Summary of the Document
This document is an arbitration award issued under case number GAEK 3552-26. The award was issued by Senior Commissioner Eleanor Hambidge and is dated 27 June 2026.
The matter was heard at arbitration on 19 June 2026. The Employer was represented by an attorney, Ms Ridgaard, and the Employee represented himself. The proceedings were recorded and an interpreter was made available.
The parties were afforded an opportunity to submit written closing arguments on or before 26 June 2026, and those arguments were received and considered.
Parties
Employee: Lefu Sephiri
Employer: Lothlorien Recycling
Senior Commissioner: Eleanor Hambidge
Sector: Wood and Paper
Background
The dispute concerned an alleged constructive dismissal involving Mr Lefu Sephiri and Lothlorien Recycling.
The Employee resigned in writing on 12 March 2026 at 13:36, with immediate effect, and did not serve a notice period.
The Employee contended that he had been constructively dismissed. The Employer disputed the Employee’s version of events and denied that the working conditions were intolerable.
Issue To Be Decided
The Commissioner was required to determine whether the Employee was constructively dismissed.
More specifically, the Commissioner had to determine whether the Employee had proved that:
- He had terminated his contract of employment.
- Continued employment had become intolerable.
- The Employer had made continued employment intolerable.
Employee’s Position
The Employee testified that he had previously lodged a grievance but had not been furnished with the outcome. He also referred to his fluctuating salary and alleged that, after lodging the grievance in December 2025, he was asked why he was still at the workplace.
The Employee testified that he had recruited five other employees to join a union. He indicated that he resigned after the “tissue-issue” and that he did not lodge another grievance before resigning.
During cross-examination, the Employee denied that he resigned because possible disciplinary action was going to be instituted against him. It was put to him that he resigned on the same day that the “tissue-issue” was raised and discussed with him and others.
The Employee claimed that after his earlier grievance he was threatened and verbally abused. He also considered himself to have been targeted by management, together with others, for wanting to join a union.
The Employee agreed that an issue relating to his reduced salary had been settled. He also stated that he should not have to ask for a payslip, because payslips should be issued automatically by the Employer.
Employer’s Position
The Employer called one witness, TJ Dreyer, a manager. Dreyer testified that he had a good working relationship with the Employee. He stated that he had given the outcome of the grievance to the Employee.
Dreyer testified that he investigated the “tissue-issue” and stopped the alleged guilty parties from entering the change room on 12 March 2026. He stated that he informed them of the reason and that the Employee abruptly left the premises on the same day. Within 30 minutes, the resignation letter was received.
Dreyer also testified that the Employee had not engaged him at any stage about intolerable working conditions. During cross-examination, Dreyer denied that the Employee had been targeted.
Legal Principles Considered
The Commissioner stated that the first question in any constructive dismissal matter is whether a dismissal occurred. If the Employee fails to prove that a constructive dismissal occurred, there is no need to consider the fairness of the dismissal.
The Commissioner referred to Solid Doors (Pty) Ltd v Commissioner Theron and Others, which confirmed that three requirements must be established before constructive dismissal can be found. All three requirements must be present, and if any one of them is absent, constructive dismissal is not established.
The Commissioner also referred to section 186(1)(e) of the Labour Relations Act, which defines constructive dismissal as a situation where an employee terminates a contract of employment, with or without notice, because the employer made continued employment intolerable.
The Commissioner noted that the onus was on the Employee to prove that the resignation was not voluntary and that he was forced to resign because of the Employer’s conduct.
The Commissioner further considered case law dealing with reasonable alternatives to resignation. The award records that where a reasonable alternative to resignation exists, it cannot be said that the employer made continued employment intolerable.
Facts That Were Common Cause
It was common cause that the Employee resigned in writing, with immediate effect, and that the resignation was sent by email.
It was also common cause that the Employee had previously lodged a grievance and that the grievance had been attended to by the Employer.
The Employee had not lodged another grievance before resigning, despite having previously used the grievance procedure. The Commissioner found this to be important in assessing whether there were reasonable alternatives available to the Employee before resignation.
Findings
The Commissioner accepted that the Employee had terminated his contract of employment. However, the Commissioner found that the Employee had not proved that continued employment had objectively become intolerable.
The Commissioner found that the Employee could have lodged another formal grievance before resigning. The Commissioner also found that the Employee could have escalated his previous grievance if he believed he had not received the outcome.
The Commissioner was not persuaded that the Employee’s resignation was caused by intolerable working conditions. The Commissioner found that the resignation was tendered on the same day that a group of employees had been called to discuss the alleged unauthorised removal of tissues from the workplace.
The Commissioner stated that it was not her duty in this constructive dismissal dispute to express any opinion on the Employee’s guilt or otherwise in relation to the “tissue-issue”. The Employee left his employment before that issue could be ventilated in a disciplinary hearing.
The Commissioner found that intolerability must be assessed objectively and that the subjective views of the Employee were not determinative. The Commissioner referred to authority confirming that the threshold for intolerability is high.
The Commissioner found that, based on the totality of the evidence, the Employer had not made the Employee’s continued employment intolerable.
The Commissioner accepted that certain workplace conduct complained of by the Employee was inappropriate. In particular, the Commissioner noted that a manager showing employees the middle finger was inappropriate, but found that this conduct had ceased once it was brought to the manager’s attention.
The Commissioner also dealt with the Employee’s allegations of offensive language. The Commissioner recorded that this issue had been addressed in the grievance hearing, that the Employee’s concerns were found to be reasonable and partially upheld, and that management undertook to curb inappropriate language and reinforce respectful communication.
The Commissioner agreed that the Employer was legally required to issue payslips and not only when requested. However, the Commissioner found that this oversight was not, objectively speaking, indicative of constructive dismissal.
The Commissioner was not satisfied that there was concrete evidence showing that the Employer was a “union basher” or that the Employee’s decision to join a union was the reason for him being victimised or subjected to intolerable working conditions.
The Commissioner found that the sequence of events was not consistent with a resignation compelled by intolerable conditions. Instead, the Commissioner found that the sequence was consistent with a voluntary resignation to escape pending disciplinary action.
Ruling
The Commissioner found that the Employee failed to establish the existence of a constructive dismissal.
The Commissioner found that the Employee failed to discharge the onus that a constructive dismissal occurred.
Accordingly, no relief was awarded.
Key Takeaway
This award confirms that an employee alleging constructive dismissal bears the onus of proving that the resignation was not voluntary and that continued employment had become objectively intolerable because of the employer’s conduct.
The award also confirms the importance of reasonable alternatives before resignation. In this matter, the Commissioner found that the Employee could have lodged another grievance or escalated the earlier grievance before resigning.
The Commissioner ultimately found that the Employee failed to prove constructive dismissal and awarded no relief.