In the ever-evolving landscape of labour law in South Africa, employers face the complex challenge of maintaining a workplace that is not only productive but also fair and inclusive. Alleged unfair discrimination leading to a possible constructive dismissal is an issue that demands the attention of employers. In this article, we will explore the issue and provide insight into how employers can navigate it effectively.

To understand the issue, we need to grasp what the law says about unfair discrimination and what a constructive dismissal is. Unfair discrimination occurs when a party shows favour, prejudice, or bias for or against a person on a prohibited ground, including a person’s race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, or birth, or on any other arbitrary ground.

Constructive dismissal is when an employee terminates the employment contract with or without notice because the employer allegedly made continued employment intolerable for the employee. A constructive dismissal is simply a form of dismissal. It can be referred as a dispute by the employee to the CCMA or Bargaining Council, which then requires the employee to prove, on a balance of probabilities, that there was a constructive dismissal. Examples could include harassment, bullying, discrimination, or unsafe working conditions.

To grasp the nuances of unfair discrimination and constructive dismissal, we turn to Chetty v Baker McKenzie (JA 95/20) [2022] ZALAC 12; (2022) 43 ILJ 1599 (LAC); [2022] 8 BLLR 693 (LAC) (4 April 2022). This case serves as a real-world example of how these issues can intersect and impact both employers and employees. In this case, the Applicant claimed that her resignation was a constructive dismissal and that she was unfairly discriminated against based on race and gender. The Applicant states that the conduct perpetrated against her ignores the values of Baker McKenzie that promote racial and gender diversity, and the conduct was discriminatory.

The Applicant subsequently referred an unfair dismissal dispute to the CCMA, followed by an unfair discrimination dispute. The Applicant was then referred to the Labour Court after the CCMA issued a Certificate of Non-Resolution. While the Applicant and her legal team were preparing for her case, they discovered a strong link between the allegations of discrimination and her constructive dismissal dispute. In essence, the claim was that the unfair discrimination against her, based on race and gender, rendered her employment intolerable, leading to a constructive dismissal dispute. The case highlighted the significance of addressing unfair discrimination in the workplace and the potential consequences if left unattended.

One of the takeaways from this case is that employers have a significant responsibility to promote fairness and inclusivity in the workplace. Discrimination on prohibited grounds, including race, gender, age, and more, is strictly prohibited by South African labour laws. Employers must take proactive steps to prevent discrimination from occurring and to address it swiftly when it does. So, what can employers do to effectively navigate the complex terrain of unfair discrimination and constructive dismissal?

  • Implement Clear Policies: Establish clear policies against unfair discrimination and harassment in the workplace. Ensure that all employees are aware of these policies and provide training on their importance.
  • Create a Culture of Inclusivity: Foster a workplace culture that celebrates diversity and inclusion. Encourage open communication and provide channels for employees to report discrimination or harassment.
  • Swift Resolution: Address complaints of discrimination promptly and impartially. Investigate allegations thoroughly and take appropriate action against perpetrators.
  • Consult your Employer’s Organisation or internal labour consultants: Seek legal advice when necessary. Employment and Dispute Resolution law experts can provide guidance on navigating complex cases and ensuring compliance with labour laws. They can also assist in explaining the Employment Equity Act and Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.

Employers in South Africa must recognise the importance of addressing unfair discrimination before it leads to a possible constructive dismissal. By understanding the legal dynamics, implementing proactive measures, and staying compliant with relevant legislation, employers can create workplaces that not only adhere to the law but also thrive on the principles of equity and inclusion. In doing so, they can not only avoid legal repercussions but also contribute to a more just and harmonious work environment for all.

Nihal Dasraj

Legal Assistant