Constructive dismissal onus: Not discharged by employee

2 Comments

1. 

   GilesFiles on July 7, 2015 at 3:10 pm

   Extracts from latest Comment on IR Network by Prof Darcy du Toit Appeal in the guise of review? Published online by LexisNexis [subscription required]

   Despite this, ill-founded jurisdictional challenges have continued to bedevil the courts. Generally these could be disposed of in light of the clarity created by Gcaba and McKenzie 2010 19 SCA 1.11.1 (see, e.g., Weekly Comment, 12 June 2015). But in Conti Print CC v CCMA & others (Case no: JA 53/2014, 24 June 2015), faced with a claim of constructive dismissal, the Labour Appeal Court addressed the issue of jurisdiction in a manner that appears to contradict McKenzie and revive some of the previous uncertainty.

   The facts were relatively straightforward. The employee had complained about the air conditioning in the workplace and claimed that it was impairing her health. The employer offered to move her to a different work station while taking action to remedy the situation. Despite this, the employee resigned and claimed constructive dismissal (i.e., that the employer had made continued employment “intolerable”). Her claim was successful and, on review, the Labour Court upheld the award in her favour.

   The Labour Appeal Court took a different view. In essence, it found that both the CCMA and the Labour Court had seriously misconstrued the evidence and that the award had been “fatally flawed” (para 24). The Labour Court’s judgment upholding it was accordingly set aside.
   . . . .

   It is noteworthy that both the Solid Doors and SARPA cases were decided well before the judgment of the Constitutional Court in Gcaba and that of the Supreme Court of Appeal in McKenzie. For the sake of completeness it may be noted that the Constitution Seventeenth Amendment Act of 2012, restoring the Labour Appeal Court to a status equal to that of the Supreme Court of Appeal, only took effect in August 2013. At the time of the McKenzie judgment an appeal still lay from the Labour Appeal Court to the Supreme Court of Appeal. To the extent that Solid Doors laid down a concept of jurisdiction different from that in Gcaba and McKenzie, it was effectively overruled by both (as well as by the judgment in Mbatha v University of Zululand 2014 (2) BCLR 123 (CC)).

   What, then, the significance of the Conti Print judgment, basing itself on the Solid Doors judgment without reference to McKenzie or Gcaba? Can it re-establish a rule that the jurisdiction of the CCMA in constructive dismissal cases depends not on the pleaded claim but on the applicant’s success in proving the merits?

2. 

   GilesFiles on August 6, 2015 at 9:34 am

   Reported with headnote:
   [2015] 9 BLLR 865 (LAC)
   Dismissal – Constructive – Employee resigning after complaining of chill caused by air conditioning – Constructive dismissal not proved because employer immediately offered to address complaint – Dismissal not proved.