Public Newsletter
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'Quiet quitting, quiet firing' in light of a new trend. We also discuss three new judgments: The first case, a LAC decision, reconsiders what 'intolerability' means to prevent an order of reinstatement. The second case requires negligence to be assessed in the specific context of the case. In the third case the court had to decide if fear of Covid infection justified miners in claiming the right to leave the workplace in terms of s 23(1) of the Mine Health and Safety Act.
RECENT CASES
How intolerable must intolerable be?
Section 193(2) of the LRA confirms reinstatement or re-employment as the primary remedies for unfair dismissal unless certain specified circumstances exist, one of which is that "a continued employment relationship would be intolerable". In CCI Call Centres (Pty) Ltd v Pinn (DA7/2024) [2025] ZALAC 24 (17 April 2025) the LAC clarified the meaning of 'intolerability' for the purposes of refusing reinstatement in the case of an unfair dismissal.
The employee, a management accountant, refused to do parts of his job after some unhappiness at not having been granted a salary increase and bonus. He was suspended and charged with gross insubordination, gross insolence and inappropriate workplace conduct, and was dismissed.
At the CCMA, the arbitrator weighed up the length of service of the employee, the harm or potential harm that could have arisen out of his actions and the circumstances of the misconduct, and held that dismissal was too harsh. A significant factor appeared to be confusion surrounding the employee's job description, and that he had refused to do certain work based on what he perceived to be no longer part of his duties. But the arbitrator held that it was not prudent to reinstate the employee because the relationship between the employee and his senior had broken down completely, and awarded the employee one month's compensation.
On review the Labour Court came to a different conclusion, finding that there was insufficient evidence to demonstrate any irretrievable breakdown of the employment relationship, as it had interpreted the employee's direct superior's evidence to mean that he could still work with him. The Labour Court went on to find that in the absence of the exceptions listed in section 193(2) of the LRA, the arbitrator had no discretion but to reinstate the employee, and that the award of one month's compensation 'induced a sense of shock and was unjustifiable'. The arbitrator's award was thus set aside and substituted with an award of reinstatement, with full retrospective effect.
The matter was taken on appeal to the Labour Appeal Court.
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How should we assess negligence?
In Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025) the court had to decide whether negligence should be assessed in a vacuum, or against the general standard of a 'reasonable person', or in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer.
The employer is a short-term insurance broker and financial services provider regulated by the Financial Advisory and Intermediary Services Act (FAIS Act). The employee, a Wealth Insurance Manager, had been employed in various positions since 2004, and reported directly to the Senior Manager of Insurance Wealth Insure.
Because the position of Wealth Manager is classified as a FAIS Representative, the employee had a statutory obligation to comply with the FAIS requirements relating to all aspects of her responsibility, and FAIS Representative employees are not permitted by law to delegate their obligations to their colleagues or anyone else. One of the key duties of a FAIS Representative is to manage annual renewals of insurance policies where the premium is likely to be adjusted. The failure to adhere to the FAIS Requirements has serious implications for the employer.
The employer discovered that the employee had in several cases failed to action renewals within the two months after the system triggered an alert for her to commence the renewal process. Further investigation yielded further breaches, in the form of failing to keep records of advice and providing clients with incorrect advice. She was charged and found guilty with negligence, and was dismissed.
At the CCMA the commissioner found that the dismissal was substantively unfair, deciding what he personally believed would be fair when it came to the sanction of dismissal, but not considering whether what the employer did was fair. The employee was reinstated with back pay of R176 044.
The employer launched a review application in the Labour Court.
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Stopping work because of serious danger to health or safety
Section 23(1) of the Mine Health and Safety Act provides that an employee has the right to leave a workplace, if circumstances arise that appear to the employee to provide reasonable justification of a serious danger to the employee's health and safety. In Association of Mineworkers and Construction Union obo Maroga and 38 Others v Eastern Chrome Mines (Samancor Ltd) (JS857/20) [2025] ZALCJHB 153 (23 April 2025) the Labour Court had to decide if fear of Covid infection justified miners from claiming the right to leave the workplace in terms of s 23(1).
The employer operates several underground mines. On 21 July, the morning shift of approximately 800 employees refused to go underground because the shop stewards informed them that there had been a number of recent Covid infections at the mine. They did not invoke the employer's grievance procedures, or the procedure applicable to a withdrawal of labour contemplated in section 23(1) of the MHSA.
The Union met with management and complained about management's poor communication relating to infections, and requested that management test the entire shift. When no agreement was reached, management issued an ultimatum during the morning of 22 July. The ultimatum advised that a final written warning had been issued to the entire shift, and management required all employees to report to their work stations with immediate effect failing which drastic steps would be taken, which could include dismissal.
On 23 July, by 09h00, after being urged to do so by the Union, the majority of the shift went underground, but approximately 40 employees refused to do so. They were escorted off the mine by security, and informed of their dismissal by SMS.
The Labour Court found that the dismissals were unfair and reinstated the dismissed employees.
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ARTICLE: 'Quiet quitting, quiet firing'
By Prof Alan Rycroft
Employment law exists to regulate key aspects of the employment relationship, but it cannot easily regulate attitudes - of employees to their work, and of employers to their employees. It is in this gap that the workplace disengagement trends of 'quiet quitting and quiet firing' have been noticed.See for example https://www.youtube.com/watch?v=0Cy1bxJkmNw
Quiet resignation, also known as silent quitting or quiet quitting, is a phenomenon where employees disengage from their work without explicitly resigning or expressing dissatisfaction. It involves reducing effort and engagement, often staying within the bounds of their job description but not going above and beyond. This can lead to decreased productivity, morale, and overall performance.
One reaction by managers to noticing an employee who has chosen quiet quitting is to react with quiet firing. This can be robust, actively making working conditions difficult to force the employee to resign. Because of the danger of provoking a constructive dismissal, managers can be more subtle and simply choose not to invest time, resources or opportunities for the employee, encouraging them to leave without firing them outright.
Alan Rycroft's article has 3 aims: The first aim is to suggest that effective performance management can help to draw a Quiet Quitter back into engagement with the employer's strategies and purpose. The second aim is to alert managers, disgruntled by a Quiet Quitter, that to go the route of Quiet Firing has perils - mainly because of a potential constructive dismissal dispute. The third aim is to draw the strict requirements of a constructive dismissal to the attention of employees who feel pushed into quitting, maybe not so quietly.
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Bruce Robertson
July 2025
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