The test for constructive dismissal is intolerability

The test for a claim of constructive dismissal to succeed is if the employment relationship had become intolerable from the point of view of the employee. Merely an unpleasant working environment, or a disagreement, does not constitute an intolerable working relationship. This is illustrated by Gold One Ltd v Madalani and others – (2021) 30 LC.1.11.3.

When Gold One merged with Sibanye Gold, a few employees were transferred to Sibanye Gold by virtue of section 197 of the Labour Relations Act (LRA). They were relocated from Johannesburg to a mine in Springs with the same terms and conditions of employment.

The former Gold One employees were unhappy and all save one accepted mutually agreed severance packages. The supervisor discovered that the remaining employee was clocking in and out of work as required by the minimum prescribed procedures.

The employee refused to attend a counselling session, maintaining that the employer was intent on changing her terms and conditions of employment or dismissing her. The employee then decided not to report for duty and referred a dispute to the CCMA, claiming that she had been constructively dismissed. The Commissioner found that the employee had been dismissed.

The Labour Court noted further that there are three requirements for proving a constructive dismissal:

The employee must have terminated the contract of employment. The reason for the termination was that employment had become intolerable for the employee. The employer must have made employment intolerable.

The employee had claimed that her rejection of the severance package marked the beginning of her woes. She had conceded that until her resignation her relationship with her superior and her colleagues was cordial.

There was nothing unreasonable about management’s request that she work the hours stipulated in her employment contract and – as stated above - the employee had refused to attend a counselling session.

The Labour Court found the employee had failed to establish that her employment had become intolerable or that employer was to blame for the circumstances of which she complained.

The Court ruled that the employee had failed to prove that she had been dismissed and that the CCMA lacked jurisdiction to arbitrate the dispute.

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