Per: Employment Law Team
A very important consideration for a claim for constructive dismissal is whether the employer, objectively speaking, created an intolerable environment making continued employment intolerable.
The burning question therefore is at what point can it be said that continued employment has become intolerable. The Labour Appeal Court in the case of Royale Energy (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others ZALAC 26 (25 May 2026) dealt with this question.
The case involves alleged constructive dismissal in terms of which the employee lodged a grievance against the Group Chief Executive Officer to whom she reported. The basis for the grievance was alleged threatening, rude, derogatory, contemptuous and appalling behaviour towards the employee. In her grievance, the employee specifically requested the Board’s intervention and informed the Board that she was ready to subject herself to “any process that seeks to resolve the issues at hand.”
Also, in her grievance, the employee included four incidents that had previously occurred during the years which she did not report. These incidents had taken place months and years before the formal grievance and were raised by the employee for the first time in the grievance.
Upon receipt of the grievance and by way of intervention, the Board appointed an external service provider to investigate the grievance and allowed the employee to work from home following the grievance. As such, the employee met with the investigator as part of the investigation process.
Following the meeting with the investigator, the employee proposed a mutual separation which was rejected by the employer. In rejecting the mutual separation, the employer indicated that it did not want to lose the employee and as such, had arranged for the employee to report to another supervisor in the interim while the Board sought to resolve the grievance. The employee was also instructed to report for work at the office as she had been working from home since the grievance was lodged.
Instead of reporting for work, the employee, through her legal representatives, demanded to be provided with the investigation report. In response, the employer informed the employee that there was no investigation report as the investigation was still ongoing. The employee then resigned and claimed constructive dismissal.
In a nutshell, the Labour Appeal Court held that the employee had not been constructively dismissed. This, on the basis that:
- The Board had intervened and appointed an external service provider to investigate the grievance. While the investigation was still ongoing, the employee resigned. As such, the employee resigned before the remedial process was completed, hence she was found to have resigned hastily and prematurely.
- By resigning prematurely, the employee denied the employer an opportunity to find a workable solution to the issues faced by the employee. This was against her own commitment to the employer that she would subject herself to any process aimed at resolving the issues she had raised.
- The employee cannot rely on anticipated intolerability, that is, the GCEO would likely not change in the future as a basis for resigning. The Court held that anticipated intolerability would be stretching the bounds of intolerability too far.
In relation to the four previous incidents that the employee had not reported, the Court found that:
- The fact that the employee continued with employment for months and sometimes years after the alleged incidents can only mean that those were tolerable incidents. This, because the employee did not report any of those four incidents as and when they happened and only did so months and years later.
On the issue of intolerability, the Court went on to hold that:
“It is of some significance to observe that what is made intolerable is not merely employment but continued employment. In other words, the conduct must be one that renders continuation of employment intolerable. Thus, if an event or conduct happens but an employee continues with employment, it is oxymoronic to, months or years later, claim that the event or conduct rendered a continued employment intolerable. Similarly, anything that is likely to happen in the future is incapable of rendering a continuation of employment intolerable. Equally, it is oxymoronic to suggest that remedial steps are capable of rendering continued employment intolerable. Remedial steps – grievance process/investigation – are more often than not ignited by an employee who faces or faced an ‘intolerable’ conduct from an employer.”
It is clear that where the employer has taken steps to address an alleged intolerability, depending on the circumstances of each case, it is best for the employee to wait for the outcome of such intervention by the employer. Exhausting internal remedies is advisable to avoid prematurely resigning, and then later alleging what may turn out to be a baseless constructive dismissal claim.
Premature resignation may exonerate the employer and weaken the employee’s case. It is therefore advisable to seek legal advice before resigning based on alleged workplace intolerability to ensure that one does not pursue a baseless claim in the end. This, taking into account that the test in constructive dismissal disputes is objective and very tight as opposed to a mere subjective feeling of unhappiness.
MOLATUDI ATTORNEYS
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