N v Ntabeni NO

(PR33/16) [2017] 5 BLLR 521; [2017] ZALCPE 6 ; (2017) ILJ 1686 (24 February 2017) per Steenkamp J.

On review the LC declined to set aside an award in which it was held that jurisdiction was lacking because there was no ‘dismissal’.  A big-game professional hunter’s wife had an affair with his business partner and ’employer’.  The hunter’s resignation was voluntary  and he was not ‘constructively dismissed’ because it was not directly related to that intimate relationship.  So the hunter failed to prove the necessary link between his resignation and any conduct on the part of the employer that made an ongoing employment relationship intolerable.

Excerpts

Introduction

[1]   This is a tale of white mischief in the farming community of the Eastern Cape. BN is a professional hunter.  He was employed by GH (the third respondent) on the appropriately named Wildschutsberg[1].  He got married to G.  She had an affair with GH.  It lasted for some years.  N eventually resigned.  He claimed constructive dismissal and referred a dispute to the CCMA.[2] The arbitrator (the first respondent) found that N had failed to prove constructive dismissal.  He then applied to this Court to have the award reviewed and set aside.

. . . . .

[14]   N referred a dispute to the CCMA, alleging a constructive dismissal as contemplated by s 186(1)(e) of the LRA. The arbitrator found that he had not discharged the onus to show that he had been dismissed.

Grounds of review

[15]   The review application rests on two grounds:

15.1   The arbitrator failed to have regard to the applicant’s heads of argument.

15.2   The arbitrator wrongly concluded that N had failed to prove constructive dismissal. He should have found that N had been dismissed, and that the dismissal was unfair.

[16]   The applicant further asks for declaratory relief in the following terms:

“2   Declaring that the applicant was constructively dismissed by the third respondent.

3   Declaring that the applicant is entitled to payment in the sum of R211 920, 00, together with interest at the legal rate from date of dismissal to date of final payment, together with the costs of the arbitration, such costs to be on the high court scale, including the travelling costs of the applicant’s legal representatives and accommodation costs in Queenstown”.

[17]   The amount in paragraph 3 of the notice of motion is calculated on the basis of 12 months’ remuneration; and the Queenstown costs relate to the arbitration that was held there.

Evaluation

Constructive dismissal

[20]   In terms of s 186(1)(e) of the LRA, ‘dismissal’ means, amongst other things, that –

“an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”.

[21]   The test, as set out in numerous decisions of this Court and of the Constitutional Court[1], can be summarised as follows – N must show that:

  • He terminated the employment relationship (that much is common cause, even though he didn’t sign a resignation letter);
  • when he did so, the employment relationship had become so intolerable that he could not reasonably be expected to put up with it;
  • the conditions or events of which he complained were the main cause of his decision to terminate the relationship;
  • H’s conduct brought about the situation that made his continued employment intolerable;
  • H was to blame for the conditions that drove N to terminate the relationship.

[22]   The test is a two stage one. If the employee succeeds in showing that there was a dismissal, it remains for the employer to show that it was fair.

. . . . .

[28]   N has not shown that the sole reason he left was because H had made a continued employment relationship intolerable. He had another reason to leave – his “bigger thinking” with Thaba Thala.  And H was not solely responsible for the situation in which the protagonists found themselves – N’s wife was at least as blameworthy.

[29]   Were it not for the affair, N says, he would have continued working for H. But he knew about the affair in 2013 and continued the employment relationship for another two years.  He had forgiven both G and H.  And when he left in July 2015 he did not mention the affair as a reason for the “parting of the ways”.  Instead, he left only to take up employment with a competitor within a month.

[30]   N has not shown that H caused the employment relationship to become intolerable. Neither did he alert H to that allegation.  He simply left on 14 July 2015, only to take up employment with a competitor – something that he had arranged with O some time before – within days.

Conclusion

[31]   The employee was not constructively dismissed within the meaning of section 186(1)(e).

[32]   With regard to costs, I take into account that the applicant has been successful in prayer 1 but unsuccessful in prayers 2 and 3 of his notice of motion. In law and fairness[1] I do not think that a costs award is warranted.