Abstract

Unlike its celebrated siblings, Metropolitan Health Risk Management v Majatladi 2015 (36) ILJ 958 (LAC) (‘Majatladi’), National Health Laboratory Service v Yona (2015) 36 ILJ 2259 (LAC) (‘Yona’) and HC Heat Exchangers (Pty) Ltd v Araujo 2020 (3) BLLR 280 (LC) (‘HC Heat Exchangers’), Cairncross/Legal and Tax (Pty) Ltd 2019 (2) BALR 137 (CCMA) (‘Cairncross’) is the black sheep of the constructive dismissal family. The arbitration award in Cairncross brings into sharp focus emotional distress in the context of constructive dismissal. Cairncross provides a platform to isolate some of the critical issues that have arisen in recent times concerning constructive dismissal. First, there is a troublesome jurisdictional puzzle: Has the employee resigned or was he or she dismissed? Secondly, the case deals with the vexed question of what would constitute intolerable circumstances to continue the employment relationship, and in particular, whether work-related stress could form the basis of a constructive dismissal claim. In the case under scrutiny, the employee had claimed that her depression was attributable to the unbearable working environment. The basis of her claim of intolerability of continued employment was that an employer has a common-law and statutory duty to provide a safe working environment, which it had failed to deliver. Lastly, Cairncross also brings to the fore a consideration of the effect of tendering a resignation and the aggrieved employee’s subsequent attempt to withdraw it. The question that is answered is whether an employer’s failure to accept the withdrawal of resignation by an employee suffering from work-related stress constitutes a type of constructive dismissal.