The intricacies of intolerable employment relationship : a critical appraisal of sections 186 (1) (e) and 193 (2) (b) of the labour relations act 66 of 1995

Abstract

Intolerability is ubiquitous in the modern law of unfair dismissal in South Africa. It is first encountered in the context of section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA). There is a correlation between intolerability and constructive dismissal. A perusal of cases indicates that, constructive dismissal occurs because the behaviour of the employer has made continued employment unbearable with the result that the employee has no other alternative except, to resign. The jurisdictional complexities surrounding constructive dismissal concern whether the employee was dismissed or resigned voluntarily. The second aspect of the intricacies of intolerability relates to section 193(2)(b) of the LRA. The correlation between the breakdown of the trust relationship as well as intolerability of restoration of employment relationship is pronounced. This invites considerations of “non-reinstatable conditions”. Whether or not the primary relief for unfair dismissal, namely, reinstatement or re-employment is feasible hinge on the following: (a) the practicability of carrying out the order, which is intertwined with the trust relationship and the employee’s misconduct within and outside employment and (b) intolerability of the employment relationship between the parties.