In essence, a claim of constructive dismissal arises when an employee voluntarily resigns from their position, however, alleges that they were forced to do so due to unbearable/intolerable working conditions created by the employer.
While generally, in cases of dismissal for misconduct, incapacity or operational requirements, dismissal is not disputed, and, if referred to the CCMA or Bargaining Council the onus lies with the employer to prove that the dismissal was substantively and procedurally fair. However, in cases of Constructive Dismissal, the onus initially rests with the employee, who must establish that their resignation occurred because the employer had made the working conditions so intolerable that resignation was the only viable option.
In Pretoria Society for the Care of the Retarded v Loots  6 BLLR 721 (LAC), the Court stated that the first test was whether, when resigning, the employee would have continued the employment relationship indefinitely if it had it not been for the employer’s unacceptable conduct, and there was no other motive for the resignation.
If the employee successfully meets this criterion, their resignation is reclassified as a “dismissal,” and the responsibility to prove the fairness of the dismissal then shifts to the employer.
Understanding Constructive Dismissal
Employees resign from their jobs for various reasons every day, including personal preferences or issues with their work environment. Fortunately for employers, these common reasons do not meet the Constructive Dismissal requirements. To prove that their resignation amounts to constructive dismissal, employees must meet specific criteria.
Constructive dismissal is defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee, to such an extent that the employee has no other option available but to resign.”
Insights from Gold One Ltd v Madalani and Others (2021)
A question that arises, is, what is intolerable? In Gold One Ltd v Madalani and Others  2 BLLR 198 (LC) the court held that ‘intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.’
For a claim of Constructive dismissal to succeed, the term “intolerable” implies a level of intolerability that surpasses ordinary workplace challenges, and the employee must demonstrate that the employer was responsible for creating this intolerable situation, with no other feasible resolution except resignation.
Navigating the Path to Resolutions
A question that often arises from a presiding officer, when faced with an allegation of constructive Dismissal, is whether or not the employee lodged a Grivence, and followed the Grievance procedure, to allege that there was no other way to resolve the issue, without employees exercising and exhausting the internal procedure more often than not results in the employee falling short of meeting the criteria for Constructive Dismissal.
In summary, while proving constructive dismissal may be challenging, it is not impossible. Employers are advised to be vigilant when faced with allegations of intolerable working conditions from an employee. Employers must address and attempt to resolve legitimate grievances in good faith, to maintain a harmonious working environment.
Employers seeking guidance or clarity on the above are invited to contact Invictus Group on 0861 737 263.