“ … constructive dismissal is not for the asking.    With an employment relationship, considerable levels of irritation, frustration and tension inevitably occur over a long period.    None of these problems suffice to justify constructive dismissal.    An employee, such as appellant, must provide evidence to justify that the relationship has indeed become so intolerable that no reasonable option, save for termination is available to her”.

Davis JA in Jordaan v CCMA (Homenet Cornerstone Beacon Bay) case PA 1/09 dated 11 May 2010 (LAC) has cautioned employees when it comes to resigning and then alleging that they were in effect forced to resign by the employer.

Both Mrs Jordaan and her husband were estate agents.   Mrs Jordaan worked in the office managed by her husband who had a 34% shareholding in the business.   The relationship between Mr Jordaan and the majority shareholder deteriorated to the extent that Mr Jordaan was removed as the manager but continued to be an employee and minority shareholder.   Negotiations started to buy out Mr Jordaan and ensure his resignation as in the words of Davis JA he was ‘living on borrowed time’.   Mrs Jordaan refused to sign a restraint of trade agreement whilst the majority shareholder insisted it was necessary for operational reasons.

There was a dispute about the conversations that actually took place but Davis JA held that the majority shareholder had a legitimate apprehension that were he not to do anything he would have lost key staff and went on to state:

“The organisational rationale for ensuring that employees, not I might add, only employees affected by the Jordaan connection, was to ensure loyalty to the Company and to obviate the possibility that it could have been denuded dramatically of intellectual assets, namely employees who, by the making of the business held the value of the Company”.

Davis JA also found that the majority shareholder was “trying to play ‘a game of bluff’ to ensure that she signed, but that she was far too valuable a member of his staff to be let go were she not to have signed the restraint”.

In referring to Mrs Jordaan’s refusal to sign the restraint of trade agreement  Davis JA stated:

“On its own, that can never justify constructive dismissal.    Were (it) to do so, these courts would be flooded with constructive dismissals from employees who had had some form of controversial engagement with their employer but which does not amount to  constructive dismissal”.

Earlier in the judgment Davis JA stated:

“In short, when faced with a case of constructive dismissal, an employee, such as appellant, bears an initial onus of showing, on an objective standard, that the employer has rendered the employment relationship so intolerable that no other option is reasonably available to an employee, save for termination of their relationship”.