- A Labour Commissioner arbitrator in Namibia determined a constructive dismissal dispute between Alby Plaatjies and G4S Secure Solutions under Namibian law.
- The arbitrator applied the South African constructive dismissal test, drawing on a range of cited authorities recognised in Namibian courts.
- The tribunal found that the employer’s conduct did not meet the threshold of intolerability and that the resignation was not a last resort.
A Namibian labour arbitrator has dismissed a constructive dismissal claim after finding that a G4S security employee voluntarily resigned rather than being forced out, applying South African legal principles that set a high bar for proving workplace intolerability.
The dispute between Alby Plaatjies and G4S Secure Solutions came before arbitrator Louisa Likando at the Office of the Labour Commissioner in Namibia. The central question was whether Plaatjies’ resignation amounted to constructive dismissal. Likando applied South African legal principles, as adopted in Namibian case law, and concluded that the claim had not been established.
Plaatjies had been employed in a finance-related role when he was instructed to take on additional billing responsibilities. He objected to the instruction, stating that the duties fell outside his role and significantly increased his workload. The evidence showed that the instruction was later withdrawn and the additional duties were reassigned.
Despite this, the working relationship deteriorated. Plaatjies failed to meet certain deadlines, and disciplinary action was instituted against him. He was issued with charge sheets linked to performance concerns. After receiving a second charge sheet, he resigned with immediate effect, contending that the combination of increased workload, workplace pressure, and disciplinary action rendered his continued employment intolerable.
Namibian forum and applicable law
The matter came before the Labour Commissioner’s office for arbitration, with Likando tasked with determining whether the employer had made continued employment intolerable.
In setting out the legal framework, Likando anchored her analysis in Namibian authority. Referring to Banda v Namibia Training Authority, she stated, “Constructive dismissal is recognised in our law, and the approach adopted by South African courts is applicable.”
She reinforced this with reference to Kasuto v Namibia Wildlife Resorts, where the requirement was recorded as proof “that the employer made continued employment intolerable.”
Together, these authorities gave Likando a firm Namibian foundation for applying South African jurisprudence as the operative test.
South African cases define the legal threshold
With that foundation in place, Likando turned to South African case law to define the content of constructive dismissal.
Drawing on Solid Doors (Pty) Ltd v Commissioner Theron, she noted, “The employee must prove that the resignation was not voluntary but was caused by the employer’s conduct.”
From Pretoria Society for the Care of the Retarded v Loots, she drew the core enquiry, “Whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence.”
Murray v Minister of Defence added, “The employer’s conduct must be without reasonable and proper cause and must render the employment relationship intolerable.”
She rounded off the threshold analysis with Strategic Liquor Services v Mvumbi, which made clear, “Intolerability is a high threshold and is not satisfied by mere unhappiness or frustration.”
Application of South African principles
Turning to the facts, Likando found that the evidence fell well short of the required threshold.
On the question of additional duties, she referred to Gumbi v Amalgamated Beverage Industries, stating, “Employers are entitled to exercise managerial prerogative provided it does not breach the contract.”
The fact that the additional duties had been withdrawn and reassigned was taken into account in assessing whether the situation remained objectively intolerable.
On the allegations of pressure and harassment, she returned to the objective standard set out in Loots, stating, “The test is not the employee’s subjective perception but whether a reasonable person would find the conditions intolerable.”
Disciplinary process and employer conduct
Likando also considered the disciplinary proceedings, again looking to South African authority for guidance.
Relying on SmithKline Beecham (Pty) Ltd v CCMA, she held, “Disciplinary action taken for legitimate reasons does not constitute constructive dismissal.”
The disciplinary charges issued to Plaatjies were linked to missed deadlines, and the tribunal accepted that the employer was entitled to address performance concerns through formal processes.
She read this alongside Murray v Minister of Defence, confirming that lawful conduct, even if unwelcome, does not meet the threshold unless it is without reasonable cause.
Last resort requirement
A significant part of Likando’s analysis focused on whether the resignation was truly a last resort.
Citing Albany Bakeries Ltd v Van Wyk, she noted, “Resignation must be a last resort where the employee has no reasonable alternative.”
From Kruger v CCMA, she added, “Failure to utilise internal remedies is a relevant factor in determining whether resignation was justified.”
The tribunal found that Plaatjies did not lodge a formal grievance and did not allow the disciplinary process to run its course before resigning. She also drew on Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen, which held, “An employee who resigns to avoid disciplinary proceedings cannot claim constructive dismissal.”
Conclusion and outcome
Bringing the threads together, Likando concluded that Plaatjies had not discharged the onus of proof.
She held, “The Applicant has failed to prove that the Respondent made continued employment intolerable,” and that “the resignation was voluntary and not a measure of last resort.”
The constructive dismissal claim was dismissed.
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