What is constructive dismissal?

In terms of section 186(1)(e) of the Labour Relations Act, constructive dismissal is where the employer creates an environment so intolerable to the employee that it renders the continuation of an employer-employee relationship incapable of continuation, and the employee then has no other reasonable option but to resign.

What needs to be proven to claim a constructive dismissal successfully?

Unfortunately, a claim in terms of constructive dismissal is not as easy to prove as it seems. Basically, when an employee supposedly resigns due to constructive dismissal, there can be no other motive for their resignation. Furthermore, the employee must prove that the employer was responsible for the negative and intolerable working environment and that there were no other reasonable means of resolving the situation other than to resign. Therefore, the resignation needs to be the final resort and it must be proven that the employer’s conduct amounted to a repudiation of the employment agreement/relationship between the parties.

In Gold One Limited v Madalani and Others (2020) the Labour Court held that “intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions.” It was further emphasised that the test for constructive dismissal is an objective one. Therefore, it must be clear, objectively, that the situation created by the employer is one which the employee should objectively not be expected to have to cope with.

Contact our legal team for assistance if you find yourself or your company facing a constructive dismissal claim.