More often than not, it happens that employees resign from their employment and afterwards, to the employer’s surprise, refer a dispute for constructive dismissal to the CCMA or relevant bargaining council.
Definition of constructive dismissal
Constructive dismissal is the termination of the employment contract by the employee with or without notice ‘because the employer made continued employment intolerable for the employee’. In other words, where employees terminate their contracts of employment because they are left with no option but to do so by the employer’s conduct.
5 requirements for constructive dismissal
- The first requirement of constructive dismissal is that an employment relationship must exist at the time the employee leaves the employer’s service.
- The second requirement is that the employee must have brought the employment relationship to an end – not the employer.
- The onus of proving constructive dismissal is on the employee to prove that it would have been intolerable to remain in employment with the employer.
- There must be a causal nexus or “link” between the employer’s conduct and the circumstances that induced the employee to resign.
- The incidents of which the employee complains must have occurred before the employee resigned.
8 case studies
In Strategic Liquor Service v Mvumbi NO and others (2009) 30 ILJ 30 1526 (CC) it was held that the test for constructive dismissal does not require that the employee have no choice but to resign, but merely that the employer should have made continued employment intolerable.
In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) the Court held 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.
In Albany Bakeries Ltd v Van Wyk & Others  JOL 27545 (LAC) the Court held it was critical to consider in constructive dismissal case, whether the employer had made continued employment intolerable for the employee. The Court pointed out that the employer had a grievance procedure, which the employee should have exhausted before his resignation. The employee also had an option to challenge his alleged demotion under the provisions of the LRA, which the employee had not done. As such the Court held the dismissal was not a last resort and as such the employee had not proven constructive dismissal.
In Pillay v Old Mutual Property (Pty) Ltd (2015) 36 ILJ 1961 (CCMA), the Commissioner held that where an employee lodged a complaint of sexual harassment against another employee, and the employer took appropriate disciplinary action against the alleged perpetrator and found him/her not guilty, the complainant cannot resign and claim that continued employment was made intolerable for him/her. The Commissioner found that there was no causal nexus between the resignation and the employer’s conduct in the circumstances where the employer “did everything that could possibly be expected of it in order to deal with the complaint”.
In Bandat v De Kock & another (2015) 36 ILJ 979 (LC) the court held that the catalyst for the employee’s resignation was the written warning issued to the employee for poor performance. The Court found that an employee resigning after being given a written warning which the employee admitted was justified, which the Court also found the employer was reasonably entitled to issue it, cannot claim constructive dismissal based on earlier inappropriate sexual conduct of the employer.
In Western Cape Education Department v General Public Service Sectoral Bargaining Council & others (2014) 35 ILJ 3360 (LAC) the Court held that the employer’s uncaring, unsympathetic and unreasonable conduct in failing to address the employee’s temporary incapacity leave and ill health retirement applications for over two years; and unilaterally making excessive deductions from the employee’s salary amounted to constructive dismissal.
The Labour Court further held in Volschenk v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC) that it is difficult for an employee to succeed in a claim of constructive dismissal in circumstances where the employee served extended period of notice and continued to work after the resignation.
In Metropolitan Health Risk Management v Majatladi & others (2015) 36 ILJ 958 (LAC), the court held that convening a second disciplinary enquiry against the employee, charging him/her with the same charges which he/she was initially found not guilty on, where no exceptional circumstances exist that might justify the second enquiry, amounted to constructive dismissal.
There must thus be unfair or wrongful conduct by the employer that drives the employee to resign. Mere unreasonableness or illegitimate demands by the employer will not amount to constructive dismissal as long as the employee retains a remedy against the employer’s conduct short of terminating the employment relationship.
Although in most circumstances it is difficult for an employee to prove constructive dismissal, it is advisable for employers to refrain from unlawful or unreasonable conduct towards employees which renders the employment relationship intolerable. Constant harassment or examples as mentioned in the case law above are typical examples of circumstances which may be enough for an employee to succeed with a claim of constructive dismissal.
ABOUT THE AUTHOR
Angus van Aswegen obtained his LLB degree in 2011 at the North West University (Potchefstroom) whereafter he completed his articles of clerkship in 2014. He joined SEESA Labour in 2014 and was promoted to senior legal adviser in 2016.