We often hear the term “constructive dismissal” bandied about, with little understanding of the concept and even less understanding as to whether this can be challenged at the Commission for Conciliation, Mediation and Arbitration, bargaining councils or the Labour Court.
It needs to be understood that constructive dismissal is governed in terms of The Labour Relations Act, which introduced a form of relief to an employee who did not wish to resign but was forced to. First, there must be a resignation and the employee must have left the premises. Second, the employee has to show that this resignation was not what he or she wanted but there was no choice but to resign because working conditions had become intolerable.
It must be noted at this point that the employee has to prove that there was a resignation and must also show, on an objective basis, that this resignation was caused by the fault of the intolerable working conditions. There does not have to be a breach of the employment contract by the employer, but it must be shown that the conduct of the employer was so bad as to create a situation where to continue working at the workplace would have been intolerable.
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The employee must show that he or she had no option but to leave, and then the employer has to prove that the dismissal was fair.
Last week, a black teacher working at Voortrekkerhoogte High School in Pretoria was racially abused by a white colleague. The teacher was so traumatised and devastated that she immediately resigned. This resignation is clearly a constructive dismissal, as the working conditions had clearly become absolutely intolerable at that point.
It is hoped this case is brought before one of the industrial tribunals to show that this one incident clearly creates a situation of intolerability and would amount to an unfair dismissal. The employee in normal circumstances of a constructive dismissal would end the contract without notice. Normally, this resignation should be done in writing and it should explain why the situation had become absolutely impossible to continue with further employment.
It is recommended, if possible, that the employee first write to the employer outlining the negative circumstances to allow the employer to correct them and take necessary action to remove the negativity.
Obviously, in cases of constructive dismissal it is the employee who brings the contract to an end and would normally be the employer that had rendered continued employment intolerable. There must be an investigation as to whether there were any other reasonable alternatives to resignation.
Before resigning, an employee would consider all alternatives, such as raising an internal grievance or even referring the negative situation to the CCMA, council or Labour Court. Obviously, sometimes the situation is so bad that the employee cannot be expected to explore alternatives.
In the situation above, the teacher could not be expected to explore alternatives. The situation had created so much hurt that any adjudication panel would understand the instant resignation and a claim of constructive dismissal. It is a big hurdle for the employee to prove the employer’s fault led to the resignation. There is often confusion as to whether the employee was dismissed or had resigned.
If the employee resigns because of the intolerable situation and is working out his or her notice, a situation might arise where the employer dismisses the employee before the end of it. This is not constructive dismissal, but a true dismissal. The employee must show that he or she genuinely believed the employer had made the contract of employment impossible to fulfil. The feelings of the employee must be proved buth subjectively and objectively.
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Normally, an employee would not ask for reinstatement after the constructive dismissal, as this would show that alternatives should have been followed. There have, however, been cases where the intolerable situation could be cured by removing the cause. In the case of the teacher forced to resign because of racist behaviour, the employer could easily remove the cause by dismissing the person who had uttered the racist words.
An arbitrator would investigate the reason for the resignation, and if it is found the employee had other motives such as an alternative job, or wanted to cash in on outstanding leave and pension monies, this would not amount to constructive dismissal.
There have been cases where employees themselves have behaved so badly, eliciting a very negative response from the employer and thereby causing a situation which might look intolerable at first glance. This resignation will be tested against all the surrounding circumstances, including extraneous evidence such as documentation and all witnesses.
There are many obvious reasons for constructive dismissal, such as racist behaviour, assault, abuse and sometimes even drastic changes to the terms and conditions of employment. It must be understood that the arbitrators will carefully analyse the situation before making a pronouncement.
The employee bears an enormous burden to show that the situation was grossly negative. If an employee merely resigns to avoid a disciplinary hearing, this would not be an acceptable reason to claim constructive dismissal.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media