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 2)

Abstract

The first part of this article introduced the concept of constructive dismissal in the law of unfair dismissal in South Africa, with some illustrations from Namibia, and discussed mainly the test for constructive dismissal which deals with the employee’s burden of proving that his/her resignation was not voluntary but literally foisted upon them by the conduct of the employer, who should have gone further to prove that the dismissal was not unfair or did not constitute unfair labour practice. This second part begins with the discussion of the experience of Lesotho and Swaziland/ Eswatini and proceeds to discuss the three elements of constructive dismissal, by which the employee must have brought the employment relationship to an end by proving that continued employment was intolerable, a situation for which the employer was responsible. A number of other instances where constructive dismissal was claimed but the employee failed to convince the courts that it ever existed in the given cases are also outlined in this part.