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  • Writer's pictureRikus Scheepers

Forced to quit? A guide to constructive dismissal in South Africa

Have you ever been trapped in a job that feels like daily punishment or working under the shadow of an unbearable boss? The struggle is common, and resigning becomes a tempting escape for many. Leaving a toxic workplace in South Africa when you feel you have no choice may be seen as constructive dismissal.


Constructive dismissal introduces challenges for both employees and employers as workplace dynamics evolve. This post aims to shed light on some of the critical aspects of constructive dismissal in South Africa while exploring the requirements set out in the Labour Relations Act to provide employees with insight into their rights and provide employers with the framework for avoiding unnecessary CCMA proceedings.

UNDERSTANDING CONSTRUCTIVE DISMISSAL


Constructive dismissal occurs when an employee resigns due to unbearable working conditions created by the employer. Section 186(1)(e) of the Labour Relations Act defines constructive dismissal as a situation where an employee terminates their employment contract with or without notice because the employer made continued employment intolerable.


Courts have set the bar high before an employee can succeed with constructive dismissal claims. Tension in the office is not enough.

The critical requirements for constructive dismissal are as follows:

Intolerable employment circumstances:


Employees must prove that they resigned because the employer made continued employment intolerable and the dismissal was unfair.

The employment circumstances must be so intolerable that the employer can effectively be seen to have forced an employee to resign. This is the typical “I am going to make your life a living hell” scenario.


Whether something is intolerable or not has always been objective. Still, Courts have more recently included subjective elements like an employee’s mental condition into account when considering objective facts.


Remember that the longer you take the intolerable working conditions before resigning, the harder it is to prove that the situation was intolerable.


The test is that the employment must have been rendered intolerable because no reasonable employee could be expected to comply with the employer’s conduct, while the employee must have personally found the conduct to be intolerable. While some people have thicker skins than others, that doesn’t mean you have to tolerate working conditions that negatively impact your mental well-being and ability to thrive in the working environment.

Intolerable circumstances include unilaterally reducing the employee’s compensation, assault, non-payment or sexual harassment.

The resignation flowed from the intolerable employment circumstances:

An employee must prove that were it not for the intolerable circumstances, they would have continued the employment indefinitely.

This is understandable as employees should not be allowed to claim compensation for constructive dismissal, knowing that they would still have resigned in the foreseeable future or if they would resign for some other reason unrelated to the intolerable circumstances. The CCMA is not there for you to make a quick buck from the company you leave willingly.


The employer caused the intolerable circumstances:


An employee must prove that the employer created intolerable circumstances and that the employer’s acts, or failure to act, were unreasonable and without a valid cause. If the intolerable circumstances were caused by someone other than the employer, a claim for constructive dismissal might be dismissed.


The employer was in control of the intolerable circumstances:


This requirement is similar to the previous requirement. However, there is a difference. There might be a situation where the intolerable circumstances were an indirect result of the employer’s unavoidable actions and, therefore, out of the employer’s control.


An example is when a business is required to make pay cuts as an alternative to retrenchment due to its operational requirements. It is clear that the intolerable circumstances resulted from the employer’s decision to implement pay cuts; however, this decision was an operational requirement and, therefore, out of the employer’s control.


All internal grievance procedures were exhausted and resignation is the only choice:


An employee’s decision to resign must be considered within the circumstances. The resignation must be based on the belief that the employer will never reform or abandon the pattern of creating an unbearable work environment. It is crucial for employees to first exhaust all reasonable internal remedies available to resolve a work conflict before instituting CCMA proceedings. However, it is just as important for employers to ensure they prescribe a sufficient grievance procedure for employees to follow.


Suppose the person dealing with grievances in your company is causing intolerable circumstances. In that case, you might get away with a constructive dismissal claim without following a grievance process. What is reasonable under the circumstances is always the most crucial consideration.

Apart from these critical requirements for a claim of constructive dismissal to succeed, it is essential to remember that the onus of proof lies on the employee. This is quite a stringent onus, as the employee is expected to prove all the abovementioned requirements.


STORYTIME

Turning to a real-life example to demonstrate the approach to some requirements and considerations, in the case of Niland v Ntabeni NO and others, an employee discovered that his wife was having an affair with his employer.

There was subsequently an altercation between him and his employer two years later, leading to his resignation three months later. The employee subsequently took up employment with a competitor and referred a constructive dismissal dispute.


The Labour Appeal Court, on review, considered several key factors:

• the voluntary participation of the employee’s wife in the affair;

• the absence of any formal communication of the grievances to the employer;

• a notable three-month continuation of employment post an alleged “final straw” incident;

• the fact that the resignation was primarily motivated by the pursuit of employment with a competitor, not solely by intolerable working conditions.

The Labour Appeal Court meticulously considered the requirements and circumstances. It dismissed the application based on objective factors rather than the employee’s subjective perception of the circumstances. The Court emphasised the significance of utilising internal grievance procedures. It stressed the necessity for resignations to be directly linked to intolerable conditions rather than unrelated motives like seeking alternative employment.


CONCLUSION


As an employee or employer facing the daunting prospect of a constructive dismissal claim, understanding the requirements and factors taken into account at the CCMA or any other forum is crucial. While the circumstances are usually complicated for an employee or employer, if you are armed with knowledge and sound legal guidance, you can navigate the intricate landscape of constructive dismissal claims knowing what challenges lie ahead.


At Van Zyl Scheepers Attorneys, we can assist you in navigating the uneasy waters of constructive dismissal claims. Whether you’re an employee facing constructive dismissal or an employer seeking legal guidance, we will go the extra mile for you to protect your rights.

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