Section 186(1)(e) of the Labour Relations Act defines constructive dismissal to be circumstances in which “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”. Put differently, the employee resigns and claims that they were, in effect, unfairly dismissed, as they would not have resigned had it not been for the alleged intolerable employment circumstances created by the employer.
One of the interesting facets of such disputes is that, unlike all other alleged unfair dismissal disputes, the starting point is the rebuttable presumption that the employer did not in fact fashion an intolerable employment relationship, and for this reason, the employee, not the employer, has the burden of proof. Let’s not forget that in the case of all other species of alleged unfair dismissal disputes, the rebuttable presumption at the outset, is that the dismissal was unfair, until the employer proves, if it can, that the dismissal was fair, both procedurally and substantively.
Employees frequently underestimate how exacting the test is in constructive dismissal cases. The CCMA, bargaining councils and our labour courts are not easily swayed by claims of constructive dismissal, with the statistics on the outcome of such disputes confirming this with employees more often than not, being unsuccessful when it comes to claims of constructive dismissal.
The recent Labour Court case in Shoprite Checkers (Pty) Ltd v Prince Nkosi & others [Case no. JR625/20, emphasised just how high the bar is et when it comes to proving constructive dismissal, when in concluded that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.
In short, the employee resigned, and claimed constructive dismissal in a dispute referred to the CCMA. The Commissioner found that the employee had successfully proved that he was constructively dismissed. The employer reviewed the arbitration award in favour of the employee on grounds that the Commissioner had erred as hi conclusions were not supported by the evidence on record.
Without going into the nitty gritty of this Labour Court review case, the Judge, amongst other things, quoted the Labour Court judgment in Gold One Limited v Madalani & others  2 BLLR 198 (LC) which “sanctioned a well-established principle that “ … intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter n obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonizing circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to breaking point”.
This emphasis on the weight of proof required to prove constructive dismissal as similarly addressed in the Constitutional Court judgment handed down earlier this year in Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) – “It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term ‘intolerable’ implies a level of inbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour … the conclusion of intolerability should not easily be reached”.
The Labour Court judgment in Shoprite summed this up by stating that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.