Constructive dismissal: resignation roulette
Employers are sometimes surprised when they receive a CCMA referral for unfair dismissal – brought by an ex-employee who wasn't dismissed but resigned. This unwelcome phenomenon is called 'constructive dismissal'. Read on to find out more.
How does constructive dismissal work?
The employee brings this referral under section 186(1)(e) of the Labour Relations Act, claiming that they resigned (with or without notice) because their employer made it intolerable for them to remain at the company. This is what their claim is based on.
In all other unfair dismissal cases, it's the employee's responsibility to prove that if he was dismissed, it's substantively and procedurally fair. But because the employee, in a constructive dismissal matter, claims that specific factual circumstances surround his resignation, it's his responsibility to prove that these specific circumstances were present.
What's most important for the employee to prove?
It's vital that the employee proves he resigned because continued employment became intolerable because of a situation that the employer created. The employee had no choice but to resign.
In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC):
- The court - referring to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC) – found that the employee must have believed that the employer would continue to create an unbearable working environment indefinitely.
A claim such as this can be refuted by the employer simply by showing, for example, that the 'unbearable environment' was being created by temporary circumstance (such as a temporary vacancy or office migration or policy review). - The court also found that the employee must show that, if not for the unbearable working environment, they would've carried on working indefinitely. This can be refuted by the employer if he shows, for example, that the 'unbearable environment' had already started to disintegrate when the employee resigned or (as a further example) that the employee had threatened resignation even before the 'unbearable environment' came to be.
The test for constructive dismissal is objective
For example, you would ask if a reasonable person, in the employee's shoes, would've judged a continued employment relationship to be intolerable.
The employee's subjective view – the honest but unfounded feeling – that an intolerable employment situation exists is not sufficient to satisfy this burden of proof.
The employee must show that resignation was the only reasonable alternative left to them if they wanted to escape the intolerable situation:
- If an employee didn't 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 is unreasonable and can't serve as the basis of a constructive dismissal case.
- If the employee doesn't prove constructive dismissal he will be held to have resigned under no undue influence and of his own accord. The employer is under no obligation to take this employee back.
Claiming constructive dismissal is a big gamble for the employee
This is why the only successful constructive dismissal cases are (as a rule) the ones that the employee's planned or where the employer hasn't been consistent in applying fair practice. Examples of these situations are when employers:
- Unilaterally change employees' terms and conditions of employment,
- Don't intervene in sexual harassment cases, or
- Take unfair disciplinary action against employees.
Constructive dismissal cases can be easily avoided simply by following established fair business practices and processes.
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Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002). He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001. Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :
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