A different view of the intolerability of the employment relationship in the context of a claim for constructive dismissal

In terms of section 186(1)(e) of the Labour Relations Act 66 of 1995 dismissal means that, an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee. Traditionally, CCMA Commissioners and the courts expected employees to exhaust all internal remedies and grievance processes before they resigned. This was often an indication that an employee had attempted to resolve the grievance before resigning.

 

The decision of the court in Centre for Autism Research and Education CC v CCMA (JR1619/2018) maintained that it may not always be practicable to follow the internal grievance process in all instances. In this case, two employees resigned due to the conduct of the employer. In their CCMA application, the employees detailed the horrendous treatment that they received from the employer.

 

At the arbitration, the employer failed to lead evidence disputing the evidence led by the employees. The Commissioner, therefore, had no difficulty in accepting the evidence of the employees and awarded them compensation.

 

Aggrieved by this finding the employer applied to review the decision of the CCMA Commissioner on the basis that the employees did not follow any internal grievance process as per their contract of employment and therefore could not argue that their resignations be construed as constructive dismissal.

 

Traditionally the court acknowledged that employees should, as a port of call, aim to resolve the dispute internally by complying with the internal grievance process. However, in this case, the employer was the only person to whom a grievance could be directed, and it was his conduct that formed the basis of the complaint. It would have been futile to complain to the person who made their lives a misery.

Therefore, the court, in principle, espoused the view that it will not always be necessary for employees to exhaust internal processes before they claim constructive dismissal.

 

A further cautionary note for employers is that even though the onus rests on the employee to prove that the employer made the employment relationship intolerable, the employer cannot merely sit back and hope that the employees do not prove their case.