Constructive Dismissal

Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer’s intolerable and unbearable conduct, workplace, or working conditions. The word ‘constructive’ refers to something that was created or induced and in this context a constructive dismissal means that the Employee’s resignation was coerced by the Employer by some or other reason and was not a voluntary decision by the Employee.

 

Section 186 (1) (e) of the Labour Relations Act defines a constructive dismissal as a dismissal in terms of which “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

 

If your Employer has made continued employment intolerable or unbearable you may have a case of constructive dismissal, however to succeed with such a case an Employee will have to prove that:

 

  • The employment circumstances and situation was so intolerable and unbearable that the Employee could not be expected to continue and stay employed.

 

  • The unbearable circumstances and situation was the direct cause of the resignation and there was no reasonable alternative at the time other than to resign and leave employment.

 

  • The unbearable circumstances and situation was caused the Employer and the Employee did not do anything to contribute to the situation.

 

  • The Employer must have been in control of and aware of the unbearable circumstances and failed to remedy the situation correctly.

 

It is important to note that the onus of proof in constructive dismissal cases is extremely high and to succeed with a case of constructive dismissal an Employee will have to show and prove that he/she has exhausted all alternatives before resigning and he/she has made his/her Employer aware of the situation and has given the Employer an opportunity to remedy the situation, similar to a breach of contract which in this context would be an Employers duty not to treat the employee unfairly or subject an employee to unreasonable and unfair working conditions.

 

In the case of Mvamelo vs AMG Engineering an Employee was informed that he was to face a disciplinary hearing for theft and criminal charges would also be laid against him. The resigned and claimed constructive dismissal, however lost the case because it was found by the Arbitrator that he had resigned to avoid the disciplinary action. However, in the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd an Employee was found to have been performing his work poorly and as a result the Employer stopped paying him a salary and replaced it with a commission structure. The Employee resigned and succeeded with his constructive dismissal claim wherein it was found that the Employee could not be expected to continue employment under such intolerable circumstances.

If an employee did not first attempt to address the situation by, for example, filing a formal grievance or approaching his or her shop steward, bargaining council or the department of labour, then the employee’s resignation would be per se unreasonable and will not serve as the basis of a constructive dismissal case. In such event the employee will be held to have resigned under no undue influence and of his own accord and the Employer would be under no obligation to take this employee back.

 

It is with the above in mind that Employee’s must be careful and ensure that they raise any issues with their Employer and allow their Employer to remedy the situation before resigning and claiming constructive dismissal. It is also important that Employer’s not discipline or treat their Employees unfairly, and deal with grievances or allegations of unfair labour practice as soon as they arise.

 

Warren Sundstrom

 

Posted in Labour Law permalink

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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