Constructive Dismissal

What constitutes constructive dismissal.

Constructive Dismissal
Derek Jackson

Questions are often asked around constructive dismissal – what is it? Employees relate a certain situation and ask the question “can I claim constructive dismissal”? – and employers ask the question “the employee has resigned and is claiming a constructive dismissal – what do we do?”

Firstly, let us understand what it is – and it could be many things.

The basics are that constructive dismissal may be defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign.”

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.

It went further to state that when any employee resigns and claims constructive dismissal, he is in fact stating that under the intolerable situation created by the employer, he can no longer continue to work, and has construed that the employer’s behaviour amounts to a repudiation of the employment contract.

In view of the employer’s repudiation, the employee terminates the contract.

In addition, in bringing such a dispute, it is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove that there was no other way of resolving the issue except for resignation.

It is not for the employer (respondent) to show that he did not introduce any intolerable condition – it is for the employee to show that he did.

There have been many referrals of constructive dismissal to the CCMA which have not succeeded – because the applicant has failed to prove the introduction of any intolerable working condition, amounting to repudiation by the employer of the employment contract.

Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessment, overlooked for promotion, and so on – such referrals are bound not to succeed, because the applicant is unable to prove that the employer’s action amounted to a repudiation of the employment contract, or introduced a condition that was irremediable.

There are some oddballs – for example, a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee, could be a constructive dismissal.

The resignation of an employee in the face of a disciplinary hearing – and resigning in order to avoid the disciplinary hearing – would not necessarily constitute constructive dismissal.

It may well do so if the employee was threatened – “resign, or face a disciplinary hearing where you will be dismissed anyway.” that sort of thing might justify a dispute of constructive dismissal.

But the voluntary resignation of an employee, merely to avoid appearing at the disciplinary hearing, will not necessarily constitute constructive dismissal – furthermore, it will also not stay the proceedings.

The employer is still entitled to proceed with the disciplinary hearing in the absence of the employee.

There is no doubt that some employers, for various reasons, suddenly decided that a particular employee “has to go.”

In the absence of any justifiable reasons for dismissal, the employer proceeds to “construct” circumstances that will bring about a dismissal.

In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), it was 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.

It is common practice for employers to “throw the book” at employees who, for various obscure reasons, are suddenly “no longer suitable.”

Very often, the true reason is that cheaper labour can be found.

Employers would do well to take note that while constructive dismissal may be difficult to prove, it is not impossible.

Tactics like victimisation, continual harassment and so on, in the hopes of eventually getting the employee to resign, won’t work.

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