Article 22/2025

With reference to Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC), National Health Laboratory Services v Yona and Others (2015) 36 ILJ 2259 (LAC) and Jordaan v CCMA and Others (2010) 31 ILJ 2331 (LAC), what is the content of the two-stage approach applicable to constructive dismissals, so recently confirmed by the labour appeal court in Sanlam Life Insurance v Mogomatsi and Others (2023) 34 SALLR (LAC)?

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STAGE 1

  • The employee must prove that the employer effectively dismissed him/her by making the continued relationship intolerable.
  • If an employee resigns because work has become intolerable, this does not amount to a constructive dismissal – the requirement is that the intolerability must be of the employer’s doing.
  • But, even if an employer is responsible for the relationship being intolerable, it may not be blamed – more is required.
  • The employer must be culpably responsible for the intolerability – the conduct of the employer must lack reasonable and proper cause.
  • Viewed objectively, it could not be reasonably expected of the employee to continue with the employment relationship.

STAGE 2

  • After a constructive dismissal is established in terms of stage 1, an evaluation at this stage is to take place as to whether or not the dismissal was unfair.
  • It is to be noted that these two stages might overlap and be interrelated.
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?