JULY 9, 2020

The Labour Court recently handed down a judgment that reads a little like a novel.

The facts in Centre for Autism Research and Education CC v CCMA (JR 1619/2018, handed down on 19 June 2020) per Van Niekerk J, were briefly that Ms Rozanna Riback (“Riback”),  the sole member and director of the institution, which operates as an independent school catering for learners affected by autism spectrum disorder, had employed the two respondents as special needs teachers.

The evidence showed that the “facts in dispute”, as recorded in the pre-arbitration minute, in essence reflected the conduct to which the employees were subjected:

“… imposing unreasonable and in some instances unlawful demands on the applicants, use of abusive and offensive language when dealing with the applicants, sexual innuendos, sexual harassment, sexual orientation discrimination, making of disparaging and derogatory remarks, undermining and belittling the applicants, embarrassing and humiliating conduct toward both applicants, and impairment of the applicants’ constitutional right to dignity. This conduct was in front of the respective applicants’ and/or their work colleagues and/or in public places.” [37]

Quoting at length from the evidence given by the employees in respect of these allegations, the court found that none of these allegations “were seriously contested in cross-examination” and therefore “the objective assessment of the intolerability of continued employment must be made on the basis of the undisputed version of the employees” [38].

The court held that it wasn’t a legal principle that an employee must lodge a grievance before resigning in order to claim constructive dismissal. Instead, the finder of fact must look at the employer’s conduct as a whole by taking all relevant facts and circumstances into account, when determining whether the employee could not be expected “to put up with it”.

The court consequently held that the importance of the need to exhaust a grievance procedure prior to resigning as a last resort – as highlighted in a number of earlier judgments – did not constitute an inflexible rule.  If, however, there was a channel through which the employee could have raised a grievance:

“the employee should generally be expected to have done so. Where those channels are ineffective or where on the facts it would be futile for the employee to resort to a grievance procedure, an employee is not necessarily precluded from claiming constructive dismissal. What is required is an examination of all relevant facts, and a determination of what was reasonable in the circumstances” [35].

In this matter the employees would have been required to have lodged a grievance to Riback at whose hands they suffered the intolerable conduct. The court accepted the fourth respondent’s evidence at arbitration that Riback became “bored and disengaged” when issues were raised with her, while the third respondent testified that it was not possible to show a narcissistic person that he was unhappy because he was of the view that “the second they noticed that they will attack you and break you down”.

Based on the evidence from both the respondents who were found to have been honest, reliable witnesses, the court reached the following conclusion:

[45]      “In short, what the evidence discloses is a workplace operated by a narcissistic personality whose offensive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behaviour became the norm. I have no hesitation in finding that the nature and extent of the workplace bullying suffered by the third and fourth respondents was such that for the purposes of s 186 (1) (e) of the LRA, their continued employment was rendered intolerable.”

The importance of this judgment:  In effect the test is wider than determining whether the employer was made aware and given an opportunity to address the intolerable situation.  The court provided the following guideline:

“As I have indicated, this is an assessment that must be made from the perspective of a reasonable person in the shoes of the employees.” [36]

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