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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.
September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

August 17, 2026

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?