07 April 2026 – ELRC521-25/26MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KWAMHLANGA

Case No: ELRC521-25/26MP

In the matter between

NTOMANE SOLLY RANTHO Applicant

and

MPUMALANGA Department of Education Respondent

ARBITRATOR: MANDLENKOSI MINI

HEARD: 16 October 2025, 22 JANUARY 2026, and 16 MARCH 2026

DATE OF AWARD: 07 April 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(e) – alleged unfair dismissal relating to constructive dismissal.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

The dispute was scheduled for Arbitration in terms of Section 186 (1) (e) of the Labour Relations Act 66 of 1995 (as amended) (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (as amended 25 July 2023). The arbitration was held on 16 October 2025, 22 January 2026 and 16 March 2026 at the Government Complex, Building 5, KwaMhlanga.
The Applicant, Mr. Solly Ntomane Rantho, was present and self represented. The First Respondent, Department of Education – Mpumalanga, was represented by Mr. M Shabangu from the Labour Relations section.
On the 16 March 2026 the parties requested that their closing arguments be submitted in writing. It was agreed that the parties would submit the written closing arguments simultaneously on 23 March 2026 before close of business. The closing aarguments of both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

I am required to determine whether the Respondent constructively dismissed the Applicant, when he resigned and if so to consider the necessary relief.

BACKGROUND TO THE DISPUTE

The Applicant, Solly Ntomane Rantho, was employed by the Respondent as an educator on the 01 January 2016, he was earning an amount of R 34,989.50 (thirty-four thousand nine hundred and eighty-nine rand fifty cents). The Applicant resigned from his level 1 post, he served his three months’ notice, wherein his last working date was the 31 July 2025. This resignation of the Applicant was not a first resignation as he had previously resigned and retracted his resignation. Subsequent to the resignation the Applicant referred a dispute to the Council for unfair dismissal, alleging that he was constructively dismissed by the Respondent.
The Applicant alleged that the Respondent made his continued employment intolerable, which resulted in him resigning from his employment. The Applicant requested that the Respondent be ordered to pay him compensation.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

The Applicant testified that he was given subjects to teach that he was not specializing in, being Life Orientation and EMS, this resulted in him being stressed. Life orientation had chapters of a sexual nature and he was not comfortable with such topics, as the children would be laughing and be disrespectful when there are talks of sex. He further stated that when there was no principal at the school, the manner in which the administration was handled was stressful to him. Due to the stresses he was referred to a psychiatrist, however he was never admitted into a hospital or institution. The reason for not being admitted was due to call he received from the circuit manager with a tone that was not right, which was threatening.
He stated that he had to return to work before the time that the doctor had booked him, due to the threats that he received from the Circuit Manager, who was a terrible person. He testified that he did not receive any support from the school when he was not well, even though he had reported this to Ms. Khanyile.
The Applicant further testified that he had submitted a grievance to the three HOD, regarding the allocation of subjects, as he had to teach more than 50 learners, he stated that he understood the grievance process, in terms of PAM policy document. He testified that his grievance was never resolved, instead he received a response that threatened him, which he read into the record.
The Applicant testified about his application that was not properly handled by the Respondent, as he wanted to be seconded to the Department of Justice in order for him to do his articles of clerkship. He stated that he had to visit the Mpumalanga Head Office in order for him to be told that the office did not receive the application for secondment. He stated that he then visited the district office where he was told by the director he did not have his application and he would not put in a good word for him as he thinks he should resign. The director then told him to go back to the circuit and school as he thinks that they did not attach the necessary attachments.
The Applicant testified about his initial resignation, which he later retracted in 2023, where he said this resignation was due to challenges he had personally with his wife. He stated that he never wanted to come back to school as the environment was not good hence he applied for a secondment.
He stated that he resigned as he was tired as nothing was working for him, relating to his grievance administration and secondment, he was then compelled by how the department handles these issues. He also conceded to having gone to class without having prepared his class lessons. He stated that he did not escalate his grievance as he thought it would not be resolved speedily and the next person was Ms. Shoba so he did not think she would resolve the grievance.

The Respondent’s case
Ms. Mkhosazane Sandra Khanyile

She was the first witness that testified about the issue of the Applicant not reporting about his absence from work and the phone call that was made by Ms. Shoba. She testified that she received a letter via WhatsApp from Mr. Rantho on the 10 March 2025, which was dated the 26 February 2025, with a message stating that: “Morning Mam, I have an appointment with a psychiatrist today, so I won’t be able to come to work”. She further stated that she did not receive any further communication from the Applicant. On the 13 March 2025, when she was at the circuit manager’s office she reported the issue. On that day the circuit manager then called Mr Rantho, it is then after that phone call with the circuit manager that the Applicant called her about his absence.
She confirmed having written a letter to Mr Rantho which was in page 17 of Bundle “A”, which she also read into record. The last paragraph read “in light of the above, I hereby wish to suggest that you exercise restrain from the temptation of arrogating yourself with the power to dictate to your seniors in the manner you did, furthermore respect line function and the authority of the school. Management beyond your own personal interest. The matter will be escalated accordingly if it fails to reach your understanding.”
Ms. Khanyile testified of the process followed when periods are allocated and further stated that when this process is done, they do not concentrate on the number of students but a number of periods allocated to an educator. She read on page 46 to 48 of bundle “R” from a document identified as an EDU9 form, where she said the educator had indicated that he was capable of teaching the subjects that he was complaining about, being Life Orientation. She stated that Mr. Rantho had been teaching Life Orientation since he arrived at the school. It was her evidence that other teachers were dealing with the same learners that Mr. Rantho was complaining about.
Ms. Khanyile further testified that she received Mr Rantho’s secondment letter which she submitted to the district. She did not know anything regarding the type of secondment that Mr. Rantho wanted, so when he came back to her from the director’s office, she enquired from the circuit manager who advised her that line function was not followed. Mr. Rantho then resigned a few days after the application of secondment.
Khanyile testified that it is surprising to her to hear that the work was intolerable, even the letter of resignation did not indicate the intolerability. If there was a problem the Applicant was supposed to involve other structures seeing that it was intolerable. She disputed having wanted the Applicant out of the school, when this was put to her under cross examination.

Ms. Maria Nonkosi Ratsoana

This witness firstly testified about an issue of an incident that transpired at the time where the Applicant had already resigned. She further testified about how the allocation of learners to educators were done, as she was part of the group that did the allocation, which resulted in the Applicant not being happy. She stated that Mr. Rantho had previously complained about a number of issues, being that he was overworked, the environment not being good, that he was going to pursue law and he could not deal with kids from Masakhane, an informal area. She denied having a document that was submitted by the Applicant challenging the originality thereof, as she said the document did not have Mr Nyawo’s signature.
The witness also spoke to her knowledge of the EDU9 form, which she testified is completed by the teacher that is being released from one school to another. She stated that annually they would do allocation as SMT, where they usually agree on the subjects, looking at the post profile, as well as EDU1 form and EDU9 form of the educator. She testified that what they would concentrate on is the number of periods and not the number of learners, as they do the workload as fair as possible.
The witness testified that the Applicant had 23 periods, while other teachers had 22, 24, and 25 periods per educator. The Applicant was never overloaded with work if that was the case he would have had 26 periods, all PL1 educators were sitting at 24 and 25 periods and she does not see how Mr. Rantho could be overloaded. She stated that the working environment was good and it is not correct that the Applicant resigned because of the issue of intolerability. She further stated that when Mr. Rantho resigned he was thanking the school, she referred to his letter of resignation.

Betty Nonhlanhla Shoba

The witness testified that she was the circuit manager responsible for the eMalahleni circuit, which is the circuit wherein Mr. Rantho was employed. She stated that the EDU9 form that was signed by Mr. Rantho was as a result of teachers being in excess at TP Sililo School. She further commented that the Applicant was teaching Business Studies, Economics Management Sciences, Social Sciences and Life Orientation at TP Sililo. The Applicant’s signature on the document meant that he was willing to move to the new school, being Ilanga Secondary School. She stated in her office that she had the fully completed EDU9 form, where she signed the movement of Mr. Rantho.
She testified that what she recalled about the leave was that Mr. Rantho had stated that he would not be at school on the 10 March 2025, and he did not report to his line manager about the 11, 12 and 13 March 2025. on the 13 March 2025, she called and he told her that he was stressed, the circuit manager was stressing him more. It is then that she told him that he would stressed even more, as he was going to face disciplinary process. She stated that the Applicant submitted leave on the 18 March 2025, which he was supposed to be submitted on the same day of applying. She then testified about the Applicant’s previous misconducts at TP Sililo, where he was even sent to wellness but when the wellness team arrived he said he did not need them.
She further stated that when she visited the school and when she asked him about how things were he would say that teaching was not for him, as he wanted to explore the profession of law.
The witness testified that she understood secondment to be when the department moves an employee to another and that educator would still be paid by the department. She confirmed that the HOD was the only person authorised to sign off on a secondment. However before sending the application to the next level she had a query, relating to the plan as to what will happen to the learners whilst he is doing something else.
She signed off the resignation without objection, as she was aware that the Applicant never wanted to be a teacher, rather he wanted to be a lawyer. She stated that she did not have any personal vendetta against the Applicant as all that she wanted was performance from the employee.
She further stated that she does not agree to having committed to send the application for secondment to the HOD, she also conceded that the secondment of union officials was not the only secondment that can be done. If Mr. Rantho had felt that he was being mistreated he had the right to take the matter to the union and they would have taken it up with the circuit manager.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Section 186 (1) (e) of the LRA states: “Dismissal means that an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.”
The evidence of the Applicant was that the Respondent made his continued employment intolerable, hence he had to resign from his employment, even though he still wanted to work for the employer. The Applicant listed a number of events that led to him resigning, he stated that he was first required to teach a subject that was not his major namely; Life Orientation. He stated that he was expected to teach over 50 learners, per period which resulted in him being overworked by the Respondent.
The Applicant also cited an issue of being expected to return back from sick leave earlier than what the medical certificate had indicated, he felt was bullied by the departmental head of the school as well as the circuit manager. Further the Applicant was not happy with the manner in which his secondment application was handle by the Department of Education, as he wanted to be seconded to the Department of Justice.
The letter of resignation of the Applicant which was submitted stipulates: “I appreciate the opportunities I have had while working at Ilanga Secondary School, and I am grateful for the experience and knowledge gained during my tenure. I will ensure a smooth transition of my responsibilities and complete any outstanding tasks before my departure.
If there is anything specific you would like me to focus on during my notice period, please let me know. I am committed to supporting the school during this transition.”
The Respondent disputed that the continued employment was made intolerable by the employer, evidence was led regarding the operations of the school, firstly dealing with how classes were allocated to educators. Evidence was also led regarding a form that the Applicant completed where it was stated that the Applicant was capable of teaching Life Orientation, the form being a Form EDU 9. The Applicant alleged that was made to complete the EDU9 form under duress, however no evidence was presented to support this allegation. He continued working after having signed the document without complaining to the point where he resigned and then retracted his resignation.
The Applicant’s evidence about him not being well was that he had reported and the phone call by Ms Shoba which threatened him was disputed by the Respondent’s witnesses. The two witnesses that were present when the phone call was made had a different recollection of what happened on the day from the Applicant’s version. Having heard the versions of the Respondent’s witnesses and what the Applicant viewed to be threats, I have no reason not to accept the version of the Respondent’s witnesses to be more probable under the circumstances.
Having read what Ms. Khanyile wrote on a letter that she sent to the Applicant after he had written to her, which he viewed to be threatening, I am convinced that even the phone call by Ms. Shoba had no threats. The letter that is on page 17 of bundle “A”, clearly shows that he was being told to respect his line of function, as well as his seniors, I do not find anything to be threatening therein, to drive a person to resignation. The Applicant ought to have been reminded of the line of function, as well as management prerogatives, as he had written to the HOD, telling them of how to allocate classes.
The Applicant testified that he did not follow any grievance procedure, as he knew that the process was going to be dealt with by the circuit manager and he would not be assisted satisfactorily. This alone indicates an election by the Applicant not to allow the Respondent an opportunity to correct the conduct that was intolerable for the Applicant, one can go as far as concluding that the Respondent was not aware of the conditions that the Applicant alleged.
The Applicant’s third issues that he cited to have contributed to his decision to resign due to intolerability, was the issue of the secondment, as he said that head office advised him that they did not receive his documents. The circuit manager confirmed receiving the documents that were forwarded by the school as the person that needs to attend to the application and then send it through to the departmental head for approval. She stated that she did not forward the application through, her reasons were that the department does not second employees to other departments and she could not substantiate this position. The question herein, is whether the action of the circuit manager does satisfies the threshold of qualifying the conduct as intolerable, as an unbearable conduct and whether it can be attributed to the employer.
When the Applicant testified about his first resignation, he explained it to have been as a result of personal challenges with his wife. He also stated that the environment when he came back was not good hence he applied for a secondment. The secondment he saw as a way out of the school that he did not want to be part of anymore, hence when he was not successful he was dissatisfied to the point of deciding to resign.
The Applicant did not challenge the evidence of Ms. Shoba when she testified that he would always tell her that teaching was not for him and he wanted to pursue law instead as he was qualified with a law degree. This cements an inference that the environment was not intolerable, however the Applicant was tired of the career path he was on and wanted a career change.
Having considered the above in totality, it is my finding on a balance of probabilities that the continued employment with the Applicant was not made intolerable by the Respondent. The evidence that was presented illustrates that the Applicant wanted to have operations executed in the manner that he wanted, as he did not receive the secondment to his satisfaction, he became disgruntled and decided to resign.
In Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026), the Constitutional Court reaffirmed that intolerability is stringent, that the test is objective, and that resignation must ordinarily be a last resort where reasonably available internal remedies exist. The Court further guided that constructive dismissal requires proof that continued employment was objectively intolerable. The employee’s subjective belief or emotional distress is insufficient. The test is whether a reasonable employee in the same position could be expected to endure the circumstances. Where internal remedies are reasonably available (such as grievance or appeal procedures), resignation without pursuing them will ordinarily weigh against a finding of constructive dismissal — unless it can be shown that such remedies would have been futile. The Court further emphasised that the enquiry must consider the totality of the circumstances, not isolated incidents.
The Applicant testified that he did not escalate the matter of the intolerability, as he was aware that nothing will happen as he would have had to report the issues to Ms. Shoba. Save for this submission the Applicant did not show or produce any evidence to convince me that him escalating his dissatisfaction would have been a futile exercise. The evidence of the Applicant as well as that of the Respondent’s witnesses illustrated a picture to me that the Applicant wanted to have things done his own way at the school and was not happy with being brought in line. The Applicant was absent from work without having reported to the HOD, that was responsible at the time and when he was called by the circuit manager, he then viewed that intervention as being bullied. I find that to this is insufficient justification for resigning.
The court in the above-mentioned case in paragraph 74 stated that “it follows that termination in these circumstances must be a measure of last resort. As I pointed out already, and as the authorities show, the threshold for establishing intolerability under section 186(1)(e) of the LRA is high. And so it should be. This is to avoid an unhealthy situation in a workplace where employees, who have become disgruntled and dissatisfied for flimsy reasons, would simply walk out and thereafter claim a constructive dismissal. Such would be at odds with the prescripts of fairness in labour practices, which requires that an employee who is dissatisfied with his employer’s conduct, at first, offers the employer an opportunity to redress the dissatisfaction. Employees should refrain from hastily resigning and then arguing that the employment relationship had become unbearable”.
Having considered the above in totality, I am not satisfied with the Applicant’s evidence and arguments that he was constructively dismissed. The Applicant failed to show on a balance of probabilities that the employer made continued employment intolerable and that it was the employer’s fault, as he did not even allow the employer to handle the alleged unbearable conduct.
I therefore make the following award: