CONSTRUCTIVE DISMISSAL CONFIRMED IN LANDMARK CASE AGAINST RELIGIOUS EMPLOYER

By Johnny Goldberg

The judgment in Makombe vs Cape Conference of the Seventh Day Adventist and Others (C04/2023) [2025] ZALCCT 19 marked a significant moment for labour law in religious institutions, where the Labour Court set aside a CCMA award and found that the employee was constructively dismissed by her employer.

The employee, a former pastor employed from January 2014, claimed she was forced to resign in November 2020 after enduring years of discriminatory treatment, psychological distress, and repeated failures by her employer to address her grievances.

These included being assigned to congregations that were openly hostile to female pastors, denial of professional development opportunities, and a lack of support following mental health crises linked to her working conditions.

Upon her appointment, the employee was placed as a chaplain, while her male colleagues were assigned to pastor churches. Her request for a formal job description was ignored, leading to a withdrawal from one of her postings due to role conflict.

A pattern of discrimination persisted through repeated transfers to districts known for rejecting female pastors.

Despite the employer’s knowledge of her mental health struggles—confirmed by psychological and psychiatric reports—she was continually placed in hostile environments, notably in George, where congregants humiliated her and refused her ministry.

Though she repeatedly raised concerns with the employer and sought interventions through grievances, legal interdicts, and CCMA referrals, the employer failed to provide adequate support. 

A settlement agreement in 2018 following an earlier dismissal promised assistance with her transfer and ordination as an elder—essential for her to operate fully as a pastor—but this never materialised.

The Court held that the employer’s omission to act decisively on repeated reports of hostility created an intolerable working environment.

The Court was critical of the CCMA’s findings, noting that the Commissioner improperly discounted the employee’s medical evidence, accepted untested hearsay, and failed to consider the cumulative effect of the employer’s conduct.

The employer’s defence—that it could not control the actions of congregants—was rejected. The Court held that since the congregants operated under the Church’s organisational umbrella, it had a legal duty to act when they created a hostile environment. The lack of consultation during transfers and the failure to prevent the undermining of the employee’s role were further cited as breaches of fair labour practices.

The Court concluded that the employee did not resign voluntarily but as a final recourse to protect her mental health following years of mistreatment. “She did not resign on the first instance of resistance,” the judge noted. “She tried all internal channels. Her resignation was a matter of emotional and physical survival.”

The employer was ordered to pay the employee R256 416 in compensation and her legal costs on a party-and-party scale.

The judgement underscores the obligations of religious employers to comply with South African labour law and protect employees from discrimination, even when internal beliefs or traditions are in play.

Johnny Goldberg