In the recent Labour Court judgment of Jacobs v CCMA and Brakpan Bus Services [2026] JR1629-21 (LC) , the Court reaffirmed the stringent requirements employees must satisfy when alleging constructive dismissal under section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA).
The judgment serves as an important reminder that difficult, stressful, or frustrating working conditions will not necessarily amount to constructive dismissal. Employees must demonstrate that continued employment had become objectively intolerable and that resignation was genuinely a measure of last resort.
Background Facts
Mr Simon Maxwell Jacobs had been employed by Brakpan Bus Services for approximately twenty years and occupied the position of Financial Manager.
In October 2018, he was suspended pending an investigation into alleged misconduct. Although the suspension remained in place for an extended period, no disciplinary charges were ultimately pursued, and the suspension was lifted in June 2020.
Upon returning to work, Mr Jacobs found that the employer no longer had a Board in place and that a new Acting Managing Director had assumed leadership. He alleged that the Acting Managing Director repeatedly failed to approve payments to service providers, including providers responsible for payroll-related services, ticketing software, and operational equipment.
Mr Jacobs further contended that management failed to address reports of cash leakage, irregular expenditure, and other financial concerns, creating significant operational challenges and workplace tension.
In December 2020, he escalated his concerns to senior municipal officials, including the Executive Mayor and City Manager of the City of Ekurhuleni. Dissatisfied with the response received, he resigned on 4 January 2021 and served his one-month notice period.
The Constructive Dismissal Claim
Following his resignation, Mr Jacobs referred a dispute to the CCMA, alleging that he had been constructively dismissed.
Constructive dismissal occurs when an employee resigns because the employer has made continued employment so intolerable that the employee can no longer reasonably be expected to remain in the workplace.
The CCMA commissioner rejected the claim, finding that no dismissal had occurred. Mr Jacobs subsequently approached the Labour Court to review and set aside the arbitration award.
Legal Principles Considered by the Labour Court
The Labour Court considered established authorities dealing with constructive dismissal, including:
- Solid Doors (Pty) Ltd v Commissioner Theron and Others
- Gold One Limited v Madalani and Others
- Maleka v Boyce NO and Others
The Court reiterated that an employee claiming constructive dismissal must prove:
- The employment relationship was terminated by the employee;
- Continued employment had become objectively intolerable; and
- The intolerable conditions were caused by the employer.
Importantly, the Court emphasised that “intolerable” does not simply mean unpleasant, stressful, difficult, or unsatisfactory. The circumstances must be so severe that continued employment becomes practically unendurable.
Why the Court Rejected the Constructive Dismissal Claim
The Court found that although Mr Jacobs faced challenging working conditions, the evidence did not establish the level of intolerability required by the LRA.
Several factors influenced the Court’s decision:
1. The Working Conditions Were Difficult but Not Intolerable
The Acting Managing Director’s alleged failure to respond to emails and approve payments undoubtedly created operational difficulties. However, the Court held that these circumstances did not make it impossible for Mr Jacobs to continue performing his duties.
2. Alternative Remedies Were Available
The Court noted that Mr Jacobs had not exhausted several alternative avenues before resigning, including:
- Internal grievance procedures;
- Enforcement of an earlier CCMA settlement agreement;
- Challenges relating to his suspension; and
- Other labour law remedies available under the LRA.
Constructive dismissal generally requires employees to demonstrate that reasonable alternatives were unavailable or had been exhausted.
3. Resignation Was Not a Last Resort
A significant aspect of the judgment was Mr Jacobs’ concession during arbitration that he may not have resigned had the Acting Managing Director responded to even one of his emails.
The Court found that this evidence undermined the argument that the employment relationship had become objectively intolerable.
4. Serving a Notice Period Weighed Against Intolerability
The Court also considered the fact that Mr Jacobs resigned with one month’s notice and worked throughout the notice period.
While serving notice does not automatically defeat a constructive dismissal claim, it may indicate that the employee was still capable of remaining in employment, which can be inconsistent with allegations of intolerable working conditions.
Key Takeaways for Employers and Employees
This judgment highlights the exceptionally high threshold that applies to constructive dismissal claims in South African labour law.
For Employees
Employees considering resignation should be aware that:
- Workplace frustration alone is insufficient to establish constructive dismissal.
- Internal remedies and grievance procedures should generally be pursued first.
- Resignation should genuinely be the last reasonable option available.
- Evidence of objectively intolerable conditions is essential.
For Employers
Employers should ensure that:
- Employee concerns are addressed promptly and appropriately.
- Internal grievance mechanisms are accessible and effective.
- Management decisions and responses are properly documented.
- Workplace disputes are dealt with before they escalate into resignation and litigation.
Conclusion
The Labour Court ultimately dismissed the review application and confirmed the CCMA’s finding that no constructive dismissal had occurred.
The judgment reinforces a consistent principle in South African labour law: employees who resign due to workplace difficulties must demonstrate far more than dissatisfaction or frustration. To succeed in a constructive dismissal claim, they must prove that the employer rendered continued employment objectively intolerable and that resignation was truly the only reasonable course of action.
Frequently Asked Questions About Constructive Dismissal
What is constructive dismissal in South African labour law?
Constructive dismissal occurs when an employee resigns because the employer has made continued employment so intolerable that the employee can no longer reasonably be expected to remain in the workplace. It is recognised in section 186(1)(e) of the Labour Relations Act 66 of 1995.
What must an employee prove in a constructive dismissal claim?
An employee must prove that:
- They resigned from employment;
- Working conditions had become objectively intolerable;
- The employer was responsible for creating those conditions; and
- Resignation was a last resort after reasonable alternatives had been exhausted.
Does workplace stress amount to constructive dismissal?
Not necessarily. The Labour Court has repeatedly held that stressful, unpleasant, or difficult working conditions do not automatically amount to constructive dismissal. The employee must show that the circumstances were so severe that continued employment became intolerable.
Must an employee use internal grievance procedures before resigning?
In most cases, employees are expected to pursue available internal remedies before resigning. Failure to utilise grievance procedures or other available remedies may weaken a constructive dismissal claim.
Can an employee claim constructive dismissal after serving notice?
Yes, but serving a notice period may be considered by the CCMA or Labour Court when assessing whether working conditions were truly intolerable. Each case is decided on its own facts.
Why did the employee lose in Jacobs v CCMA and Brakpan Bus Services?
The Labour Court found that the employee experienced difficult and frustrating working conditions but failed to prove that continued employment had become objectively intolerable. The Court also found that alternative remedies were available and that resignation was not a measure of last resort.
Article written by Craig Berkowitz
22 June 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
0 Comments