Whilst constructive dismissal is not defined in the Labour Relations Act – Section 186(1)(e) of the act alludes to the term and states that dismissal means that ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee’.
From the above, it is clear that this is not a normal dismissal, as the employee initiates the act of leaving the workplace. Thus, in constructive dismissal cases, the onus of proof to establish the elements of a constructive dismissal will rest on the employee.
The court in Gold One Limited v Madalani and Others [2020] reiterated the requirements that must be established to qualify as constructive dismissal. The court stated, “First, the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established.”
It is clear from the above that merely resigning from a workplace where a person was not happy will not establish constructive dismissal. The employee must link the reason for resigning from the workplace to conduct by the employer. The court further stated that the threshold in determining constructive dismissal is intolerable and that resignation must be a reasonable step for the employee to take in such circumstances.
The court further stated, “It is well-accepted that intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or an obnoxious, rude and uncompromising superior who may treat employees badly’.[23] Put otherwise; intolerability entails an unendurable or agonising circumstance marked by the employer’s conduct that must have brought the employee’s tolerance to a breaking point”.
Whilst it is clear from the above that it is difficult to establish constructive dismissal, an employer should still ensure that there are processes to prevent this situation from arising. The best way to do this is to establish a formal grievance procedure that employees can follow in dealing with workplace issues. Employers need to respond promptly to such grievances and investigate any allegations in these grievances (especially if they pertain to sexual harassment, racism, intimidation, etc.).
Contact your SEESA Labour Legal Advisor to assist your business in establishing a proper grievance procedure at your workplace and assist in the facilitation of resolving grievances raised by employees. Alternatively, please leave your name on our website for a SEESA representative to contact you.
About the Author:
Riona Bishoon joined SEESA Labour as a Legal Advisor in October 2016. She obtained her Bachelor of Laws degree from The University of Kwa-Zulu Natal in 2011 and was admitted as an attorney in 2012.
Resources:
- Labour Relations Act 66 of 1995 (as amended);
- Gold One Limited v Madalani and Others (JR 1109/15) [2020] ZALCJHB 180; (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198 (LC) (9 September 2020) (http://www.saflii.org/za/cases/ZALCJHB/2020/180.html).