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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on misconduct outside the workplace, discussing when the employer can justifiably take action. We also look at two new cases: the first deals with procedural fairness in cases of desertion or abscondment. The second looks at what an employee must establish to show constructive dismissal.

This public newsletter is a free edited version of the Worklaw subscriber newsletter.


Procedural fairness for abscondment

Consider these facts:  On 8 August 2008 the employee together with two other employees flew to Cape Town on business. According to the employer the employee was supposed to be in Cape Town until the 12 August 2008, and thereafter fly to East London on further business.  The employee disputed that she had to go to East London and contended that she had to fly home because her child was sick.

The employee reported for duty only after she was telephonically contacted on 25 August 2008. The employee was again telephonically contacted by the employer on the 2 September 2008, to enquire about her continued absenteeism. After this telephone enquiry the employee reported for duty immediately. 

Does this period away from work justify a summary dismissal – without an enquiry?

The employee referred an unfair dismissal dispute to the CCMA. The commissioner accepted that the termination of employment was because the employee had absconded from work. The commissioner found the dismissal to have been substantively fair but procedurally unfair.

Taking the matter on review to the Labour Court (Jammin Retail (Pty) Ltd and Mokwane (LC Case no JR 2784/08)) the employer contended that the commissioner failed to comprehend or apply his mind to the concept of abscondment. It was further contended that the commissioner failed to take into account a clause of the contract of employment which expressly stated that staying away from work for a period of more than five consecutive working days without informing your superior amounts to abscondment and that the employment contract would be automatically terminated.

The Labour Court said that the standard for procedural fairness in cases of abscondment / desertion was as follows: Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule (ie hear the other side) before the employer can take the decision to dismiss the employee for his absence from work or for his failure to report for duty.

This case reminds us that attempts to create a situation of “automatic self-dismissal” through the term of a contract will not prevail over the requirement for a fair hearing. An employer must, even in cases of abscondment, be able to show that a dismissal was effected after following a fair procedure and for a fair reason

The court did however distinguish the case from the provisions of section 14 of the Employment of Educator’s Act 76 of 1998, which provides that an educator is deemed to be dismissed after being absent from work without the employer’s permission for at least 14 consecutive days. It seems to us that in that case, the educator’s contract terminates by operation of law as a result of the wording of the legislation, as opposed to terminating because of the contractual terms of employment.

Establishing constructive dismissal

It is a common problem: an employee is assessed poorly in internal performance assessment reviews and feels that the employer is making things intolerable for her / him. At what point would resignation constitute ‘constructive dismissal’?

The facts of Nedcor Bank Limited v Harris (LC Case NO: JR927/01) are as follows: The employee resigned his employment in circumstances which he alleged constituted constructive dismissal. The resignation arose from his dissatisfaction with his immediate superior, Mrs Schroeder, and in particular centered on the implementation of a performance improvement program (the PIP).

The problem between the two seems to have started with the low performance rating which Mrs Schoeder gave to Mr Harris. Because of this, he instituted grievance proceedings against Mrs Schoeder. Being unhappy with the outcome of the grievance process, the employee requested a transfer to another branch. Soon after transferring to the Randburg branch his senior resigned and was replaced by Mrs Schoeder. According to him, immediately on resumption of duties at Randburg, Mrs Schoeder changed the system and added more responsibilities to his job description. She also raised the targets which he had to meet per month to R5 million. The added responsibilities were time consuming and had a negative influence on him reaching those targets. He complained that Mrs Schoeder placed him on the PIP and gave him a rating of 1 (one).

The employee then lodged another grievance against Mrs Schoeder which was referred to the internal ombudsman for adjudication. The ombudsman found the conduct of Mrs Schoeder to be unfair and unjust. It seems the employee was not satisfied with the decision of the ombudsman and referred the matter to arbitration which found that there was nothing unfair about the conduct of Mrs Schoeder.  The employee, being unhappy with the outcome of the arbitration award, requested another transfer. He was then transferred to Edgardale, but on his arrival there he found Mrs Schoeder waiting for him! She insisted that his immediate supervisor should place him on the PIP program, which resulted in tension developing between the two of them.

It was for this reason that the employee resigned and thereafter referred a constructive dismissal dispute to the CCMA. The commissioner found the dismissal to have been unfair and ordered reinstatement.

On review the Labour Court held that the commissioner failed to determine whether the conditions at the workplace, at the time of the resignation of the employee, were so intolerable that he had no option but to resign. The commissioner in assessing the reason for the resignation did not do so in the context of evaluating the conditions that prevailed at the workplace at the time the employee submitted his resignation but rather applied what may be referred to as the “perception of real risk to the continued employment.” This, the Court said, is not the test for determining constructive dismissal.

This case reminds us of the established principles for constructive dismissal. Drawing from this case, we have summarized them below:

In cases where an employee alleges constructive dismissal, the test is 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 the employer and employee. 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 is such that the employee cannot be expected to put up with it.

Secondly, the objective assessment of the employer’s conduct that may have made the continued employment intolerable has to be assessed in its totality and not piece meal.

Thirdly, the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstance must have been of the employer's making. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do, that may make an employee's position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions. The conduct must have lacked reasonable and proper cause.

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Bruce Robertson
February 2010
Copyright: Worklaw