I can’t stand it anymore!The intolerable relationship and constructive dismissal

Judge Anton Steenkamp

Constructive dismissal

Codified in LRA s 186(1)(e):“Dismissal means that –

an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Elements• Termination by employee ie resignation• Reason: Employer made relationship

intolerable

What is ‘intolerable’?• Cf Thompson & Benjamin AA1-408:• “…indicates a significant breakdown in the

employment relationship…• It means that the employee could not

continue to endure the employment relationship.”

Test for constructive dismissal• Pretoria Society for the care of the retarded v

Loots (1997) 18 ILJ 981 (LAC) 985 A-B:• “…whether the [employer], without

reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

Pretoria Society for the care of the retarded v Loots

• “It is not necessary to show that the employer intended any repudiation of a contract: the court’s function is to look at the employer’s conduct as a whole and determine whether … its effect, judged reasonably and sensibly is such that the employee cannot be expected to put up with it.”

Constitutional Court• Strategic Liquor Services v Mvumbi NO &

others (2009) 30 ILJ 1526 (CC) para [4]:• test does not require that employee has no

choice but to resign, but only that employer should have made continued employment intolerable

You asked for it?!• Eagleton v You Asked Services (Pty) Ltd

(2009) 30 ILJ 320 (LC) para [22]:• Three requirements:

– Employee terminated the contract– Continued employment intolerable for employee– Employer made it intolerable.

Murray v Min of Defence(2008) 29 ILJ 1369 (SCA)

• Mere fact that employee resigns because work is intolerable not sufficient

• Employer may have no control over conditions• Even if responsible, employer may not be to

blame• Employer must be culpably responsible• Conduct must have lacked ‘reasonable and

proper cause.’

examples

• Bullying or humiliating treatment• Failure to resolve grievances• Unsafe working environment• Isolating the employee / not giving work

Two stage process• Employee must prove ‘dismissal’• That in itself does not make it unfair and lead

to compensation• Court must still consider if dismissal, if proven,

was unfair• [Eagleton v You Asked]

Withdrawing resignation• Value Logistics Ltd v Basson & others

[C 1025/09, 26 May 2011]• Employee resigns after telephonic altercation• 5 days later attempts to withdraw resignation• Was relationship intolerable?

Value Logistics Ltd v Basson• “…irrational decision to rather resign.”• “withdraw my resignation and be afforded the

opportunity … to again be able to make a difference.”

• “Maybe I must go back and … try and sit and talk around the table.”

Value Logistics Ltd v Basson• Willingness to reconsider;• Employee’s view that situation could be

remedied;

• In my view not intolerable.

Intolerable relationship• Converse applies in dismissal cases – trust

broken down – intolerable relationship caused by employee’s conduct

• Relationship can be less than ideal, yet tolerable

• Rycroft: ‘tolerable’ v ‘functional’ employment relationship

Intolerable for employer• Breakdown of trust• Incompatibility• Serious misconduct / gross negligence• Gross insubordination• Incapacity• criminality

Intolerable for employee• Victimisation, bullying, humiliating treatment• Capricious behaviour• Failure to resolve grievances• Unsafe working environment• Isolating the employee / no work• No payment• Whistleblowers ignored

Conclusion• Test remains objective• Fact specific and dependant on evidence• High threshold for employee

Conclusion• Mostert J on resignation from the bench:• “My life as a judge has become intolerable”

after Information Scandal events.