I knew the bar was high.
Years ago, I wrote about constructive dismissal and warned employees how difficult it is to prove. I set out section 186(1)(e) of the Labour Relations Act. I explained the objective test. https://clivehendricks.co.za/2020/11/02/why-do-employees-lose-constructive-dismissal-cases/
I emphasised that intolerability must be shown on a balance of probabilities. I cautioned that subjective unhappiness is not enough.
I know the law in this space. So when I represented Lerato Makombe in a constructive dismissal dispute before the CCMA, I was under no illusion about the burden we carried.
The Arbitration
Makombe’s arbitration was long. Extremely long. Multiple sittings. A full record. Medical reports. Extensive correspondence. A history of transfers. Prior CCMA settlements. Reinstatement. Further hostility.
The award, running over 20 pages, ultimately found that she had not discharged the onus to prove constructive dismissal. But what troubled me was not the length of the award. It was what was missed. This was not a single incident case. It was not personality friction. It was not ordinary workplace stress.
There were at least five clear patterns:
• Repeated transfers without meaningful consultation.
• Persistent hostility from congregants because she was a female pastor.
• Ignored or delayed grievances.
• Failure to meaningfully protect her from a hostile working environment.
• Psychiatric deterioration directly linked to the work stressors.
Constructive dismissal requires intolerability. It is objective. The courts have said so repeatedly.
But intolerability is rarely dramatic. It accumulates. And when five separate strands all point in the same direction, the pattern becomes difficult to ignore. Yet it was downplayed.
The Review
We took the award on review. Not because we disagreed emotionally.
But because the reasoning did not properly engage with the cumulative effect of the evidence.
On review, the Court saw it differently. The award was set aside. Convincingly. https://www.saflii.org/za/cases/ZALCCT/2025/19.html That moment is a reminder of something every litigator must accept:
- You can prepare meticulously.
- You can present objective evidence.
- You can satisfy the legal test.
And still lose.
Arbitration is not infallible. Commissioners are human. They may misdirect themselves. They may isolate what must be viewed cumulatively. They may apply the test too rigidly. That is why review jurisdiction exists.
The Real Lesson
As lawyers, we must be careful not to equate an adverse outcome with a weak case. Sometimes you lose because your case is flawed. Sometimes you lose because the reasoning is flawed. The discipline lies in knowing the difference. If the reasoning is sound, you accept it and move on. If it is not, you do not fold:
You review.
You persist.
You soldier on.
In Makombe’s case, that decision made all the difference.
Clive Hendricks
Director | Marais Müller Hendricks Inc
Labour Litigation | Reviews | Complex Employment Disputes
Cape Town