Intolerability of the employment relationship in the context of constructive dismissal : an analysis of recent judgments from South Africa, Namibia, Lesotho and Eswatini/Swaziland (Part 1)

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.