In a guest post, David Scrooby looks at a recent constructive dismissal case in South Africa.

Introduction

In Makombe v Cape Conference of the Seventh Day Adventists and Others [2025] ZALAC 22, the South African Labour Court in Cape Town found that a pastor employed by the Cape Conference of Seventh-day Adventists had been constructively dismissed.

Ms Makombe was an erstwhile pastor of the Cape Conference of the Seventh Day Adventist Church, an organisation with churches in the Western, Northern and Eastern Cape regions; its Administrative Centre is in Gqeberha (Port Elizabeth). She was a member of the Cape Conference and commenced employment with it on 9 January 2014 as a ministerial intern. Later, she became a pastor. She earned a gross salary ranging between R21,368.00 and R25,119.68 per month (about £1,000). The claim arose in circumstances where the congregants refused to accept her as a pastor because she was female, and where she was exposed to a persistently hostile working environment. The constructive dismissal claim was based on the employer’s failure and/or refusal to address her numerous grievances over a period of years, including congregants who refused to accept a female pastor due to their religious beliefs.

The facts

From the outset , she had encountered hostility from congregants who did not want a female pastor. M raised the issue with her employer but no action was taken to resolve this. Over the course of her employment she was repeatedly assigned to congregations that displayed similar hostility. On each occasion she reported the situation and requested intervention but her employer simply transferred her to another church without addressing the underlying issue.

The ongoing hostility eventually led her to develop major depressive disorder and suffer panic attacks. In the absence of meaningful intervention and with her mental health deteriorating, she resigned in November 2020 and referred a constructive dismissal case to the Commission for Conciliation, Mediation and Arbitration (CCMA). That claim was dismissed, and she sought an order under s.145 of the Labour Relations Act 1995 (LRA) reviewing and setting aside the CCMA award and substituting it with an order that she had been constructively dismissed and that the dismissal had been unfair. In that event, she sought the maximum compensation of 12 months’ salary. The Cape Conference opposed her review application. In the judgment the terms ‘Cape Conference’ and employer’ were used interchangeably, depending on the context.

Upon appointment, M was deployed as a chaplain at Bethel College High School, Mthatha and the Butterworth Walter Sisulu University campuses. She was to render chaplaincy services to students of these institutions who were members of the Cape Conference. She withdrew from Bethel College High School in November 2015 due to a conflict with the college staff regarding the duties of a chaplain. It was common cause that before she withdrew from Bethel College she had requested the employer to provide her with the job description of a chaplain, and it was not provided. In July 2016, she was informed that she was being transferred to Queenstown. She was informed that her assigned supervisor would allocate tasks to her but she would not perform any administrative tasks. She appealed the decision to transfer her to Queenstown, citing the known hostility towards women in ministry in Queenstown, operational challenges, and the decision not to perform administrative tasks, which were part of her training requirements. She nevertheless moved to Queenstown in November 2016 after being advised that she would be charged with insubordination unless she transferred. Upon arrival in Queenstown, the congregants made it clear that they did not want a female pastor. M reported the matter to her employer. In May 2017, M applied for and was granted an interim interdict by the Queenstown Magistrate’s Court, directing the employer, inter alia, to refrain from exposing her to humiliating and undermining circumstances in the course of her employment. This related to the treatment meted out to her by the congregants in Queenstown.

The employer also decided to withhold her service requests, thereby preventing her from rendering services outside her assigned area. (Service requests are made by other Cape Conference churches, other than the church where a pastor is assigned, or by other churches outside the Seventh-day Adventist denomination.)

In the same month, she was seen by HM, a clinical psychologist for psychotherapeutic intervention, during which she reported stressors related to her work, and she was booked off sick for about ten days. After her discharge from the hospital, she continued to receive treatment and her condition improved. In June 2017, M referred an unfair labour practice dispute to the CCMA about her working conditions. The dispute was settled on the basis that she would be placed on special leave with full pay and benefits, that she would be moved to another district as decided by the executive committee of the Cape Conference, that the employer would consider her study application submitted in June 2016, and that M “should be ordained and elected as elder” in terms of policy. In July, seven pastors including M filed a group grievance regarding their working conditions against the Cape Conference President. M led the grievance. The group grievance was publicised on social media. Some of the pastors involved in the matter withdrew from the dispute. It is not clear whether the Cape Conference addressed all or only some of the grievances.

In line with the July 2017 CCMA settlement agreement, M was informed that she would be transferred to Knysna with effect from 1 August 2017. However, the transfer was not implemented due to lack of accommodation in Knysna. Instead, in September 2017, she was informed that she had been transferred to Beaufort West with effect from 1 October 2017. At the time she was pursuing postgraduate studies at the University of Stellenbosch. She appealed against the transfer and remained in Queenstown. Some of her issues with the placement were that it was far from Stellenbosch where she was studying and that it was also far from her assigned supervisor. In January 2018 M consulted her therapist again, who referred her to a specialist psychiatrist. She was admitted to the Care Cure Hospital from 29 January 2018 to 1 February 2018 and diagnosed with major depressive disorder. In the same month, the employer informed her that she would not receive a salary increase due to incomplete internship tasks. Aggrieved by this decision, she referred an unfair labour practice dispute to the CCMA, alleging, inter alia, gender discrimination. The CCMA ruled that the dispute must be referred as an unfair discrimination dispute. M did not pursue the dispute further for financial reasons. She was again hospitalised in August 2018 for major depressive disorder.

In October 2018, she was dismissed for refusing to transfer to Beaufort West. She was reinstated by agreement between the parties after referring an unfair dismissal dispute to the CCMA. The reinstatement took effect on 1 January 2019, when she was required to report to Beaufort West. The settlement agreement records that reinstatement was “on the same terms and conditions” and that the parties agreed to address the issue of M’s transfer to Beaufort West “and conditions thereof” by no later than 17 March 2019. The transfer to Beaufort West was not implemented after the employer received information that the congregants in Beaufort West would not accept a pastor who had reservations about being assigned there. Additionally, the employer was furnished with a report prepared by her therapist in July 2017 on her medical condition. She remained in Queenstown until she was transferred to George in September 2019, at which point she relocated to George. In George, she raised concerns about the safety of the accommodation she could afford, and the employer was agreed to contribute towards her accommodation to enable her to afford safe accommodation. While the employer was attending to the accommodation concern, she lived in Queenstown and commuted to George. From January to March 2020, she was introduced to the George congregants. At a district event hosted in the first quarter of 2020, the employer received comments from congregants who were unhappy with a female pastor, which conflicted with their religious and biblical convictions.

M was instructed to remain in George and told that she would be supported. However, the congregants and church elders were hostile and demeaned and humiliated her on WhatsApp groups. She was also barred from performing certain pastoral duties, which were regarded as reserved for male pastors. M wrote to the employer about her plight in April 2020. She also followed up with them in May, June, July, August, and October 2020.

In June 2020, a psychiatrist prepared a report on M’s health status and recorded that she had been under his treatment since January 2018, that she had been diagnosed with Major Depressive Disorder and admitted to the hospital and re-admitted in August 2018 for severe depression but had been treated. In August 2020, M wrote to the employer, stating that since April 2020 she had reported to the employer her hostile working conditions in George. A Zoom meeting was held with representatives of the employer but no progress was made. The ongoing hostility eventually led her to develop major depressive disorder and suffer panic attacks. In the absence of meaningful intervention and with her mental health deteriorating, she resigned. She referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), where her claim was dismissed.

She then took the matter on review to the Labour Court. The Court reaffirmed that an employee claiming constructive dismissal must prove three elements (i) that they had terminated their employment, (ii) that continued employment had become intolerable and (iii) that the circumstances rendering continued employment intolerable had been created by the employer.

The judgment

Citing the Constitutional Court decision in Strategic Liquor Services v Mvumbi NO and Others [2009] ZA CC17, the Labour Court held that the test did not require an employee to prove that resignation was the only option but rather that the employer had rendered continued employment intolerable. Relying further on Mafomane v Rustenburg Platinum Mines Ltd [2003] ZALC 87, the court confirmed that the third requirement did not necessitate an intention on the part of the employer to make employment intolerable. It was sufficient if the circumstances arose due to the employer’s acts or omissions, provided they were within the employer’s control.

In Mafomane, the Court stated that the ultimate test remained whether it was reasonable to resign to escape the intolerable working environment, and each case must be decided on its own facts. The Court held that the requirement that the circumstances that rendered the employee’s continued employment intolerable must have been of the employer’s making means that they must be circumstances under the employer’s control. The employer must have brought them about by its act or omission. The Court also stated that this did not mean that the employer must have done so intentionally. The Court also found that there must be a causal relationship between the intolerable working environment on the one hand and the resignation on the other. Therefore, if the employee resigned for a reason other than intolerable working conditions, the resignation did not constitute constructive dismissal, even if the employee’s continued employment had become intolerable.

That aspect was key to the finding in M’s case. The employer had failed to address the hostility faced by the pastor, even though the congregants’ conduct was within its control. As the employer, Cape Conference of the Seventh Day Adventists had a duty to address M’s hostile work environment. The Court found that M had exhausted internal remedies, having lodged multiple grievances before resigning.

Comment

Historically, the South African Labour Court and Labour Appeal Court have maintained that the threshold for intolerability is high. Employees must show that their working conditions go beyond mere unhappiness or being treated poorly. This case does not depart from established legal principles. The Court’s decision was based on specific circumstances of the matter and evidence presented. The judgment reinforces that the test for constructive dismissal remains unchanged and that the threshold of intolerability has not been lowered. An employee must still meet this threshold to succeed in a constructive dismissal claim and, as reiterated in many previous judgements, each case must be assessed on its own facts. Employers should ensure that a grievance process is followed when employees raise concerns. The judgment also underscores the importance of employers intervening and taking appropriate action when grievances are lodged.

David Scrooby, Attorney, Pretoria, South Africa

Cite this article as: David Scrooby, “When failure to intervene becomes constructive dismissal: Makombe” in Law & Religion UK, 12 August 2025: