1. Africa’s Legal Specialists.
In terms of section 186(1)(e) an employee who terminates a contract of employment with or without notice
because the employer made continued employment intolerable for the employee amounts to a dismissal.
This type of dismissal is referred to as a constructive dismissal. In Jooste v Transnet Ltd ta SA Airways (1995)
16 ILJ 629 (LAC) the Court held that when an employee resigns as a result of a constructive dismissal the
employee is in fact saying that the situation has become so unbearable that the employee cannot fulfil the
most important function, namely to work. The Court went on to further state that the employee is in effect
saying that they would have continued working on an indefinite basis had the unbearable situation not
been created and does not believe that the employer will ever reform or abandon the pattern of creating
an unbearable work environment. If the employee is wrong and the employer can prove that her fears
are unfounded then she is not constructively dismissed and has in fact resigned a claim for constructive
dismissal will not succeed. The onus of proving that the employer made continued employment intolerable
for the employee lies with the employee alleging constructive dismissal. In considering constructive dismissal
the Courts have looked at “the employers conduct as a whole and in its cumulative impact, the Courts
have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee
could not be expected to put up with it”, (Murray v Minister of Defence 383/2006). Once the employee
proves that they had no option but to resign and did not intend to terminate the employment relationship
the enquiry is then whether the employer had without reasonable and proper cause conducted itself in a
manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the
employee. The critical circumstances leading to the resignation must have been of the employer’s making.
The employer must be culpably responsible in some way for the intolerable conditions and the conduct
must have lacked reasonable and proper cause.
From the above it is clear that the burden of proof that lies with the employee is an onerous one. Employees
must be careful to assume that simply because they have a difficult relationship with their employer and
are unhappy that this amounts to a constructive dismissal. In the recent case of Coetzee v Big River Dairy
(Pty) Ltd (2014) 23 CCMA the difficulties of proving constructive dismissal were highlighted. In this case the
employee was held up by an armed robber while travelling with her husband. She was told to take two
months leave and while she was away her pay was stopped. When she enquired with the employer she was
informed her that the staff had been placed on short time and that she could either return to work reduced
hours or return to her post but at a reduced salary. The employee refused to accept these suggestions and
resigned. In considering whether she was constructively dismissed the Commissioner focused on the reasons
furnished by the employee which were the armed robbery and the short time that had been implemented
in her absence. The Commissioner found that the employer was not the cause nor was it responsible for
the armed robbery. Furthermore, the short time was imposed due to operational requirements that the
employer could justify, meaning that while the employer was responsible for implementing the short time it
was not culpably responsible for this as it came about due to operational requirements. The Commissioner
therefore found that the employee was not constructively dismissed but had in fact resigned. This case
shows that unless the employee can show that the employer was the cause of the circumstances that
made continued employment unbearable and that even if the employer is responsible they are to blame
then a claim for constructive dismissal will not likely succeed.
It is interesting to note that had the employee perhaps been advised to approach the referral from an
unfair dismissal due to operational requirements, she may have been successful as the employer failed to
consult with the employee before implementing the changes that adversely affected her.
Khanyisile Khanyile
Professional Assistant
Khanyisile.Khanyile@adamsadams.com
CONSTRUCTIVE DISMISSAL:
NOT A PIECE OF CAKE