Article by: Roodepoort Attorney: Leon Wollnik
Constructive dismissal arises when an employee resigns not out of free choice but because the employer’s conduct has rendered continued employment objectively intolerable.
South African courts have consistently emphasised that this threshold is exceptionally high: it requires more than workplace stress, unpleasantness, or even mistreatment by a difficult superior.
The Labour Court in Gold One Ltd v Madalani and the Constitutional Court in Booi v Amathole District Municipality both confirmed that intolerability must amount to an unendurable situation, while the Supreme Court of Appeal in Murray v Minister of Defence clarified that the employer must be culpably responsible, acting without reasonable or proper cause in a way that destroys trust. More recently, in SAMWU obo Bezuidenhout v Khai-Ma Local Municipality, the Labour Court reiterated that resignation must be a reasonable response to cumulative conduct that no employee could be expected to endure, while cautioning that mere unhappiness or workplace friction does not suffice.
The test applied is objective, meaning that the employee’s subjective belief in the intolerability of the situation is not decisive unless supported by evidence of the employer’s misconduct.
Employees are expected to lodge formal grievances before resigning, and failure to do so may undermine claims of constructive dismissal. Ultimately, the courts require proof that the employer’s actions, taken without proper cause, were calculated to destroy or seriously damage the relationship of trust and confidence. If the employer can demonstrate that the employee’s fears were unfounded, the resignation will be treated as voluntary, with no dismissal claim arising. The jurisprudence therefore underscores the importance of employers maintaining fair and transparent conduct, while employees must show that resignation was the only reasonable escape from conditions that had become truly unbearable.
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