This blog was written in collaboration with Ross Hendriks from SchoemanLaw Inc
Toxic workplaces are not merely uncomfortable, they are legally and psychologically hazardous. They manifest through persistent discrimination, poor communication, managerial indifference, and systemic exclusion. When these conditions become intolerable, employees may have no reasonable option but to resign. South African labour law recognises this phenomenon as constructive dismissal, defined in section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA) as a resignation prompted by the employer making continued employment intolerable.
This article explores the growing recognition of constructive dismissal in cases involving workplace toxicity, focusing on two seminal decisions: Makombe v Cape Conference of the Seventh Day Adventist Church and Nongcula v Tyeks Security Services. These cases exemplify how an employer’s conduct—or omission—can cross the threshold of legality and infringe on the dignity, mental health, and livelihood of an employee.
Beyond analysing the jurisprudence, this article provides practical guidance for employers aiming to avoid similar liability and, more importantly, to foster a legally compliant, psychologically safe, and ethically sound working environment.
Psychological safety—the belief that one can speak up, ask for help, or challenge norms without fear of humiliation or retribution—is emerging as a critical factor in both legal defensibility and workplace resilience. While the law addresses minimum standards, psychological safety offers a proactive framework to prevent the conditions that lead to legal breaches.
In an era where employee wellbeing is both a legal obligation and a moral imperative, the convergence of toxic work cultures and legal accountability is not just a theoretical concern, it is an operational and reputational reality for organisations in South Africa.
Understanding Toxic Work Environments
A toxic workplace is not defined by the occasional disagreement or managerial oversight. It is characterised by persistent, systemic dysfunctions that undermine an employee’s dignity, mental health, and capacity to perform. Key indicators include:
- Discrimination: Persistent bias based on gender, race, religion, sexual orientation, or socio-economic status.
- Poor Communication: Inconsistent, opaque, or absent communication that fuels uncertainty and conflict.
- Exclusion and Gossip: The proliferation of cliques, rumours, and isolation.
- High Turnover and Burnout: Chronic stress, fatigue, and a revolving door of disillusioned staff.
- Authoritarian Leadership: Management that exercises control through fear, dismissal of concerns, or outright abuse.
- Neglect of Work-Life Balance: Unreasonable demands and blurred boundaries between work and personal time.
What these symptoms often have in common is a lack of psychological safety. In environments where people fear being punished for speaking up, raising concerns, or admitting mistakes, toxicity festers unchecked. The absence of psychological safety doesn’t just contribute to poor culture—it can create the very conditions that meet the legal threshold for constructive dismissal.
These conditions, when sustained and unaddressed, may render continued employment untenable.
The Legal Framework: Constructive Dismissal under the LRA
Section 186(1)(e) of the LRA defines constructive dismissal as a termination initiated by the employee due to the employer having made continued employment intolerable. The courts and the Commission for Conciliation, Mediation and Arbitration (CCMA) have consistently held that this standard requires the employee to prove:
- That the resignation was not truly voluntary;
- That the employer’s conduct created intolerable working conditions;
- That the employee had no reasonable alternative but to resign;
- That the employee acted promptly and followed any internal procedures available.
Unlike conventional dismissals, the onus in constructive dismissal claims rests squarely with the employee—an inherently onerous burden, particularly for those already emotionally depleted.
Case Analyses
1. Makombe v Cape Conference of the Seventh Day Adventist Church
In Makombe, the Labour Court confronted the sustained gender-based discrimination endured by a female pastor over a six-year period. Despite repeated complaints about congregants’ hostility, humiliating WhatsApp messages, and her exclusion from pastoral functions, the Church failed to take any substantive steps to intervene.
Significantly, the Court held that the employer’s omissions, its refusal to reassign Makombe, its tolerance of gender prejudice, and its failure to act on clear mental health deterioration, created an objectively intolerable environment. The Court rejected the Church’s argument that it had no control over congregants, holding that employers are responsible for the environments to which they assign employees, even if the source of the hostility lies outside formal management structures.
Makombe’s resignation, following yet another transfer to a hostile environment, was found to be reasonable, necessary, and legally tantamount to a dismissal.
2. Nongcula v Tyeks Security Services
In Nongcula, the applicant was a social worker subjected to extended periods of unpaid leave, ostensibly due to her personal circumstances, including domestic abuse and legal proceedings. Despite repeated efforts to return to work—supported by medical professionals and the National Prosecuting Authority—the employer insisted she remain away from the workplace.
The CCMA found that the employer’s conduct, including the Director’s dismissive and demeaning behaviour, failure to facilitate reintegration, and arbitrary administrative decisions, constituted constructive dismissal. The prolonged withholding of income and exclusion from the workplace had rendered the employment relationship unviable.
The case reaffirms that emotional neglect, procedural unfairness, and arbitrary decision-making by employers, especially in the face of an employee’s vulnerability—can amount to a fundamental breach of the employment contract.
A Culture of Care and Psychological Safety: Legal and Practical Recommendations for Employers
To avoid liability for constructive dismissal, employers must do more than avoid overt misconduct, they must actively foster safe, supportive, and procedurally fair workplaces.
Cultivating psychological safety is not a “nice-to-have”—it’s a foundational layer of legal risk mitigation. When employees feel safe to raise concerns, give feedback, or disclose mental health struggles without fear, organisations are better equipped to intervene early, resolve conflict, and avoid escalation into formal disputes. The following principles help embed that culture into daily operations:
1. Uphold Procedural and Substantive Fairness
Employers must ensure that decisions about leave, transfers, or performance are based on clear policies, properly documented, and subjected to consultation. Unilateral or punitive action, even under the guise of support, may constitute an abuse of power.
2. Address Discrimination and Hostility Proactively
Where employees raise concerns about harassment, prejudice, or exclusion, employers must act swiftly and meaningfully. Failure to intervene is not neutral, it is complicit.
3. Recognise and Accommodate Mental Health
Work-related stress is recognised by the World Health Organisation as an occupational hazard. Employers must accommodate mental health challenges through Employee Assistance Programmes (EAPs), flexible work arrangements, and reintegration support.
4. Promote Communication and Transparency
Regular appraisals, clear KPIs, and open channels of communication can reduce misunderstanding and allow for early intervention in workplace conflict. Employees must know their rights and how to access grievance mechanisms—and they must trust that raising concerns won’t result in retaliation or reputational harm. This trust is the essence of psychological safety.
5. Document Everything
From disciplinary action to employee grievances, proper documentation is essential—not only for legal defensibility but to promote accountability and procedural rigour.
Guidance for Employees: When the Workplace Becomes Intolerable
Employees contemplating resignation due to work-related stress or abuse should:
- Document all instances of harassment, exclusion, or mistreatment.
- Exhaust internal grievance procedures, where available.
- Seek legal advice before resigning.
- Refer the dispute to the CCMA within 30 days of resignation.
Employees must demonstrate that resignation was a last resort and that the employer was aware of the intolerable conditions yet failed to act.
Conclusion
Constructive dismissal is not merely a theoretical construct, it is the legal recognition of a lived experience where employment has become untenable. As Makombe and Nongcula demonstrate, South African tribunals and courts are increasingly prepared to scrutinise the cumulative impact of toxic workplace conditions and hold employers accountable for their failure to uphold basic standards of fairness and compassion.
Toxicity in the workplace is neither inevitable nor immune from scrutiny. It is the result of choices, often choices not to act, to look away, or to prioritise institutional convenience over human dignity. The law, however, compels a different standard: one of care, fairness, and respect. It is time for employers to heed that call.
Embedding psychological safety into workplace culture is not only ethically sound but increasingly necessary for legal resilience. Employers who act early—by listening, responding, and creating safe channels for dialogue—position themselves not only to comply with the law, but to lead with integrity.
Practical Support for Legally Safe, Psychologically Sound Workplaces
At FLAG Academy, we help leaders and teams build workplaces where people feel safe to speak up, take initiative, and perform at their best. Through targeted leadership training and staff-wide workshops, we equip organisations with the skills to embed psychological safety into everyday interactions—reducing conflict, improving communication, and supporting legal compliance.
To bring psychological safety training to your organisation, contact us at ann@flagacademy.co.za or 078 458 5338
For more information about how Schoeman Law can support your legal needs visit their website here: https://schoemanlaw.co.za/
In your corner
Ann