Constructive dismissal may be defined as a situation in the work place, which has been created by the employer and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign (being the most relevant factor to be proven by the employee).
It should be noted that this is one of the most difficult types of dismissal to the proven by an employee.
Employers can create these kinds of environments with consistent verbal or physical abuse, by intentionally humiliating or bullying an employee in front of their colleagues, through sexual harassment or inappropriate advances, and withholding an employee’s salary (amongst other things).
What is important to take note of in terms of the above, is that for there to be a possible constructive dismissal case, the employee must have terminated their employment contract through resignation, as it should have their only reasonable option after facing continual mistreatment from their employer – with this being a technical matter in general, the resignation is to be deemed a dismissal if proven.
In Jooste v Transnet Ltd t/a South African airways, the labour court held that, for a dispute of constructive dismissal to succeed, one of the requirements would be that the employee must prove that he or she had not intended to terminate the employment relationship, but was faced with no option but to do so, because of the employer’s unacceptable and intolerable behaviour.
Resignation need not be the employee’s only option, but should be the only reasonable option for a claim of constructive dismissal to succeed. In the event of a material breach of contract by the employer, the employee may have the option of whether or not to terminate the contract, or hold the employer to its contractual obligations.
It has been found that acceptance by an employee of the employer’s repudiation of material terms of the contract amounted to constructive dismissal.
In Van Der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being effectively demoted as a result of a restructuring exercise. The employer’s failure to consult with the employee on the possibility of the demotion was considered unfair, and provided a sufficient basis for a claim of constructive dismissal. – the employer in this regard should have been mindful of the processes followed in retrenchments, which are also widely technical in nature.
Employers would do well to take professional legal advice before acting on any matter that may have an affect on the employment contract, in order to avoid being faced with disputes of constructive dismissal – Contact our office for a consultation or advice.
Written by Musa Ebenezer Mtivandlela (Candidate Attorney) as assisted by Keegan Ryan Elliott, Director.