Unfair Dismissal – Mental Health

In the matter of Sanlam Life Insurance Limited v Mogomatsi and Others (CA12/2022) [2023] ZALAC 15; [2023] 11 BLLR 1166 (LAC); (2023) 44 ILJ 2516 (LAC) (17 August 2023), the Labour Appeal Court (LAC) overturned a Labour Court (LC) ruling that found a former Sanlam ethical hacker had been constructively dismissed. Instead, the Court restored the original CCMA finding that the employee had resigned of his own accord and had not been forced out by intolerable working conditions.

The employee joined the employer in June 2017 as a Senior Penetration Tester, responsible for probing the company’s information systems for security weaknesses. His working relationship with the company became strained from late 2018 onwards, following an incident where he applied late for December leave but went on holiday anyway. Although a disciplinary hearing was convened, the charges were later dropped after management accepted there could have been a misunderstanding.

From early 2019, tensions continued around issues such as timekeeping, an expired professional certificate, disagreements with team members, missed deadlines, and his exclusion from certain training opportunities and conferences. A significant incident in April 2019 resulted in a final written warning for unprofessional conduct relating to a Santam project.

Everything came to a head in May 2019 during a major cyber breach at an affiliate of the employer in Kenya. The rest of the team worked intensively for several days, but the employee did not log in at the agreed time and later accused his colleagues of lying about solving the problem first. His manager instructed him to apologise or face further disciplinary action, warning that resignation was also an option. Instead, the employee went off sick for two days and then resigned on 30 May 2019.

He referred a constructive dismissal dispute to the CCMA, claiming that his employer had made his working life intolerable.

The CCMA Commissioner rejected the constructive dismissal claim, ruling that the employee had resigned voluntarily. The Commissioner found that although management had acted firmly at times, their conduct did not make continued employment objectively intolerable.

The employee then took the matter on review to the LC. For the first time, he relied heavily on arguments about his mental health, alleging stress and depression had played a major role. The LC accepted this broader reasoning, finding that the employer should have handled him more sensitively, and ruled that he had, in fact, been constructively dismissed. It awarded him four months’ compensation.

Upon appeal, the LAC was critical of the LC for relying on evidence not presented at the arbitration, particularly relating to mental health. It found:

• The employee did not raise mental ill-health during the CCMA proceedings.

• Sanlam had no evidence that he was mentally unwell at the time.

• The Labour Court conflated incapacity due to illness with constructive dismissal.

• The employee failed to prove that the employer made continued employment intolerable.

The Appeal Court reinstated the CCMA’s award and dismissed the constructive dismissal claim. No cost order was made.

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