Constructive dismissal in South African labour law is not determined by whether an employee was forced to resign but by whether the working conditions were intolerable and unendurable. When an employee claims constructive dismissal or expresses that the future or continued working conditions are intolerable, it would be contradictory for that employee to desire to return to work.

However, the perspective of the learned judge in the Western Cape Education Department v GPSSBC case was different. In this case, the employee claimed constructive dismissal due to salary deductions following a long period of incapacity or time off work.

During the arbitration process, it became evident that the circumstances regarding the intolerable working conditions had changed. The employee would no longer be subject to deductions, or they would be able to afford the salary deductions. Given this change in circumstances relating to the “continued employment relationship” being intolerable, both the presiding Commissioner and the Labour Court judge concluded that the employee could claim reinstatement in a case of constructive dismissal.

When employers face such disputes before the CCMA or relevant bargaining council, it is crucial to determine whether the circumstances have changed between the date of resignation and the date the dispute is heard, particularly if the employee claims reinstatement. If the circumstances have not changed, it is essential to dispute the testimony regarding the alleged changed circumstances or working conditions.

Employers should be aware that the test for constructive dismissal is objective, meaning it is based on factual data. Therefore, the case’s circumstances and facts will be considered. Additionally, employers are advised to pay attention to all employee complaints, as these will be considered in constructive dismissal claims.

Furthermore, when employers receive resignations from employees, it is advisable to accept the resignation, preferably in writing, to ensure clarity and prevent misunderstandings.

By understanding the test for constructive dismissal in South African labour law, employers can navigate disputes effectively and ensure fair treatment of their employees.

Article by Kenneth Lennox

Dispute Resolution Official | Bloemfontein