Panelist: Selolong Mosoma
Case No.: ELRC872-22/23NC
Date of Award: 24 November 2025

In the ARBITRATION between:

Johnson Petronella
(Union / Applicant)

and

Department of Basic Education: Northern Cape Provincial Government

(Respondent)

Applicant’s representative: Mr. Nyameko Tshuku
Applicant’s address: Messina Inc.

Telephone:
Telefax:
Email

Respondent’s representative: Mr. Aone Leboko
Respondent’s address: Department of Education Northern Cape

Telephone:
Telefax:
Email.

ARBITRATIO AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award of a matter between Petronella Johnson, the Applicant and Department of Education Northern Cape Provincial Government, the Respondent.
2. The matter was set down for an arbitration under the auspices of Educators Labour Relations Council in terms of section 186(1)(e) of the Labour Relations Act 66 of 1995 (the LRA) and was heard on 28 August 2025 and 24 October 2025, at the Respondent’s premises in Kuruman.
3. The Applicant was represented by Mr. Nyameko Tshuku of Messina Incorporated, whilst the Respondent was represented by its Employee Relations Practitioner Mr. Aone Leboko.
4. The proceedings were conducted in English.
5. The proceedings were both digitally and manually recorded.

BACKGROUND

6. The Applicant was employed by the Respondent as an Educator at Deben School outside Kathu under John Taolo Gaetsewe District.
7. The Applicant tendered her resignatin on 23 Janaury 2023, with her last working day being 23 Janaury 2023. The resignation was accepted and approved by the Respondent.
8. The Applicant alleged that the Respondent made her working conditions intolerable by;
   a. Locking her up inside the school premises after hours;
   b. Parents moving their kids from her class and said they don’t want her to teach their kids.
9. The Applicant approached the Council alleging that her dismissal was unfair and sought 12 months compensation as a remedy.
10. The Respondent on the other hand submitted that the Applicant was not dismissed but resigned, therefore the Applicant’s case must be dismissed.

ISSUE TO BE DECIDED

11. I must decide whether the Applicant was constructively dismissed by the Respondent and whether the dismissal was fair or not. If so I have to determine the appropriate relief.
    SURVEY OF EVIDENCE
    The Applicant’s case

Ms. Petronella Vanessa-Lyn Johnson testified under oath in support of her own case (hereinafter referred as the Applicant)

12. The Applicant testified that she was appointed as an Educator at Deben School. She resigned on the 23 January 2023, and her resignation was accepted and approved by the Respondent. It was her evidence that she had a good relationship with both educators and leaners except three educators who were also part of the School Management Team. Those three educators were Mr. Locky, Ms. Louw an Ms. Wagenaar. She stated that the three were the ones who made her life difficult at the school.
13. She stated that she was locked into the school premises by Mr. Locky, and she had to call her husband to call one of the educators to come and open for her. She was locked into the school premises again even though her vehicle was parked right next to the school gate. She had no one to open for her and ended up breaking the lock in order for her to get out. She then went to the school hostel and explained to the school principal what happened. The principal promised her that he would look into the matter. Indeed, the principal addressed the issue during the staff meeting the following day and asked who locked the gate and Mr. Locky confirmed it was him and no action was taken against him.
14. In 2023, she was called to a meeting in a staff room and found everyone seated and was told that parents said they don’t want their kids in her class. She was further accused of absenteeism and that she was not doing her work.
15. She stated that she went to her class immediately after that meeting and took her bag and drafted resignation which she handed over to Ms. Louw, the deputy Principal. She averred that she was never given any reason(s) why parents did not wat their kids in her class. She further averred that the school principal told her that if the complaint raised by the parents is not addressed the school might lose that post.
16. The Applicant stated that she wrote on her resignation letter that the reason(s) for her resignation were that there was mistrust and infighting.
17. Lastly, she stated that she would have stayed at the school if none of the above-mentioned incidents did not happen.
18. Under cross-examination she confirmed that the school principal addressed the issues or problems she had at the school.
19. She denied not following or exhausting all internal avenues prior to her resignation and said it was her choice on which route to follow.
20. Lastly, she denied all other facts that were put through by the Respondent’s representative.

The Respondent ‘s case

Mr. Aobakwe Sebolai testified under oath on behalf of the Respondent, and he testified as follows;

21. He confirmed that he is the Principal of Deben Primary school outside Kathu under John Taolo Gaetsewe district.
22. Basically, testified that there was never any formal or informal grievance lodged by the Applicant prior to her resignation.
23. He testified that he received a complaint from one of the educators about the Applicant going to some stuff for hostel leaners and Applicant leaners were disturbing her class, but the matter was resolved. He stated that there was an incident whereby the Applicant was locked inside the school premises and that issue was addressed in the staff briefing that whoever remains behind after hours should make the colleagues aware.
24. According to him there was no issue of the Applicant which he did not address or attend to, however, he did not remember the Applicant lodging any grievance or complaint that needed his attention to be addressed.
25. With regard to the parents’ complaints, he averred that he received a complaints from the parents who threatened to remove their kids from the school, and they did not agree with the parents’ complaints but addressed the issue with the Applicant and told her to pull up her socks to deliver what was expected from her. It was not only the Applicant who was addressed but also Mr. Thys who was told to pull up his socks and improve his performance.
26. Lastly, he testified that they received the Applicant’s resignation letter immediately after the meeting, and he was taken aback by the Applicant’s decision.
27. Under cross-examination he maintained that he never received any complaint from the Applicant about the incident where she was locked into the school premises nor approached by the Applicant about it.
28. He denied all other facts put through by the Applicant’ legal representative.

2nd witness of the Respondent Ms. Jennifer Louw testified under oath in support of the Respondent’s case.

29. She testified that he was appointed as Deputy Principal at Deben School by the Respondent.
30. She testified that she was part of the school management team.
31. It was her evidence that the Applicant’s incident of being locked into the school premises was addressed by the school principal. Again, the parents’ complaints which she regarded as not serious, and they told parents that they cannot choose educators.
32. She testified that she was part of the meeting where the Applicant and Mr. Thys were told to pull up their socks and improve their performance.
33. Under cross-examination she denied all other facts put through by the Applicant’s representative.

SUBMISSION OF ARGUMENTS

34. Both parties agreed to submit written heads of arguments by no later than 11 November 2025 and they have obliged.
35. Both parties’ arguments and submissions were carefully considered. I will not repeat what was said by the parties, as the contents basically mirror what was put by the parties during the leading of evidence and cross-examination during the arbitration proceedings.

ANALYSIS OF PARTIES’ EVIDENCE

36. In this matter, the Applicant resigned because she alleged the Respondent actions made continued employment intolerable.
37. The Applicant’s case is based on constructive dismissal which falls under the purview of section 186(1)(e) of the Labour Relations Act, Act 66 of 1995 as amended. Section 186(1)(e) defines constructive dismissal as follows-
    “ an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee”
38. The prerequisites to prove a case of constructive dismissal are well accepted and succinctly articulated in Solid Doors (pty) Ltd v Commission Theron No and Others, as follows
    a. First, the employee must have terminated the contract of employment;
    b. Secondly, the reason for termination of the contract must be that continued employment has become intolerable for the employee; and
    c. Thirdly, the employer must have made continued employment intolerable.
39. If one of the above mentioned requirements is missing, a claim of constructive dismissal must fail.
40. It is trite law that the Applicant bears the onus to prove the constructive dismissal.
41. 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.
42. The Applicant tendered her resignation on 23 January 2023, after the school management team meeting.
43. The Respondent disputed the existence of constructive dismissal and argued that the Applicant resigned.
44. The Applicant alleged that Mr. Locky, Ms. Louw and Ms. Wagenaar. made her working conditions intolerable. The Applicant testified that the intolerability was caused by Mr. Locky by locking her inside the school premises twice and also the parents’ threats to remove their kids for her class. With regards to the issue of being locked into the school premises, it was the Respondent’s undisputed evidence that Mr. Locky was the last person to leave the school premises every day and locks gates when he leaves. It was further the Respondent’s uncontested evidence that the incident of locking the Applicant in the school premises was addressed by the school principal during staff meeting. Again, the Respondent’s uncontested evidence was that the school has three gates, and it is possible that Mr. Locky did not see the Applicant’s car when he locked the gate. Again, the Applicant conceded that she was teaching foundation phase and Mr. Locky was teaching senior phase and they do not have any direct contact except to say she was teaching Mr. Locky’s child. It make no sense at all that a such an issue can make the working conditions intolerable for her. It is expected that every educator should report when he/she remains behind after school, and she failed to do so despite this being communicated to all educators by the principal in their staff meeting.
45. With regards to the parents’ complaints, it was the Respondent’s uncontested evidence that the issue was addressed with the parents first and educators during the staff meeting where the Applicant together with Mr. Thys were told to pull up their socks and improve their performance on how they teach. Therefore, there is no evidence supporting the Applicant’s contention that she had no other option but to resign as a result of Mr. Locky or parents’ complaints. There was no evidence of singling her out or punishment.
46. Interestingly, the Applicant’s resignation letter mentioned other reasons excepts the ones she advanced during the arbitration proceedings. The Applicant’s resignation mentioned that she resigned as a result of mistrust and infighting.
47. According to the Respondent, the Applicant’s resignation was due to her own personal reasons and had nothing to do with the Respondent making working conditions intolerable.
48. The Applicant conceded that she resigned without lodging any grievance or reporting the alleged intolerability. It is trite law that an employee is required to attempt to resolve issues internally before resigning.
49. The Applicant could offer no cogent reasons for her failure to follow or use internal remedies. This is significant, as it is trite law that an employee who resigns without using available internal remedies fails to show that resignation was the only reasonable option.
50. In Gold One Limited v Madalani and Others, the Court sanctioned a well-established principle 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”.
51. It was incumbent upon the Applicant to provide substantial explanation to prove intolerability that led to her resignation.
52. There was no evidence led before me to suggest that the Respondent was made aware of the Applicant’s grievances prior her resignation on 23 January 2023. The probabilities are in favour that the conditions could not have been so intolerable that the Applicant was compelled to resign. This I say, because she relied on numerous incidents as the reason(s) why she resigned but failed to try and resolve those issues internally prior resigning. Why would the Applicant decide to resign with immediate effect after a meeting where the parents’ complaints and her performance were discussed? Therefore, it is my considered view that the Applicant’s resignation was not justified under the circumstances or as result of intolerable working conditions.
53. The question is whether the Applicant had no other choice but to resign, the answer is a big no. The Applicant had an alternative available to her which was grievance procedure if indeed she was aggrieved, and this was also confirmed by the school principal that he was not aware of any the Applicant’s grievance brought to his attention. He confirmed that he most certainly would have dealt with such if it was brought to his attention. It is likely that the Applicant had ample opportunity to pursue grievance procedure to address issues raised during the arbitration proceedings.
54. It cannot be said that the Applicant was put in a situation that had become so unbearable that she could not fulfil her work. No reasonable person in the Applicant’s position would have considered her working environment to have been so intolerable that continued employment relationship was no longer possible.
55. In so far as the test for existence of a constructive dismissal is concerned, in Pretoria Society for Care of the Retarded v Loots where the Court said the following-
    “ when an employee resigns or terminates the contract as a result of constructive dismissal such employee must in fact indicate 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 out on working indefinitely had the unbearable situation not been created.” He or she does so on the basis that he/she believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If he/she is wrong in this assumption and the employer proves that her fears were unfounded then he/she has not been constructively dismissed and her conduct proves that she has in fact resigned.”
56. In the circumstances, it cannot be said that the Respondent made continued employment intolerable for the Applicant. That is so because if there was no constructive dismissal. Therefore, thec Bargaining Council would not have jurisdiction to arbitrate.
57. In the circumstances, it is my considered view that the conditions could not have been so intolerable that the Applicant had no other choice but to resign through the actions or inactions of the Respondent. Therefore, the Applicant has failed to discharge the onus to show that she resigned due to continued intolerable working conditions and that she was constructively dismissed. The Applicant resigned out of her own volition.

AWARD

58. The Applicant failed to prove that the Respondent made the working conditions intolerable, and she had no other choice but to resign.
59. In light of the above, the Applicant’s case is dismissed.

SIGNED AT BLOEMFONTEIN ON THIS 24 DAY OF November 2025.

Selolong Mosoma
ELRC Arbitrator