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Getting Smart with Constructive Dismissals

Getting Smart with Constructive Dismissals

A constructive dismissal is defined as a situation in the workplace created by the employer, which renders the employment relationship intolerable for the employee. Section 186(1)(e) of the Labour Relations Act (LRA) 66 of 1995, states that in circumstances where “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”, constitutes a dismissal.

There are numerous instances of an intolerable employment environment such as:

  1. Victimisation, abuse or assault.
  2. Sexual harassment.
  3. Suspension of salary due to the employer experiencing financial difficulty.
  4. Forced transfers.
  5. Constructing circumstances that will bring about a dismissal.

Clarifying cases

Demotion was explained in the case of Van der Riet v Leisurenet t/a Health & Racquet Club, where the employer failed to consult with the employee on the possibility of a demotion as a result of a restructuring process. This was considered unfair, giving rise to a claim for constructive dismissal.

Should the employee refer a case of constructive dismissal, the onus is on the employee to prove that the employer made the employment relationship intolerable, to such an extent that there was no other option available to the employee but to resign.

In Watt v Honeydew Dairies (Pty) Ltd, it was submitted that an employee bears a considerable risk in the case of constructive dismissal. One of the requirements of a constructive dismissal is that the employee must resign. This, in turn, means that if such an employee is unable to show the requisite conditions that render continued employment intolerable, the resignation remains valid, as a resignation and not as a constructive dismissal.

An oral resignation can be disputed by the employer and the employer can claim that the employee did not resign but absconded. The necessary desertion process should be followed by the employer in this regard. The employee should not have an ulterior motive when resigning, for example, the employee was offered an alternative position but then resigns and claims constructive dismissal. Constructive dismissal will not be proven.

In Pretoria Society for the Care of the Retarded v Loots (1997) 6 BLLR 721 (LAC), the test to prove constructive dismissal is partly subjective and partly objective. In this case, the employment relationship was made intolerable for the employee by ‘throwing the book at her’, finding her guilty of matters she could not be responsible for, humiliating her by publishing her final written warning to parents of inmates and depriving her of keys. The appeal was dismissed.

In Coetzer v The Citizen Newspaper, and Kruger v CCMA & Another, it was reiterated that constructive dismissal is to be determined objectively and that resignation must be the last resort.

Grogan has further elaborated on this requirement and states that it needs to be proven that the employer behaved in a deliberately oppressive manner and left the employee with no option but to resign in order to protect their interests.

In Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC), 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 but to do so because of the employer’s unacceptable and intolerable behaviour.

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 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 irreparable. It must be noted that although constructive dismissals are difficult to prove, it is not impossible.

Should employers find themselves in a situation where an employee claims or could potentially claim constructive dismissal, it is best that the employer contact their legal advisor immediately for assistance before taking any further steps.

ABOUT THE AUTHOR

Shashika Ramjugath completed her LLB degree in 2001 at the University of KwaZulu-Natal and further completed her articles with Victor Gounden and Associates. She specialised in criminal, civil and labour law matters. She was admitted as an attorney in 2005. She joined SEESA Labour as a legal advisor in November 2007.

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