The CCMA recorded a huge increase in employment disputes relating to dismissals, retrenchments and unfair labour practices for 2020. Inquiries received relating to these types of disputes quadrupled in comparison with the same time last year. I noted with concern that many employees still grapple with the issue of constructive dismissal and the grounds for such cases.
I handled three cases of constructive dismissal in the past two months and managed to settle the employee’s case and the employer’s case proceeded to arbitration. Securing a settlement for the one employee was as tricky as attending to my two arbitration hearings. The difficulty that frequently arise is the employee’s lack of understanding of the concept of constructive dismissal. I’ve considered it useful to revisit the topic and list specific instances or conduct that Judges and CCMA Commissioners usually consider and which may justify a claim of constructive dismissal. Let us first look at the legislation and the employee’s duty in an arbitration setting.
What does the Labour Relations Act say?
Section Labour Relations Act 66 of 1995 (“LRA”), 186(1)(e) describes constructive dismissal as “a dismissal whereby an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”.
Who must proof and start leading evidence?
The duty to prove the existence of intolerability rest on the employee. This means that the employee will have to present his or her evidence first and prove his or her case on a balance of probabilities. During the arbitration the employee have to present evidence:
- That he or she terminated the contract of employment – (the easy part);
- That continued employment became intolerable for the Employee – (showing a pattern of incidents that occurred over a period of time);
- That the employer must have made continued employment intolerable – (Most fingers must point to the employer as the wrongdoer).
CCMA Commissioners typically focus on objective incidents or conduct of the employer which may point to intolerability. The subjective views of the employee are of no consequence.
What instances or conduct may justify a claim for constructive dismissal?
To justify a claim of constructive dismissal the conduct of the employer would typically include the displaying of undue hostility, patterns of victimisation, bullying, harassment, falsely accusing employees of misconduct or incompetence, unilateral changes to the employee’s job description or location of work. Other grounds include:
- continuous unlawful deductions from an employee’s salary without consent;
- unjustified disciplinary action and continuous ill-treatment by an employer;
- the failure to provide employees with a safe working environment;
- sexual harassment and other forms of harassment;
- the failure to pay employees their commission or changing the way that commission is earned without consulting employees first;
- being given a choice between a summary dismissal and retrenchment;
- taking away key tools of the employee’s trade or refusing to make reasonable adjustments to make his or her job possible;
- stripping an employee of his or her work without justification or communication;
- verbally abusing an employee in front of colleagues and exerting undue pressure on the employee to resign;
- ignoring or failing to address grievances;
- continuous unilateral non-payment of salaries;
- forced unilateral transfers.
What to consider before resigning?
Constructive dismissal is difficult to prove. Legal advice should always be obtained from a legal practitioner before acting on any issue that may have an effect on the employment relationship. Before tendering your resignation, keep the following in mind:
- you should exhaust all your internal remedies. This include submitting a grievance in writing, enlisting the help of fellow employees or a union to assist with airing your grievances, escalating your grievance to a higher authority in the company or making any other determined effort to raise your concerns. It would be opportunistic for an employee to resign and claim that the resignation was as a result of intolerable conditions when there was an avenue open to solve his problem which he or she did not utilize.
- the Courts view senior employees through a particular lens. With employment relationships a considerable level of irritation, frustration and tension will inevitably occur over time. Senior employees are required to have a thick skin and employment frustrations and irritations would usually not suffice to justify constructive dismissal.
- ensure that the employer have control over what makes conditions intolerable. The employer must be culpably responsible in some way for the intolerable conditions.
- consider whether there is reason to believe that the employer will not reform or abandon the pattern of creating an unbearable working environment.
- the CCMA will not likely rule that an employee should be reinstatement unless the employee present clear evidence that he or she would no longer be subjected to the intolerable conditions that led to the resignation. Most employees settle for compensation.
- resignation on notice may be a bar to a claim of constructive dismissal.
I suspect that the two employees in my recent cases underestimated their heavy evidential burden. Their failure to first consult a labour lawyer before resigning made my job of defending my clients successfully much easier.
Constructive Dismissal Cases:
The President of RSA v Reinecke 2014 3 SA 205 (SCA);
Murray v Minister of Defence (2009 3 SA 130 (SCA) par 8);
Albany Bakeries v Van Wyk and Others (2005 26 ILJ 2142 (LAC);
Pretoria Society for the Care of the Retarded v Loots  6 BLLR 721 (LAC);
Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC);
Van der Riet v Leisurenet t/a Health and Racquet Club  5 BLLR 471 (LAC);
National Health Laboratory Service v Yona and Others (2015) 36 ILJ 2259 (LAC);
Volschenk v Pragma Africa (Pty) Ltd (C414/13)  ZALCCT 24;  11 BLLR 1146 (LC); (2015) 36 ILJ 494 (LC);
LM Wulfsohn Motors (Pty) Ltd t/a Lionel Motors v Dispute Resolution Centre and Others 2008 29 ILJ 356 (LC);
Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 21 ILJ 988 (C)
CEPPAWU & Another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC);  5 BLLR 399 (LAC);
September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC)
Author:- Clive Hendricks. Clive is a Labour Law Specialist who can be contacted at: (021) 423 4250
The article is a general information sheet and should not be used or relied on as legal or other professional advice.