29-JUN-07
Rogers and Global Makana Prime Office [ULP, Cons Dismissal]
Case No. GA43120-04
Award Date: 17 November 2006
Jurisdiction: Johannesburg
Commissioner: R Bracks, Commissioner
Subject: Grievance/ (Residual) Unfair Labour Practices
Constructive Dismissal
Issue:
The applicant resigned her employment after claiming that she has been sexually harassed and victimised. She contended that her resignation constituted a constructive dismissal.
Summary of Facts:
The applicant lodged a sexual harassment complaint against a senior manager. The respondent company investigated the matter but found the offence could not be proven; none of the employees present during the alleged harassing events noticed ‘anything untoward’ and the applicant had herself sent suggestive sexual messages to the alleged harasser. After investigating the complaint the employer suspended the applicant for bringing malicious charges against her senior manager. The applicant resigned claiming constructive dismissal.
Summary of Judgement:
The Commissioner applied the following test for determining what an employee must prove when claiming constructive dismissal, namely:
1. there was no voluntary
intention to resign; and
2. the conduct of the employer was so serious that there was
no other option than to resign.
The Commissioner, in apply this test, determined that the applicant had not proven that her employment was intolerable because:
1. the employer had done what
was required of it by its code on sexual harassment;
2. the applicant had not reported earlier alleged incidents
of sexual harassment and therefore could not say her
employment was intolerable; and
3. the applicant failed to exhaust all possible remedies
prior to resigning (she could have appealed the findings of
the harassment investigation or referred the matter to the
CCMA).
The application was dismissed with no order as to costs.
