Of interest to other judges

THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN

Case No: C293/2021

In the matter between:
WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED                        Applicant

and

COMMISSION FOR CONCILIATION,                                              First Respondent
MEDIATION & ARBITRATION

COMMISSIONER BELLA GOLDMAN N.O.                               Second Respondent

HEINRICH AYLWARD                                                                   Third Respondent

Date of Set Down: 25 January 2023

Date of Judgement:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 16h00 on 18 January  2024

Summary: (Review - constructive dismissal –- Long serving employee subjected to increasingly oppressive working relationship - grievance procedure invoked but effectively inoperative – no viable mechanism for resolving matters and restoring trust and confidence – work relationship intolerable –resignation amounting to constructive dismissal in terms of s 186(1)(e ) of the LRA.  – constructive dismissal requirement considered)

JUDGEMENT 

LAGRANGE J
Introduction
[1]	The Applicant, Wesbank, a division of FirstRand bank Limited (the bank), wishes to review and set aside the arbitration award issued by the arbitrator, the arbitrator, on 28 April 2021. The arbitrator found that the third respondent, Mr H Aylward (‘Aylward’), was unfairly dismissed in terms of section 186(1)(e) of the LRA, in that the bank made continued employment intolerable for him. Aylward handed in his resignation on 10 February 2020 claiming to have been constructively dismissed. The arbitrator upheld his claim and awarded him ten month’s remuneration as compensation.

[2]	The bank denies that Aylward was constructively dismissed and argues that, due to the non-existence of a constructive dismissal, the CCMA had no jurisdiction to arbitrate his unfair dismissal claim. The bank wishes to review the arbitration award on the basis that the arbitrator had failed to consider the evidence before her and drew inferences which were not warranted by the evidence thereby reaching conclusions which were wrong. The bank also claims that the arbitrator entertained evidence which was irrelevant and therefore, misconceived the true nature of the enquiry while also failing to apply the correct legal test in order to determine whether Aylward was constructively dismissed.

[3]	The bank further requests the court to condone the late filing of its supplementary affidavit, which will be dealt with first.

The condonation application for the late filing of the supplementary affidavit

[4]	In terms of Rule 7A (8) of the Labour Court Rules, the supplementary affidavit must be filed within ten (10) days of the Registrar informing the bank that the record of proceedings is available for collection. The Registrar of the Labour Court sent a Rule 7A(5) notice to the parties on 29 June 2021 advising the bank that two CDs should be collected from the Labour Court. 

The extent of the delay
[5]	The Registrar informed the bank that the record of proceedings was available for collection on 29 June 2021. Therefore, the bank should have filed its supplementary affidavit on 13 July 2021. However, the bank only filed the supplementary affidavit on 10 September 2021 which was 43 (forty-three) days after the day time frame had lapsed. The delay is significant yet not extreme. Nevertheless, the bank still needs to explain the delay.

The explanation for the delay
[6]	The bank dispatched the audio recordings to the transcription agency on 1 July 2021. The CCMA dispatched the remainder of the record of proceedings to the Labour Court on 2 July 2021 in terms of a Rule 7A(3) notice. These were uplifted on 7 July 2021, even though the bank only received the registrar’s notice on 13 July 2021 advising that the transcription was ready for collection. The record was 565 (five hundred and sixty-five) pages and the bank became aware that documents which were referred to in the transcribed record had not been made available by the CCMA. On 1 September 2021, the third responded requested that the record be filed by 3 September 2021. The bank responded to this email on 2 September requesting Aylward’s attorneys to provide them with a copy of those documents in order for the record to be finalised. Aylward’s attorneys provided the bundle of documents which was requested on 5 September 2021. On 6 September 2021, the bank identified that certain documents which were referred to in the record were not included in the bundles which were provided by Aylward’s attorneys. Aylward’s attorneys sent an email to the bank’s attorneys which contained the copies of the remaining documents on 6 September 2021. The bank’s attorneys indexed and paginated the record of proceedings and delivered it, together with the supplementary affidavit on 10 September 2021.

[7]	 In its request for condonation, the bank states that ‘the transcription process alone typically exceeds the ten-day period referred to in Rule 7A(8), especially where the arbitration process took place over multiple days and the parties relied on excessive bundles of documents.’ The bank further states that ‘this is the reason that the Practice Manual of the Labour Court provides an applicant with 60 days to file the record before the matter is deemed to be withdrawn and in terms of section 145(5) of the Labour Relations Act 66 of 1995, as amended (the LRA) requires an applicant to apply for a court date within 6 (six) months from the date of delivery of the application.’ 

[8]	The bank’s delay was significantly long, but a proper justification has been provided. The bank only received a notice on 13 July 2021 that the transcription was ready for collection. The transcript of the record of proceedings was essential for the bank to draft its supplementary affidavit and therefore, filing the supplementary affidavit on 13 July 2021 was not possible. The CCMA filed the record in two batches and only filed the remainder of the record of the proceedings on 2 July 2021. This is a clear indication that the transcribed record was extensive especially since the arbitration occurred over multiple days. The CCMA failed to provide certain documents, which were referred to in the record. Consequently, the bank had to come up with alternative methods in order to obtain the documents so that the record could be finalised.

[9]	Aylward, Aylward will not suffer any prejudice if the condonation application is accepted. Moreover, Aylward’s attorneys assisted the bank’s attorneys to finalise the record and never opposed the condonation application. There is no reason as to why the condonation application cannot be acceded to. The record was filed within 60 (sixty) days and the bank applied for a court date within the six-month period. Aylward was not demonstrably prejudiced by the delay. The late filing of the supplementary affidavit is therefore condoned.

Brief narrative of events
[10]	Aylward was formerly employed as a specialist fraud and risk investigator by the bank for a period of 17 (seventeen) years before resigning on 10 February 2020.

[11]	It is useful to set out a brief summary of the history of the dispute prior to addressing the review application. It must be mentioned that the parties did conclude a fairly comprehensive pre-arbitration minute in which they agreed on a number of common cause facts.  It should be apparent from the summary which parts of the narrative concern contested evidence.

[12]	Aylward’s line manager, Mr R Jelal (‘Jelal’), was appointed during 2017 and introduced Key Performance Indicators (KPIs) for the department in which Aylward worked. Following the introduction of the KPIs, Jelal and Aylward’s working relationship became increasingly strained after an incident in September 2018. A1 testified that his relationship with him was quite good until then.

[13]	On 26 September 2018, Aylward sent certain emails to Jelal in which he jocularly referred to Jelal as the ‘master of the highest order’. Jelal responded requesting Aylward to call him by his name out of respect. However, Aylward maintained his previous tone, and replied to Jelal, addressing him as ‘Roshan … The Wise Master of the highest order.’ A1 claimed there was some tension in the department, and he tried to lighten the mood with some banter.  He claimed he was known as a bit of a joker and was a master of ceremonies at bank award ceremonies where he would perform a comedy ‘roast’ of management figures.

[14]	Even though Aylward thought for some reason that his jocular tone was not offensive, Jelal naturally felt the mocking epithets were disrespectful. He was advised that charges of dereliction of duty and being disrespectful were being considered and requested Aylward to make a statement about the incident, which he did. It must be noted that the objectionable content was made in the course of a responding to an email sent by Jelal to the whole department, and Aylward’s teasing replies were also circulated to the staff members.  Thereafter, Aylward sent an email to Jelal alone which stated that he was ‘just pissing’ with him. Jelal asked Aylward to explain in writing why he had used these terms and advised Aylward he would be bringing disciplinary charges against him. Aylward duly submitted a statement as instructed. In it he apologised for what he said and offered to share his apology with the other staff who had received the emails. None of this correspondence formed part of the bundles filed by the parties in the arbitration proceedings, though it is apparent it marked the beginning of the deterioration of relations between them.

[15]	Even though the intended charges never materialised, the uncertainty of whether the disciplinary proceedings would be instituted led Aylward to start suffering from stress and anxiety causing him to begin consulting the bank’s employee wellness service provider, the Independent Counselling and Advisory Services (‘ICAS’) in anticipation of having to cope with his possible dismissal. It must be remembered that up to that point he had a clean disciplinary record with seventeen years’ service with the bank. There was no evidence his relations with Jelal’s predecessor, a Ms Pillay had been problematic. It was only on 6 March 2019, when Aylward directly raised his concern about the pending disciplinary action, during a phone conversation with Jelal, that he was told that the matter was considered resolved. Aylward told Jelal he was relieved to hear that because he had felt ‘a sword was hanging over him’ and remarked that he was not in a “fucking good space” at that moment.  This was an allusion to him being extremely stressed for personal reasons owing to recent tragic news he had received concerning a significant number of friends and relatives and having just been the victim of an armed robbery in a restaurant and a variety of other stressful issues he was dealing with in his life at the time.

[16]	On this occasion, Jelal did take disciplinary action over the coarse language used by Aylward, even though it would appear there was no element of disrespect of insubordination involved, unlike on the previous occasion. The disciplinary proceedings resulted in Aylward being issued with a final written warning on 17 April 2019. Aylward claimed the disciplinary action was unfair and referred a dispute to the CCMA which ended in an award being issued on 23 October 2019 substituting the final warning with a written warning.

[17]	Aylward lodged a grievance on 25 March 2019 concerning the bank’s failure to advise him on whether disciplinary action was going to be taken arising from the email exchange on 6 September 2018. Aylward received the bank’s response to his grievance on 15 April 2019.  The bank advised him there was no substance to the grievance. Whatever the bank’s actual reason for dismissing the complaint was, it would not have been an unreasonable response, if it felt that Aylward should have raised the issue earlier and as the disciplinary action had not materialised the issue had become moot.

[18]	In June 2019 Jelal gave Aylward a poor performance rating of 2.8, without any prior discussion between them having taken place. In eighteen assessments during the seven years preceding that he had received an average assessment of just under 3.2. Even in his three previous ratings by Jelal, his lowest rating was 3.3 and the highest was 3.4. He complained that the PIP was imposed without prior warning of the meeting, even though Jelal had flown down for the meeting the day before. The performance rating downgrade was also imposed without Jelal having conducted previously conducted the regular performance assessment meeting, which ought to have taken place to assess his work during the period October 2018 to March 2019. He claimed that none of the alleged problems with his performance had been raised with him earlier, when they had supposedly arisen.

[19]	In consequence of being rated below 3, Aylward was placed on the performance improvement plan (PIP). He had allegedly failed to submit investigation reports within 14 days using the standard report template. He testified that he was expected to provide interim reports on investigations using the final report template, whereas his colleagues were using the shorter standard interim report template. This required longer preparation time which led to delays. He provided an example of another colleague’s final feedback on an investigation using the short two-page format. 

[20]	In his grievance Aylward stated that at the meeting he was presented with the PIP policy and then confronted with a few issues pertaining to his work, which had never been raised with him before.  He was simply expected just to give ‘yes’ or ‘no’ answers, which led him to feel he was under interrogation. Had he known what issues were going to be dealt with, he could have prepared for each complaint in advance of the meeting. When he was quizzed about why one investigation was not completed in the time frames and was not in the right format, he explained that the case was handled by another investigator in the Eastern Cape. Jelal immediately phoned the investigator to confirm if it was so. When Aylward asked why no performance meetings were held during the previous six-month assessment period if his performance was so bad, he was ignored. When he asked for a copy of the new reporting format, Jelal did not send it to him, and he had to source it himself.  He complained that he was asked to file reports on short notice, with no reason why he could not have been notified earlier.

[21]	Aylward testified that he only learnt that a major investigation had been classified as a fraud case three weeks after the rest of the fraud department in the Western Cape was notified of the classification, because he was not copied in on the classification email from Jelal.  Moreover, the case had been unattended to from 7 May The fact that he was notified later put his investigation of the matter under unnecessary time constraints.

[22]	He also became aware in July 2019 that he had been excluded from the WhatsApp group used within the fraud department for formal and informal communications. Jelal offered no explanation for this and could only say that he was not the administrator of the group, which existed before he was appointed. This was not canvassed with Aylward.

[23]	Earlier in that month a witness in major money laundering case whom Aylward was due to interview was assassinated. When he reported his concerns about the turn in the case, Jelal required him provide a copy of the affidavit to confirm that he had opened a criminal case in matter.  A risk assessment was done and he was advised to move to Johannesburg for his own safety, but he made alternative arrangements by moving to his parents’ house and leaving his company vehicle at the office. He was dismayed that Jelal never even spoke to him about the personal circumstances he had to deal with as a result of the case, even though he was a potential target. Jelal testified that he in fact referred the matter to the security department to conduct a risk assessment and that the affidavit opening the case was needed so they knew what case the incident related to. He did not give any explanation why he personally did not contact Aylward but testified that his line manager communicated with him and that Aylward would not respond to his calls or emails.  None of this evidence was put to Aylward during his testimony. Aylward’s allegedly constant non-responsiveness to Jelal’s communications over a long period of time was never the subject of any disciplinary action. 

[24]	As a result of these events, he felt he was being marginalised in the department. Consequently, in July 2019, Aylward requested to be transferred into another department of the bank. On 19 July 2019, the bank’s head of employee relations, Mr S Bennett (‘Bennett’), responded in an email advising him that he was free to apply for any available role within the bank, however, the standard recruitment processes would apply. Noting that Aylward complained that he found his present working environment stressful and unpleasant and working relationships eroded to the extent he could not properly function, Bennett also suggested, on a without prejudice basis that it might be in the best interest of both parties if the parties entered into a mutual separation agreement. Neither party took up his suggestion and Aylward construed it as an indication the bank wanted him to leave.

[25]	Aylward subsequently lodged six grievances against Jelal’s conduct complaining about the manner in which he had been treated by him. The bulk of the grievances were lodged on 22 August 2019. The later grievances were lodged on 26 August 2019 and 7 October 2019. Aylward requested that all of them be dealt with together as they were all related to the same issues. The grievances can be summarised, though each issue was set out in much greater detail by Aylward, some of which is detail captured elsewhere in this judgement:

25.1	Jelal’s peremptory rejection of two applications he had made for leave in mid-June 2019. One related to pressing family circumstances arising from his mother’s sudden hospitalisation owing to her suffering a stroke, and the other concerning the refusal of annual study leave to finish his master’s dissertation. Both were peremptorily rejected within a short time of them being submitted, without any discussion or reasons being provided.

25.2	The reassignment of an investigation in Vredendal, which he was entrusted with, to another investigator and his exclusion from meetings about the investigation.  The meetings took place between Jelal and the other investigator, who both came to Cape Town to work on the matter, without his involvement. He said this had never happened before in his 17 years of service and felt it amounted to stripping him of his responsibilities.

25.3	The PIP was imposed on him in July 2019 without any performance assessment meeting being held with him beforehand. During the period preceding the imposition of the PIP, no complaints had been raised with him about his performance and all the reports he had submitted had been accepted. He believed Jelal had imposed the PIP as a punitive measure.  Jelal had also decided on the performance rating of 2.8 without any prior communication with him, nor was he given reasons for it. He cited another instance in which Jelal had classified a matter as a fraud investigation, but it was only three weeks later the matter was allocated to him, which placed him under unnecessary time pressure to comply with timelines. 

25.4	Aylward was also aggrieved about a second PIP meeting that was scheduled to take place virtually on 26 August 2019, which Jelal simply failed to attend without any explanation. Aylward said he waited over an hour for Jelal to join the online meeting but he never did.  Nonetheless Jelal sent him a string of emails containing queries. Incidentally, the arbitrator had found that Jelal had not been truthful when he claimed that it was Aylward who did not attend the meeting when it was in fact Jelal himself.

25.5	Lastly, on 7 October 2019, Aylward filed a grievance concerning Jelal allegedly blowing out of all proportion Aylward’s lateness in joining a Skype meeting on 3 October 2019.  He also complained that Jelal had required him to prioritise sending him documents pertaining to his registration with Unisa and to even though that meant he had to cancel a meeting with police and a fraud suspect which had been previously arranged. Jelal expressly instructed him to cancel his work meetings to provide him with the registration documentation and a statement about his exact whereabouts at 08h40 on 3 October, when he was phoned about his attendance.  Aylward claimed that when he asked his line manager the next day what was going on and why Jelal was insisting on him providing the information on such an urgent basis, he was told he should ‘read between the lines’. He could not believe it could have been the bank’s interest for him to cancel his meeting with the SAPS to attend to  Jelal’s enquiries. It is mentionable that Jelal had sent the request for the information on Sunday morning 6 October requiring Aylward to comply with the request by 12h00 the next morning.  Aylward testified that he only saw the email on Monday 7 October, which gave him only four hours to respond. He undertook to answer Jelal’s emails but could not do so by 12h00. 

25.6	In his grievance of 7 October, he complained that the investigation of the grievances he had previously submitted was taking unduly long. This grievance also the bank’s commencement of an investigation into whether he had been dishonest in conveying his whereabouts on 3 October 2019, when he was late logging in to a Skype meeting, and into an allegation that he had applied for and obtained study leave in 2016 when he was allegedly not registered for any course at Unisa at the time. Aylward was surprised to learn that the investigation was given to the bank’s Group Crime Risk department, which normally only dealt with serious cases.  Jelal testified it had been assigned to that department, but that other disciplinary cases had also been sent there because the department had a mandate to perform staff investigations involving dishonesty. This and fact that he found Aylward’s responses to requests for information were vague was his explanation for remitting the investigation to that section. As with much of his evidence this was not put to Aylward.

[26]	At this juncture it should be mentioned that Aylward was mostly absent from work from 17 August 2019 until 1 February 2020, in respect of which he had tendered a number of medical certificates.  His annual leave fell due during the period 16 November 2019 to 8 January 2020, but he also obtained a medical certificate that he was unfit to work over that period too. The certificates were not disputed by the bank, though he claimed his doctor had been phoned to confirm that he had consulted him. At the arbitration the bank made it clear that it did not necessarily accept the correctness of the diagnoses in the medical reports. In late October 2019, Vandayar emailed Aylward to warn him that he was taking excessive sick leave and his entitlement balance was exhausted. She sent him a referral form to complete to see if he could be placed on the extended income benefit.  He did not apply but explained that his doctor and psychiatrist attributed his ill health to the victimisation, bullying and harassment he alleged was experiencing at work. He noted that he still had annual leave owing to him.

[27]	From 3 September 2019, Aylward began making enquiries about the progress of the grievances he had submitted by that stage. On that day, he was told by an HR staff member, Ms K Vandayar (‘Vandayar’), that attempts were being made to obtain a chairperson for the grievance enquiry. On 13 September, she advised him that it was taking longer than anticipated but that the investigation of his grievances ought to be completed by the end of that month and the hearing would take place in the second week of October. There was evidence of email correspondence at the end of November 2019, between Vandayar and the chairperson concerning the convening of the grievance hearing on 10 December 2019. In the correspondence Vandayar asked the chairperson if the hearing can be held on 17 December instead, owing to Aylward being on sick leave. Despite these belated preliminary steps being taken, ultimately the grievance hearing was never convened before disciplinary action was initiated against him on 3 February 2020, which was over five months since the bulk of his grievances had been submitted.

[28]	While the determination of a date for the grievance hearing was the subject of correspondence between the HR department and the chairperson, Aylward was notified in mid-November 2019 that an investigation was underway concerning his registration at Unisa since 2015 and his whereabouts on the morning of 3 October when he was due to attend the Skype meeting. In fact, he had already known, at least by 6 October 2019, that he was being asked prove his UNISA registrations and that the bank was seeking a detailed explanation of his whereabouts prior to him joining the Skype meeting on 3 October. His own emails show he was anticipating disciplinary steps would flow from these two issues. Thus, his grievance of 7 October was a reaction to the preliminary enquiries he was required to respond to, which he anticipated (correctly) would lead to disciplinary action. The disciplinary action was not initiated in reaction to his last grievance. 

[29]	On 25 January 2020, Aylward addressed correspondence to the chief executive officer of the bank (‘the CEO’) in which he complained about the lack of progress in addressing his grievances. He said he sent the email because he was in a really ‘bad, bad, bad space’ and was desperate for assistance from ‘the top’. He wanted to see if the process could be expedited. The CEO responded to his email on 29 January 2020, treating Aylward’s request as if it was a legal pleading, and merely advising that the grievances were still being dealt with internally as well as externally with the CCMA. On 7 February 2020, Aylward addressed further correspondence to the CEO requesting an outcome by close of business that day. The CEO never responded to the email and on 10 February 2020, Aylward resigned with immediate effect. Aylward did not give any reasons for his resignation in his letter of resignation. When he was asked at the start of his evidence by the arbitrator if there was any individual he would identify as the cause for his resignation, he replied that he thought management was to blame for the situation he was in, and the main cause was the Jelal’s conduct towards him. 

[30]	On 3 February 2020, prior to submission of his resignation, the bank had requested Aylward to submit to a medical assessment hearing to determine his ability to continue performing his duties. The assessment was scheduled to take place on 12 February 2020. Further, charges of misconduct against Aylward were also issued on the same day to be considered at a disciplinary enquiry scheduled for 7 February. These concerned his Unisa registration in 2016 and his precise whereabouts at around 08h45 on his way to participate in the Skype meeting on 3 October 2019. It is a matter of dispute whether or not Aylward actually received these notices. This is discussed in more detail later.

[31]	Thus, as things stood at the time of Aylward’s resignation, his grievances had not been attended to and it seemed unlikely they would be, the disciplinary enquiry had not yet commenced and no medical assessment hearing had taken place, but a notice to attend the medical assessment had been emailed to him before he resigned, though he might not have read it.

[32]	On 6 March 2020, Aylward, referred an unfair dismissal dispute to the CCMA claiming that he had been constructively dismissed by the bank. 

The arbitrator’s award 

[33]	The arbitrator found that Aylward’s dismissal was unfair in terms of section 186 (1)(e) of the LRA because she concluded the bank had made his conditions of continued employment intolerable. She awarded him 10 months’ remuneration as compensation.

[34]	In determining that Aylward had been constructively dismissed, the arbitrator concluded that he had exhausted all possible internal procedures. She also found that the bank was ‘far from happy’ that Aylward had referred a case to the CCMA which had resulted in the award of 23 October 2019 downgrading Aylward’s final written warning to a warning.

[35]	The arbitrator concluded that the bank was making continued employment intolerable for Aylward as the evidence before her showed that Jelal and the bank were victimising Aylward, in particular after he had referred disputes to the CCMA. She noted that, in July 2019 the head of Employee Relations, Mr Bennett, had responded to Aylward’s request to be transferred to another department but failed to deal with it directly and instead suggested that both parties enter into a mutual separation agreement as it would be in their best interest. She inferred this would have entailed Aylward’s resignation. Mr Bennett and the CEO of the bank both referred to the CCMA which, according to the arbitrator, indicated that both of them had an issue with Aylward referring a dispute to the CCMA.

[36]	The arbitrator further rejected the contention that Aylward had resigned in order to avoid the disciplinary enquiry due to the bank’s failure to reschedule or postpone the proceedings. She found that Aylward had only resigned on 10 February, which was after the scheduled inquiry of 7 February 2020. Further, it was common cause that the disciplinary enquiry never took place nor was it postponed. The arbitrator interpreted the purpose of the enquiry as instance of Jelal attempting to find some reason to get rid of Aylward. The arbitrator found it was improbable that Aylward had received either the email to attend the disciplinary enquiry or to submit to the medical assessment. She also decided, based on evidence led in the arbitration, that Aylward would not have been treated fairly in those processes in any event.

[37]	The arbitrator understood that that it was not her function to determine whether Aylward was guilty of the misconduct which he had been charged with, but nonetheless found that the charges had no merit. She decided that Jelal had attempted to use performance rating of Aylward as a way of pressurising him. She concluded that Jelal and the bank both did what they could in order to terminate Aylward’s services by invoking poor work performance assessments, disciplinary measures, and incapacity proceedings against him. Furthermore, even after Aylward had resigned, the bank still instituted a REDS hearing which prejudiced Aylward’s ability to get employment in the financial sector. She plainly reasoned this was indicative of a vindictive attitude towards him. 

[38]	She noted that Aylward had a clean disciplinary record for 17 years until the relationship between him and Jelal had soured in 2018. The bank made no attempt to resolve the personal conflict between Aylward and Jelal in order to restore a good working relationship which would have been in its interest. Instead, Aylward’s appeals for intervention were basically ignored.

The merits of the review application
The legal test for constructive dismissal 
[39]	Before dealing with the grounds of review in this application, the legal test   applicable to the review of arbitration awards concerning constructive dismissal claims must be mentioned.

[40]	The bank contends that because the first point to be determined is whether Aylward’s resignation should be construed as a dismissal, or simply as an ordinary resignation, the issue is whether the arbitrator was objectively correct in finding his resignation was in fact tantamount to termination by the employer. As such, the arbitrator’s finding is either right or wrong: it does not have be assessed on the standard or reasonableness or, to put it differently, whether it is a finding no reasonable arbitrator could have arrived at. Aylward objected to the nature of the bank’s review application because he deemed it to equate to an appeal to the Labour Court in order to consider facts anew and to substitute the arbitrator’s ruling with a ruling that the Court could have made as court of first instance. He argued that disputes that considerations of jurisdiction are irrelevant in the matter and asserts that the reasonableness test should be applied.

[41]	The Labour Court and the Labour Appeal Court have consistently applied a correctness test in reviews of constructive dismissal awards. Contrary to Aylward’s contention, the Labour Appeal Court has found that the question whether an employee was constructively dismissed or not concerns the determination of a jurisdictional fact, which must be established objectively. If an employee who resigns was not constructively dismissed, then the CCMA would have no dismissal dispute before it for it to determine the fairness thereof. 

[42]	Strictly speaking, the review court need not concern itself with the arbitrator’s reasoning, because the court must itself determine the correct answer to the question whether a dismissal took place. For that reason, it might seem similar to an appeal, even though it is not one. It is a de novo enquiry but on the evidence before the arbitrator. Nevertheless, a consideration of the reasoning of the arbitrator and criticisms raised on review can provide helpful indicators of what the correct outcome should be. 

[43]	The fundamental requirements that must be established to prove that a constructive dismissal occurred were set out by the Labour Appeal Court in Solid Doors:

“[28] It should be clear from the above that there are three requirements for constructive dismissal to be established. The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established. Thus, there is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace or for a certain company and that is not due to any conduct on the part of the employer.”
 
[44]	Perhaps the most frequently cited characterisation of the mindset that an employee has when their resignation is capable of being classified as a constructive dismissal was set out by the Labour Appeal Court in Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC)    :

“When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee's most important function, namely to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.”  

[45]	More recently, the LAC has explained that:

“[32] … [T]he 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.”

[46]	The onus on an employee to prove they were constructively dismissed is a heavy one. Under the common law, a repudiatory breach of the employment contract by an employer would warrant an employee resigning and treating the employer’s conduct as a constructive dismissal, but since the statutory definition of dismissal extends to a situation in which  “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”, the scope for claiming constructive dismissal is broader. 

[47]	This court summarised the change in Westcor SA (Pty) Ltd v Mey & others (2023) 44 ILJ 397 (LC). Insofar as court seemed to suggest that a repudiatory breach of the employment contract by an employer would not be relevant in determining if an employer has rendered the employment relationship intolerable, that would go too far in my view. In fact, in Westcor it was a 25 % unilateral reduction of the employee’s salary which rendered the employment relationship intolerable, which was also tantamount to a repudiatory breach of contract at common law. Be that as it may, I agree with Westco that proof of a common law repudiatory breach is not a prerequisite to establish a constructive dismissal. In Westcor the court stated:

“[34] Common-law principles governing breach of contract underpinned the development of the concept of what came to be known as ‘constructive dismissal’ under the 1956 LRA. At common law, faced with a breach, the innocent party can elect to accept the breach and claim damages, or reject the breach and enforce the contract. In a constructive dismissal, the employer’s breach of an express term (such as remuneration, or role) or an implied term (often, the employer’s duty to preserve the relationship of trust and confidence) entitled the employee to cancel the contract (by resigning).

[35] The legal basis for constructive dismissal changed completely with the introduction of the s 186(1)(e) definition in the 1995 LRA. The enquiry is no longer governed by common-law contractual principles: as the LAC confirmed in Albany Bakeries Ltd v Van Wyk & others:

‘Since the advent of the Act, the prime and only consideration is whether the employer made continued employment intolerable for the employee.’ 

[36] This is important, given that dicta and comments from judgments given under the previous (common-law) approach to constructive dismissal are still frequently cited and relied upon today. These dicta should be read keeping in mind that they were made in the context of entirely different legal principles, which no longer apply.”
(Footnotes omitted)

[48]	In Murray v Minister of Defence 2009 (3) SA 130 (SCA), SCA stated:

“[11] … the law and the Constitution impose 'a continuing obligation of fairness towards the employee on the employer when he makes decisions   affecting the employee in his work'.  The obligation has both a formal-procedural and substantive dimension; it is now encapsulated in the constitutional right to fair treatment in the workplace.

[12] In detailing this right, the parties freely invoked the carefully considered jurisprudence the labour courts have evolved in dealing with unfair employer-instigated resignations under the labour relations legislation of the past three decades. These cases have established that the onus rests on the employee to prove that the resignation constituted a constructive dismissal: in other words, the employee must prove that the resignation was not voluntary, and that it was not intended to terminate the employment relationship. Once this is established, the inquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. Looking at the employer's conduct as a whole and in its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.17

[13] It deserves emphasis that the mere fact that an employee resigns  because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstances 'must have been of the employer's making'. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do that may make an employee's  position intolerable.  More is needed. The employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked 'reasonable and proper cause'. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances  of constructive dismissal that is the case.”

(emphasis added) 

[49]	The last important principle relevant to this review concerns the determination of intolerability. Obviously, there is not a finite list of factual scenarios which would make the employment relationship intolerable, but the employee must have very compelling reasons for concluding that no reasonable person in their situation could be expected to continue with the working relationship:

[46] … It is well-accepted that intolerability is a high threshold, ‘far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly’. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.”

[50]	The situation confronting the employee must also be considered as a whole and not on a piece meal basis.

(emphasis added)

[51]	The inevitable question that must be answered in determining whether the employee’s situation is intolerable is: by whose standard is intolerability to be gauged?  In Mafomane v Rustenburg Platinum Mines Ltd, this court held that:

“The conclusion that the question whether the employee's continued employment has become intolerable in that he or she cannot "reasonably" be required to endure it, must be made from the perspective of a reasonable person in the shoes of the employee, obviously does not mean that the employee’s own views must prevail. The test remains an objective one. The idiosyncrasies of the particular employee are not the benchmark. The assessment must be made from the perspective of a reasonable person in the shoes of the employee, that is, from the perspective of a reasonable person with the same background, life experience and position.”

The grounds of review

[52]	As already mentioned, the ultimate question to be decided is whether the arbitrator’s finding was objectively correct. Nonetheless, it is useful to bear in mind the criticisms of that finding which emanate from the grounds of review.

[53]	The bank claims that the arbitrator ignored evidence which showed it had in fact attempted to appoint a chairperson in order for a grievance hearing to take place. The bank further points out that from 9 January 2020 until the date of Aylward’s resignation, 10 February 2020, Aylward was on unpaid leave. It argues that the evidence showed it was not unwilling to deal with Aylward’s various grievances but his continuous leave of absence made it difficult to schedule a hearing. It also submitted argued that Aylward had resigned to avoid pending disciplinary action and the independent medical assessment triggered by his ongoing sick leave usage which was scheduled to take place two days after he submitted his resignation.

[54]	The bank alleged the notices of the enquiry and the medical assessment documents were both emailed to Aylward using his personal Unisa email address, which he claimed he hardly ever used. Aylward denied receiving either document, though an email dated 5 February 2020 was produced by the bank showing that the medical assessment hearing notice probably was sent to that email address. Aylward could not dispute it was sent to that address, but simply said he didn’t see it because he did not regularly use that email. I note too that the email subject line referred to a medical certificate, and not an appointment for a medical assessment. No similar email was produced to corroborate the bank’s claim it also emailed the notice of the disciplinary enquiry. It is also common cause the disciplinary enquiry did not even convene on 7 February, but why this was so remains a mystery. Considering that there is nothing to show that notice of the disciplinary enquiry was sent to Aylward and that no enquiry even convened, the probabilities are that it was never sent even if it had been drafted. If he had received it and wanted to pre-empt it, then it’s reasonable to assume he would have resigned before the disciplinary enquiry.  It is true that Aylward submitted his resignation on 10 February, and that he might have seen the medical assessment notice emailed on 5 February, despite it being sent to an occasional email address and despite the subject line not disclosing the content of the message. But it seems equally likely that he would have submitted it anyway even if he hadn’t received it, given that he had reached a cul-de-sac with the CEO, whom he saw as a last resort. In the circumstances, I am not persuaded that his resignation was triggered by receiving notice of either of the enquiries.

[55]	Aylward retorts that the bank did not deal with his grievances and points out that the bank’s senior HR official, Mr Bennett, advised that ‘it would be in the best interest of all parties if they entered into a mutual separation agreement.’ Aylward also argues that the bank did not follow its own grievance policy which requires grievances to be dealt with in three days. He claims his grievances were ignored and the failure to attend to these grievances is what gave rise to his medical condition, which the bank was aware of because he had informed it of his medical condition in the grievance documentation he had submitted on 26 August 2019. A clinical psychologist’s report was also submitted with the grievance stating that he had been treated for reactive depression from around the time he was issued with the final written warning and the depression had affected him physically.

[56]	Aylward disputes the bank’s contention that it provided evidence that it was actually dealing with the grievances. He notes that Jelal and the bank were both given the opportunity to provide evidence at the arbitration hearing in order to prove that the bank’s crime and investigation department was investigating the grievances he had raised. The bank also had said it would provide the bundle of documents comprising Jelal’s written responses to the grievances and the grievance investigation reports drawn by the investigation department with a view to further evidence being led on these documents.  The primary purpose of this was to support Jelal’s testimony stating that the bank had made an attempt to deal with the grievances. However, when the arbitration reconvened they claimed the bank announced it had elected not to submit the disputed reports in evidence or call any witnesses in this regard. The bank’s rationale for this about-turn was that it contended that the manner in which it addressed Aylward’s grievances was irrelevant to the determination of the merits of the constructive dismissal case. Aylward argues that this tends to support his version that his grievances were not in fact addressed by the bank and this was a key factor in his decision to resign.

[57]	Aylward further challenged the bank’s argument is that it was unable to deal with the grievances because he was on sick leave, whereas this consideration seemingly did not prevent it from initiating disciplinary action and incapacity proceedings against him. Aylward argued that the bank ‘relies on e-mail communication and video conferencing facilities in its daily activities’ and testified that he was available at all times yet the bank never approached him on either platform in relation to the grievances.

[58]	The second ground of review concerns the bank’s claim that the arbitrator entertained evidence which was irrelevant and therefore, misconceived the true nature of the enquiry and she also failed to apply the correct legal test to determine if Aylward was constructively dismissed.

[59]	More particularly, the bank claims that it had no intention of leading evidence in relation to Aylward’s misconduct in the arbitration and nor was it necessary. It argues that the arbitrator improperly absolved Aylward of misconduct notwithstanding that this was not part of the case that the bank was required to defend. The arbitrator should not have considered evidence about whether Aylward was guilty of the charges brought against him.  It further argues that, even if such evidence was relevant, there was no factual basis before the arbitrator to conclude that Aylward was not guilty of misconduct or that his grievances were caused by the treatment he received from Jelal. 

[60]	Aylward points out that one of the elements of his case was his claim that Jelal and other senior managers contrived misconduct allegations against him to facilitate the termination of his employment. He argues that the arbitrator correctly considered his evidence in this regard. The bank could have responded to his grievance allegations but chose not to. The fact that the bank did not like the evidence placed before the arbitrator did not render the evidence irrelevant. In any event, he submits that the arbitrator did not absolve him of misconduct contrary to the bank’s claim, because the arbitrator’s comments on the disciplinary charges were confined to a remark that he had been able to provide proof that he was registered at Unisa in 2016, which was relevant to the charge that he took unauthorised study leave. It is true that the arbitrator specifically mentioned this, but the arbitrator also remarked that there was no basis for the charges, which clearly indicated her ‘finding’ on the university registration question was not the only charge she believed could not be proven.

Evaluation
[61]	As mentioned, the prospect of continued employment must be shown to have been objectively intolerable and the employee must have resigned due to the intolerable situation and not for another reason. 

[62]	Aylward terminated his contract of employment when he resigned on 10 February 2020. He had lodged three grievances on 22 August 2019, 26 August 2019 and 7 October 2019. None of these grievances were attended to over a five-month period since he lodged the first one, which comprised most of them. Though he claimed the grievances should have been dealt with within three days, I accept that the very detailed and extensive nature of the grievances he filed, could not have reasonably been investigated and considered in that time. On the other hand, why nothing was forthcoming after a delay of about five months called out for a clear explanation from the bank. 

[63]	Aylward requested an update on his grievances from another member of HR staff, Ms Vandayar, who informed him on 12 September 2019 that they were trying to obtain a chairperson to chair a grievance hearing. On 13 September she notified Aylward that because an investigation of his grievances was underway, which she expected would be finalised by the end of September, the enquiry would probably take place in mid-October 2019. As previously mentioned, there was also evidence of emails during November 2019 between Vandayar and the intended chairperson of the enquiry trying to agree on a date for the hearing.  There was no further evidence of any attempt being made to convene a hearing after this.

[64]	Although the bank claimed it could not convene an enquiry owing to Aylward’s illness, it is apparent from an email of Aylward dated 18 November 2019 that, in consultation with his union representative, he stated would diarise the week of 2 to 6 December for the enquiry. This clearly indicated that he was amenable to an enquiry being convened despite his prolonged absence owing to illness.  Aylward’s evidence that he was willing to attend the hearing because his medical condition only meant he could not be expected to return to work under his prevailing work circumstances, was not disputed. Further, there was also no evidence the HR department had ever communicated with him about its own concern that it could not convene the enquiry when he was ill. 

[65]	The evidence shows that it was not because Aylward made it impossible to schedule a grievance hearing because he claimed he was too ill to attend it: it was the HR department’s decision, based on its own view that the grievance enquiry could not proceed while he was not at work, notwithstanding the willingness he expressed to participate. This might be construed as a benevolent attitude on the part of the bank, but similar considerations did not affect the bank’s decision to convene the disciplinary enquiry and medical assessment hearing. It is so that Jelal testified that the enquiry and assessment hearings were only set down in February, because Aylward was due back at work then, though this explanation was not canvassed with Aylward when he testified. It also begs the question why the grievance hearing was also not set down then.

[66]	Aylward testified that the failure to convene the grievance enquiry after months had elapsed prompted him to make appeal to the CEO on 25 January 2020 to ensure that his grievances were addressed. The CEO’s non-committal response was received on 29 January. Aylward followed this up with a final demand on 7 February 2020 before submitting his resignation a few days later. The CEO’s response to Aylward’s first approach simply stated that his grievances were being addressed internally and at the CCMA, without giving any indication when he could expect a response. The CEO’s reference to the CCMA was obviously incorrect as Aylward had not referred any of his grievances to that forum. In the light of the lack of any plausible evidence at the arbitration that the grievances were being actively investigated, other than Jelal’s say-so, the CEO’s response that they were being addressed internally was a perfunctory, misleading and indifferent one after such an extensive delay. It is noteworthy that the CEO did not even mention that the bank was struggling to convene the enquiry owing to Aylward being ill, which would have been the natural explanation if that was the real reason for the inertia as the bank claimed at the arbitration.  That said, the fact that CEO did not respond at all to Aylward’s final demand for a resolution within a day is understandable, given the ambit of his grievances. Nevertheless, it was already clear from his reply on 29 January that nothing was likely to change in the bank’s attitude about expediting the grievance. 

[67]	Nonetheless, the bank’s dilatoriness in dealing with these grievances still requires an explanation. When Jelal was questioned on the steps taken to address Aylward’s grievances he claimed he had filed comprehensive responses to Aylward’s allegations and that the investigators had drafted reports on the investigation of the grievances. The arbitration hearing was adjourned to allow the bank to submit these documents and lead further evidence on them.  However, when the hearing resumed, the bank announced the documents would not be provided because it had taken a view that an evaluation of the grievance process was not necessary for the purpose of determining the constructive dismissal dispute. The bank appears not to have appreciated that the relevance of producing the reports was to rebut the inference that Aylward’s grievances were not being attended to, and not to prove whether or not his grievances had any merit. 

[68]	The long delay in processing Aylward’s grievances, stands is in stark contrast to the speed with which Jelal drove the investigation into Aylward’s whereabouts on the morning of 3 October 2019 and into all the study leave he had taken since 2015. Jelal even insisted that Aylward should prioritise responding to his request for information over his investigative duties. Even allowing for the fact that the bank was entitled to investigate bringing the charges, it is understandable in these circumstances that Aylward could form the view that the bank was not interested in his grievances and was more concerned with initiating fresh disciplinary proceedings against him. There is no plausible bona fide explanation for Jelal expecting such a rapid response from Aylward or placing such overwhelming importance on it. The more plausible explanation for this behaviour suggests it was driven by a somewhat obsessive compulsion to find something which could implicate Aylward in serious misconduct.

[69]	The dramatic downgrading of Aylward’s performance assessment by Jelal, which was significantly at odds with how his performance had previously been assessed, and which was decided on without any prior discussion with Aylward was understandably of great concern to him. The downgrade only started with the April 2019 performance assessment, the month in which he received the final warning. The previous three during Jelal’s tenure were high in line with Aylward’s prior performance history. 

[70]	The explanation given was that he was not submitting investigation reports timeously or in the correct format. Aylward’s claim that he was in effect taken by surprise and summonsed without forewarning to the first PIP meeting in July 2019.  Although it was not canvassed with Aylward, Jelal testified that this was a scheduled PIP meeting but did not produce proof of any prior notice given to Aylward for this initial PIP meeting in July.  Aylward was not challenged during his evidence about his complaint that he had not been previously upbraided about his reports.  Jelal referred to one email from Mr De Jager, Aylward’s line manager at the time, telling him to use a certain format for reports in the future, but without criticising him for the past reports.  Even on Jelal’s evidence which the bank did not test with Aylward, Jelal could not produce evidence of a pattern of Aylward failing to produce reports in the required format. Nor could he properly explain why he rejected summaries drawn up Alward at De Jager’s behest 

[71]	It is true that, he was removed from an investigation he had originally been seized with. It was only when Jelal led his evidence that an alternative version emerged that it had been reallocated initially because he was absent. Although this version should have been put to Aylward, it was not seriously disputed and was supported by correspondence, which was part of the arbitration bundle. Consequently, it seems that it was more as a result of excusable errors on Jelal’s part that the thought Aylward was once more responsible for the investigation that led him to issue instructions to him.  Jelal also testified that he had come to Cape Town not to work on the investigation but to represent the bank at the CCMA concerning Aylward’s final warning dispute. This too had not been canvassed with Aylward and in his written grievance he explicitly stated that Jelal and Stewart were in Cape Town to deal with the case, but in view of the narrative above, nothing turns on this.  It must also be noted that owing to his medical condition, Aylward would not have been able to maintain his normal investigatory workload, given his increasingly frequent absences from work. Accordingly, there was not persuasive evidence that Aylward was being stripped of all his responsibilities.

[72]	As mentioned, the bank disputes the relevance of the cogency of the misconduct charges against Aylward because the arbitrator was not required to delve into the merits thereof.  While this is probably generally speaking correct, I do not think that the nature of the charges will never be relevant to the question whether or not an employee was being put under intolerable pressure.  For example, if it is manifestly evident that the employer is unable to advance a prima facie case in support of the charges, that might have a bearing on whether the planned disciplinary action is motivated by bona fide disciplinary concerns. In turn that might be relevant in deciding if the employer had “without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee”. 

[73]	The arbitrator clearly believed the charges relating to Aylward’s whereabouts at a specific time on 3 October 2019 and his Unisa registration were not brought in good faith. It is clear that the two charges relate to the subject matter of two of Aylward’s grievances, namely his study leave entitlements and his late attendance at the virtual meeting on 3 October 2019. On a superficial view the charges might be viewed as an indirect riposte to Aylward having raised these issues as a grievance.  Jelal defended the charge over Aylwards’ alleged fraudulent claim to have been studying in 2016 on the basis that it was just fortuitously stumbled on in the course of preparing to respond to Aylward’s complaint of being refused study leave in 2019. In other words, the grievance regarding a refusal to grant study leave in 2019 prompted a focus on whether study leave three years earlier had been authorised. That is not an implausible narrative. 

[74]	The charge of dishonesty relating to Aylward’s whereabouts when he it was common cause he was en route to attend a Skype meeting was about whether he was actually driving at the time he was phoned by Jelal or whether he was in fact in a stationary vehicle at his parent’s house where he gone to collect a work file and his bullet proof vest.  He had said in the phone call that he was driving but would pull off the road. Jelal contended he was still at his parents’ house when he said this.  The evidence was ultimately more consistent with Aylward’s version and that the call took place very shortly after had left his parent’s house around 08h46. However, all of this only came to light as a result of a detailed evidence relating to this charge which the parties led at the arbitration hearing. With the benefit of having scrutinised that evidence this charge seemed likely to have failed. Aylward described the charge as ‘somewhat overblown’. Indeed, the significance of any dishonesty of the kind alleged, which made no material difference to the fact that at either time he was en route to the Skype hearing and had no bearing on his integrity in the conduct of his investigations, was of a relatively trivial nature.  

[75]	It is appears that this charge was developed during the investigation of whether he could be charged for being late for the meeting. When it seemed that the charge of misleading Jelal about his whereabouts might a more viable one, the charge of lateness was not pursued.

[76]	In relation to Aylward having allegedly fraudulently applied for study leave in 2016, the fact that he had a receipt for payment of university fees at the beginning of that year, was prima facie evidence that he was registered for a course that year.  Nonetheless, Unisa’s record of his registration did not unequivocally show he was registered for his master’s degree in 2016. The omission in the record of registration could not be explained even by Aylward’s academic supervisor, but in the end the bank did not dispute the professor’s testimony that he could not have supervised Aylward in 2016 unless he had received proof of this registration.  

[77]	The fact that it was only when evidence relating to the merits of the charges was actually probed that the weakness of the bank’s disciplinary case became manifest does mean that the bank did not genuinely believe it could prove the charges at the time they were formulated. Nevertheless, in light of the evidence presented in the arbitration, Jelal conceded that the bank should not have found Aylward guilty in the subsequent REDs inquiry, which duplicated the disciplinary charges.  

[78]	Regarding Bennet’s suggestion that the parties considered trying to conclude a separation agreement it is reasonable to say it indicated that he did not foresee the working relationship between Jelal and Aylward as repairable. However, it was not a suggestion taken up by Jelal and merely because Bennet suggested it, it did not necessarily follow there was a common intention within the bank that he should resign. In any event, even if the suggestion had been pursued, a separation agreement would not automatically have required Aylward to resign, as he claims, because it could have been couched as a mutually agreed termination. Nevertheless, the fact that a senior HR staff member could suggest this at that time, could hardly have given Aylward any confidence that the company had an interest in preserving or repairing the employment relationship. 

[79]	In relation to the leave applications, Jelal did not provide a clear answer why he refused Aylward leave when his mother suffered a stroke. If there was a reason, this was not canvassed with Aylward. Jelal did claim that he declined the study leave application because Aylward had recently been absent and the study leave was not for the purposes of writing an exam. He claimed that he asked Aylward to come and discuss the study leave question with him, but he never did.  As with much of Jelal’s account, his version was not put to Aylward when he gave his evidence. 

[80]	On the question of what transpired when the second PIP meeting was due to be held in August 2019, Jelal claimed, based on an earlier email from Aylward, that it was Aylward who would not be able to attend the meeting. It seems that both parties might have been under different impressions about whether the other was going to be attending the meeting. In any event, even on Aylward’s version, Jelal had still sent him a number of queries relating to his work for his response around the time the meeting should have taken place.  Thus, even though the meeting might not have occurred, Jelal was clearly demanding answers from Aylward about his work, and it was not as if Jelal was indifferent about the process.

[81]	Whatever the bank thought about the merits of all Aylward’s grievances, it never took the trouble to address them even though he had set them out in extensive detail. At the time he made his request to the CEO to expedite the investigation of his grievances, the response he received conveyed no sense of urgency in addressing the long outstanding complaints despite the very long delay, still less was any reference made to the difficulty of convening a hearing, which would have been a natural reply if that had been the real reason no progress was made. The fact that the CEO’s response misrepresented the involvement of the CCMA showed how little thought was given to it. Any person in Aylward’s position would have despaired of ever having his concerns addressed.  

[82]	At the time he was aware that Jelal had acted with extraordinary zealousness in gathering information to charge him and that it was unlikely that the intended disciplinary action would be abandoned.  Emailing Aylward on a Sunday and requiring him to provide information by 12h00 the next day and further ordering him to prioritise this over his work by cancelling any appointments without any rationale why it was so urgent, could only convey one message to Aylward: that pursuing disciplinary action against him was more important and urgent than performing his investigative duties.  Despite placing Aylward under intense pressure to provide the information as a matter of urgency, nothing was done until February the following year. Jelal knew from the previous occasion when he had threatened disciplinary action over the disrespectful way Aylward had addressed him, how Aylward had reacted to the threat of impending disciplinary action.  

[83]	Jelal treated him with suspicion. He started to record all his telephone conversations with him, even though there was no prior history of Aylward denying what was said in a conversation between them.  When there was no inherent reason to doubt what Aylward reported to him, he sought independent verification. He did not accept Aylward’s word that an investigation had been reassigned to another investigator.  When the father of a witness in a major money laundering case was killed in a botched attempt to kill the witness, just before Aylward was due to meet the witness, he reported this to the security department and Jelal. The investigation done by the security contractors identified that Aylward, who was a complainant in the criminal case, was a potential target. As a result, he moved from his parents’ house, where he had been staying, and parked the bank’s vehicle at its premises when he was not using it, so his movements after work could not be traced using the bank vehicle’s tracking system. The only communication connected with this fraught situation, which he had from Jelal, his immediate superior, was to ask him to provide the affidavit he had used to open the case with the police. Jelal claimed he merely wanted to know which investigation the threat was connected with, but this was not put to Aylward. In any event, Jelal displayed no personal concern about how these traumatic circumstances caused by his work were affecting Aylward.

[84]	Obviously, there was something of a ‘sea change’ in Aylward’s hitherto untroubled relationship with the bank and Jelal following the incident in September 2018, even though disciplinary steps were only threatened. Aylward seriously misjudged the degree of familiarity Jelal was willing to accept. I accept also that the deterioration might have affected Aylward’s health. The bank did not dispute that he was ill, though it did not comment on it being attributed to his work situation. Whatever the reason, Alwyard’s mental health was suffering, and it was adversely affecting him physically too based on what his psychologist had stated in her memo attached to the first grievance letter. Although not all persons in his position would have been adversely affected to the same extent, there is no reason to doubt that it had a significant impact on Aylward. It must have been difficult for him given his long service in the bank working as an investigator, which was a job he evidently loved, to find himself in a position where he was facing possible dismissal, for his ill-judged jesting.  

[85]	As mentioned, the justification advanced for not being able to show progress on convening a hearing was Aylward’s unavailability without this supposed difficulty being canvassed with him and despite his evident willingness to participate. It could not produce a single piece of evidence to show that any investigation of the grievances was underway.  The probabilities are overwhelming that the bank had decided just to shelve the issue of addressing his concerns but was intent on pursuing mechanisms which presented the possibility of ending the employment relationship. Even when he was getting to his wits end about how to galvanise the grievance process the bank’s response was legalistic and conveyed no sense that there was even a provisional timeline for finalising it. After such a long delay, it was obvious opportunity to urgently reassure Aylward about the extent of the progress made and when the grievance hearing might be scheduled, even if provisionally. The uninformative, misleading and bureaucratic response would not have inspired confidence in anyone in Aylward’s position that he was actually being taken seriously and that the grievances would ever be addressed

[86]	He was performing some high-risk investigatory work which placed his own physical security at risk.  Under such circumstances, it would not be surprising if his general sense of vulnerability might have been heightened. Even though he had a perception of being assailed by management, as represented by Jelal, in many aspects of his work, in some respects his concerns were ill-founded or unnecessarily exaggerated. Even so, he had other genuine concerns which were not frivolous which his grievance attempted to address. In my view, it was not unreasonable of him to have believed he had lost the confidence and trust of the bank having regard to the overall effect of its conduct, namely: the drastic performance downgrade remarkably at odds with a high performance record over many years, which was not adequately explained;  the lack of preparation and notice he was afforded when the PIP was implemented;  his inexplicable exclusion from a social media group the rest of his department belonged to;  the head of department’s failure to express any personal concern about an assassination attempt on a witness he was about to consult given his vulnerability as the complainant in the case; the unwillingness of the bank to make any effort to see if he could be transferred bearing in mind his long prior work history; a failure to even motivate why an application for compassionate leave was rejected without discussion; Jelal’s personal distrust of what he told him and recording of their phone conversations; the negative comments of Bennet and De Jager hinting that the employment relationship was at an end or implying that the employer wanted to end it; the effort expended on exhaustive investigation of potential misconduct embarked on with alacrity and celerity which could not have contrasted more starkly with the bank’s failure to embark on any investigation of his grievances, after a long delay and despite the details he provided, and with the CEO’s indifferent response at a late stage to Aylward’s desperate attempt to expedite the airing of his grievances. I am satisfied, in the context of his long service and commitment to investigatory work and considered as a whole, that anyone in his position would probably have felt that they were unlikely to ever have their grievances aired, let alone resolved, and that there was no reasonable prospect of some kind of restoration of a workable relationship based on mutual confidence and trust. For the reasons mentioned I am satisfied the employer had made the employment relationship intolerable and he was entitled to regard his resignation as a constructive dismissal.

[87]	This is a case which is not characterised by a single decisive moment, such as a clear repudiatory act by the employer. Rather, it concerns an accretion of conduct creating an increasingly oppressive work relationship for Aylward, with no functioning mechanism available to halt the deterioration. 

[88]	The bank did not directly attempt to argue that even if Aylward’s termination amounted to a constructive dismissal it would have been fair, though it did suggest that the arbitrator should have accepted that he was guilty of the charges pending against him based on the evidence before her, if she was entitled to consider the issue, contrary to its own claim. The main difficulty with the argument is that, in circumstances where the REDs enquiry replicated the misconduct enquiry, Jelal himself conceded that the bank should revise its RED’s finding that he was guilty of dishonesty.  There is no basis for concluding that the bank had a fair reason for dismissing Aylward and consequently, the constructive dismissal was unfair.

[89]	As the compensation awarded was not the subject matter of the review and in the absence of any cross-review, there is no reason to disturb the arbitrator’s award on that issue either.

The order
[1]	The applicant’s late filing of its supplementary affidavit is condoned. 

[2]	The review application is dismissed.

[3]	No order is made as to costs.

Lagrange J
Judge of the Labour Court of South Africa

Representatives
For the Applicant                                   	C Bosch instructed by 
Cowan-Harper-Madikizela Attorneys

For the Third Respondent                        W Jacobs of Willem Jacobs & Associates