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Caselaw Review: Aarons v University of Stellenbosch Waglay, J in the Labour Court, July 2003

Aarons v University of Stellenbosch Waglay, J in the Labour Court, July 2003, unreported

This case concerns two issues: constructive dismissal and unfair discrimination

>> A claim by the employee that her constructive dismissal constituted an automatically unfair dismissal in terms of section 187 of the Labour Relations Act, 66 of 1995 (the LRA)

>> The employer contended that the employee had failed to make sufficient averments in her statement of claim to support her allegation of unfair discrimination.

Section 186(1)(e) of the LRA defines constructive dismissal as a dismissal where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee."

An employee bears the onus of establishing that a dismissal was unfair. There are a number of enquiries concerning the fairness of a constructive dismissal. The first of these concerns the intention of the employee. If an employee simply intended to terminate the contract of employment then she is without relief under the LRA as she will not have been dismissed. However, when the employee terminates a contract of employment because she has no alternative but to resign, then the situation and its legal consequences are very different. In these circumstances, it is said that the employee was constructively dismissed.

The requirements for a successful claim of constructive dismissal were set out in Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC). An employee is required to prove that:

(i) Her situation had become so intolerable that she was unable to work

(ii) She would have continued working indefinitely had the employer not created the unbearable situation;

(iii) She resigned because she did not believe that the employer would reform or abandon the pattern of creating an unbearable work environment.

The Labour Court held in this case that the employee had pleaded sufficient facts to sustain a claim of ‘constructive dismissal.’

Turning to the second leg of the argument, that the employee failed to make the necessary averments to sustain a case of unfair discrimination; the employer argued that if an employee claims unfair discrimination then the employee’s necessary averments must be that:

>> The applicant is an employee

>> The respondent is an employer

>> There is an employment relationship between them

>> The employer has committed an act/omission against the employee

>> This act/omission involves discrimination, i.e. there must be more than just mere differentiation

>> The discrimination is unfair

>> The discrimination may be direct or indirect

>> The discrimination is based on arbitrary grounds

In her statement of claim, the employee pleaded that:

>> She is an employee as contemplated in the LRA

>> She was employed by the employer

>> That she was unfairly victimised, harassed and discriminated against and that the employer did not protect her from such unfair conduct.

The employee pleaded that she was automatically dismissed as contemplated by section 187 of the LRA. The judge held that an employee must do more than just allege discrimination on arbitrary grounds. An employee is also obliged to allege more than mere differentiation in respect of the treatment meted out by the employer.

The employee alleged that her constructive dismissal was based on harassment. This term is defined in section 6(3) of the Employment Equity Act, 55 of 1998, which provides that "harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1)." The employee failed to clearly set out why the harassment amounts to unfair discrimination. As a result, the judge ruled that the employee did no more than allege that she was being persecuted. This is not a sufficient basis upon which to allege discrimination. It was found by the Court that the employee failed to make allegations that can sustain a claim for automatically unfair dismissal. The judge gave the employee an opportunity to address the shortcomings of her claim, instead of dismissing the claim.

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Gary Watkins

Gary Watkins

Managing Director


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