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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.
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?