New case in South Africa deals with an employee who quit from an ‘intolerable’ job – here’s what happened

​​​​​​In a recent judgement, South Africa’s Labour Court dealt with the issue of ‘intolerability’ in the workplace and its use in a constructive dismissal.

Law firm Webber Wentzel explains that ‘intolerability’ is more than a working environment or working under employment conditions that are difficult, unpleasant or stressful.

“In this matter, the employee was employed by a mining company as a contract manager,” the firm said. “Consequent to a commercial merger, the employee was relocated to a different province and received a relocation allowance. The employee was transferred on the same terms and conditions of employment.”

After the transfer, the employee’s direct supervisor noticed that the employee was not adhering to the employer’s policy on timekeeping, Webber Wentzel said.

The supervisor later requested the employee to participate in a formal counselling session facilitated by the human resources department. After the session, there was an exchange of correspondence between the employee and supervisor.

“The employee eventually claimed that the session amounted to a clear attempt by the employer to undermine the contract of employment and to make the employee’s continued employment ‘intolerable’.

“The employee then elected not to report for duty and referred an unfair dismissal dispute to the CCMA claiming constructive dismissal.”

Constructive dismissal means the employee resigns and claims that the resignation occurred not because the employee wanted to leave but as a result of the employer’s intolerable conduct.

Court case 

In its judgement, the Labour Court outlined a number of key legal principles on constructive dismissal.

The court said that there are three requirements that need to be proven for constructive dismissal to be established:

  • The employee must have terminated the contract of employment;
  • The reason for the termination of the contract must be that continued employment has become intolerable;
  • It must have been the employee’s employer who made the continued employment intolerable.

The test for constructive dismissal is an objective one, Webber Wenztel said. This means that the evidence must show that the conduct of the employer towards the employee, viewed objectively, is such that the employee could not reasonably be expected to cope with.

“Resignation must be a reasonable step for the employee considering the circumstances of the matter,” the firm said. “Intolerability is a high threshold to meet. Intolerability is more than a working environment or working under employment conditions that are difficult, unpleasant or stressful.”

The Labour Court further expanded on the concept of intolerability in holding that it:

“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”.

On the facts of this matter, the Labour Court found that the employee failed to show that the employer was to blame for making their continued employment intolerable.

The employee had suitable alternative remedies and mechanisms that were available to resolve the cause of their resignation.

  • By Mpumelelo Nxumalo, Nivaani Moodley, Shane Johnson of law firm Webber Wentzel.

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New case in South Africa deals with an employee who quit from an ‘intolerable’ job – here’s what happened