02 September 2026 – ELRC731-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC731-25/26GP
In the matter between:
PSA obo XOLANI NSIBANDE

(Union / Applicant)

And

SEDIBENG TVET COLLEGE

(Respondent)

DETAILS OF THE HEARING

The matter was heard over three sittings with the last sitting being on 4 August 2026. The Applicant, Xolani Nsibande was represented by Yolande Ralawe an official from employer’s organisation PSA was represented by J Oliphant in the employ of the Respondent’s labour relations Department.
The proceedings were recorded digitally and in writing. The Applicant referred to the Council an alleged constructive dismissal as envisaged under section 186(1)(e) of the Labour Relations Act 1995.
ISSUE TO BE DECIDED
Whether the Applicant’s resignation from the Respondent’s employ amounted to constructive dismissal as envisaged in section 186(1)(e) of the Labour Relations Act, 1995.
BACKGROUND
The Applicant has been employed by the Respondent on 4 August 2016 as a lecturer until the date of resignation on 1 August 2025. The Applicant resigned as the environment had been rendered intolerable and would like to be retrospectively reinstated. The Applicant called two witnesses to testify while the Respondent called one witness.
SUMMARY OF EVIDENCE AND SUBMISSIONS
The Applicant’s evidence
The applicant Xolani Nsibande testified that he was employed by the respondent as a lecturer responsible for teaching Engineering Systems and Graphic Design. His supervisor at the time of his resignation was Mr Meka, with the relevant HODs also involved in the management of the department.
The applicant testified that he tendered his resignation on 1 August 2025. He stated that the resignation was the culmination of events which had resulted in what he regarded as a hostile and toxic working environment.
The applicant’s evidence centred primarily on an incident concerning missing examination scripts. He testified that during June 2025, while administering Test 2, it was discovered that certain of his examination scripts were missing. He received correspondence from the respondent requiring him to explain what had happened. He responded by explaining the circumstances and stated that he had collected the examination script packs on 17 June 2025. On 1 August 2025, the applicant was instructed to report to the campus manager’s office. He testified that the campus manager, HODs and senior lecturers were present. He was informed that the meeting concerned the missing examination scripts and was asked to explain what had happened.
The applicant testified that he could not remember the exact day on which the relevant events had occurred. He explained that he had obtained a key to the examination room from Sello, the examination officer, and had gone to the examination room to look for the scripts. He stated that he had asked Sello to accompany him, but Sello instead gave him the key. He entered the examination room alone, did not find the scripts, and returned the key to Sello.
According to the applicant, he was informed that he had breached an examination rule by entering the examination room without being accompanied. He questioned why the examination officer had given him the key if he was not permitted to enter the room alone. He was further informed that he was required to produce the missing scripts by the following Monday, failing which he would be charged.
The applicant became angry and challenged the basis upon which he could be charged, stating that he had not stolen the scripts. He testified that he told the campus manager that they would meet in court. According to the applicant, the campus manager responded, “You know, you always win cases at this.”
The applicant testified that he left the meeting feeling harassed, intimidated and as though he had been treated as a suspect in the disappearance of the scripts. He stated that the incident triggered his depression and caused him to become extremely emotional. He went to his class, wrote his resignation letter and thereafter travelled home by taxi.
The applicant testified that, after arriving home, he attempted suicide. He subsequently reconsidered his resignation and sought to retract it after regaining his composure. However, the respondent, through the principal of the college, had already accepted his resignation. The applicant testified that correspondence was thereafter exchanged between the respondent and the union concerning his attempted retraction, but the respondent did not accept the retraction.
The applicant further testified that he did not have a good relationship with the campus manager and regarded the working environment as toxic. He referred to other incidents involving items which had gone missing and stated that the campus manager had been dismissive when he raised his concerns. He maintained that the events concerning the examination scripts had been orchestrated as part of an attempt to get rid of him.
Under cross-examination, the applicant maintained that he had resigned because he could no longer work in what he considered to be a toxic environment characterised by bullying. He accepted that a single incident would not necessarily render a workplace toxic, but maintained that the events of 1 August 2025 constituted the final incident which made the environment intolerable.
The applicant testified that he had been unable to properly explain himself during the meeting and that being told to produce the scripts or face disciplinary charges contributed to his decision to resign. He maintained that he had effectively been accused, or that it had been insinuated, that he had stolen the scripts despite there being no evidence that he had done so.
The applicant acknowledged that other lecturers had also been questioned about the missing scripts. He identified Mr Kanati as one of the other lecturers and accepted that Mr Kanati had not resigned following the incident. The applicant explained the difference by stating that Mr Karnati was stronger and did not have the same disability or struggle with depression that he had.
The applicant denied that he had banged the table before leaving the meeting. He nevertheless confirmed that he had been angry and left the meeting because he was dissatisfied with the manner in which the matter had been handled and what he regarded as lies or unfair treatment during the meeting.
When asked why he had not lodged a grievance instead of resigning, the applicant testified that the intimidation he experienced had triggered his mental illness and resulted in what he described as an “enforced decision” to resign. He acknowledged that he was unfamiliar with the applicable grievance procedure and had never previously attempted to use it.
The Applicant’s second witness Misheck Kanati testified that he had been employed by the Respondent as a lecturer for approximately 17 years. He also performed assessment and occasional invigilation duties. His evidence concerned the Respondent’s investigation into missing examination scripts in 2025.
He testified that approximately 20 lecturers were investigated and that several lecturers, including the Applicant, were interviewed concerning the collection and handling of examination scripts. He was himself interviewed after collecting scripts without signing for them. He stated that the campus manager responded to his explanation by saying, “I’ve got you.” He has previously been issued with a written warning, although he was not charged with misconduct.
The witness testified that he regarded the investigation as unfair and that he felt interrogated by the campus manager. He stated that there had been tension between them and that he considered the campus manager difficult to work with. He subsequently complained to the deputy principal by email on 5 August 2025 about the manner in which he had been treated.
The witness stated that he became aware that the Applicant had resigned following the incident and understood that the events in the campus manager’s office had triggered the Applicant. He also confirmed that there had been tension between the Applicant and the campus manager.
Under cross-examination, the witness confirmed that he was giving evidence in his personal capacity and had not been present during the Applicant’s interview. He therefore could not personally confirm what transpired between the Applicant and the campus manager. He further confirmed that several other lecturers had been interviewed as part of the investigation.
The witness maintained that he had also felt intimidated by the campus manager and considered the working environment intolerable. He nevertheless remained in the Respondent’s employ, explaining that he was strong enough to continue working in the environment.
The Respondents’ Evidence
The Respondent’s only witness testified that he was employed by the Respondent as a Campus Manager responsible for teaching and learning. The matter arose from missing examination scripts following Test 2 in June 2025. Once the missing scripts were identified, steps were taken to establish what had happened, including determining which lecturers had collected or accessed the scripts and the manner in which they had done so.
The witness explained that, during the investigation, it emerged that some lecturers had obtained keys to the examination room from Sello, the examination officer. Mr Kanati was one of the lecturers interviewed and confirmed that Sello had given him a key, which he used to access the examination room and collect scripts. The witness testified that this information assisted in identifying other lecturers who had obtained keys from Sello, including the Applicant.
The witness testified that the Applicant was subsequently called to the campus manager’s office to explain how he had obtained access to the examination room and what had occurred in relation to the missing scripts. He stated that the Applicant was not singled out, as a number of lecturers had been interviewed as part of the investigation.
According to the witness, the Applicant was questioned about the date on which he had accessed the examination room and whether he had obtained the key from Sello. The Applicant disputed Sello’s account of what had occurred and maintained that Ms Gcina, the Senior Lecturer was not telling the truth. The witness testified that the discussion became heated, with the Applicant becoming angry, banging the table, stating that they would meet in court and leaving the meeting. The Applicant subsequently submitted his resignation on the same day, 1 August 2025.
The witness disputed the Applicant’s characterisation of the meeting as harassment or intimidation. He maintained that the meeting was an investigation intended to establish what had happened to the missing scripts and that the questions put to the Applicant were relevant to that enquiry. He denied that the Applicant was accused of stealing the scripts or that the investigation was intended to secure his departure from the Respondent.
It was put to the witness that the Applicant had been told to produce the scripts or face disciplinary charges. The witness accepted that the possibility of disciplinary action may have been discussed but maintained that the Applicant’s reaction arose principally from the questioning concerning his access to the examination room and the date on which he had accessed it.
The witness further denied that the investigation had been orchestrated to get rid of the Applicant. He testified that the Respondent had a legitimate reason to investigate the missing scripts and that the Applicant was one of several lecturers who were required to account for their involvement.
The witness confirmed that the Applicant’s resignation was received and accepted. Following the resignation, the Applicant sought to withdraw it through correspondence involving his union. The witness explained that, as campus manager, he reported to the principal and did not have the authority to determine whether the Applicant’s withdrawal should be accepted. The principal had also been copied on the relevant correspondence and was, according to the witness, the appropriate person to make that decision.
The witness denied that the Applicant’s resignation was accepted because the Respondent no longer wanted him. He maintained that the Applicant had voluntarily resigned after becoming angry during the meeting. He also disputed the suggestion that the resignation was merely a spur-of-the-moment decision, stating that the Applicant knew what he was doing when he prepared and submitted the resignation. The witness confirmed that there was no recording of the meeting of 1 August 2025 and that his evidence regarding what occurred was based on his recollection. He also confirmed that no exit interview was conducted.
Regarding the Applicant’s mental health, the witness testified that he was unaware that the Applicant suffered from depression or was taking medication for depression. He therefore had no knowledge at the time that the Applicant was particularly vulnerable to the events of the meeting or that the interaction would have the effect subsequently described by the Applicant.
The Respondent’s evidence was that the Applicant’s resignation followed a legitimate investigation into missing examination scripts, during which several employees were questioned. The Respondent denied that the Applicant was subjected to conduct intended to make his employment intolerable and maintained that his resignation resulted from his own reaction to the meeting rather than from any conduct by the Respondent which forced him to terminate the employment relationship.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
The issue for determination is whether the Applicant’s resignation constituted a constructive dismissal as contemplated by section 186(1)(e) of the Labour Relations Act. The Applicant bears the onus of establishing that he terminated the employment relationship because the Respondent had made continued employment intolerable. Having considered the evidence of both parties, I am not persuaded that the Applicant has discharged this onus.
It is common cause that the Applicant resigned on 1 August 2025, immediately following a meeting concerning missing examination scripts. The evidence establishes that the meeting arose from a legitimate investigation into the missing scripts. The Respondent sought to establish how the scripts had gone missing and, in particular, which employees had accessed the examination room and how the scripts had been collected. The Applicant was not the only employee interviewed; several lecturers were questioned as part of the investigation.
I accept that the Applicant may have experienced the meeting as unpleasant, intimidating and upsetting and that there seems to have been pre-existing tension between him and the campus manager. However, the Applicant’s subjective experience must be distinguished from the objective enquiry into whether the Respondent’s conduct rendered continued employment intolerable.
The Applicant was questioned about matters directly relevant to the investigation, including his access to the examination room and the manner in which he had obtained the key. The fact that the possibility of disciplinary action was raised if the missing scripts could not be accounted for does not, in the circumstances of this case, establish conduct of such a nature that continued employment became objectively intolerable. An employer is entitled to investigate suspected irregularities and require employees to account for their conduct.
The Applicant’s second witness provided some support for the contention that the campus manager’s manner could be intimidating. However, that witness was not present during the Applicant’s meeting and could not corroborate the Applicant’s account of what was said during that meeting. His evidence also confirmed that several lecturers were investigated.
Of particular significance is the manner in which the resignation occurred. On the Applicant’s own version, he became angry during the meeting, left the office, went to his class and wrote his resignation letter on the same day. The Respondent’s witness similarly testified that the Applicant became angry, banged the table, stated that the matter would be taken to court and thereafter left the meeting before submitting his resignation.
The probabilities therefore favour the conclusion that the resignation was made in the immediate aftermath of an emotionally charged discussion rather than as the consequence of an employment relationship which had objectively become intolerable. The Applicant may genuinely have felt unable to continue working at that moment, but this does not establish that the Respondent had made continued employment intolerable.
I have taken into account the Applicant’s evidence concerning his mental health. I accept that his mental health difficulties may have intensified the effect of the events upon him. However, the constructive-dismissal enquiry remains an objective one. The Respondent’s witness testified that he was unaware of the Applicant’s mental health difficulties and was unaware that he was taking medication for depression. There is therefore no basis on the evidence to conclude that the Respondent knew that its conduct was likely to have the particular effect described by the Applicant.
The Applicant’s subsequent attempt to retract his resignation is also relevant to the circumstances in which the resignation was made. While the attempted retraction is not, in itself, determinative, it is consistent with the conclusion that the resignation was made in haste and in a state of anger or distress and was subsequently reconsidered after the Applicant had regained his composure. It is difficult to reconcile this conduct with an assertion that the employment relationship had reached a point of objective intolerability from which the Applicant could no longer reasonably be expected to continue working.
The fact that the Applicant did not lodge a grievance before resigning is not determinative. An employee is not necessarily required to exhaust internal remedies before relying on constructive dismissal. It is nevertheless relevant that the Applicant resigned immediately following the meeting without first raising a grievance or affording the Respondent an opportunity to address his concerns.
The Applicant’s allegation that the investigation had been orchestrated to force him out of employment is similarly unsupported by evidence. The evidence establishes that several employees were investigated in relation to the missing scripts and that the Applicant was one of them. There is insufficient evidence to conclude that the investigation was instituted or conducted for the purpose of securing the Applicant’s departure.
I therefore find that the Applicant has failed to establish that the Respondent made continued employment intolerable. The Applicant’s resignation was an impulsive decision made in the aftermath of an emotionally charged meeting and was subsequently reconsidered. His mental health difficulties provide important context for his reaction, but do not, in the circumstances of this case, establish constructive dismissal.
The resignation accordingly does not constitute a dismissal in terms of section 186(1)(e) of the Labour Relations Act. The Council therefor has no jurisdiction in respect of this matter.
AWARD
The Applicant’s resignation does not constitute a dismissal in terms of section 186(1)(e) of the Labour Relations Act.
The Council therefore has no jurisdiction in respect of this matter.
Dated at Johannesburg on this 01st Day of September 2026.