Introduction

In Fry v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Court was required to determine whether an employee who resigned after a lengthy period of workplace conflict had been constructively dismissed.

The case concerned a long-serving employee who alleged that a series of events, including a transfer to another division, dissatisfaction with her new role, unresolved grievances, workplace tensions, and her exclusion from the workplace pending a psychological assessment, rendered continued employment intolerable. The Labour Court ultimately upheld the CCMA finding that no constructive dismissal had occurred.

The judgment provides important guidance on the high threshold employees must meet to establish constructive dismissal and confirms the Constitutional Court’s recent approach to the meaning of “intolerability”.

 

Background

Pamela Fry commenced employment with Bridoon Cape Town on 1 September 2003 and occupied various managerial positions during almost eighteen years of service.

In 2021, issues emerged concerning a disciplinary process and her transfer from the technical division to the finance division. Fry regarded the transfer as a demotion and challenged both the disciplinary action and transfer through an unfair labour practice dispute.

The parties ultimately settled the dispute. The final written warning was reduced in duration, and the parties agreed to develop and discuss a job description for Fry’s new position.

Relations between the parties remained strained. Fry believed that the employer had failed to comply with the settlement agreement, that she had been marginalised within the organisation, and that she no longer had meaningful work aligned with her experience and abilities.

Matters came to a head in June and July 2022 when Fry sent a series of emails expressing concerns regarding her treatment and alleging that she was being followed and monitored. Following these communications and disclosures regarding her depression, the employer instructed her to remain at home pending consultation with a psychologist.

Before the psychologist’s report became available, Fry resigned and subsequently referred a constructive dismissal dispute to the CCMA.

 

The Court’s decision

The correct test is objective intolerability

The Labour Court emphasised that constructive dismissal requires more than dissatisfaction, frustration or workplace conflict.

An employee must establish:

• that they terminated the employment relationship;
• that continued employment had become intolerable; and
• that the intolerability was caused by the employer.

 

Importantly, the Court reaffirmed that the enquiry is objective. The focus is not on the employee’s subjective feelings or perceptions but on whether the employer’s conduct objectively rendered continued employment unbearable.

The Court relied heavily on the Constitutional Court’s guidance in Maleka v Boyce NO and Others, which confirmed that the threshold for proving constructive dismissal is high.

Settled disputes could not be revived

A significant aspect of the case concerned Fry’s attempt to rely on previous events relating to her disciplinary action and transfer.

The Court held that these disputes had already been resolved through a settlement agreement. Having agreed to settle those claims, Fry could not rely on them again as the basis for establishing constructive dismissal.

The Court found that once the disputes were settled, they ceased to form part of the constructive dismissal enquiry. The alleged failure to comply with the settlement agreement was not enough

Fry argued that the employer failed to comply with the settlement agreement by not properly addressing her job description and role. The Court rejected this argument as a basis for constructive dismissal.

Importantly, the Court noted that Fry had already invoked statutory mechanisms to enforce the settlement agreement. She had applied to have the settlement agreement made an arbitration award, which would have enabled enforcement through legal processes.

Because an available legal remedy existed, the alleged breach of the settlement agreement could not realistically be said to have rendered continued employment intolerable.

The requirement to consult a psychologist did not amount to intolerability

One central issue concerned the employer’s decision to require Fry to remain at home pending consultation with a psychologist.

The Court accepted that Fry was upset by the decision and felt insulted. However, the Court concluded that the employer’s conduct was not unreasonable.

The employer was aware that Fry suffered from depression and had received communications that caused concern regarding her wellbeing. In those circumstances, requiring a psychological assessment before her return to work was considered a reasonable and responsible response.

The Court found that the employer’s actions were motivated by concern for Fry and did not amount to conduct that made continued employment intolerable.

The resignation was premature

The most significant factor in the Court’s reasoning was the timing of Fry’s resignation.

The psychologist had advised that a report would be available within days. Rather than waiting for the assessment outcome and the employer’s response, Fry resigned before the process could be completed.

The Court described her decision as premature. It held that it was impossible to know what action the employer might have taken once the psychologist’s report became available.

As a result, Fry’s belief that the employer would continue to exclude her from work was speculative rather than based on objective facts.

 

Implications of the judgment

The judgment reinforces the increasingly strict approach South African courts take when assessing constructive dismissal claims.

First, employees must demonstrate far more than workplace dissatisfaction, frustration, or unhappiness. Even where an employee feels marginalised, overlooked, or treated unfairly, constructive dismissal will not be established unless the working environment has become objectively unbearable.

Second, the judgment highlights the importance of exhausting available remedies before resigning. Where statutory, contractual or internal remedies remain available, an employee may find it difficult to establish that resignation was the only reasonable response.

Third, the decision demonstrates that courts will closely scrutinise the timing of a resignation. Resigning before ongoing processes have concluded may undermine a later argument that continued employment had become intolerable.

Fourth, the case reflects the growing influence of the Constitutional Court’s judgment in Maleka, which clarified that constructive dismissal should be reserved for exceptional circumstances and that subjective perceptions alone are insufficient.

 

Key takeaways for employers

Constructive dismissal claims will be assessed objectively, not through the employee’s subjective perceptions. Employers should carefully document efforts to address employee concerns and grievances.

Where there are legitimate concerns regarding an employee’s wellbeing, obtaining professional medical or psychological input may be reasonable.

Employers should actively use alternative dispute resolution mechanisms and grievance procedures.

Settlement agreements remain binding and can prevent settled disputes from being revived in later proceedings.

Employers who act cautiously and reasonably in managing workplace concerns are less likely to be found responsible for constructive dismissal.

 

Key takeaways for employees

Constructive dismissal requires proof that continued employment was objectively intolerable.

Frustration, disappointment, conflict, or dissatisfaction will generally not be enough. Employees should exhaust available remedies before resigning. Remaining legal processes may weaken a later constructive dismissal claim.

Resignation should genuinely be a last-resort measure. Employees should avoid making decisions based solely on fears or assumptions about what may happen in the future.

 

Conclusion

The Court’s decision serves as a reminder that constructive dismissal remains one of the most difficult forms of dismissal to prove under South African labour law. While the Court recognised that the employee had experienced workplace difficulties and personal distress, it found that the circumstances fell short of the high threshold of intolerability required by law.

The judgment confirms that employees cannot rely on dissatisfaction, uncertainty, or speculation regarding future events to justify a constructive dismissal claim. Instead, they must demonstrate that the employer’s conduct objectively rendered continued employment unbearable and that resignation was truly a last resort.

For employers, the decision provides reassurance that reasonable attempts to manage workplace concerns, including concerns relating to employee wellbeing, will not necessarily expose them to constructive dismissal claims. For employees and practitioners, it underscores the importance of exhausting available remedies and carefully considering whether the legal threshold of intolerability has genuinely been met before resignation is tendered.

For advice or more information on labour or employment matters, please contact Riona Kalua.