An employee resigned from work after a series of incidents, including being issued an ultimatum requiring him to either apologise to another employee or resign. During the arbitration proceedings, it was never argued that he suffered from a mental illness and that the employer was insensitive in this regard. The CCMA decided in the employer’s favour, whereafter the employee launched a review application. The Labour Court found in favour of the employee and the matter was taken on appeal with leave by the court a quo. The Labour Appeal Court ordered that the review application be set aside as the court a quo erred in finding in favour of the employee. The employee failed to prove at the arbitration hearing that the employer knew or ought to have known about the employee’s mental health condition.

Sanlam Life Insurance Limited v Mogomatsi and Others (CA12/2022) [2023] ZALAC 15 (17 August 2023)

Case summary

The employee, Mr Mogomatsi, was appointed at Santam Life Insurance Limited (“the employer”) as a Senior Penetration Tester: IT Infrastructure Shared Services. He was one of the ethical hackers who regularly tested the information technology systems of the employer and allied companies for safety breaches in order to prevent them from being hacked.

After a series of events, the employee resigned on 30 May 2019 and referred a constructive dismissal dispute to the CCMA. The commissioner had regard to all the incidents that the employee had referenced as the reason why he was of the view that the employer made continued employment intolerable. The commissioner found that the employee failed to prove that he was constructively dismissed and ruled that he had resigned.

The employee applied to the Labour Court (“the LC”) to review the arbitration award. In the employee’s founding affidavit, he alleged that the commissioner failed to consider relevant evidence. He stated that she failed to consider that he was given an ultimatum to apologise to his colleague or resign, and that he was mentally ill at the time of his resignation. The LC found in favour of the employee and, therefore, reviewed and set aside the arbitration award. The LC, moreover, found that the employee was constructively dismissed by the employer and ordered the latter to pay the former compensation in an amount equal to 4 months’ salary. The LC found that no weight was given to the employee’s mental health during the arbitration. It found that although the employer attempted to show that the employee’s conduct was unacceptable since October 2018, no mention was made of the employee’s anxiety and depression. The employer was dissatisfied with the decision and approached the Labour Appeal Court (“the LAC”).

The employer argued that the employee’s mental health issue was not brought before the commissioner and that the LC, therefore, erred in deciding the matter on that basis. It also contended that the employer was never called upon to meet a case of constructive dismissal based on the employer having made the employment relationship intolerable by not treating the employee with the necessary sensitivity.

The employee contended that the court a quo decided the matter on the correct basis. He pointed out that he submitted a medical certificate, after his resignation, which stated that he resigned because he suffered from stress. He, therefore, supported the reasoning and conclusion of the court a quo.

The LAC confirmed that in constructive dismissal disputes, a two-stage approach is followed. First, the employee must prove that the employer dismissed him or her by making his or her 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. Second, after the dismissal had been established, the court will then evaluate whether the dismissal was unfair. The two stages may overlap and be interrelated. The LAC agreed with the LC that mental ill health may be a justifiable reason to terminate an employment relationship, provided it is done fairly. However, that point was considered irrelevant for the present purposes. In this case, the dispute was not related to an unfair dismissal in the conventional sense, relating to conduct or capacity, but a constructive dismissal. In a case where the employee claims constructive dismissal based on psychiatric ill health, the employee must subsequently prove that the employer was aware or ought to have been aware of the employee’s psychiatric ill health.

During the arbitration proceedings, the employee did not mention his mental health condition as the reason for his resignation, neither did he mention the employer’s actions as exacerbating his condition. It was only in the review application that he mentioned his mental health condition led to his resignation.

The LAC held that the LC misdirected itself when it adjudicated the review based on evidence that was not before the commissioner. There was insufficient evidence to conclude that the employer made continued employment intolerable. The LC erred in finding that there was a constructive dismissal. The LC lost sight of the fact that the onus on an employee to prove a constructive dismissal is heavy. The LAC held that an employee should not be allowed to rely on the fact that certain rules, which apply to all employees, frustrate, irritate or do not suit him or her as the basis for a claim of constructive dismissal.

The appeal succeeded, the LC court order was set aside and the review application was, therefore, dismissed.

Submitted by Labour Guide