A recent Labour Court judgment confirms that where employers fail to properly address grievances or mitigate the cause of an employee’s complaint, a constructive dismissal claim may succeed.
In Makombe vs Cape Conference of the Seventh Day Adventists and Others, the Labour Court found that a pastor employed by the Cape Conference of Seventh Day Adventists (Cape Conference) experienced constructive dismissal. The claim arose when congregants refused to accept her as a female pastor. She also endured a persistently hostile working environment.
Taking no action to resolve the ongoing hostility
Initially, the pastor rendered chaplaincy services to students at Cape Conference-affiliated institutions. She was later placed in Queenstown. From the outset, she encountered hostility from congregants who did not want a female pastor. She raised the issue with her employer. However, the employer took no action to resolve it.
Over the course of her employment, the employer repeatedly assigned her to congregations that displayed similar hostility. On each occasion, she reported the situation and requested intervention. Instead of addressing the underlying issue, the employer simply transferred her to another church.
The ongoing hostility eventually caused her to develop major depressive disorder and suffer panic attacks. With no meaningful intervention and her mental health deteriorating, she resigned. She then referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA dismissed her claim. She took the matter under review to the Labour Court.
What renders a successful constructive dismissal claim?
The court reaffirmed that an employee claiming constructive dismissal must prove three elements. First, they must show that they terminated their employment. Second, they must show that continued employment had become intolerable. Third, they must prove that the employer created the circumstances rendering continued employment intolerable.
Citing the Constitutional Court decision in Strategic Liquor Services vs Mvumbi NO and Others, the Labour Court held that the test does not require proof that resignation was the only option. Instead, the employee must show that the employer rendered continued employment intolerable.
Relying further on Mafomane vs Rustenburg Platinum Mines Ltd, the court confirmed that the third requirement does not require proof of the employer’s intention to make employment intolerable. It is sufficient if the employer’s acts or omissions created the circumstances, provided they were within the employer’s control. This aspect was key to the court’s finding.
Legal principles governing constructive dismissal
The employer failed to address the hostility faced by the pastor, even though the congregants’ conduct fell within its control. As the employer, Cape Conference had a duty to address the hostile work environment.
The pastor had exhausted internal remedies by lodging multiple grievances before resigning. On this basis, the constructive dismissal court ruling found in her favour. The court reviewed and set aside the arbitration award and substituted it with an order of compensation.
It remains debatable whether this case materially develops the legal principles governing constructive dismissal. Historically, the Labour Court and the Labour Appeal Court have maintained that the threshold for intolerability is high. Employees must show that their working conditions went beyond mere unhappiness or poor treatment.
It appears that this case does not depart from established legal principles. Instead, the court’s decision relied on the specific facts and evidence presented.
In conclusion
The judgment reinforces that the test for constructive dismissal remains unchanged. The threshold of intolerability has not been lowered. Employees must still meet this threshold to succeed, and each case must be assessed on its own facts. Employers should ensure they follow a grievance process when employees raise concerns.
The employer’s policies and procedures usually set out this process. If such policies are not in place, employers should follow the Code of Good Practice: Dismissal. Furthermore, the constructive dismissal court ruling underscores the importance of intervening and taking appropriate action when grievances arise.
| Deon Visagie | Partner | mail me | |  |
| Jamie Jacobs | Senior Associate | mail me | |  |
| | Webber Wentzel | | |
