Abstract:
A number of recent cases from the Labour
Court, especially, HC Heat Exchangers
(Pty) Ltd v Araujo (JR155/16) [2019]
ZALCJHB 275; 2020 3 BLLR 280
(LC) has compelled a revisit of the
constructive dismissal aspect of the law
of unfair dismissal in contemporary
South African labour law. Although
constructive dismissal is not mentioned
in the Labour Relations Act 66 of 1995,
unlike “dismissal” and “automatically
unfair dismissal”, its existence has
been read by necessary implication
into the definition of “dismissal” in its
section 186(1)(e). From the case law,
and the various issues surrounding it,
there can be no doubt that constructive
dismissal has come to stay in South
Africa’s labour lexicon; it cannot simply
be bypassed in the study of the law of
unfair dismissal in modern times. In
light of the two important aspects of his subject, namely, the two-stage test and the three elements of unfair dismissal both
of which have accumulated enormous jurisprudence, a two-part series is adopted in this
article. While the primary question of whether there was a dismissal and whether it was
fair is dealt with in this first part, whereas, the three elements of whether the employee
brought the employment relationship to an end; whether the conduct complained of by
the employee judged objectively was intolerable; and whether it was the conduct of the
employer that caused the employee’s resignation, will be discussed in Part 2. Instances
where the employees’ claims of constructive dismissal were successful, will be discussed
along with the remedies awarded. On the other hand, instances where the employee failed
to scale the strong threshold of proving constructive dismissal, are equally discussed. Since
the developments in South Africa and Namibia are dealt with in Part 1, the developments in
Lesotho and Eswatini/Swaziland are examined in Part 2.
