Lagadien v Minister of the Department of Science and Technology and Another (JS 1042/17) [2023] ZALCJHB 261 (27 September 2023)

FLYNOTES: LABOUR – Constructive dismissal – Discrimination on disability – Contends department failed to meet reasonable disability accommodation needs – Avers such conduct led to resignation – Evidence shows department complied with all requests – Always positively responded and attended to requests – No basis for conclusion that department failed in its obligations – No constructive dismissal took place – Claim fails and absolution granted – Labour Relations Act 66 of 1995, s 187(1)(f).

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 1042/17

In the matter between: LAGADIEN FADILA Applicant And MINISTER OF THE DEPARTMENT OF SCIENCE AND TECHNOLOGY First Respondent DIRECTOR GENERAL: THE DEPARTMENT OF SCIENCE AND TECHNOLOGY Second Respondent

Heard: 12 - 13 September 2023 (Virtual)

14 September 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date for hand-down is deemed to be on 27 September 2023

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In her statement of claim, the applicant having resigned from the first respondent (Department), seeks an order declaring that her resignation amounted to a constructive dismissal within the meaning of section 186(e)[1] of the Labour Relations Act (LRA), which dismissal was also automatically unfair within the meaning of section 187(1)(f)[2] of the LRA. The basis of the two claims was that the respondents made her working conditions intolerable, and effectively discriminated against her on account of her disability.

Background:

[2] The applicant was employed by the Department with effect from 18 December 2012 in the position of Deputy Director: Race, Gender and Disability. Her appointment was subject to 12 months’

probation. She is quadriplegic, having tragically been involved in a motor vehicle accident prior to her appointment by the Department The Department has in place since August 2011, a policy on the provision and management of reasonable accommodation needs for employees with disabilities.

[3] The applicant had prior to assuming her post with the Department,

formally registered her disability and made a request for her reasonable accommodation needs by completing the relevant form in

that regard. Her needs were essentially in the form of assistive technology (laptop with reading software and headset); appropriate

office space to accommodate her wheelchair according to specification; custom ablution facilities; ramped entrances and access to upper floors by lifts; and a personal assistant (PA) who would also be her driver.

[4] The dispute that arose since the resignation of the applicant on 28 July 2014 has a long history which I do not deem necessary to burden this judgment with. All that needs to be stated is that the dispute was initially referred to the GPSSBC in August 2014, and ultimately referred to the Commission for Conciliation Mediation and Arbitration (CCMA) in February 2017. On 31 October 2017, the CCMA issued a certificate of non-resolution of the dispute. The dispute was then referred to this Court for adjudication. The trial proceedings commenced virtually on 12 September 2023 and at the close of the applicant’s case, the respondent made an application for absolution from the instance, which application the

applicant opposed.

The applicant’s pleaded case:

[5] In approaching the Court in terms of the provisions of section 191(5)(b)(i) read with section 187(1)(f) of the LRA, the applicant contends in her statement of claim, that she was discriminated against based on the Department’s failure to immediately meet her reasonable accommodation needs as outlined elsewhere in this judgment. The essence of the applicant’s case is that the Department failed to take reasonable steps to accommodate her disability and that such conduct led to her resignation. She contends that since she did not voluntarily resign, this amounted to constructive dismissal, which dismissal in turn was automatically

unfair based on her disability.

[6] Her complaints are further numerous, including that she was not capacitated to perform her duties; was essentially unfairly differentiated against based on her disability; her supervisor unfairly performance assessed her, resulting in her probation period being unfairly extended; was subjected to vilification, humiliation, insults, victimisation, and harassment by her supervisor for not achieving her performance targets; and that all these factors created a hostile working environment, forcing her to resign.

The legal framework:

[7] Absolution from the instance may be granted immediately after the close of the applicant’s case in circumstances identified in Claude Neon Lights (SA) Ltd v Daniel[3] as follows;

“…when absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court,

applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff…”

[8] From the above approach, it has been held that in order to survive absolution, the applicant must have made out a prima facie case in the sense that there is evidence relating to all the elements of her claim, because without such evidence no court could find for her. The Supreme Court of Appeal (SCA) in Gordon Lloyd Page added that absolution at the end of the applicant’s case, in the ordinary course of events, will nevertheless be granted sparingly,

but that when the occasion arises, a court should order it in the interest of justice[4].

[9] Under section 187(1)(f) of the LRA a dismissal is automatically unfair (inter alia) if the reason thereof is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to (inter alia) disability. The exceptions under section 187(2)(a) are not relevant for the purpose of the determination of the issues in this case.

[10] In De Bruyn v Metorex Proprietary Limited[5], the Labour Appeal Court (LAC) reiterated that section 187 imposes an evidential burden on the employee to produce evidence which is sufficient to raise a credible possibility that an automatically

unfair dismissal has taken place, and that it thereafter behoves the employer to prove the contrary by producing evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 for constituting an automatically unfair dismissal. Equally so, it has further been held that an applicant seeking to establish that a dismissal is automatically unfair on any of the grounds listed in section 187(1) of the LRA must meet the requirements of causation[6].

[11] It was also correctly pointed on behalf of the respondents in reference to Commercial Stevedoring Agricultural & Allied Workers Union on behalf of Dube & others v Robertson Abattoir[7] that in cases such as before the Court, the enquiry is whether there was a dismissal, and second, whether the applicant has provided evidence which raises a credible possibility that the dismissal in question fell within the scope of section 187(1)(f) of the LRA.

[12] The applicant alleged that her automatically unfair dismissal also included constructive dismissal within the meaning of section 186(1)(e) of the LRA on the basis that the employer made continued employment intolerable to an extent that she had no other option but to resign. She contends that she had no reasonable alternative and had involuntarily resigned to avoid further harassment and humiliation by her supervisor. She contended further that there was a link between the unbearable conduct of the Department and her forced or involuntary resignation. For the sake of convenience, and further to the extent that the claims of constructive dismissal and automatically unfair dismissal are intertwined in this case, I proposed to deal with them interchangeably in determining whether the granting of absolution is

appropriate.

[13] Insofar as the claim of constructive dismissal is concerned, the LAC recently in Sanlam Life Insurance Limited v Mogomatsi and Others[8] reiterated the approach as follows;

‘In constructive dismissal disputes, a two-stage approach is normally followed. First, the employee must prove that the employer

effectively dismissed him or her by making her or his continued employment intolerable. It is an objective test. The employee need

not prove that he had no choice but to resign, all that is required is to prove that the employer made continued employment intolerable.

The conduct of the employer towards the employee and the cumulative impact thereof must be such that, viewed objectively, the employee

could not reasonably be expected to cope with it. Second, after the dismissal had been established, the court will then evaluate whether the dismissal was unfair. The two stages may overlap and be interrelated.’

The evidence and evaluation:

[14] In determining whether absolution from the instance is appropriate, and in line with the applicant’s pleaded case and evidence led, the issue is whether she has established prima facie evidence upon which this Court having applied its mind reasonably to it, could or might find for her. Against this principle, the issue in this case is whether the applicant’s resignation can be said to amount to a constructive dismissal within the meaning of section 186(1)(e) of the LRA, and to the extent it may be so, whether she had raised a credible possibility that the dismissal fell within the scope of section 187(1)(f) of the LRA. It follows that where the applicant fails in respect of the first leg of the enquiry, i.e., to establish that her resignation amounted to a constructive dismissal, the second enquiry into whether a dismissal falls within the scope of section 187(1)(f) effectively becomes superfluous.

[15] The above enquiry calls for an analysis of the applicant’s evidence regarding the nature of her complaints forming the basis of the two causes of action. This pertains to each specific reasonable accommodation needs she had requested, which in accordance with her pleaded case, were not met.

(i) Personal assistant (PA):

[16] It is common cause that the applicant had upon her appointment, submitted a motivation on 9 November 2012 regarding her reasonable accommodation needs. She had requested a PA who would also act as her driver. The PA was to assist her in the management of her

everyday needs and activities, including bathing, dressing, toileting, transfer, and meals.

[17] The second respondent, (DG) had on 4 December 2012, and before the applicant commenced her duties, approved her motivation, including the proposed hourly rate for the PA and all associated costs. The DG also agreed to have the applicant’s needs reviewed. Upon this approval, the Department paid into the applicant’s account, all the costs towards the services of the PA. The agreement was therefore that the applicant would secure a PA and manage her, with the Department carrying all her costs in that regard.

[18] Under cross-examination, the applicant conceded that her reasonable accommodation needs regarding a PA were met immediately upon the commencement of her employment. This much she further confirmed in her letter of resignation. Her complaint however was that since a PA could suddenly decide to leave or be unavailable for whatever reason, the supervisor and the department ought to have

accommodated her further by affording her more time off, whenever she had to secure a new PA to train her. She contended that this was not done, and that either the HR department informed her to take annual leave to train the new person, or her supervisor informed her that she needed to train the person ‘on the go’ as she could not be granted special leave.

[19] Flowing from the arrangement with the Department regarding the provision of a PA, it is apparent that the management and availability thereof was entirely left to the applicant. This made sense in that it was for the applicant to appoint a PA of her choice rather than the Department imposing one on her. Of course, to the extent that sometimes the PA would not be available for her due to a variety of reasons, what was apparent however is that at no stage was the applicant prevented from working from home.

[20] It further appears that the applicant’s concerns related to whether she could take her annual leave or special leave when having to attend to any issues surrounding a PA. These are however issues which she had equally raised with the DPSA and was advised that she could take special leave where the need arose. The issues of leave as I understood from the evidence, fell outside the authority of the Department hence the DPSA was best placed to deal with. The fact however remains that the applicant’s needs regarding the provision of a PA were met. This issue cannot by all accounts, have been a basis of an alleged hostile working environment, nor can it be said that the applicant was discriminated against in any shape or form regarding this issue.

(ii) Assistive devices:

[21] In her motivation for assistive devices, the applicant requested a specific laptop with sufficient hard drive storage, and appropriate reading software. Her evidence was that a month after her employment,

she still did not have a laptop, and scanner, and had to rely on her own private set up at home in order to perform her duties. In February 2013, the applicant had informed the Department that due to the unavailability of the initial software she had requested, she had found a different software with a programme that reads and uses voice commands for typing. She further referred the Department to the South African National Council for the Blind where they could assist in securing this type of software.

[22] It is accepted that not all of the assistive devices that the applicant needed were made available as soon as she commenced her employment. The evidence however and also from her own concessions, demonstrated that at all material times, the Department was responsive to her requests, had engaged with her whenever some of these devices could not easily be obtained due to their specific nature or whenever she made further requests. There was no evidence to suggest that the Department either refused to meet all of her request or deliberately took long to ensure that the devices were secured.

[23] It is accepted that at some point when these devices were not made immediately available, the applicant took it upon herself to obtain quotations from service providers, liaised with suppliers, the department’s procurement office and special programmes unit, and her supervisor. It is not in dispute that the Department had submitted quotations to service providers for the further requested items in May 2013. Of course the applicant was prejudiced for the period that she was not in possession of all the devices that she needed. What is however common cause as already indicated is that after her initial requests in November 2012, other requests followed as evident from her emails on 4 December 2012, 4 and 20 February 2013; 8 March 2013, and 5 May 2013. Other than the slow pace and various other requests that the applicant had made in the interim, she had conceded under cross-examination that as at the end of March 2013 and at her first performance assessment for 8 December 2012 – 7 March 2013, she was able to perform her tasks. It is not being suggested that the department was not slow in providing these devices. All that is being said is that since various requests for a variety of other accessories were made by the applicant over a period until May 2013, as at June/July 2023, all her requests in regards to her assistive devices had been duly and earnestly attended to by the respondent, and her needs in this regard were met.

[24] In the light of the above, the non-availability of some of the assistive devices at some point, or the lack of speed with which these devices were made available, cannot by all accounts have been the basis of an allegation of intolerable working conditions or any form of alleged discrimination. As at March 2013, she was fully capacitated and resourced to complete her tasks. The Department did not, as readily conceded by the applicant, refuse any of her requests and it was common cause that it had always positively responded and attended to those requests.

(iii) Ablution facilities:

[25] The applicant testified that ablution facilities were a problem and that the Department was not responsive and accommodative of her disability needs. It is common cause that the department occupied three floors in its premises and that there were few toilets in relation to a large staff complement on each floor. She complained that the toilet doors and seats, inclusive of those for people with disabilities were always in a broken state, causing her to move from

one floor to another in search of a toilet. As a result of having limited access to ablution facilities, this had caused her physical

discomfort and other ailments associated with depriving herself of water in order to go less frequently to these facilities.

[26] It was common cause that in January 2013 and after complaining about the inconvenience, the applicant was moved to the third floor where there were less people and given her own key to the toilet door

for disabled people so that other staff members could not use it. In June 2013 she had made a request that the door to the disabled toilet be changed so that it opened outwards for her ease of access and further complained that the cubicle was too small to accommodate her. Service providers were engaged to attend to the toilet facility problems and as at October 2013, all of problems related to ablution facilities had been attended to and resolved. At that stage, the applicant had been working from home and was advised on 28 October 2013 that the problem was resolved. When she went to the office the following day, the service provider was still painting the door. She then went to the first floor and found that there was no toilet seat. Aggrieved, the applicant then left and went home, and penned a substantial grievance complaining about her constitutional rights having been violated.

[27] Because other staff members continued using the allocated toilet, in November 2013, Ms Mnguni from the Facilities Unit had sent an email to all staff members informing them to refrain from using the allocated toilet on the third floor. However, as at the end of December 2013, and as further confirmed by the applicant in March 2014 when completing a checklist on her reasonable accommodation needs, and also in her resignation letter, all these needs were met, including the resolution of all the problems associated with ablution facilities.

(iv) Office space:

[28] The applicant’s testimony was further that a month after her employment, the Department had not made available to her, office space to meet her needs. She testified that initially, she was allocated a cubicle on the first floor which was occupied by another person who was away from the office at the time. When that person returned, it was common cause that she was moved to a more spacious office on the third floor reserved for the Deputy Minister of the Department, who was then not as yet appointed. It is also at that point that the problems associated with ablution facilities were eased when she moved to the third floor.

[29] When a new Deputy Minister was appointed, she had continued to share an office with him until consultations were held with her in regards to her needs for a new office space. That space was to be constructed

from scratch. It was further not in dispute that prior to the office being constructed, the applicant was shown the space, had raised her concerns regarding noise from common printers that may interfere with her work, and made a request that the office space be insulated from noise lest it interfered with her dictation on her laptop.

[30] There were on-going engagements between the applicant and the Facilities Unit in regards to her new office space which it was common cause had been completed by March 2014. That applicant’s office space, albeit completed at a slow pace, was a product of extensive engagements and consultations with the applicant. When she completed her checklist in April 2014 in regards to her needs, she had acknowledged that the only outstanding requirement for her was the use of the Sick-bay as and when the need arose. She therefore acknowledged that her office space needs were met. It is therefore surprising that she would three months after her confirmation that all her reasonable accommodation needs were met, deem it necessary to find that the work environment had become hostile or intolerable.

Did the applicant’s supervisor create a hostile working environment?

[31] In her statement of claim, the applicant had alleged that her supervisor, Mr Hadebe, was hostile towards her and had failed to understand the nature of her disability and the provision of her reasonable accommodation needs. She accused him of having made disparaging remarks about her whenever she could not come to work because of the unavailability of her PA for a variety of reasons. She alleged that he informed her that she ‘should not make her problem his problem’; and that she must have back-up plans and get family members and friends to assist her. She further alleged that he told her to train her new PA ‘on the go’. She testified that because she had to train a new PA in haste, this had resulted in two incidents when she fell as she was being assisted by the inexperienced PA to get in and out of her vehicle. She further alleged that Hadebe insulted her and degraded her work; and generally refused to assist her in securing all her reasonable accommodation

needs, which issue I need not say more about.

[32] Aligned to the applicant’s complaints about her hostile relationship with Hadebe was the issue of her performance assessment and the extension of her probation period, and the fact that a negative assessment which resulted in a score of less than 100% deprived her of opportunities to get a bonus and pay progression. She alleged that as a result of the hostile working relationship and lack of appreciation of her disability by Hadebe, she could not meet her

targets.

[33] In relation to the above complaints against her supervisor, and based on the applicant’s own version and concessions upon being referred to documentation related to her engagements with the supervisor, what further came out was that it was common cause that the applicant and her supervisor had on 21 March 2013, entered into a performance agreement for the period 1 April 2013 to 31 March 2014. The first quarterly assessment in respect of the applicant’s performance for the period 18 December 2012 to 7 March took place on 7 May 2013. That assessment took the form of the applicant and her supervisor assessing and measuring her performance against her KPAs. In that assessment, evidence indicated that the supervisor took account of constraints related to the lack of all assistive devices during the period under assessment and the impact it had on the applicant’s performance, and her failure to meet some of the targets. In the end however, the total score to be allocated was such that the applicant scored herself in each area. It was only in respect of one area (Initiative) that the applicant had scored herself 4 out of 5 but the supervisor had scored her 3. In the end however all the scores were agreed between the two, and significant with these is that in none of the areas did the applicant score herself a 5 or 100%.

[34] The above pattern continued with all the subsequent performance assessment for the periods 18 March to 17 June 2013 and 18 July to 17 September 2013, In the last quarter of the applicant’s probation, an assessment took place for the period 18 September to 17 December 2013. Again, her score was also agreed to between her and her supervisor despite the latter having scored her one point lower in respect of two aspects of her KPAs (or Generic Assessment Factors (GAFs). Significant however with the applicant’s own scoring was that in none of them had she scored herself 100%. The supervisor had decided that an extension of her probation was appropriate, which she had also agreed to. Again, in his assessment, the supervisor took into account the problems associated with the lack of assistive technology, other requests she had had made for reasonable accommodation needs, and her own request that she needed more time to learn on the job.

[35] From the above engagement between the applicant and her supervisor in regard to her performance assessment, it is apparent as the applicant had conceded, that the supervisor was always considerate of some of her shortfalls as being due to the slow pace with which some of the assistive devices were made available to the applicant. He took account of the applicant’s request for more time to learn on the job and the two of them had at all material times, agreed on the applicant’s scoring. In the last quarter of the assessment, they also agreed to an extension of her probation. It follows that there can be no basis for a conclusion to be reached that it was as a result of the supervisor’s sole making that the applicant did not receive bonuses or pay progression for not achieving a 100% score. The parties had agreed on her score and even if the supervisor had disagreed with her in certain areas, based on the scores she had allocated herself, she still would not have achieved a total score of 100%.

[36] It further follows from the nature of her probation, that the applicant’s employment could after assessment, be confirmed or terminated, or that probation could be extended. There was therefore nothing untoward from the supervisor’s decision to extent her probation, in the light of the process followed as already outlined

and agreed to with the applicant.

[37] In her resignation letter of 28 July 2014, the applicant further accused her supervisor of having insulted her; questioned her character and used disparaging language towards her whenever she raised problems with her PA not being available for a variety of reasons. She further contended that she had meetings with her supervisor and Special Programmes about these issues and it was suggested to her that she should take annual leave. The applicant did not agree to this suggestion hence she had approached the DPSA which in turn informed her that she should take special leave. Since the Department also took long to resolve the issue, the applicant held the view that the latter was unwilling to support her in ensuring that problems associated with her leave requirements and PA was resolved

[38] The final incident with the supervisor according to the applicant took place on 2 July 2014. On 3 July 2014 she contacted officials in HR since she wanted to resign at that point. Flowing from these discussions, Monde Magadla, the Deputy Director of Employee Relations, further advised the applicant on 3 July 2014

to lodge a formal grievance. The applicant however declined to do so because in her view, this would have caused her supervisor to make ‘her life even more difficult for her because she would still have to work under him'. After further discussions with the Chief Director: HR on 3 July 2014, the applicant was told to go home and to also see a doctor to assist her to calm down and to return the following day. She was subsequently booked off for a week during which time she also saw a Psychologist, who in turn advised her to approach the CCMA. She thereafter resigned.

[39] What can be gleaned from the applicant’s letter of resignation and from her oral evidence is that even if she had cause to complain about the conduct of her supervisor, on her own version, officials from Special Programmes and HR, had proactively intervened and made attempts at finding a solution to what she believed were her

concerns. As already indicated however, all of her reasonable accommodation needs were at that point, long met, and it appears that her concerns remained the conduct of her supervisor towards her.

[40] In the light of the applicant’s concerns, and it being common cause that Magadla had suggested a solution, which was for the applicant to lodge a formal grievance, and which solution the applicant rejected out of hand, one cannot speak of the employer, being the Department, having caused the continued employment relationship to become intolerable. In fact on the whole, I am satisfied that there was no discernible evidence from the applicant, that indicated that throughout her employment, that she was subjected to conduct by the employer that made her continued employment intolerable or hostile in any manner. This was particularly based on the conclusions made in regards to her reasonable accommodation needs and the solutions proffered in regards to any concerns she may have had related to her supervisor. The applicant had time between 3 and 28 July 2014 to reflect on the course she wanted to take. For reasons which are not clear but which had nothing to do with the conduct of the employer, she made an informed decision on her own volition, to hand in her resignation.

Summary and conclusions:

[41] Having had regard to the applicant’s pleaded case, her evidence led under cross-examination in reference mainly to the documentary evidence placed before her and her numerous concessions in that regard, the following summary and conclusions ought to be made;

41.1 From the moment the applicant commenced her employment and had made her reasonable accommodation needs known, at no stage did the Department turn down any of her requests nor did it fail to attend to them. Evidence as further confirmed by the applicant under cross-examination demonstrated that at all material times when she made requests, the Department was always responsive and sensitive to her needs.

41.2 It is acknowledged that some of these needs were not timeously attended to for a variety of reasons outlined in this judgment. However, there can be no basis for any conclusion to be reached that the Department failed in its obligations towards the applicant or to act in accordance with its own policies regarding the provision of reasonable accommodation needs.

41.3 The non-availability of some of the needs at some point of the applicant’s employment, cannot by all accounts have been the source of her grievance to the extent that it can be concluded that it had made the working environment intolerable for her, leading her to resign. In equal measure, I fail to appreciate the grounds upon which it can also be concluded that the applicant was dismissed in circumstances where her needs were long met, and where she had rebuffed any suggestion to have any complaints she may have had against her supervisor formally dealt with through a grievance procedure.

[42] In the end, it ought to be concluded that the applicant has not established prima facie evidence upon which this Court having applied its mind reasonably to it, could or may find for her. She has not, based on her own evidence, made out a prima facie case relating to all the elements of her claim under section 186(1)(e) of the LRA, let alone under section 187(1)(f) of the LRA. It was therefore correctly submitted on behalf of the respondents, that there was nothing to rebut.

[43] The applicant’s evidence throughout did not give rise to more than one plausible inference, from which any evidence could be concluded to be in her favour in the sense of supporting her cause of action. On the contrary, her evidence was incurably and inherently so improbable and unsatisfactory to support her causes of action, and

the Court is obliged to reject it.

[44] To repeat, the applicant has not placed before the Court, evidence that suggests that despite her resignation, there was any conduct on the part of the respondents that can be said to have made her continued employment intolerable, let alone that any conduct on the part of the respondents or any cumulative impact thereof viewed objectively, could have resulted in her not to reasonably be expected to cope with it. In these circumstances, one cannot speak of any dismissal by the respondents, let alone a constructive dismissal within the meaning of section 186(1)(e) of the LRA. Thus, since one cannot speak of a dismissal, the enquiry into whether the applicant has provided evidence which raises a credible possibility that a dismissal fell within the scope of section 187(1)(f) of the LRA in the end becomes superfluous. In these circumstances, the facts of this case are such that it would be in the interests of justice that absolution be granted. Further since the issue of costs did not arise, no order in that regard will be made.

[45] In the premises, the following order is made:

Order:

1. The respondents’ application for absolution from the instance is granted.

2. The applicant’s claim is dismissed.

3. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES: For the Applicant: B.G. Mashabane, instructed by Gavanash & Richards Attorneys (Pro bono). For the Respondents: M. Mojapelo, instructed by State Attorney: Pretoria.

[1] Section 186 provides as follows: Meaning of dismissal and unfair labour practice “Dismissal means that” (a) … (e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or (f) …

[1] Section 186 provides as follows:

Meaning of dismissal and unfair labour practice

“Dismissal means that”

(a) …

(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or

(f) …

[2] Section 187 provides as follows: automatically unfair dismissals (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is— (a) … (f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility; (g) …

[2] Section 187 provides as follows:

automatically unfair dismissals

(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is—

(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;

(g) …

[3] 1976 (4) SA 403 (A) at 409 G-H; see also Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92F-G (Gordon Lloyd Page); Coenbritz Farming (Pty) Ltd v Nelson (HC-MD-CIV-ACT-CON-2021/04662) [2023] NAHCMD 97 (8 March 2023) at para 3

[4] at 92H - 93A.

[5] [2021] ZALAC 18; [2021] 10 BLLR 979 (LAC) at para 26.

[6] See Legal Aid South Africa v Jansen [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC); [2020] 11 BLLR 1103 (LAC); 2021 (1) SA 245 (LAC) at para 35.

[7] (2017) 38 ILJ 121 (LAC ) at paras 16 – 17.

[8] [2023] ZALAC 15 (17 August 2023) at para 32