- Is there such a thing as constructive dismissal?
- The answer is absolutely, but tread cautiously … such a dismissal is unfortunately very hard to proof. To make matters worse, the burden of proof is reversed.
- We see it every day that there is a misplaced perception in the workplace that employees believe that constructive dismissal occurs when the employer dismisses an employee.
- The opposite is true, entwined with the nature of this construct it is when the employee resigns and then claims constructive dismissal.
- In the event that your working conditions are so intolerable and are created by the employer, it will always be best practice to urgently consult Human Resources.
- Direct all correspondence in writing. Peruse your grievance procedure policy for assistance. Always endeavour to resolve your points of concern by taking the employer into your confidence. Always consult a legal professional before a final decision to resign is taken.
- What is constructive dismissal? (See section 186 (1)(e) of the LRA)
“Dismissal” means that—
. . .
an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee…”
[Para. (e) substituted by s. 30(b) of Act No. 6 of 2014.] Remember, the onus is on the employee to establish the fact of dismissal.
In Jooste v Transnet Ltd. it was held that, to succeed, the employee must prove that he or she had not intended to terminate the employment relationship.
In Strategic Liquor Services v Mvumbi the Constitutional Court found that the test for constructive dismissal is often misconstrued. The test, so it was held, “does not require that the employee have no choice but to resign, but only that the employer should have made continued employment intolerable”.
The enquiry is whether the employee terminated employment, whether continued employment was intolerable and whether the intolerability was the fault of the employer.
Finally, the circumstances surrounding constructive dismissal are so varied that it is very difficult to lay down any concise guidelines. This means that cases of constructive dismissal can only be decided on case by case basis.
Sexual harassment by an employer of his employee, resulting in the employee’s resignation, may constitute constructive dismissal.
In Aarons v University of Stellenbosch the applicant claimed that one of her colleagues had victimised and harassed her because she had lodged a grievance and that she had resigned because she felt that continued employment would be unbearable. If these averments were proved, so it was held, a case of constructive dismissal could well be sustained.
In Marsland v New Way Motor & Diesel Engineering the applicant suffered a nervous breakdown after his wife had deserted him. He was hospitalised and upon his return to work was excluded from managerial decision making, given menial tasks and verbally abused. The applicant suffered a relapse and, upon his return to work, suspended pending a disciplinary hearing to face allegations of poor time-keeping, misuse of company benefits and transgressions. Serious irregularities marred the proceedings after which the applicant was further subjected to gross verbal abuse and unilaterally demoted.
After a meeting at which the applicant believed he was about to be assaulted, he left the workplace and did not return despite several requests to do so. Stein AJ held that the applicant had been constructively dismissed and moreover, because the dismissal was based on his nervous breakdown, that the dismissal was automatically unfair in that it was based on unfair discrimination.
In Unilong Freight Distributors (Pty) Ltd v Muller the Supreme Court of Appeal held that an employee who chose voluntary retrenchment as an alternative to [Page LRA 8-13] summary dismissal could be deemed to have been constructively dismissed.
Lastly, if resignation is your last resort, record the exact reasons therefore in your letter of resignation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Compiled by Jaques Bloem, with the assistance of LEXISNEXIS, LABOUR LAW THROUGH THE CASES – 25 February 2019.