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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.
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We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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Where do delictual claims fit into dispute resolution options applicable to employment disputes?