Constructive Dismissal – the how’s and why’s

186 (1) (e) of the Labour Relations Act provides that one of the definitions of “dismissal” is where an employee terminates a contract of employment with or without notice because the employer made continued employment “intolerable” for the employee.

If an employee resigns when conditions in the workshop are so bad that s/he has no choice but to resign, that resignation is called ‘constructive dismissal’. In effect, the employer’s behaviour amounts to a repudiation of the employment contract or introduced a condition that was irremediable.
Resignation need not be the employee’s only option, but should be the only reasonable option for a claim of constructive dismissal to succeed. The test is objective and therefore the subjective perceptions of the employee are not relevant in this regard.

In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), the Court referred to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC), stating that the first test was whether, when resigning, there was no other motive for the resignation – in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct.

Grogan (2001:108) concludes that in making out a case of constructive dismissal, employees who have resigned must generally show that they are subject to coercion, duress and undue influence. The mere fact that an employee had been issued an unreasonable instruction does not in itself justify resignation and a subsequent claim of constructive dismissal, especially if the employee has failed to use the employer’s grievance procedure or some other method by which he or she can seek relief.

Onus of proof

The employee must prove that the employer was responsible for introducing the intolerable condition and that there was no other way of resolving the issue except for resignation.

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 must provide evidence to justify that the relationship has indeed become so intolerable that no reasonable option, save for termination is available.

In, Jordaan v Commission for Conciliation, Mediation and Arbitration and Others 12 BLLR 1235 (LAC), in dismissing an appeal based on constructive dismissal, the judge stated:

“…there is not, on a proper analysis of the evidence, a justifiable conclusion that appellant’s employment became intolerable. There was no evidential basis by which to justify, on the probabilities that there was a clear, objective and immediate threat of dismissal. To be sure, there may well have been some tension but that was to be explained by the Jordaan departure and by the decision that employees should sign a restraint of trade agreement. On its own, that can never justify constructive dismissal. Were 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…”

On the other hand, in the Pretoria Society case the court found that “the appellant (employer) had rendered the working environment intolerable for the respondent by, inter alia, “throwing the book at her”, finding her guilty of matters for which she could not be held responsible, humiliating her by publishing the news of her final written warning to the parents of inmates, and depriving her of keys.” The appeal (against the finding that the constructive dismissal was proved) was accordingly dismissed.

In Watt v Honeydew Dairies (Pty) Ltd the commission emphasised the difficulties faced by any employee who contemplates bringing a claim of constructive dismissal:

“It is submitted that an employee bears a considerable risk in the case of constructive dismissal.  In the first place, one of the requirements of a constructive dismissal is that the employee must resign.  This in turn means that if such employee is unable to show the requisite conditions that render continued employment intolerable, then that the resignation remains valid (as a resignation and not as a constructive dismissal)”.

Employers should seek professional advice before acting in a way that results in an employee resigning and crying foul!

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