Section 186 (1)(e) of the Labour Relations Act (LRA) states that constructive dismissal is when “an employee has terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.” Constructive dismissal is treated the same as unfair dismissal and the employee who has resigned has 30 days to refer the dispute to the CCMA or the Bargaining Council. Examples of constructive dismissal are the abuse, assault, sexual harassment, sabotage, harassment by co-employees or when the employer forces the employee to accept unreasonable changes at the workplace.
There are 5 factors an employee has to show at the CCMA or the Bargaining Council to prove a constructive dismissal:
- The employment circumstances were so intolerable that the employee could not continue.
- There was no reasonable alternative at the time and the employee had to resign to escape the circumstances.
- The unbearable circumstances were the cause of the resignation of the employee.
- The unbearable or intolerable situation must have been caused by the employer.
- The employer must have been in control of the unbearable circumstances.
In Jooste vs Transnet Ltd t/a South African Airways, it was held that for such a dispute to succeed, one of the requirements would be that the employee must prove that he or she had not intended to terminate the employment relationship, but was faced with no option and had to do so because of the employer’s unacceptable and intolerable behaviour.
In Pretoria Society for the Care of the Retarded v Loots, the Labour Appeal Court stated that “the enquiry is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between the employer and employee. The court’s function is to look at the employer’s conduct as a whole and to determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”
In Watt v Honeydew Dairies (Pty) Ltd, the commission emphasised the difficulties faced by an employee who anticipates bringing a constructive dismissal claim. “It is submitted that an employee bears the considerable risk in the case of constructive dismissal. One of the requirements is that the employee must resign. If the employee is unable to show the requisite conditions that render the continued employment intolerable, the resignation remains valid.
It is important to note that an employee cannot resign for the purposes of avoiding disciplinary action. In the case of Mvamelo v AMG Engineering the employee was informed that he had to face a disciplinary hearing for theft and criminal charges would also be laid. The employee resigned and claimed a constructive dismissal but he lost his case as the arbitrator had found that he had resigned to avoid the disciplinary steps of which he had been notified.
Employees should be careful not to misinterpret the law. In essence, the employees should try all options possible before effecting a resignation at the workplace. The employee could follow the grievance process, discuss the issue with senior management of if there is a trade union at the workplace, the employee must seek their assistance. From the above cases it should be noted that each case needs to be judged on its merits and while the onus of risk is placed on the employee in having to prove the dismissal, employers should be aware of their behaviour and how they handle employees. The area of a constructive dismissal can be very contentious and its advisable to follow the 5 factors which were discussed earlier in this article. Employers could face serious consequences as they could be liable for compensation or costs.
ABOUT THE AUTHOR
Trishan Bisnath has obtained a Bachelor of Criminology Degree (BCrim) and a Bachelor of Laws Degree (LLB) at the University of KwaZulu-Natal (2001 to 2006). He attended the Professional Legal Training School at the University of KwaZulu-Natal. He is currently employed as SEESA Labour Legal Advisor at our Durban Office.