Ep 13: 'Sometimes a Cigar Is Just a Cigar' - Race Is Never a Cigar: ‘Unexpressed allegations’, tr...

In this episode we consider the recent decisions in the Labour Appeal Court in Machi v CHEP SA (Pty) Ltd (https://media.licdn.com/dms/document/...) and in the Constitutional Court in Maleka v Boyce N.O. and Others (https://www.saflii.org/za/cases/ZACC/...) . Both cases involve allegations of unfair dismissal and raise questions of trust and intolerable conduct - issues that go to the heart of an employment relationship and the rights and obligations of the parties. In Machi, the ‘intolerable conduct’ was that of the employee, and the LAC maintained that dismissal for misconduct based on an ‘unexpressed allegation’ may be fair, provided the employee has knowledge of the substance of the allegation. In Maleka, it was the employer’s conduct under the microscope. In this case, the Constitutional Court was divided on whether the threshold for ‘intolerability’ required for a constructive dismissal had been met. The Constitutional Court confirmed the test for constructive dismissal, and that the threshold whether continued employment is intolerable is high: objectively, the employer’s conduct must be ‘unendurable or agonising’. The majority agreed with the courts a quo, that the threshold had not been met.  In the view of the dissenting judgment, the threshold was met: race (in essence, an ‘unexpressed allegation’) was at the centre of the intolerability, and having ‘to report to another director [and not the managing director] for the flimsiest of reasons, in and of itself, gave rise to grievous intolerability.’ In the podcast, we raise concerns regarding the practical implications of the dissenting judgment.