Case Number: ELRC1238-254/26NW
Panellist: Joseph Mphaphuli
Date of Award: 21 August 2026

In the dispute between:

Twala Baimphetihetse
(Union/Applicant)

And

Department Education of North West
(Respondent)

1. Details of hearing and representation

1.1 This is an arbitration award following an arbitration hearing. The hearing was conducted online on the 31st of July 2026. The hearing was conducted in terms of Section191 of the Labour Relations Act/66/1995.Mrs Baitumedi Molekoa,Candidate Attorney, appeared for the Applicant. The Respondent was represented by Mr Billy Seakgosing, Labour Relations Officer in the service of the Respondent. Parties agreed to file their closing arguments on the 12th of August 2026. The closing arguments were taken into account in arriving at the award. The proceedings were digitally recorded.

2. Issue in dispute

2.1 I had to determine whether there was a dismissal or not, if so, whether the dismissal was fair or not and make , and make an appropriate award.

3. Background to the dispute

3.1 The Applicant commenced employment in January 2013. The Applicant served as a Teacher at a salary of R318,787.60 per annum. The Applicant’s last day at work was the 17th of April 2025. The Applicant resigned from her position in writing. The Applicant desired compensation for the alleged forced resignation

4. Survey of evidence and argument

Applicant’s case
4.1 The Applicant took oath and testified. She was responsible for teaching and assessing learners. Her relationship with the Principal was cordial until the day she approached the Principal to report the unruly behavior of a learner in her class, namely, Katlego Moiliwa, who was using profane language towards her. The learner had a tendency of doing the same to other learners.

4.2 The learner would disrupt the class and examinations. The learner took to assaulting other learners on the 26th of August 2024. She had first reported the learner’s behaviour in April 2024. The Principal did not do anything about the matter. The Principal and other teachers in the Principal’s company just laughed about it. Another incident took place still in August where the learner was assaulting other learners. She brought the matter to the Principal’s attention. She asked the Principal to remove the learner from the class. The Principal bluntly refused to remove the learner.

4.3 She recalled that the Principal had called the learner’s guardian and a Social Worker to the School in April 2024. The learner insulted her in front of the guardian and the Principal and the Social Worker as he did in front of the Principal and the Deputy Principal on a previous occasion. The Principal instructed the learner to leave the School premises. The learner refused. The Social Worker summoned a member of SAPS to the School. No further action was taken against the learner and the learner remained in class.

4.4 The Principal eventually moved the learner to another class. She however continued to teach him the same subject in the other class as she was teaching the subject to all grade nine learners. She became so depressed to the extent that she consulted a psychiatrist. The psychiatrist arranged a meeting between the Applicant and the Social Worker. She met the Social Worker in April / May 2024. She explained all her problems to the Social Worker. The Social Worker visited the School still in April / May 2024.

4.5 The Social Worker spoke to the Principal where after the Social Worker advised her to approach the Circuit Manager with a request to be transferred to another School. The Circuit Manager visited the School in May of the same year. The Circuit Manager convened a meeting with the Principal and the Applicant. The Circuit Manager urged the Principal to expel the learner. To her surprise the learner was not expelled from School. The learner did not amend his wayward behaviour. The learner continued to insult her, assault other learners and even threatened to slash her car tyres. Hard as she tried, she could not get any help from the Principal. The Principal would not transfer her or even expel the learner from School. She took leave of absence due to illness. She returned to work in January 2025.

4.6 She came back to face a more hostile environment. She experienced more abuse from other learners who had joined in after learners realised that nothing happened to Katlego Moliwa. She experienced more depression and was once again she was admitted for treatment. She resigned her teaching post because of the toxic environment she found herself in. Added to it was the school’s inability or unwillingness to come to her aid. She resigned from her position while she was on temporary incapacity leave.

Respondent’s case

The Respondent did not lead evidence. The Respondent elected not to call any witness in its case. The Respondent only cross examined the Applicant and made written submissions at the conclusion of the hearing.

5. Analysis of evidence and argument

5.1 The Applicant’s case was that she was dismissed and unfairly so. The dismissal was, according to the Applicant, in the form of constructive dismissal. The notion of constructive dismissal implies that an employee was forced out of employment by the unfair conduct of an employer. The employer must have, through its conduct, made continued employment intolerable. The employer’s conduct must have been persistent, unrelenting and calculated to force an employee out of employment.

5.2 The persistent unbearable work environment must be such that no reasonable employee could be expected to put up with such conduct. An employee’s efforts to have the unbearable work environment resolved must have failed or been ignored. The resignation must be the only escape route open to an employee. Unlike in the case of an ordinary dismissal where an employer takes direct visible steps to end an employment relationship as in the case of dismissal for misconduct, incapacity or dismissal for a reason related to operational requirements, constructive dismissal implies involuntary or forced resignation.

5.3 A dismissal contemplated in Section 186 (1) (e) of the Labour Relations Act 66 of 1995 (the Act) is not obvious and requires close examination to make the call. In the event the onus to prove that there was indeed a dismissal, rests with the party that referred the dispute. Like in the case of ordinary dismissal, proof is on a balance of probabilities

5.4 The Applicant was the only witness in her case. The Applicant’s testimony in brief was that she was tormented by a learner in her class. The learner, being Katlego Moliwa, was rude, unruly, disrespectful and abusive. Added to this the learner, even threatened her with assault / violence and even threatened to cause damage to her car. Not only was she the subject of abuse / disdain but the Applicant’s experience was that other learners in the class suffered the same fate.

5.5 The learner’s conduct had caused her trauma, anxiety and depression. She had as a result missed classes because her mental condition was not in a proper state after the bullying by the learner, Katlego Moliwa. She had in her attempt to get the matter resolved enlisted the services of a Social Worker, Psychiatrist, Circuit Manager, the School Principal and the Deputy Principal, the Police and the learner’s guardian, all of whom could not resolve her grievance. The Applicant felt particularly failed by the Principal who following her request to remove the learner from the class, bluntly told her in her face that he would not remove him from class.

5.6 Similarly, her repeated request for a transfer to another school did not succeed. To the best of her experience, had it not been for the unfair conduct of the Respondent in failing to come to her aid, the Applicant would still be in the service of the Respondent. The Applicant was confident in testifying that after everything had failed, resignation was the only way out of her misery.

5.7 It emerged under cross examination that the Applicant’s resignation was in writing, that the Applicant served notice, that the villain, that is the learner who made the Applicant’s life miserable had abandoned school at the time of resignation. Finally, that the Applicant was on temporary incapacity leave at the time and had tendered services for four months in which period the learner had already abandoned his studies.

5.8 Proof on a balance of probabilities in labour law disputes implies that the Applicant in constructive dismissal must present evidence to convince the Commissioner that the work environment was made genuinely intolerable by the employer. Constructive dismissal has an exceptionally high legal threshold; a stressful or unpleasant work environment is not enough. Intolerability entails an unenviable or agonizing circumstances caused by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.

5.9 The Applicant’s letter of resignation served as a good indication of whether constructive dismissal was at issue or not and read as below stated.
“I hereby submit my formal resignation from my position as a teacher at Ramatu Secondary School, under the North West Department of Education, effective 31 July 2025, typically four weeks from the date above unless otherwise negotiated.

This decision has not come easily, as I have thoroughly enjoyed my time at the school and working with my learners and colleagues. However, after careful consideration, I have decided to pursue new opportunities and personal development.

I would like to extend my heartfelt gratitude to the Department and the school leadership for the support, guidance, and professional development I have received throughout my tenure. It has been an honour to contribute to the educational development of our learners.

Please let me know the necessary steps and documentation required to ensure a smooth handover and proper exit process.

  Thank you once again for the opportunity to serve in this role.”

5.10 In a constructive dismissal resignation letter scenario, a resignation letter is vital. It serves as a paper trail linking resignation to intolerable conditions of employment. A letter of resignation must state the fundamental breaches or intolerable conditions forcing an employee’s hand. A letter of resignation that gives context or tracks the employer as a good employer damage or completely defeats a constructive dismissal claim.

5.11 The legal test for constructive dismissal requires proving that the working conditions were objectively intolerable. Explicit praise functions as strong employer friendly evidence that the job environment was actually positive and manageable. A letter filled with gratitude directly undermines the core argument about the employee being forced out of employment because of unbearable conditions.

5.12 The recent Constitutional Court decision in the matter of Maleka v Boyce N.O. and others (CCT175/23)(2026) ZACC7 stressed the requirement to exhaust internal remedies in constructive dismissal cases.

5.13 The Applicant’s letter of resignation makes no mention of unconducive/toxic or unbearable working conditions and this heavily puts a damper on the Applicant’s allegations or claim for a constructive dismissal. The letter makes no link between resignation and intolerability of continued employment. The Applicant gave notice in circumstances which she considers to be toxic and highly unconducive for a continued employment relationship.

5.14 The Applicant claims that the new factor in her intolerable employment relationship was the learners she was teaching in the absence of the identified learner who had taken over from the learner to torment her. This according to the Applicant continued for a period of four months before it choked her to the point of resignation.

5.15 The Applicant did not bring the matter to the attention of the Respondent or anyone in a position of authority. This in itself defeats the purpose of internal dispute resolution mechanisms and deprives an employer to step in to protect an employee. This is an obvious downside of failing to reach out to an employer to find a solution to a grievance.

5.16 It was evident from the Applicant’s own testimony that the learner was no longer in the picture at the time when she tendered her resignation. The Respondent spared no effort in coming to the Applicant’s aid regarding her issue with the learner ranging from the Social Worker involvement, Circuit Manager, Police Officer, the School Principal and the learner’s guardian. The pressure, by implication led to the learner abandoning his studies. The learner had long disappeared from the scene, five months prior to the Applicant’s resignation.

5.17 The Applicant’s resignation was in the circumstances not influenced by the Respondent’s failure to act or omission in circumstances where the Respondent’s intervention was required. The Applicant’s failure to raise the alarm in respect of other learners’ unruly behaviour, in which matter the Respondent could not intervene as it was blindsided, did not help the Applicant’s course.

5.18 I have in the light of the analysis here in above come to the conclusion that the Applicant failed to discharge the onus to prove the existence of a dismissal as contemplated in Section 192(1) of the Act. The Applicant’s testimony did not pass the test set in Section 192(2) of the Act for constructive dismissal.

6. Award

6.1 There was no constructive dismissal in the context of Section 186(1)(e) of the Act.
6.2 I dismiss the application for an alleged unfair dismissal.

Signature:

Commissioner: Joseph Mphaphuli