Constructive Dismissal

Constructive dismissal sounds at first as if it could not be that bad. Unfortunately, constructive dismissal is usually a tricky way for employers to force an employee to quit. In terms of Section 186(1)(e) of the Labour Relations Act, constructive dismissal can be defined as circumstances where an employee terminated a contract of employment with or without notice because the employer made continued employment unendurable for the employee.

The essence of constructive dismissal was recaptured in the case of Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC), it was held that, for such a dispute to succeed, the reasonable test 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 to do so as a result of the employer’s wrongful conduct which caused an intolerable working relationship for the employee and a breakdown in the employment relationship.

In terms of S192 of the Labour Relations Act, in the case of a constructive dismissal, it is the employee who has the burden of proof. If and when they have successfully proved constructive dismissal, it is then for the employer to try and prove that there was no fault on their part. This was also reflected in the case of Sanlam Life Insurance Ltd v Mogomatsi and Others (CA 12/2022) [2023] ZALAC 15.

In order to successfully lay a claim of constructive dismissal, there are a few components that the employee will need to prove:

1. The circumstances of employment became so unbearable that there was no way that the employee could continue to work at the place of employment ,
2. These unbearable circumstances were the cause of the employee’s resignation,
3. There was no reasonable alternative for the employee but to resign,
4. The unbearable situation must have been caused by the employer and the employer must have been in control of the unbearable circumstances.

Each case has its own elements, therefore is no specific threshold to prove success, however the following examples can serve as a guideline for possible success at the CCMA, should such a case arise:

1. The employer was aggressive with the employee, threatened, insulted and intimidated the employee and put prolonged pressure on the employee to resign,
2. The employer made wage deductions without any reason,
3. The employer sexually harassed an employee and did not stop after it had been reported,
4. The employer did not pay the employee as per their contract,
5. Unreasonable targets were set for the employee and they were disciplined for not meeting those targets,
6. The employee was also excluded from training opportunities with the organisation and
7. Unfair disciplinary action.

These are only some of the examples which could be viewed as constructive dismissal. Each case is different, and what would be seen as unfair in one employment relationship might not be so in the next.

Should the applicant be successful, the remedy available to them in terms of Section 194 of the LRA provides for a maximum penalty of 12 months’ salary, but this does not mean that an employee who wins a case of constructive dismissal will always receive the maximum amount. This is entirely up to the judge or arbitrator appointed for the hearing at the CCMA.

It is not legal, neither is it morally appropriate to force somebody to resign or make them feel like the only option they have is to resign. It can land you with a fairly large settlement payment if the CCMA or court finds that constructive dismissal has occurred. Every employee has the right to work in a healthy and protected environment, therefore any mistreatment should be reported.