IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA THE MS TEAMS VIRTUAL PLATFORM
Case Number ELRC132-25/26WC
In the matter between:
STEFAN NIEUWOUDT
Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This arbitration was held via the MS Teams virtual platform on 24 July 2025. The applicant was represented by Ms. L. Baynesn(Baynes), an attorney. The respondent was represented by Miss NS Qonongo (Qonongo), its Labour Relations officer.
2 The parties agreed that the applicant deliver its closing argument orally and that the respondent may do so in writing by no later than 12H00 on 25 July 2025.
THE ISSUE IN DISPUTE
3 I must decide whether the applicant was dismissed as provided for in section 186(e) of the Labour Relations Act 66 of 1995 as amended (the LRA).
THE BACKGROUND TO THE DISPUTE
4 The applicant worked for the respondent as an educator at the Plettenberg Bay Primary school (the school) on a fixed term contract of 6 months duration from January 2025 and earned R33,000.00 per month. The applicant terminated the employment relationship on 1 May 2025 and alleges a dismissal as provided for in section 186(e) of the LRA i.e. a constructive dismissal.
5 In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
6 Each party submitted a bundle of documents into evidence and neither recorded any objections.
7 The applicant testified under oath on his own behalf and also called his wife, Mrs. Jeanelle Nieuwoudt (Mrs. Nieuwoudt), as a witness who also testified under oath.
8 The respondent called as witnesses who testified under oath, Mrs. Lara Tonya Eivor Edwards (Edwards) and Mrs Celeste Vos (Vos), both of whom are educators at the school.
The evidence for the applicant
9 The applicant testified that he had not been given any induction where grievance procedures had been explained to him when he had started to work for the respondent, his having come from a private school background and then a school governing body post at the school.
10 The matter before me is thus one of an alleged constructive dismissal, the applicant having resigned on 1 May 2025, during his sojourn as an educator with the respondent in terms of his fixed term contract of 6 months duration.
11 In the light of the applicant’s setting of the parameters of his employment, I find it appropriate that the focus for the purposes of this matter be confined to the employment relationship between the applicant and the respondent viz. the time between January 2025, the start of the limited duration employment contract of 6 months and 1 May 2025 when the relationship terminated upon the resignation of the applicant.
12 It is to be noted that the issue that sparked the deterioration of the relationship culminating in the resignation of the applicant was the incident at the biathlon meeting in January 2025 when he had been marking baseline assessments in the bus. He had asked one, Stefani, the main biathlon supervisor, whether he could do so as he would otherwise have to do the marking at 11p.m to 1a.m which was ridiculous.
13 Edwards had informed him that the parents had complained about his not being visible at the biathlon meeting and also told him about previous complaints from parents.
14 These previous complaints had never before been brought to his attention so depriving him of an opportunity to respond to them.
15 The meeting at the school on 22 January 2025 was regarding this complaint and was reasonable. The content of the meeting however was not. This was the first instance of unfairness towards him at the school.
16 Another instance of unfairness was when another teacher Mr. Marks and he were singled out to drive the bus in a meeting where all teachers who held PDP licenses were called to possibly drive the bus when the regular driver had informed the school on 2 days’ notice that he would not be able to drive the bus.
17 He and Marks had been singled out as the only males and Marks was eventually forced to drive the bus on pain of losing his job.
18 These two incidents were not the cause of his having resigned. The cherry on the top was the school’s response to a letter from Baynes in April 2025 which he perceived of as a direct threat through a lawyer’s letter.
19 Regarding the meeting referred to at page SN5 of the applicant’s bundle of documents dated 13 March 2025 he was told they would have to work together as a team and to put the contents shown in SN5 behind them. It was pushed under his nose and he was told to sign it. When he saw it was a disciplinary meeting and referring to things against him that he decided to take it home to read and not to sign it immediately.
20 Mrs. Nieuwoudt confirmed the incidents with Marks having to drive the bus describing it as discriminatory against males and victimisation of the applicant, and the incident at the biathlon meeting in January 2025.
21 She alluded to the fact that Edwards did not accommodate the applicant and her for break duty as they travelled in one car as a further example of Edwards victimising the applicant.
22 All of these incidents had affected the mental state of the applicant who began drinking more than occasionally as he usually did and taking to vaping which he had never done before. He had become anxious, short-tempered, agitated and sleep deprived. He would cry himself to sleep especially after the meeting regarding the cancellation of the Biathlon meeting.
23 The letter sent by KNS in response to that from Baynes was also an example of the applicant being victimised.
The evidence for the respondent
24 Edwards testified that when the applicant demanded minutes of the meeting regarding page SN19 of the applicant’s bundle of documents he was provided with a copy even though it had not been intended that it be a minuted meeting. Of the 4 people present at that meeting three had agreed with the minutes except the applicant.
25 The meeting pertained to an issue where the applicant had failed to communicate to Edwards that he had informed the parents that he had cancelled a biathlon meeting in circumstances where she had then informed the parents that the meeting was taking place.
26 He had informed the meeting that his wife should be consulted regarding this. The applicant was the convenor for the biathlon code and as such manages that sporting code in the school.
27 Mrs. Nieuwoudt had appointed herself as the administrative coach for the biathlon.
28 This issue was thus about the miscommunication.
29 When eventually Mrs. Nieuwoudt was asked to come to the office to explain she responded by saying they had to make an appointment with her.
30 Consequently, Vos had said that this was ridiculous as Mrs. Nieuwoudt was now behaving like a child. This caused the applicant to lose his temper accusing them of insulting his wife. He had conducted himself in this manner and in the presence of Edwards, Vos, and Ms. Shlegter, the sports co-ordinator, and parents as he stormed out of the meeting.
31 He threatened to call Vos an old lady when encountering her in the school corridors.
32 Upon receipt of the letter from Baynes, Edwards contacted labour law practitioners, KNS to respond on behalf of the school governing body while the applicant was referred to the respondent processes.
33 While SN19 refers to a meeting on 13 March 2025 it was common to call a teacher in to answer simple questions and the applicant knows what is going on in his sport.
34 He was responsible for what happened in his sport so how could he refer to his wife to answer questions.
35 He had first returned from asking his wife to attend at the meeting saying that she felt insulted and therefore an appointment should be made with her.
36 Edwards instructed the applicant to stay in his wife’s class so that she could come to the meeting.
37 Edwards had not taken any action against Vos regarding her comment nor against the applicant for losing his temper.
38 While the issue of the cancellation of the biathlon meeting had been dealt with at the meeting on 24 February 2025 the meeting called on 13 March was to draw a line under this issue.
39 In her testimony Vos confirmed that the applicant did not explain why he had cancelled the biathlon meeting, shrugging his shoulders and referring the meeting to his wife all the time for the answers.
40 When she informed the meeting to make an appointment to meet with her with the management responding that she should not act like a child and come to the meeting.
41 The applicant started screaming and shouting at Vos telling her that in future he will call her old lady and aunty when encountering her in the corridors. Whenever the applicant referred back to the incident Vos would respond in a professional manner.
42 The applicant never raised his issues in writing at the school.
ANALYSIS OF EVIDENCE AND ARGUMENT
43 Our courts have clearly set out what the standard is to be achieved by an applicant employee alleging dismissal as provided for in terms of section 186(1)(e) of the LRA. viz. that the employee terminated the employment relationship; that the employment relationship had become so intolerable that the employee could not reasonably be expected to put up with it; the conditions or events of which the employee complained were the main cause of the employee’s decision to terminate the employment relationship; the employer’s conduct brought about the situation that made the employee’s continued employment intolerable; the employer was to blame for the conditions that drove the employee to terminate the employment relationship.
44 For a successful claim of a constructive dismissal an applicant must prove objectively that the employer had made it intolerable for him to continue with the employment relationship.
45 The employer’s conduct that led to the intolerability must be viewed in an objective light.
46 It is clear from the evidence of the applicant that he draws a distinction between his sojourn at the school when in a position under the SGB and when subsequently in the position under the respondent.
47 This much is clear from his contention that he had not been inducted when commencing his fixed term contact of 6 months duration with the respondent in January 2025. In this regard the applicant alludes in particular to not being inducted in so far as grievance procedures within the respondent are executed on.
48 It is to be noted that the applicant had approached his attorney because he was very unhappy with the work environment and found it intolerable. He had approached his attorney probably within less than 3 months of the commencement of his employment with the respondent.
49 It is clear that he had consequent upon his grievances having arisen obtained legal advice from a legal practitioner, a labour lawyer, well before his resignation on 1 May 2025.
50 It is most likely then that he had been informed of the processes to follow to lodge a grievance with the respondent.
51 This much can in fact be inferred from the fact that he had instructed his attorney to interact with the school with a view to resolving his issues. The nett result of this was clearly a referral to the respondent by KNS, the labour law practitioner’s engaged by Edwards, to engage with the respondent regarding the applicant.
52 The applicant’s testimony shows that he had not pursued his grievance in a manner which would suggest that he had exhausted all internal processes within the respondent. He had thus not afforded the respondent an opportunity to resolve any issues he may have had and in so doing avoid his resignation.
53 More particularly though this casts doubt on the veracity of the applicant’s testimony that he did not know of the internal procedures for lodging his grievance because he had not been inducted when starting to work for the respondent on the fixed term contract of 6 months duration in January 2025.
54 I am of the view that the applicant is emphasising form over substance in respect of lodging a grievance. A grievance by definition is an issue of some or other sort an employee has in the workplace. This can be brought to the attention of the employer by any of many means. The applicant at the very least knows that he can lodge grievance in the workplace because he alleges the difference between that under the SGB and the respondent.
55 It is clear that the applicant assumes a difference and then relies on that perceived difference not to lodge a grievance.
56 While there are these differences the applicant could and should have lodged his grievance even in the form prevailing in the SGB. In so doing he would have importantly alerted the school to his issues. In turn the school would likely have referred him in the proper direction for dealing with his grievances as an employee of the respondent.
57 In such a circumstance the applicant clearly frustrated, could resign for such reason. While the employee may subjectively find this intolerable and so resign it cannot be accepted that he had resigned as a consequence of the employer’s having made it intolerable for him to continue working and so legitimately claim a constructive dismissal given especially that he had inadvertently or knowingly not afforded the respondent an opportunity to address his grievances.
58 Furthermore, the applicant cannot for the purposes of constructive dismissal claim objectively that he had not interacted with other persons he had been referred to on the basis that he could not trust those other persons because of personal remarks they had made about him or Mrs. Nieuwoudt.
59 In pausing here to deal with the remarks, which were essentially of childish behaviour by the applicant and his wife, I find the remarks objectively not of such a nature that it could be said to have been directed deliberately at making it intolerable for the applicant to continue working for the respondent.
60 The applicant, instead of initiating his grievance in a bona fide manner, had chosen rather to allege distinction between the grievance procedure in the SGB and that in the respondent, and then not to launch a grievance at all.
61 In so doing the applicant had, in the circumstances, clearly failed to afford the respondent an opportunity to deal with his grievances. In such circumstances the applicant cannot legitimately claim a constructive dismissal, his not having exhausted all avenues for resolving his dispute that were open to him.
62 Even the applicant’s contention of the cherry on the top being the response to the letter of Baynes cannot hold water. The response is nothing unusual to a letter from an attorney.
63 As Edwards had testified in respect of her reaction to a lawyer’s letter that she had to respond with a similar letter of her own as she did not consider it right that she is not afforded legal representation as well when interacting with the applicant with his attorney in attendance.
64 This as a reason for making the employment relationship intolerable is rejected. It cannot be said to be an objective reason for claiming conduct of the respondent employer to making employment with it intolerable.
65 It is in fact clear from the document pertaining to the meeting on 13 March 2025 and the conduct of the applicant that he had not expected any sanction to arise from the meeting.
66 The evidence pertaining to the allegations show it to be of such being potentially raised in the future were this necessary. At that stage the applicant would surely have had an opportunity to defend himself against those allegations if they were brought against him in charges. It is emphasised that the purpose of the meeting as stated by Edwards was ultimately to draw a line under issues that had gone before and to start on a clean slate so to speak. It is clear that there were not to be any disciplinary consequences that would arise from that meeting.
67 The applicant’s referencing this as unfair is disingenuous. If the respondent did not want to discipline him in respect of previous complaints it is its prerogative not to do so. The applicant’s conduct must be seen as an attempt to divert from the issue that was then at hand viz. his failure to inform the management of the school of his cancellation of a sport meeting which had resulted in contradictory information having been sent to parents.
68 That the applicant has pursued his matter essentially on purely subjective grounds is evidence throughout his testimony. The issue which for the applicant was the cherry on the top is a prime example of this.
69 The applicant had himself elected to communicate with the school through an attorney. When Edwards had then responded through labour law practitioners the applicant took offence.
70 This is clearly absurd as the manner in which Edwards had responded was perfectly normal but apparently not so for the applicant.
71 When in fact perusing the letter from Baynes dated 1 April 2025 it is clear that it is an aggressive letter and, notwithstanding the fact that it calls for a meeting between the school and the applicant, with his attorney in attendance, is one which in fact had Edwards adopt a cautionary stance, and correctly rather have a representative of her own deal with it.
72 It is to be noted that the allegation of the applicant that the letter from KNS is a threat rather than an attempt to resolve the issues is a totally subjective and in my view an incorrect interpretation thereof. The letter itself addresses that from Baynes and mentions specifically the tone thereof. The letter is furthermore appropriate in pointing out the two different employment regimes prevailing through the different contracts of the applicant and his wife who clearly have different employers.
73 Instead of addressing to the school in the same letter issues of 2 employees with different employment regimes, a letter pertaining to the applicant should have been addressed to the respondent as his employer.
74 The claim of this being the cherry on the top for purposes of claiming a constructive dismissal is rejected as it cannot be considered a reason which objectively made it intolerable for the applicant to have continued his employment with the respondent.
75 Even the contention of the applicant that normally there is a return to an SGB position upon termination of a fixed term contract in circumstances such as in this matter encourages the rejection of the applicant’s claim of constructive dismissal as it serves only as a reason for terminating his contract of employment through resignation. This would allow him to claim two months’ salary before commencing other employment. This is totally disingenuous in this matter. One cannot claim constructive dismissal with such a safety net in the offing so to speak.
76 It is to be noted further that his failure as convenor of the biathlon sport code to participate properly in the care of his young learners at the biathlon in January 2025 is a neglect of duty that would in any event constitute a fair reason for dismissal, again rendering his claim of constructive dismissal unsuccessful.
77 Even his issue regarding the utterance at the meeting on 13 March 2025 (SN19) regarding childish behaviour of his wife, is disingenuous. This arises within the context of the school legitimately investigating the reasons for the miscommunication to parents and Vos responding in the way she did.
78 In fact, his response to the utterance of Vos that he would call her an old lady is of the same nature, worsened by his losing his temper and shouting in the presence of those in the meeting and also parents as he stormed out of the meeting.
79 While these utterances are uncalled for it is unlikely that it can be said objectively to be of such a nature that could be said to render the employment relationship intolerable. This too must then be rejected as an objective reason for rendering the employment relationship intolerable.
80 For the applicant to conduct himself in the manner he did, is conduct that can only be described as unprofessional and obstructive in the face of the school wanting to conduct its business in the informal manner that it chose. To resolve issues in the workplace in an informal manner is best for the smooth running of the school as it is for any business.
81 In fact, these incidents are of such a nature that would probably result in the fair dismissal of the applicant were he disciplined formally. If this were the case, then a constructive dismissal could still be a substantively fair dismissal. It only leads me to conclude that the applicant could in fact resign in order to avoid the consequences of potential formal disciplinary action regarding these incidents.
82 Even the document of 13 March 2025 which the applicant made much of in so far as the labelling of it is concerned, is sufficiently clear to be construed as a feedback meeting as it deals with the meeting of 24 February 2025 regarding the cancellation of the biathlon meeting. It is sufficiently clear to serve as a reflection of a disciplinary counselling as well, done informally dealing with further issues of concern and directing the applicant to and providing him with the PAM documentation to assist him in improving his understanding of the conduct of educators in the workplace.
83 To have done this, was a sufficient exercise of her duty of care as a principal at the school. It is most likely a form of progressive discipline involving counselling rather than seeking the imposition of sanctions and to put things behind them as Edwards testified it was intended.
84 It is to be noted that the said document was also given to the applicant only because he had previously insisted on a document as testified to by Edwards in circumstances where the meeting was not intended to be a meeting where minutes were taken. I am satisfied that this document was never intended as a charge sheet or notice to attend a disciplinary hearing and to be responded to as such by the applicant. This is merely one manifestation of the applicant trying to manipulate the informal manner in which the school prefers to conduct its disciplinary interaction with its teachers.
85 For the applicant and his wife to conduct themselves in this manner is not only obstructive but also deceptive. This is so as the responsibility of the administration of the biathlon sporting code is that of the applicant. It remains so even if the school had allowed Mrs. Nieuwoudt to assist the applicant with the administration.
86 An overall conspectus of the evidence shows the school exercising its right to exercise progressive discipline in all the relevant circumstances and the applicant trying to thwart it in its chosen and fair manner of dealing with issues informally.
87 It is the applicant who tried to make it appear as though it were disciplinary action taken formally against him. It is altogether the applicant’s subjective views and interpretation he imposes on the disciplinary style of the school his own interpretation.
88 Clearly the applicant cannot claim objectively that the respondent had conducted itself in such a manner that made it intolerable for him to continue working for it.
89 Again, as is also reflected in the pre-arbitration minute, the applicant expected at the time of his resignation to be returning within two months to his position in the SGB and to continue working in the same workplace with Edwards as the manager.
90 Regarding the testimony pertaining to the drinking and vaping habits of the applicant there is no evidence before me of a medical or professional nature which suggests that this is induced by the working environment in which the applicant was. It can therefore serve only as a fact and which can potentially encourage a resignation by the applicant. This especially after such a short sojourn of the applicant within the respondent and his not bringing his issues to the attention of the school.
91 Having considered all the evidence presented at this arbitration I find it appropriate that the applicant’s claim of constructive dismissal be rejected. His resignation stands as a resignation in the ordinary meaning thereof and not a dismissal by the respondent as provided for in section 186(e) of the LRA.
AWARD
92 This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.
06 August 2025