Don’t count on the law if your boss makes life unbearable

Source: Sundaytimes.co.za

EMPLOYEES who are forced to resign because their employers have made the continuation of their employment relationship intolerable are faced with a cluster of problems.

Besides having to cope with unemployment, employees may find constructive dismissal difficult to prove, and may also find the remedies listed by the Labour Relations Act insufficient.

Many situations can give rise to a claim for constructive dismissal.

For instance, an employer who victimises, continually harasses or humiliates a member of staff could be acting in a manner that would make continued employment intolerable.

A resignation prompted by unilateral changes to an employee’s terms and conditions of employment or unjustified disciplinary action may similarly provide the basis for such a claim.

Unlike other dismissal cases, those who have been forced to resign carry the onus of proving it would have been “intolerable” to remain in employment. It is not an onus that is easily shifted.

Employees would be well advised to exercise caution before electing to resign in the face of seemingly “intolerable” working conditions.

An employee’s point of view that he has been unfairly treated and made to endure intolerable working conditions is not in itself sufficient to shift the onus.

It is even more difficult when an employee could reasonably have lodged a grievance about the cause of the unhappiness and failed to do so.

A person adjudicating in such a case is required to look at the conduct of the employer as a whole, and to ask whether its conduct, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.

But even if a disgruntled litigant establishes that a constructive dismissal took place, this does not automatically guarantee a successful claim. The courts have determined that a constructive dismissal is not inherently unfair.

Even though employers are then obliged to demonstrate that their conduct was fair, they are usually given considerable scope to show that their actions were justifiable.

Reinstatement, regarded by most employee litigants as the prime remedy in a case of unfair dismissal, is usually never a viable option, unless the employer is a large company or state institution permitting the employee to be satisfactorily placed in a different position.

For this reason, arbitrators adjudicating on constructive dismissal claims usually make awards of compensation.

The Act permits arbitrators to make compensation awards to a maximum of 12 months. The extent of any compensation award is also subject to the arbitrator’s discretion.

The net result for many employees forced to resign — through no fault of their own — is then all too often an inadequate award of compensation coupled with the daunting prospects of unemployment.

Perhaps the time has come for the legislature to revisit the constructive dismissal conundrum. — Grant Marinus, a partner at Jan S de Villiers.