Are you constantly being harassed and verbally abused by your Employer, for no reason whatsoever, other than to force you in a corner where resignation seems to be the only option? Here is your remedy!
In the recent judgment of Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and others  11 BLLR 1123 (LC) the Court was faced with a review application after the Commissioner founded that two employees had been dismissed as envisaged by Section 186(1)(e) of the Labour Relations Act, Act 66 of 1995 (“the Act”), namely that they had terminated their employment because the applicant (employer) had made continued employment intolerable.
The Commissioner held that the resignations of the employees constituted constructive dismissal and awarded them compensation in sums equivalent to four and six month’s remuneration respectively. The Labour Court in the Centre for Autism case noted that a constructive dismissal occurs when an employee terminates employment because employment has become intolerable due to the fault of the employer.
The Labour Court held that the Court was obliged to show its disapproval of the employer’s conduct by making a punitive cost order. The review application was dismissed, with costs, such costs to be paid on the scale as between attorney-and-client.
Constructive dismissal is when an employee resigns and claims that the resignation occurred not because the employee wanted to leave but as a result of the employer’s intolerable conduct. In Centre for Autism two employees resigned on a month’s notice from their employment and claimed that that they had been constructively dismissed because they had been forced to resign due to the insulting behaviour of their employer.
The Labour Appeal Court has observed that inherent in employment relationships are often considerable levels of irritation, frustration and tension (see Jordaan v CCMA and others (2010) 31 ILJ 2331 (LAC)). In paragraph 33 the learned Judge held that generally speaking, these are insufficient in themselves to establish the intolerability of continued employment. Something more is required. As the Court observed in Experian Regent Insurance Co Ltd v Commission for Mediation & Arbitration and others (2013) 34 ILJ 410 (LC), at paragraph 53 of the judgment”
“The court’s function is to look at the employer’s conduct as a whole and to determine whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it. The conduct of the parties is to be looked at as a whole and its cumulative impact assessed . . .”
While it is so that employees who claim that employment is intolerable should file a grievance before resigning, this is not an inflexible rule; each case must be decided on its own facts. The two employees in the Centre for Autism matter had raised a host of grievances about the manner in which they had been treated by their employer, including being addressed in offensive, demeaning and insulting language and subjected to degrading treatment. The evidence portrayed a workplace ruled by a narcissistic personality who created a toxic working environment for the employees. The employer’s conduct amounted to persistent workplace bullying, which constituted harassment and had rendered the employment intolerable.
In the judgment of Centre for Autism the Judge held in its analysis of the evidence that the only element of the test in dispute is whether the employees have established, objectively, that continued employment by the employer had become so unbearable that they could not be expected to remain in that employment. The assessment must be made from the perspective of a reasonable person in the shoes of the employee.
The learned Judge in Centre for Autism quoted the following from the pre-arbitration minute:
“The employees contend that the employer’s conduct, which the employees contend ultimately led to their constructive dismissal, included but was not limited to unauthorised unlawful deductions from the employees’ salaries, imposing unreasonable and in some instances unlawful demands on the employees, usage of abusive and offensive language when dealing with the employees, sexual innuendos, sexual harassment, sexual orientation discrimination, making of disparaging and derogatory remarks, undermining and belittling the employees, embarrassing and humiliating conduct towards both employees, and impairment of the employees right to dignity. This conduct was in front of the respective employees and/or their work colleagues and/or in public places. (own emphasis)”
The learned Judge considered the evidence above and referred to an article in the Industrial Law Journal written by Professor Alan Rycroft (Rycroft “Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice” (2009) 30 ILJ 1431) in which he sought to give content to the concept of workplace bullying, suggested that workplace bullying constituted a form of harassment. He said the following:
“Workplace harassment impacts in different ways. Sexual harassment impacts on an employee’s dignity, bodily integrity, job security and personal safety. Racial harassment impacts on an employee’s sense of worth, dignity and empowerment. Workplace bullying has been linked to feeling incompetence in handling the job, to a sense of alienation from colleagues, to anxiety that there will be no promotional recognition, to job security, to feelings of inadequacy, to knock on tensions in personal relationships, and to depression.”
Harassment is defined in the Protection from Harassment Act, Act 17 of 2011 as:
“harassment” means directly or indirectly engaging in conduct that the respondent knows or ought to know –
(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably –
(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of, the complainant or a related person; or
(b) amounts to sexual harassment of the complainant or a related person;
Rycroft defines workplace bullying as:
“[Harassment] . . . is generally seen as persistent and unwelcome conduct which is hostile or offensive to a reasonable person and includes a fear of harm and demeans, humiliates or creates a hostile and intimidating environment was calculated to induce submission by actual or threatened adverse consequences.
Taking these generic aspects of harassment, it has been suggested that bullying refers to any unfavourable or offensive conduct on the part of a person or persons, which has the effect of creating a hostile workplace environment . . . In these terms, bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers their self-esteem or self-confidence of an employee.”
The Judge in Centre for Autism held that Rycroft identifies a number of specific behaviours, which include persecution in various forms, threats and inspiration of fear, degradation, e.g. sexual harassment, deliberate insults, hypercritical negative responsible attitude (ridicule, unfriendliness, etc), offensive administrative penal sanctions which are suddenly directed against an individual employee without any objective cause, explanations or efforts at jointly solving any underlying problems. Rycroft goes on to observe that being humiliated or demeaned lies at the heart of the concept of dignity, and that the public humiliation of an employee is almost certain to destroy or seriously damage the relationship of trust and confidence between employer and employee.
Based on the above the Judge founded that the evidence in Centre for Autism disclosed 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.
The Judge held that the Court had no hesitation in finding that the nature and extent of the workplace bullying suffered by the employees was such that for the purposes of Section 186(1)(e) of the Act, their continued employment was rendered intolerable.
The Judge held further that the evidence is clear that despite a clause of the employment contracts of the employees to the effect that employees may lodge any grievance with their immediate manager/director, this was not an option open to them. In particular, the person against whom their grievance was directed was against their employer, the employees’ sole member and director.
Section 162 of the Act awards the court a wide discretion to make an order for costs according to the requirements of the law of fairness. The Judge in Centre for Autism held that the requirements of the law of fairness dictate that a punitive cost order should be granted.
The Judge expressed its concern and displeasure at the manner in which the employees were treated in the present instance, and the fact that the employer sought to misguidedly to review and set aside the Commissioner’s award. The court dismissed the review application with costs, such costs to be paid on the scale as between attorney-and-client.
Word of advice to employees who find themselves in a similar position:
1. Keep meticulous record of each incident;
2. Confirm each incident in writing by email correspondence to other Directors and/or Senior Management and/or Human Resources;
3. Keep voice recordings of each incident;
4. Ensure witnesses make meticulous notes of the incidents that they witnessed;
5. Keep record of the aforementioned in a file or external device which is easily accessible.
Conduct of Harassment that has a repetitive element/occurrence, alternatively, is of an overwhelming oppressive nature which can be proven on a balance of probabilities is the key to a successful outcome in Court.
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