The Labour Court in Johannesburg ruled that a former employee who sent hostile and malicious emails to her employer after being refused early retirement, was not constructively dismissed and should not be compensated.
Belinda Michelle du Bois was a sales consultant at the Airside Store at OR Tambo International Airport. She resigned from her employment in October 2020, saying she was subjected to intolerable work conditions.
In March 2020, the store was temporarily closed due to the pandemic, and as a result, Du Bois and other staff members were not working and were relying on TERS payments from government.
At that time, Du Bois was 59-years-old and about to turn 60 on November 20, 2020.
In April 2020, Du Bois unsuccessfully applied for voluntary retrenchment. The answer she received was that she was a valuable salesperson and had to be retained. Also, it was the company’s policy not to retrench employees who were about to retire.
Aggrieved by the rejection, Du Bois bombarded the company with emails viewed as insolent, malicious, and hostile.
In May 2020, the company issued her a written warning for insolence.
However, she continued in her insolent tone.
“How dare you insinuate and suggest such nonsense! This is disgraceful and dishonest behaviour to say the least. Do you think I am an idiot?” she asked in one of her emails.
The company also said Du Bois threatened to involve the EFF, which was viewed as a very serious affront.
“Perhaps I should discuss this with the EFF central command and have them come along and demonstrate at the shops on my behalf? Actually, that’s a very good idea, now that I think about it!,” she wrote.
In September 2020, the company charged Du Bois for her insolent conduct. She refused to collect the charge sheet and instead submitted doctor’s notes that booked her off sick due to work-related stress.
A couple of days later, the store held a meeting with staff about the re-opening and Du Bois was not invited to the meeting. As a result, her name was not included on the duty roster.
After the store opened in October 2020, Du Bois tendered her resignation. Her 11-page resignation letter was drafted by an attorney from one of the reputable law firms, Cliffe Dekker Hofmeyr, whom she had been consulting with for a period of two months prior to her resignation.
She then approached the Commission for Conciliation, Mediation and Arbitration (CCMA) where it was found that she was constructively dismissed and should be awarded compensation equivalent to six months’ salary.
However, Judge Portia Nkutha-Nkontwana said Du Bois was the author of her misfortune, and she should have been better advised about the consequences of her intransigent stance because she enjoyed legal counsel from a reputable law firm.
Nkutha-Nkontwana said the commissioner’s finding that there was no evidence to show that Du Bois resigned to avoid the disciplinary inquiry was irrational.
“In all the circumstances, I am satisfied that the commissioner misconstrued the nature of the inquiry and incorrectly donned herself with jurisdiction she did not have. The award accordingly stands to be reviewed and set aside,’’ said Nkutha-Nkontwana.