The many shades of intolerability in the workplace

• Citation: (2024) 141 SALJ 323
• DOI: https://doi.org/10.47348/SALJ/v141/i2a4
• Published date: 10 April 2024
• Pages: 323-348
• Author: Le Roux, R.
• Date: 10 April 2024

323

https://doi.org/10.47348/SALJ/v141/i2a4

THE MANY SHADES OF

INTOLERABILITY IN THE WORKPLACE*

ROCH ELLE LE RO UX†

Professor, Faculty of Law, University of Cape Town

AI SHA ADA M‡

Teaching and Research Assistant, Fa culty of Law, University of Cape Town

The notion of int olerability traverses se veral workplace d ecisions. Howev er, its

meaning in the law i s far from linear, and its signi cance vari es, particularly wh en

considerin g three primary di smissal-related sc enarios: the meaning of di smissal; the

general threshold fo r dismissal (also in the ca se of rst oence s); and the barriers to

reinstateme nt in the case of unfair dismissal. T his article restates est ablished principles

concernin g labour dispute resol ution, particula rly those relating to onus an d review

standards and the rol e of breach of trust in em ployment relation s. Drawing on recent

jurisprude nce, the article re visits the assum ed role of intolerability an d explores its

nuanced impac t on decision-m aking processes. In pa rticular, the arti cle demonstrates

how the burden of proo f and applicable re view standards in th e case of each of the se

dismissal-relat ed scenarios can transfor m an ostensibly neutral term int o a kaleidoscope

of shades and mean ing, with far-reachin g implications in th e workplace.

Workplace intolera bility – dis missal – cons tructive di smissal – rei nstatement

– review – rea sonableness – tr ust

I IN TRO DUCT ION

Intolerabil ity, whether of continued employment or of a cont inued

employment relat ionship,1 is key to at least t hree employment deci sions

regardi ng dism issal: it in forms the mean ing of dism issal (the de nitional

cont ext), 2 sets the bar for di smissa l (general ly and also i n the case of a rst

oence) (the disciplin ary contex t),3 and can be a hurdle to rei nstatement

* An ear lier version of th is article w as presented by Rochel le le Roux at

the 25th An nual Confer ence of the South Af rican Socie ty for Labour L aw,

6–7 October 20 22.

† BJu ris LLB (Port Eli zabeth) LLM (Stellenbos ch) PGDip (Cape Town) LLM

(Angl ia Ruskin) PhD (Cape Town). https://orcid.org/0000-0002-8809-2231.

‡ LLB (Leiceste r) LLM (Cape Town). https://orcid.org/0000-0001-6891-857X.

1 T he use of the word ‘in tolerable’ in the La bour Relations Ac t 66 of 1995

(‘the LRA’) and the Co de of Good Pract ice: Dismis sals, Schedu le 8 of the LRA

(‘the Dismi ssal Code’) i s not linear : in the disc iplinar y and remedi al contexts

referred to b elow, the legislatu re speaks of t he intolerabil ity of a ‘continued

employment rela tionship’, but in the de nitional cont ext, the legi slature s peaks

of the intolera bility of ‘continued employ ment’. This ar ticle proceeds on the basi s

that the employ ment relationship is t he result of employment, and v ice versa, and

that there is n o particular si gnicance to the d ierent phraseolog y. Both are used

interchan geably in th is article.

2 Section 186(1)(e) of the LRA.

3 Item 3(4) of the Dismissa l Code.

(2024) 141 SALJ 323

© Juta and Company (Pty) Ltd

324 (2024) 141 THE SOU TH AFRICAN LAW JOUR NAL

https://doi.org/10.47348/SALJ/v141/i2a4

despite the unf airness of the di smissal (the remedi al context).4 Nonetheless,

while intoler ability i s the consideration t hat is common to these t hree

workplace decision s, it has many sh ades, and its in uence varies,

depending on t he context in which its pre sence is to be decided, t he onus

of proof, and the applic able review stand ard. This a rticle consider s recent

jurispr udence and revisit s assumption s about the role of intolerabi lity in

the above contexts. Fu rther, it considers t he impact of its ma ny shades on

the shaping of dec ision-mak ing processes.

The struct ure of this art icle is as follows. Part II ide nties the underlyi ng

themes that a re central to our a rguments i n this ar ticle. Part III eva luates

construct ive dismissal s, focusing on resignat ion and its reasonableness, a nd

furt her considers the appropr iate review sta ndard in thes e circumst ances.

Part IV ex plores the interconnec tivity bet ween intolerabil ity and tr ust,

considers the na ture of the evidence r equired in th is context, and

reects on the role of the appr opriate review st andard. Pa rt V analy ses

s 193(2)(b) of the Labour Rela tions Act 66 of 1995 (‘the LRA’) and the

principles i nforming its applic ation, particula rly its manifest ation in recent

judgments. T his part a lso considers t he standard of re view relevant in

respect of the ar bitrator’s value judgement in this r egard. Part VI concludes

the art icle.

II THE INTOLER ABILIT Y OF CONTINUE D EMPLOYMEN T:

UNDERLYING THEMES

The followin g ve themes are centra l to our argu ments: the duty of t rust

and good fait h; the meani ng of the intolerable employme nt relationship;

dismi ssal as an ope rational r isk; the onus in d ismissa l cases; and the

applicable review st andard. T hese themes and thei r vagarie s have been

discus sed in sucient detail el sewhere,5 and for the purposes of th is article,

it will su ce to restate thei r essence.

First, it is ack nowledged that t he implied ducia ry duties and dut y of

trust6 of an em ployee are contested terr ain, perhap s even more so after

4 Section 193(2)(b) of the LR A.

5 Chuks Okpa luba & T C Maloka ‘T he breakdown of the t rust relat ionship

and intolera bility i n the context of rei nstatement in t he modern law of un fair

dismi ssal (1)’ (2021) 35 Speculum Juris 148; C I Tshoose & R Let seku ‘The break-

down of the tr ust relation ship between em ployer and employee as a gr ound of

dismi ssal: Interpret ing the Labour Appea l Court’s decision in Aut ozone’ (2020 ) 32

SA Merc LJ 156; Al an Rycroft ‘The intoler able relation ship’ (2012) 33 ILJ

2271; Rochelle le Roux ‘Rein statement: W hen does a continu ing employment

relations hip become intoler able?’ (2008) 29 Ob iter 69; Craig Bo sch ‘The implied

term of tr ust and condence in South A frican labour law’ (2 006) 27 ILJ 28.

6 Expresse d as follows in Co uncil for Scienti c & Industrial R esearch v Fijen

(1996) 17 ILJ 18 (A) at 26B–D: ‘[I]n every contract of e mployment there is a n

implied ter m that the employer will not , without reaso nable and probable cau se,

© Juta and Company (Pty) Ltd