What is Constructive Dismissal?
Constructive dismissal is defined as a situation in the workplace created by the employer whereby the employer makes work-life extremely difficult for an employee – to such an extent that the employee has no other option available but to resign.”
In fact the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct. When any employee resigns and claims constructive dismissal, the employee is in fact stating that under the intolerable situation created by the employer, the employee can no longer continue to work, and has construed that the employer’s behaviour amounts to a repudiation of the employment contract. In view of the employer’s repudiation, the employee terminates the contract.
It is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove there was no other way of resolving the issue except for resignation. It is required that the employee prove the introduction of any intolerable working condition, amounting to repudiation by the employer of the employment contract.
Section 186 (e) of the Labour Relations Act (LRA) defines constructive dismissal as having occurred when “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Many employers adopted a “resign to avoid dismissal” policy; in short, this would involve an employee being given a clear choice, resign or you will be dismissed.
Employees were given a choice to “resign” to either avoid disciplinary action, or a threat of dismissal. It has the potential of relieving all company resources associated with the hearing (chairperson, complainant and witnesses) from arduous and time consuming duties. These circumstances offer the employee, who may have “resigned” an opportunity to argue and claim constructive dismissal.
Any company’s disciplinary procedure is best served by proceeding with initiated disciplinary action in the face of a resignation. This serves two purposes. Firstly, the potential for a subsequent constructive dismissal claim is minimised, secondly the integrity of the company’s disciplinary procedure is upheld.
To summarise constructive dismissal, an employee will have very limited prospects of success if they cannot show that the purported intolerability is indeed of a severe nature, and that they attempted to resolve the grievances prior to resigning.
For further information on constructive dismissal or any labour related matters, you can contact Bernard Reisner: