A recent Labour Court case Makombe v Cape Conference of the Seventh Day Adventists and Others clearly illustrates the test an employee must meet to succeed in a constructive dismissal dispute.
The Applicant, Lerato Makombe, is a former pastor of the Cape Conference of the Seventh-day Adventist Church, the employer.
From the commencement of her appointment in 2014, the Applicant faced numerous issues with the employer such as being placed at churches where it was known the congregants of the churches are hostile towards female pastors; not being given clarity about her job description; not being given assistance to be ordained as an elder, which would allow her to become a fully-fledged pastor; not being permitted to render services outside the area she was placed or to other denominations; not receiving a salary increase. On countless occasions, the Applicant brought the issues she was experiencing to the employer’s attention, and when there was no satisfactory resolution, she referred disputes to the CCMA. As a result of the work-related stressors, the Applicant had to consult a clinical psychologist and be admitted to hospital for psychiatric treatment. Her treatment was successful, and her medical condition was reported to the employer.
The Applicant eventually resigned in 2020 stating that her reasons for resigning were that the employment caused her emotional and psychological anguish.
After resigning, the Applicant referred a constructive dismissal dispute to the CCMA. The CCMA dismissed her case. In the Labour Court proceedings, the Applicant sought to review and set aside the CCMA award and substitute it with an order that she was constructively dismissed, the dismissal was unfair and that she should receive compensation equal to 12 months.
The Labour Court referred to several judgments, which restate that an employee claiming constructive dismissal must prove (a) they terminated their employment, (b) because continued employment was intolerable, (c) and that the circumstances that rendered continued employment intolerable were of the employer’s making.
The ultimate question is whether continued employment would be intolerable. “Intolerable” means a situation that is too great to bear or beyond the limits of tolerance. The intolerable circumstances under the employer’s control are of its doing, whether it is an act or omission. This is an objective test. Said differently, the cumulative conduct of the employer, viewed objectively, is such that an employee could not be reasonably expected to cope with it.
The Labour Court found that the Applicant did not resign voluntarily. She resigned to avoid a relapse and because the employer failed to address her concerns.
The Labour Court held that the Applicant was constructively dismissed, and the dismissal was unfair. The employer was ordered to pay the Applicant compensation equivalent to 12 months’ salary.
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