Allegations of constructive dismissal are often the culmination of a series of incidents and events involving an employee and the employee's immediate managers or supervisors. These could take the form of acrimonious relationships and incidents arising from these relationships, the lodging of grievances and the threat of disciplinary measures being taken against the employee. The decision of the Labour Appeal Court inSanlam Life Insurance Limited v Mogomatsi and Others illustrates this point. In January 2019 and May 2019, various incidents involving the employee took place. They included interactions between himself and his superiors relating to two occasions of unauthorised absence from work, the issuing of a final written warning for bringing the employer's name into disrepute, and threatened disciplinary action for non-performance of his duties. In addition, the employee felt aggrieved by the lack of praise from his superiors for work that he considered had been well done and for not being given the opportunity to attend a training course in Mexico. During this period, his relationship with his colleagues also became acrimonious, which then culminated in his resignation and a referral of a constructive dismissal dispute to the Commission of Conciliation, Mediation and Arbitration ("CCMA").

In the arbitration award that resulted from the referral, the commissioner analysed the evidence and concluded that the employee had not been constructively dismissed.

Aggrieved by the commissioner's finding, the employee launched a review application in the Labour Court and argued that the commissioner had failed to consider, inter alia, his mental state at the time of his resignation. Although the issue of his mental health had not been raised in the CCMA proceedings, it was raised in the review application, prompting the Labour Court to find that the award was reviewable. Furthermore, the court found that the employer had failed to consider an incapacity process rather than a disciplinary one in the build-up to the applicant's resignation.

Dissatisfied with the Labour Court's decision, the employer approached the Labour Appeal Court ("LAC") arguing that the employee's mental health was not raised during the arbitration proceedings and that the employer had never been called upon to meet a case of constructive dismissal based on the allegation that the employer had made the employment relationship intolerable by not treating the employee's mental health with the necessary sensitivity. The LAC accepted this argument and upheld the appeal.

It stated that to prove a constructive dismissal in these circumstances, it must be shown that the employer was aware, or ought to have been aware, of the employee's mental condition. If an employer is aware of the employee's mental condition but is indifferent or insensitive to it, this may result in continued employment becoming intolerable, and a proper case for constructive dismissal might be established. But this was not the case here.

This case serves as a reminder that the test for constructive dismissal is intolerability as opposed to incapacity. In the case of Gold One Ltd v Madalani & Others, it was accepted that intolerability was a high threshold: "far more than just a difficult, unpleasant or stressful working environment or employment condition. Intolerability entailed an unendurable or agonising circumstance marked byconduct of the employer that must have brought the employee's tolerance to a breaking point'.

It also serves as a reminder that, although the employer is entitled to dismiss employees who suffer from a mental illness on the grounds of incapacity, it is important to remember that the employer should make every effort necessary to ensure that, during the process that precedes an incapacity enquiry, the affected employee is treated with the necessary sensitivity and is reasonably accommodated.

Lastly, this case highlights the importance of leading all the relevant evidence in support of one's case during arbitration. Commissioners can only make a finding based on the evidence placed before them. If an employee or an employer fails to lead or provide certain evidence during the arbitration, this evidence cannot be raised as a ground to challenge the award later.

Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment practice.

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