1. Statutory Remedies
- Constructive dismissal happens when the employee has resigned by having terminated employment with or without notice because the employer made continued employment intolerable for the employee [section 186(1)(e) of the Labour Relations Act 66 of 1995, as amended (“LRA”)].
- Given section 186(1)(e) of the LRA saying that the employee may also terminate employment with notice, it follows that serving a notice period does not disqualify the employee from claiming constructive dismissal, nor does it mean that the employer did not make continued employment intolerable for the employee.
- In any proceedings concerning any constructive dismissal, the employee must establish the existence of constructive dismissal, failing which, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or a bargaining council shall have no jurisdiction to conciliate, mediate or arbitrate the alleged unfair dismissal dispute. The CCMA or a bargaining council, as a general rule, cannot determine its own jurisdiction, save making a determination for its own convenience (Maleka v Boyce N.O. and Others (2026) 47 ILJ 839 (CC) at paras [53] to [57]).
- To establish the existence of constructive dismissal, the employee must establish three requirements for constructive dismissal:
“The first is that the employee must have terminated the contract of employment. The second is that the reason for the termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who made continued employment intolerable. All three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established.”
[Solid Doors (Pty) Ltd v Theron N.O. (2004) 25 ILJ 2337 (LAC) at para 28.]
- If the existence of the constructive dismissal is established, the employer must prove that the constructive dismissal is fair, failing which an arbitrator may order the employer to reinstate or re-employ the employee, or may order the employer to pay compensation to the employee for unfair dismissal.
- Unless the constructively dismissed employee does not wish to be reinstated or re-employed, nothing in law precludes the Labour Court or an arbitrator from ordering the employer to reinstate or re-employ the constructively dismissed employee if the evidence shows that the employee would not be subjected to the same intolerable continued employment that prevailed before he or she resigned (Western Cape Education Department v Julian John Gordon and Others (2013) 34 ILJ 2960 (LC), upheld on appeal: Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 (LAC)).
2. Common-Law Remedies
- The employee who has resigned by having terminated employment with or without notice because the employer made continued employment intolerable for him or her may, rather than pursue the conventional remedy of claiming an unfair constructive dismissal as provided for in the LRA, elect to prosecute a claim sourced in the common law and contend that he or she has been the victim of a civil wrong, namely a delict. The employee may pursue this claim for damages arising out of a contractual breach and in terms of the common law in either the High Court or Labour Court.
- The law and the Constitution impose a continuing obligation of fairness towards the employee, and the common-law contract of employment has developed to include protection against constructive dismissal. As a result, the employee has the right to claim damages from the employer arising from the alleged constructive dismissal [Murray v Minister of Defence (383/2006) [2008] ZASCA 44; [2008] 3 All SA 66 (SCA); [2008] 6 BLLR 513 (SCA); 2009 (3) SA 130 (SCA); 2008 (11) BCLR 1175 (SCA); (2008) 29 ILJ 1369 (SCA) (31 March 2008)].
- In PE v Dr Beyers Naude Local Municipality and Another (828/2011) [2021] ZAECGHC 35; [2021] 2 All SA 839 (ECG); (2021) 42 ILJ 1545 (ECG); 2022 (1) SA 560 (ECG) (13 April 2021) at paras 1 to 4, the High Court overruled an objection that the employee, who had resigned after her employer had made her employment intolerable, should have pursued a constructive dismissal claim in the CCMA. With the help of a narrative poem, the Court held:
1. On 31 March 2016 this Court found the Defendants jointly and severally liable to pay the Plaintiff such damages as she may be able to prove she has suffered in consequence of the sexual assault upon her on 16 November 2009 at the offices of the erstwhile Ikwezi Local Municipality in Jansenville. I am required to adjudicate on the issue of quantum.
2. The American poet Robert Frost concluded his narrative poem The Road Not Taken with the lines:
“… Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.”3. This is a story of a litigant embarking on a road rarely travelled by employees who have suffered a wrong at the hands of their employers, and the path so chosen would ultimately prove to have far-reaching consequences for both employee and employer. After her employer had made her employment intolerable, compelling her to resign, rather than pursue the conventional remedy of claiming an unfair constructive dismissal as provided for in the Labour Relations Act No. 66 of 1995 (“the LRA”), the Plaintiff elected to prosecute a claim sourced in the common law and to contend that she had been the victim of a civil wrong, i.e. a delict.
4. The Plaintiff thus challenged the lawfulness, not the fairness, of the conduct of her employer. It was put to the Plaintiff in accusatory vein during cross-examination at the trial on liability that perhaps she should have pursued a constructive dismissal claim in the forum of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). It was, however, the prerogative of the Plaintiff to have formulated the claim in the manner she did and as she deemed fit.
- Instead of referring a constructive dismissal dispute to the CCMA or a bargaining council having jurisdiction, the employee may refer a contractual claim to the Labour Court in terms of section 77(3) of the Basic Conditions of Employment Act 75 of 1997, as amended (“BCEA”), provided that a precise and clear cause of action for such a claim is set out in the statement of claim [Volschenk v Pragma Africa (Pty) Ltd (C414/13) [2014] ZALCCT 24; [2014] 11 BLLR 1146 (LC); (2015) 36 ILJ 494 (LC) (27 May 2014)].
- However, the delictual claim for damages arising from constructive dismissal may be affected by the applicable provisions of the Prescription Act if it is not instituted within three years from the date of constructive dismissal [Sanoj Jeewan v Transnet SOC Limited and Another (696/2023) [2024] ZASCA 108 (4 July 2024)].