Proving constructive dismissal: a critical evaluation of section 186(l)(e) of the Labour Relations Act 66 of 1995 and recent judgments.

Abstract

The focus of the research is to evaluate the interpretation of section 186 ( 1 )( e) of the Labour Relations Act of 1995 which defines a dismissal to include circumstances where an employee resigns with or without notice because the employer has made continued employment intolerable for the employee. The purpose of the research is to set out the appropriate test to be followed in dealing with a constructive dismissal claim in terms of section 186(1 )(e) and assess whether the Constitutional Court has adequately formulated a test to be applied in the case of Strategic Liquor Services v Mvumbi 2010 (2) SA 92 (CC) where it was held that the test for proving constructive dismissal is not whether the employee had alternatives short of resignation but only that the employer made continued employment intolerable. The test formulated by the Constitutional Court will be revisited and the research will further evaluate if there has been progression on the approach adopted by the CC. The focus of the research will be mainly on the evaluation of recent judgments. The significance of adopting a purposive approach when interpreting the LRA is discussed as well as the remedies which follows once an employee succeeds with a claim of a constructive dismissal.