Strategic Liquor Services v Mvumbi NO and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 18 June 2009
• Citation: 2010 (2) SA 92 (CC)
• Docket Number: CCT 33/2009
• Hearing Date: 18 June 2009
• Counsel: Counsel not supplied
• Court: Constitutional Court

The court: G

[1] The applicant (the employer) seeks leave to appeal against a judgment of the Labour Court dated 20 February 2007, which dismissed with costs an application to review a Commission for Conciliation, Mediation and Arbitration (CCMA) award in favour of Mr Wesley Redgard, whom it had employed as a merchandising supervisor and then H regional manager from October 2003 until February 2004. Despite the fact that Mr Redgard had tendered his resignation, the CCMA held that he had been constructively dismissed, and, notwithstanding the short period of employment, granted him compensation equivalent to ten months' salary (R121 500). Incensed by this outcome, the employer brought review proceedings in the Labour Court, but failed. It unsuccessfully I sought leave to appeal to the Labour Appeal Court, and then petitioned the Supreme Court of Appeal for special leave to appeal. That application, too, was dismissed with costs.

[2] The application to this court has scant basis and can be disposed of quite briefly. According to the CCMA's award, Mr Redgard was the only J

The Court

A witness to testify. Although the employer's case was conducted by its manager, Mr Jason Sellars, who was involved in the events leading up to Mr Redgard's departure, he did not testify under oath, but proffered only arguments and submissions. The result was that Mr Redgard's evidence was the only version before the tribunal. His evidence was not disputed B in cross-examination and the CCMA commissioner (Mr Mvumbi) accepted it. Mr Redgard testified that after one of the employer's biggest customers complained about him, Mr Sellars gave him a choice between resigning (with one month's salary and a good reference), and being warned and placed on a poor-work-performance programme with training. Mr Redgard testified that the complaints were unfairly instigated C and false, but that management was against him. After consideration he told Mr Sellars that he accepted management's 'offer' that he should resign 'because what is the point of staying if I'm gonna get fired anyway'. Shortly after, he initiated proceedings for unfair dismissal.

D [3] Section 185(a) of the Labour Relations Act [1] confers 'the right not to be unfairly dismissed'. Section 186(e) defines 'dismissal' as including a situation where 'an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee'. This definition gives statutory embodiment to the jurisprudence of constructive dismissal that preceded it. The E CCMA concluded that Mr Redgard had been constructively dismissed. In its application to this court, the employer contends that the CCMA - and the Labour Courts in refusing to review its determination - misconceived the jurisdictional prerequisites for constructive dismissal, since on Mr Redgard's own version he had a choice whether to resign or be subjected to poor performance procedures. It asks this court to step F in.

[4] There are two reasons why the invitation cannot be accepted. The first is that the employer's submission overlooks Mr Redgard's uncontested evidence to the effect that his work situation had become G intolerable and that the alternative to resignation was a sham since the employer would find a reason to dismiss him anyhow. This means there was no 'choice'. The second is that it misconceives the test for constructive dismissal, which does not require that the employee have no choice but to resign, but only that the employer should have made continued employment intolerable. [2]

H [5] There are no grounds for disturbing the CCMA's finding that this was the case (and no...