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When can I claim constructive dismissal?
18 December 2019  | Charl Theunissen
My employer is intentionally creating conditions that render my workplace conditions intolerable and no continuation of the employment relationship is possible. What can I do in this instance?

Constructive dismissal is defined as a situation in the workplace, created by the employer, that renders the continuation of the employment relationship intolerable to the extent that the employee has no other option but to resign. 

In CEPPAWU & another v Glass & Aluminium, the Court explained it best, stating that constructive dismissal involves a resignation due to the work environment becoming intolerable for the employee as a result of conduct on the part of the employer. Section 186(1)(e) of the Labour Relations Act (“LRA”) states that in circumstances where an employee terminated a contract of employment, with or without notice, because the employer made continued employment intolerable, the termination of the contract would constitute a dismissal.  

In Pretoria Society v Loots, the Court referred to Jooste v Transnet Ltd t/a SA Airways and stated that the first requirement of an employee is to prove that the sole motive behind the resignation was the employer’s intolerable conduct. In addition to the above, the employee must prove that the employer was solely responsible for the intolerable conditions and that there was no other way of resolving the matter.

There have been many referrals of constructive dismissal to the CCMA that have not succeeded. Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessments, being overlooked for promotions are all examples of referrals that have not succeeded in the past, as the employee cannot prove the employer’s sole responsibility for the intolerable work conditions. 

There are, however, some instances in which employees have succeeded, e.g. a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee. In Van der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being demoted as a result of a restructuring exercise. The employer’s failure to consult with the employee was considered unfair and provided sufficient basis for a claim of constructive dismissal. Other matters, such as sexual harassment resulting in the employee’s resignation, may also constitute a constructive dismissal. These areas of constructive dismissal are difficult to handle as there are no “one-size-fits-all” rules. Each case is dealt with on its own merits.

In National Health Laboratory Service v Yona & Others, the Labour Appeal Court did not consider that a resignation on one month’s notice could be construed as a constructive dismissal. In Volschenk v Prima Africa (Pty) Ltd, the Court found that it was inconceivable that an employee would resign on two months’ notice if the employer had made conditions intolerable. This position should not be interpreted as establishing a general principle that resignation on notice is a bar to a claim of constructive dismissal. Resignation on notice can have a bearing on whether a resignation will be construed as constructive dismissal, especially when regarding the factors the employee claims made their employment intolerable.

Employers should note that while constructive dismissal may be difficult to prove, it is not impossible. Tactics like victimization, harassment and/or false disciplinary steps in the hopes of eventually getting the employee to resign, will not work. Legal advice should always be obtained from a legal professional before acting on any matter that may have an effect on the employment relationship.   
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