A further form of statutory dismissal is the termination of the contract of employment by the employee with or without notice or leaving employment due to unfair pressure, unreasonable instruction or unbearable conduct on the part of the employer.
The onus of the proof is on the employee to prove that resignation was his last resort and that he was left with no option but to resign as a result of the employer’s conduct. The resignation need not be formal and the employee can simply leave his employment in circumstances that would otherwise have amounted to desertion. All that is required is proof that the employer behaved in a deliberately oppressive manner, an act or omission by the employer.
In Sergio Carlos v IBM SA(Pty) Ltd 2006 LAC it was found that for there to be a constructive
dismissal;
i) There must be a termination of the contract of employment
ii) The employee must be the one who terminated the contract of employment
iii) The employee’s reason for termination must be that continued employment had become intolerable and
iv) The employer must be the one who made continued employment intolerable for the employee
Actions which have been accepted by the Courts and arbitrators founding claims for constructive dismissal include an offer of inferior employment coupled with a threat of dismissal, unlawful deductions from employee’s salary, unjustified disciplinary action, sexual and other forms of harassment, etc.
The test for whether the employer’s action or omission has rendered the prospect of continuation of the employment relationship intolerable is an objective test and cannot be determent by the state of mind of the employee alone. Employees who resign rather to face disciplinary action, will only in exceptional circumstances prove of constructive dismissal. Once the employee has proven constructive dismissal, the onus shifts to the employer to prove that his action/omission was not unfair. In other words a constructive dismissal is not inherently unfair. Almagalid Beverage Industries (Pty) Ltd v Jonker 1993 ILJ 1232 (LAC).
In Pretoria Society for the Care of Retarded v Loots (1997) 18 ILJ (LAC) it was to found that “one must look at the employer’s conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it”.
In Old Mutual Group Schemes v Dreyer and Another (1999) 20 ILJ 2030 (LAC), the court suggested that resignation must be the last resort available to the employee. The Court or Arbitrator must consider whether or not the employee has taken advantage of any internal procedures available to him, ie grievance procedures.
In Bonthuys and Central District Municipality Case nr GAJB19845-06 the Commissioner awarded the applicant the maximum compensation of 12 month’s salary after the employee was expected to sign fraudulent cheques and give fraudulent questions or face disciplinary action which amounted to intolerable and undue pressure. The Commissioner also exercised his rights under sec 138 (10) of the LRA and awarded costs against the respondent on a client-attorney scale.
It is clear that constructive dismissal can under certain circumstances be claimed by the employee. It is also very clear that the employee has to have his facts straight, as claiming same is not the easiest to prove in any forum.
Article by: Jacques du Toit
CEO Dispute Resolution Official – Bethlehem