choice but to resign, but only that employer should have made continued employment intolerable

9. You asked for it?! • Eagleton v You Asked Services (Pty) Ltd (2009) 30 ILJ 320 (LC) para [22]: • Three requirements: • Employee terminated the contract • Continued employment intolerable for employee • Employer made it intolerable.

10. Murray v Min of Defence(2008) 29 ILJ 1369 (SCA) • Mere fact that employee resigns because work is intolerable not sufficient • Employer may have no control over conditions • Even if responsible, employer may not be to blame • Employer must be culpably responsible • Conduct must have lacked ‘reasonable and proper cause.’

11. examples • Bullying or humiliating treatment • Failure to resolve grievances • Unsafe working environment • Isolating the employee / not giving work

12. Two stage process • Employee must prove ‘dismissal’ • That in itself does not make it unfair and lead to compensation • Court must still consider if dismissal, if proven, was unfair • [Eagleton v You Asked]

13. Withdrawing resignation • Value Logistics Ltd v Basson & others [C 1025/09, 26 May 2011] • Employee resigns after telephonic altercation • 5 days later attempts to withdraw resignation • Was relationship intolerable?

14. Value Logistics Ltd v Basson • “…irrational decision to rather resign.” • “withdraw my resignation and be afforded the opportunity … to again be able to make a difference.” • “Maybe I must go back and … try and sit and talk around the table.”

15. Value Logistics Ltd v Basson • Willingness to reconsider; • Employee’s view that situation could be remedied; • In my view not intolerable.

16. Intolerable relationship • Converse applies in dismissal cases – trust broken down – intolerable relationship caused by employee’s conduct • Relationship can be less than ideal, yet tolerable • Rycroft: ‘tolerable’ v ‘functional’ employment relationship

17. Intolerable for employer • Breakdown of trust • Incompatibility • Serious misconduct / gross negligence • Gross insubordination • Incapacity • criminality

18. Intolerable for employee • Victimisation, bullying, humiliating treatment • Capricious behaviour • Failure to resolve grievances • Unsafe working environment • Isolating the employee / no work • No payment • Whistleblowers ignored

19. Conclusion • Test remains objective • Fact specific and dependant on evidence • High threshold for employee

20. Conclusion • Mostert J on resignation from the bench: • “My life as a judge has become intolerable” after Information Scandal events.