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 v 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) was constructively dismissed. The claim arose in circumstances where the congregants refused to accept her as a female pastor and where she was exposed to a persistently hostile working environment.
Initially, the pastor rendered chaplaincy services to students of Cape Conference-affiliated institutions before being 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, but no action was taken to resolve this.
Over the course of her employment, she was repeatedly assigned to congregations that displayed similar hostility. On each occasion she reported the situation and requested intervention, but her employer simply transferred her to another church without addressing the underlying issue. The ongoing hostility eventually led her to develop major depressive disorder and suffer panic attacks. In the absence of meaningful intervention and with her mental health deteriorating, she resigned. She referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), where her claim was dismissed. She then took the matter on review to the Labour Court.
The Court reaffirmed that an employee claiming constructive dismissal must prove three elements: (i) that they terminated their employment, (ii) that continued employment had become intolerable, and (iii) that the circumstances rendering continued employment intolerable were created by the employer. Citing the Constitutional Court decision in Strategic Liquor Services v Mvumbi NO and Others (Strategic Liquor Services), the Labour Court held that the test does not require an employee to prove that resignation was the only option, but rather that the employer rendered continued employment intolerable.
Relying further on Mafomane v Rustenburg Platinum Mines Ltd, the court confirmed that the third requirement does not necessitate an intention on the part of the employer to make employment intolerable. It is sufficient if the circumstances arose due to the employer's acts or omissions, provided they were within the employer's control. This aspect was key to the court's finding. The employer failed to address the hostility faced by the pastor, even though the congregants' conduct was within its control. As the employer, Cape Conference had a duty to address the hostile work environment. The court found that the pastor had exhausted the internal remedies, having lodged multiple grievances before resigning. On this basis, the court held that the pastor was constructively dismissed. It reviewed and set aside the arbitration award and substituted it with an order of compensation.
It is 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 being treated poorly.
It appears that this case does not depart from established legal principles. Rather, the court's decision was based on specific circumstances of the matter and evidence presented. The judgment reinforces that the test for constructive dismissal remains unchanged, and that the threshold of intolerability has not been lowered. An employee must still meet this threshold to succeed in a constructive dismissal claim, and, as reiterated in many previous judgments, each case must be assessed on its own facts.
Employers should ensure that a grievance process is followed when employees raise concerns. The process is typically set out in the employer's policies and procedures. Where such policies are not in place, employers should be guided by the Code of Good Practice: Dismissal. The judgment also underscores the importance of employers intervening and taking appropriate action when grievances are lodged.
