The Employment Equity Act:

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1 Volume 24 No. 1 August 2014 The Employment Equity Act: New amendments set problems and posers Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box Tokai 7966 Tel: ISSN X cll@workplace.co.za by P.A.K. le Roux T he Employment Equity Amendment Act, 47 of 2013, which came into effect on 1 August 2014, has introduced a range of important amendments to the Employment Equity Act, 55 of 1998 (EEA). The provisions dealing with the prohibition of discrimination contained in chapter 2 have been extensively amended. These amendments, read with the regulations that came into force on 1 August 2014 (see Government Gazette dated 1 August 2014 (the Regulations)) give rise to important issues and questions. In this contribution some of the legal issues that may arise from these amendments will be discussed. Section 6: what is an arbitrary ground? Prior to the amendment, s 6 prohibited both direct and indirect discrimination on numerous specifically listed grounds. It read as follows (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth. The use of the word including indicates that the specifically listed grounds in s 6 are not a closed list and that discrimination on other grounds may also fall within its ambit. An employee could argue that he had been discriminated against on a ground not listed in s 6(1) if that ground was regarded as analogous to the grounds listed in this section. For example, in IMATU & another v City of Cape Town [2005] 11 BLLR 1084 (LC) the Labour Court found that an applicant for the job of a fire fighter who had been refused an appointment to this post because he was an insulin dependent diabetic (Type One diabetes) had been unfairly discriminated against on a ground analogous to that of the listed grounds of disability, HIV Status or perhaps even birth. The test of whether a ground is analogous to the listed grounds was whether Inside... Constructive dismissal When is re-instatement a remedy? A new approach from the LAC. p7 Page 1

2 the alleged discrimination had; the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. See also National Union of Metalworkers of SA & others v Gabriels (Pty) Ltd (2002) 23 ILJ 2088 (LC) and Stocje v University of Kwa-Zulu Natal & another (2006) 27 ILJ 2696 (LC).) In adopting this approach the Labour Court has followed the decision of the Constitutional Court in Harksen v Lane NO & others 1998 (1) SA 300 (CC) when interpreting and applying s 8 of the Interim Constitution, the equality clause. The Constitutional Court commented as follows What the specified grounds have in common is that they have been used (or misused) in the past (both in South Africa and elsewhere) to categorise, marginalise and often oppress persons who have had, or who have been associated with, these attributes or characteristics. These grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity. There is often a complex relationship between these grounds. In some cases they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features. The temptation to force them into neatly selfcontained categories should be resisted. Section 8 (2) seeks to prevent the unequal treatment of people based on such criteria which may, amongst other things, result in the construction of patterns of disadvantage such as has occurred only too visibly in our history. In New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC) a similar approach was adopted in the interpretation of s 187(1)(f) of the Labour Relations Act, 66 of 1995 which provides that discriminatory dismissals are automatically unfair. Section 6 has now been amended to insert the words and any other arbitrary ground at the end of the section. The reason given in the explanatory memorandum for the amendment is - that it seeks to clarify that discrimination is not only permitted on a ground listed in that section but also on any other arbitrary ground. It is also stated that the amendment would create consistency with the terminology utilised in section 187(1)(f). Why it was necessary to introduce this amendment is unclear. As indicated above, the Labour Court has been prepared to accept that the specifically listed grounds set out in s 6 are not a closed list and that other analogous or unlisted grounds for differentiation can constitute discrimination. It is also unclear why it is formulated in the way that it is. If the legislature wanted to ensure consistency why did it not simply amend s 6(1) to make it identical to s 187(1)(f) and does the difference in formulation justify a different approach? Section 187(1)(f) provides that an automatically unfair dismissal takes place if the reason for the dismissal is an arbitrary ground, including but not limited to race and the other specifically listed grounds. In this formulation the specific listed grounds are seen as examples of an arbitrary ground and the test for an unlisted arbitrary ground is that described above. The insertion of the reference to an arbitrary ground at the end of s 6(1) could perhaps be seen as introducing a different approach and that there are now three sets of grounds on which discrimination can take place, namely the specifically listed grounds, unlisted analogous grounds and arbitrary grounds. If this is the case, the question then arises as to what the difference is between an unlisted analogous ground and an arbitrary ground? These issues will have to be determined by the Courts in due course. However, it does not seem that this is the case and that this was not the intention of the legislature. As will be seen below, when dealing with the burden of proof, s11 distinguishes between discrimination on listed grounds and discrimination on an arbitrary ground. No mention is made of analogous grounds and the inference can perhaps be drawn that an arbitrary ground is seen as a synonym for an analogous ground. It should also be pointed out that in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court, when interpreting s 187(1)(f) of the LRA, accepted that an arbitrary ground is one which has Page 2

3 the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner i.e the same test as that for determining an analogous ground. A similar approach was adopted in at least some cases in interpreting the predecessor to s 6, namely item 2(1)(a) of schedule 7 to the Labour Relations Act, 66 of 1995 (LRA) which contained a formulation similar to s 187(1)(f). See for example, Ntai v SA Breweries (2001) 22 ILJ 472 (LC). Equal value claims Section 6 refers to discrimination in any employment policy or practice. This term is extensively defined in s 1 of the EEA and includes remuneration, employment benefits and terms and conditions of employment. The principle is therefore that an employer will be guilty of unfair discrimination if it pays one employee less than another employee who performs the same job and the reason for this is a ground prohibited by s 6, unless the employer can justify such discrimination. The Labour Court has been willing, at least in principle, to accept that an employee need not limit his or her comparator to somebody doing the same job or broadly similar job but may also compare himself or herself with another employee whose job has an equal value, to that of his or her own. See in this regard Mangena & others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC) and Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC). This notwithstanding, the International Labour Organisation criticised the EEA because it did not make explicit reference to equal pay claims. To meet this criticism s 6(4) has been introduced into the EEA. It provides that A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on one or more of the grounds listed in subsection (1) is unfair discrimination. Various questions arise from this provision. The first of these is what is a ground listed in s 6 (1)? As indicated above, the court decisions interpreting s 6(1) prior to the amendments distinguished between listed grounds (ie the specific grounds referred to in section 6 and unlisted or analogous grounds. The insertion of the words other arbitrary ground raises the question whether an arbitrary ground must be seen as a listed ground or whether, following the LAC decision in the Marsland decision, arbitrary ground must be regarded as an unlisted ground. There is no clear answer to this but if it was the intention to bring s 6 into line with s 187(1)(f) of the LRA it seems that an arbitrary ground will not be regarded as a listed ground. In so far as this may be an indication of how the EEA should be interpreted in this respect it is interesting to note that reg 3(1) of the regulations published in terms of s 55 read with s 6(5) of EEA distinguishes between a listed ground and an arbitrary ground. These regulations came into force on 1 August As will be seen below, the answer to this question will impact on the burden of proof if a dispute should be litigated upon. In fact, s 11 distinguishes between a listed ground and an arbitrary ground. The second arises from the fact that s 6(4) does not state that a difference in terms and conditions of employment in the circumstances envisaged therein constitutes discrimination but rather that it constitutes unfair discrimination. At first sight this therefore means that once a difference as envisaged in s 6(4) is established this will be regarded as unfair discrimination. But this must be read with s 6(2) which states that it is not unfair discrimination to take affirmative action measures or to distinguish, exclude or prefer on the basis an inherent requirement of the job. Presumably s 6(4) must be read subject to the provisions of s 6(2). In addition, s 11, which deals with the onus of proof, does not distinguish between a claim brought in terms of s 6(1) and claim brought in terms of s 6(4). This section clearly envisages that discrimination can be justified on the grounds, inter alia, of fairness. Some sort of confirmation that this is the case may also be inferred from reg 7 which sets out certain factors which may justify discrimination. Page 3

4 Determining equal value claims Regulations 4 to 6 prescribe how equal value claims must be determined; but before summarising these provisions it is necessary to consider the definition of work of equal value provided in reg 1. It reads as follows work of equal value includes work that is the same, substantially the same or work of equal value contemplated in s 6(4) of the Act. From this it is apparent that a person claiming (the complainant) that she is entitled to the same terms and conditions of employment as those that another employee (the comparator) enjoys, should show that they are employed by the same employer and that she does the same work as the comparator; that she does substantially the same work; or that she does work of equal value to the comparator as contemplated in the EEA. It is clear that a complainant need not refer to a comparator who does exactly the same work. The scope of comparison is wider it can include a comparator doing substantially the same work or work of equal value. Regulation 4 provides guidance as to how the three types of comparison should be interpreted and applied. Work will be regarded as being the same work if the work done by the complainant and the comparator is identical or interchangeable. Work will be regarded as substantially the same if the work done by the complainant and the comparator is sufficiently similar so that they can reasonably be considered to be performing the same job even if their work is not identical or interchange- able. - Work will be regarded as being of equal value if the complainant and the comparator s work has been accorded the same value. Regulation 6 provides guidance as to how to determine whether two different jobs should be accorded the same value. In terms of this regulation the relevant jobs must be objectively assessed taking into account the following criteria The responsibility demanded of the work including responsibility for people, finances and material. The skills, qualifications (including prior learning and experience) required to perform the work, whether formal or informal. The physical, mental and emotional effort required to perform the work. The conditions under which the work is performed, including the physical environment, psychological conditions and geographic location where the work is performed. This requirement is, however, subject to the proviso that it must only be considered to the extent relevant. Any other factor indicating the value of work, provided that the employer shows that the factor is relevant in assessing the value of the work. Regulation 6(3) then prescribes the important requirement that any assessment of the value of work must be conducted in a manner that is free from bias on grounds of race, gender or disability or any other listed or arbitrary ground. Finally, Regulation 6(4) provides that an employer may justify the value assigned to a job by reference to the classification of the relevant job in terms of a sectoral determination made by the Minister of Labour in terms of the Basic Conditions of Employment Act, 75 of In other words, an employer will be able to argue that the complainant is not employed in a job equal in value to that of the comparator if an applicable sectoral determination classifies these jobs differently. Justification Regulation 7 provides that, if employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, will not constitute unfair discrimination if the difference is fair and rational and is based on any one or more or a combination of the following grounds Seniority or length of service. Qualifications, ability, competence or potential Page 4

5 above the minimum acceptable level required for the performance of the job. Performance, the quality or quantity of work done, provided that employees are equally subject to the employer s performance system and that this is consistently applied. The demotion of an employee as a result of organisational restructuring or for any other legitimate reason without a reduction in pay until the remuneration of other employees in the same job category (ie after demotion) reaches this level. If an employee is temporarily employed in a position for the purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and conditions of employment. The existence of a shortage of a relevant skill or the market value in a particular job classification. Any other relevant factor that is not unfairly discriminatory. Once again, there is a proviso to the above. In terms of Regulation 7(2) a differentiation based on one of the above factors will only be fair and rational if it is established that its application is not biased against an employee or a group of employees based on race, gender or disability or any of the other grounds listed in s 6(1) of the EEA and it is applied in a proportionate manner. The formulation of the grounds on which reg 7 permits differentiation will probably give rise to interesting disputes as to how they should be interpreted. For example, as indicated above, the term equal value is defined to include three different situations, i.e. where the comparator does work that is the same, is substantially the same or is of the same value. The term equal value can therefore be utilised in a broad sense (i.e to encompass the three situations mentioned above) or it can be utilised in the narrow sense (i.e. to cover only the third situation). It is unclear whether the justifications referred to in reg 7 refer to work of equal value in the broad sense or in the narrow sense. Burden of proof The old s 11, which regulated the burden of proof in discrimination cases, has been replaced with a completely new section. The old section read as follows Whenever unfair discrimination is alleged in terms of this Act the employer against whom discrimination is alleged must establish that it is fair. The new provision is far more detailed. It reads as follows - 11 (1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination - (a) did not take place or as alleged; or (b) is rational and not unfair, or is otherwise justifiable. (2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on the balance of probabilities, that (a) the conduct complained of is not rational; (b) the conduct complained of amounts to dis crimination; and (c) the discrimination is unfair. Here a distinction is drawn between listed grounds and arbitrary grounds. (Note, it is not regarded as necessary to deal with analogous grounds.) If the complainant alleges that he was discriminated against on a listed ground, the employer must prove that no discrimination on one of the listed grounds took place. If the employer is unable to show that there was no discrimination, the employer may, in the alternative, show that the discrimination was rational and not unfair. The employer therefore seems to have three grounds on which it can defend itself against a discrimination claim. Firstly it can argue that it did not discriminate on a listed ground. If it is unsuccessful in this argument it can argue that the discrimination was rational and not unfair. Alternatively it can argue that the discrimination was justifiable for some other reason. If the complainant alleges that he was discriminated against on an arbitrary ground, the burden is placed on the complainant to prove three Page 5

6 Contemporary Labour Law V ol. 24 No. 1 August 2014 things. Firstly that the employer s conduct was not rational, secondly that the conduct complained of, amounted to discrimination and thirdly that the discrimination was unfair. The interpretation and application of this section is bound to be the subject of much debate. For example, as it is worded, s 11(1) seems to indicate, that if a complainant wants to prosecute a claim that she was discriminated against on a listed ground, she only has to allege that this is the case. On this wording there is no need for the employee to provide any factual evidence to this effect. All that is required is an allegation to this effect in the statement of case (in Labour Court proceedings) or the referral form (in CCMA proceedings). The onus is then placed on the employer to disprove this allegation or to justify this in some way. However, following some decisions of the Labour Court dealing with the previous s 6(1), the old item 2(1) (a) and s 187(1)(f), a court or arbitrator may be willing to place some sort of onus on the complainant to provide at least some evidence to show that discrimination has taken place, perhaps on a prima facie basis. See, for example, the discussions in Aarons v University of Stellenbosch (2003) 24 ILJ 1123 (LC), Louw v Golden Arrow Bus Services Pty Ltd [2000] 3 BLLR 311 (LC), Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC) and Labour law Through the Cases (du Toit et al at EEA -37. This will also affect the question as to who has the duty to begin leading evidence. Also of interest is that in terms of s 11 (2), when the onus is placed on the complainant, the element of justifiability is not required. In addition, reg 7 (summarised above) seems to merge the concepts of fairness and rationality with that of justifiability when dealing with this issue. CCMA jurisdiction Section 10 of the EEA has been amended to give the CCMA jurisdiction to consider claims based on sexual harassment. It is also given the jurisdiction to arbitrate other unfair discrimination cases where the complainant earns less than the threshold set by the Minister of Labour in terms of s 6(3) of the Basic Conditions of Employment Act, 75 of Such a referral may also take place if all the parties to the dispute agree to this. A person affected by the commissioner s award may appeal against this decision to the Labour Court. Comment It is perhaps worth re-emphasising the point that equal pay claims in the broadest sense have been permissible in terms of s 6 since the enactment of the EEA. This amendment has only been introduced to meet the requirements of the ILO. Despite this, the number of claims that have been considered by the courts in the last 16 years is minimal. The question can be asked whether the amendments will lead to a flood of new cases? There are two main reasons why there may be an increase in (but not necessarily a flood of) these types of disputes. The first is that this type of discrimination is now explicitly dealt with in more detail and this may raise its profile in the eyes of potential complainants. The second, more important, consideration is that the access to the CCMA granted to the lower paid employees and their unions will make it far easier and less expensive to litigate these matters. All that the complainant will have to do is complete the necessary referral form and make the necessary allegation as to the ground on which she alleges that she has been discriminated against. If the allegation is that discrimination was on a listed ground, it seems that it will be up to the employer to in effect disprove this allegation or otherwise justify it. No onus, or at least a very light onus, will be placed on the complainant. It should also be remembered that although we sometimes refer to equal pay claims in general terms this term is misleading. Discrimination claims on this basis are not limited to salaries or wages and will cover claims dealing with all terms and conditions of employment, for example, leave and pension arrangements. These claims also cover claims where indirect discrimination is alleged. In this situation a distinction is drawn between employees on what appears to be a non-discriminatory basis but which has the effect of disproportionately prejudicing certain employees on a prohibited ground. For example, in Europe it has been found that not providing part time workers with access to a pension scheme that was available to full time employees constituted indirect discrimination against women in breach of article 141 of the European Community Treaty. This Page 6

7 was because women because were disproportionately represented in this group of workers. Employers should also be wary of seeing this type of dispute referred to the CCMA as a relatively isolated minor one involving one employee comparing himself or herself with another employee. Where one employee has successfully litigated others may follow and, as indicated below, a CCMA case has the potential to call into doubt an employer s pay structures, job grading schemes, performance appraisals and collective agreements. For example, an employer who wishes to justify a disparity in wages between two employees on the basis that their jobs are differently valued in terms of the employer s job evaluation scheme would have to ensure that the job evaluation scheme actually meets the requirements set in reg 6. This may require employers to proactively consider their job grading schemes to ensure that they do meet the requirements of the regulations and the EEA. The fact that the job evaluation scheme is utilised as a basis for determining wages in a collective agreement will also not assist an employer. If English and European law is anything to go by, an employer will not be permitted to rely on a collective agreement to justify discrimination. In this regard is it interesting to note that reg 6 (4) explicitly provides that an employer is permitted to justify the value assigned to an employee s work by reference to the classification of I n the typical case where an employee has persuaded an arbitrator that she has been constructively dismissed the remedy granted will be one of the payment of compensation. How can an employee who is successful in showing that continued employment was rendered intolerable by the employer ask that the employment relationship be re-established? The decision of the Labour Appeal Court (LAC) in Western Cape Education Department v The General Public Service Sectoral Bargaining Council & Others (Unreported CA 11/13 26/6/2014) illustrates that a relevant job in terms of a sectoral determination made by the Minister of Labour. But what will be the position if the classifications are in fact discriminatory and the complainant can establish that this is the case. It seems unlikely that this endorsement of a discriminatory practice will be upheld in the face of a constitutional challenge. The factors justifying discrimination in reg 6 will also have to be considered carefully. Have wage differentials due to factors such as seniority, length of service and qualifications been consistently applied? If performance has been used as a justifying factor has this been properly and consistently assessed? At least some of these factors that are regarded as justifying discrimination may in themselves be seen as discriminating in an indirect manner. For example seniority or length of service, on the face of it, may seem fair and objective and justify discrimination. But what if the seniority is the result of an earlier discriminatory practice? For example, women may, as a result of an earlier discriminatory practice, have been excluded from certain jobs and therefore not had the same opportunity to accrue seniority. Regulation 7(2) (referred to above), will prevent the use of this factor as a justification. The conclusion must be that the preparation for any litigation, including a CCMA arbitration, dealing with type of dispute will have to be thorough and detailed. Constructive dismissals: a new LAC approach? When re-instatement is a remedy P.A.K.le Roux there may indeed be situations where reinstatement may be granted. The LAC s decision in determining whether a constructive dismissal has taken place is also of interest. The employee in this matter, a Mr Gordon, had been employed in the public sector since In July 2006 he suffered a heart-attack. He recovered from the heart-attack but experienced anxiety attacks. He was diagnosed with post-traumatic stress disorder and clinical depression. He was off work until 8 January Page 7

8 Around this time he applied to be granted an illhealth retirement package. He was advised to submit an affidavit to support his application and he did so in June He also applied for temporary incapacity leave which, presumably, would have entitled him to paid leave in excess of his normal sick leave entitlement. He handed the documentation to his immediate superior, a Mr Elliot. Elliot undertook to deal personally with Gordon s application. He also undertook to see to it that the application for ill-health retirement and temporary incapacity was signed by two witnesses as required by the employer s policies. Thereafter Gordon submitted medical certificates on a monthly basis as proof of his inability to work. On a subsequent date a Mr Daniels took over from Elliot as Human Resources Director. In September 2008, more than a year after Gordon s application for an ill-health retirement benefit and temporary incapacity leave, Daniels visited Gordon at home and made enquiries about his illness and his return to work. Gordon informed him that he had still not heard anything regarding his application for ill-health retirement and temporary incapacity leave. Three months later, Gordon received a letter from the employer acknowledging receipt of medical certificates covering the period up to 30 September 2008, but pointing out that no further medical certificates had been submitted since that date. (It appears that Gordon had, despite not formally being granted temporary incapacity leave, been paid his salary in the interim.) The letter also instructed Gordon to report for duty. He submitted further medical certificates in respect of the period from 1 October 2008 to 3 December On 19 December 2008 Gordon sent the employer a letter urging the finalisation of his application for ill-health retirement and temporary incapacity leave. On 8 February 2009 Gordon received a letter from the employer notifying him that he would be regarded as having absconded if he did not resume his duties by 9 February Gordon reported for work on 9 February Sometime during April/May 2009 Gordon received a letter from the employer indicating that his application for temporary incapacity leave, which had been submitted some two years earlier, had not been processed because the application form had not been signed by two witnesses. He was asked to resubmit the form. On 11 June 2009 Gordon lodged a grievance. It appears that his application for temporary incapacity leave had disappeared. This form resurfaced in his office around 3 July 2009 when it was slipped underneath his door in his absence. Gordon then resubmitted his application on 7 August In June 2009 Gordon was also sent a letter by the employer in which he was notified that, as a result of his failure to resubmit his temporary incapacity leave application, it had been decided to grant him leave without pay in respect of his absence from work for the period 31 July 2006 to 6 February He was also informed that, in terms of section 38 of the Public Service Act of 1994, the employer was going to recover from him a total sum of R753, this being the total amount of salary paid to him during his absence from work. This amount would be deducted from his salary at the rate of R12, per month. This would have left him with a net income of R2, per month. Gordon then requested the employer to place a moratorium on the deductions pending consideration of his application for temporary incapacity leave and he lodged another grievance. He received no response from his employer and he tendered his resignation on 1 July At the grievance meeting held on 3 July 2009, held with Daniels and a Mr Faker, he was given two options. The first was that he could proceed with his resignation. The second was that he could retract the resignation in which event Daniels would assist him with his application for ill-health retirement. He was also advised that, irrespective of the option he chose, Daniels and Faker would approach the head of the department regarding the Page 8

9 employer s decision to apply a policy of leave without pay. Gordon retracted his resignation on 29 July On 4 August 2009 Gordon sent an to the employer enquiring whether a decision had been made regarding the refund of the amount of R12, that had already been deducted from his salary at the end of July The response to this appears to have been that he was told to convey which of the two options referred to above he wished to select. He responded by stating that the fact that he had retracted his resignation rendered it obvious which of the options he had selected. At the end of August 2009 the employer deducted another instalment of R12, from his salary. Yet another grievance meeting was held on 1 September Daniels and Faker gave Gordon a draft agreement which he was asked to sign. This authorised them to obtain a mandate from the head of the department. Gordon signed the document and continued to enquire regularly about progress. He was informed that a mandate had still not been obtained from the head of the department, and on 30 September 2009 Gordon again submitted his resignation. On 30 October 2009 Gordon referred a constructive dismissal dispute to the relevant bargaining council. The arbitrator found that Gordon had been unfairly constructively dismissed and that his dismissal was unfair. He ordered that Gordon be reinstated. The employer was unhappy with the outcome of the award and applied to the Labour Court for the award to be reviewed and set aside. The Labour Court dismissed the review application and found that the commissioner had correctly decided that Gordon s resignation amounted to constructive dismissal. The court also found that the decision to reinstate Gordon was not reviewable. On appeal the LAC had to consider the same two issues In dealing with the question whether there had been a constructive dismissal the LAC referred to the decision of the Supreme Court of Appeal (SCA) in Murray v Minister of Defence [2008] 6 BLLR 513 (SCA) where the following test for a constructive dismissal was formulated - [12] In detailing this right, the parties freely invoked the carefully-considered jurisprudence the Labour Courts have evolved in dealing with unfair employer-instigated resignations under the labour relations legislation of the past three decades. These cases have established that the onus rests on the employee to prove that the resignation constituted a constructive dismissal; in other words, the employee must prove that the resignation was not voluntary, and that it was not intended to terminate the employment relationship. Once this is established, the inquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. Looking at the employer s conduct as a whole and in its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it. [13] It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstances must have been of the employer s making. But even if the employer is responsible, it may not be to blame. There are many things that an employer may fairly and reasonably do that may make an employee s position intolerable. More is needed; the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked reasonable and proper cause. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances of constructive dismissal that is the case.. Applying this test the LAC accepted that there had been an unfair constructive dismissal. This excerpt from the SCA decision provides a useful test as to when continued employment will Page 9

10 be regarded as having been made intolerable by the employer. But it does raise two issues. The first is that it seems that the SCA merged two different questions. i.e whether a constructive dismissal took place and whether the dismissal was unfair. (See the comment in this regard in CLL Vol 19 No 1 at 8 and CLL Vol 20 No 1 at 7.) However, in the Gordon decision, this excerpt notwithstanding, the LAC accepted that these two issues had to be separated. The second is that the Constitutional Court has accepted that this decision is authority for the view that it is not a requirement that resignation must be a last resort after all other options had been exhausted a requirement sometimes set by arbitrators. In Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (CC) the Constitutional Court rejected the argument that there had been no constructive dismissal because the employee in question had had a choice - he could have resigned or he could have opted to face poor work performance procedures. The Court did so on the basis that the test for constructive dismissal, does not require that the employee had no choice but to resign, but only that the employer should have made continued employment intolerable. The implications of this approach was discussed by Steenkamp J in Value Logistics Ltd v Basson & others [2011] 10 BLLR 1024 (LC) and Asara Wine Estate and Hotel (Pty) Ltd v van Rooyen & others (2012) 33 ILJ 363 (LC). In the latter decision he came to the conclusion that the principle is that no reasonable alternative to resignation must exist. This notwithstanding, in the Gordon decision the LAC seems to have accepted that the approach adopted in the Strategic Liquor Services decision was correct. Perhaps the most interesting aspect of the LAC decision in Gordon, is its view that reinstatement could be a remedy. It accepted that, at first blush, the granting of the remedy of reinstatement in constructive dismissal cases could be seen to be an anomaly considering that the basis for the termination of the employment contract is that the employer made the continuation of an employment relationship intolerable. However it went on to state that- [34] such a remedy is not always incongruous with the provisions of section 193(2) (b) of the LRA. The fact that an employee resigns on the grounds that the employer made the employment relationship intolerable for him/her should not, without more, serve as a bar to re-instatement. It seems to me that what is of the essence is the stage at which intolerability occurs. An employee that avers that he/she was constructively dismissed must prove that at the time of termination of the employment contract he/she was genuinely under the impression that the employer had rendered the continuation of the employment relationship intolerable. If such an employee subsequently seeks the remedy of reinstatement, then such an employee must show that the intolerable circumstances that prevailed at the time of termination of the employment contract are no longer extant. In a matter like the present, where the employee has placed facts showing that the circumstances prevailing at the time of seeking re-instatement are different to those at the time of his/her resignation and the employer has chosen not to refute them, then the notion of fairness dictates that the employee s uncontested evidence be accepted and that he/ she be re-instated into his/her position. P.A.K. le Roux Page 10