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Legal Matters
Resignation and Constructive Dismissal
By Naledi Mokoena
A question commonly asked about constructive dismissal is - when is it applicable and will it be recognised in the eyes of the South African Labour Law. There are numerous well-documented complaints and grievances relating to employers regarding constructive dismissal and the challenges which transpire due to disagreements with management relating to performance or conduct.
What Is Constructive Dismissal
According to terms of section 186 (1) (e) of the Labour Relations Act (LRA) 66 of 1995, the basis of constructive dismissal is when an employee terminates the employment contract without notice based on an employer making their employment intolerable. In order for this type of dismissal to be recognised, an employee is required to prove the case. In the event of such a decision, according to the Labour Court, there are three requirements an employee must substantiate to claim constructive dismissal.
These include:
The employment situation had become intolerable for the employee
The employee ended the contract of employment
The employer made continued employment intolerable
In addition, according to the Constitutional Court, the basis for constructive dismissal is tested by proving the employer made continuous attempts to make the employment intolerable. There is no case for constructive dismissal if an employee resigns for any other reason, for example “because s/he cannot stand working in a particular workplace or for a certain company” which is not due to any conduct on the part of the employer.
What Is "Intorability"
Intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, "Intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point," - SA Labour Court.
The Do's and Don'ts Of Constructive Dismissal From An Employee Perspective
Resignation Letter
The initial step to resigning from any contractual agreement is formally writing a resignation letter to more than one recipient, not limited to the human resources department or a manager. In the instance of a letter pertaining to constructive dismissal, it needs to communicate the basis of resignation to the employer and notify them of immediate departure. The letter must state the date of resignation and be sent by email in order to keep a record of to whom it was sent.
The Crux Of The Matter
The circumstances of resignation, including the events leading up to it, need be listed in detail in the resignation letter. In addition, if there was previous communication in the form of a grievance letter written in a bid to facilitate further investigation, this can be referred to in order to avoid repetition.
Due to the complex nature of the relationship between employers and employees the LRA, Basic Conditions of Employment Act (BCEA) and the Commission for Conciliation, Meditation and Arbitration (CCMA) exist. The CCMA is an independent body founded by law to resolve a range of corporate disputes. Due to the nature of a constructive dismissal claim, it is classified as unfair dismissal which means the employer is taken to the CCMA, at minimum to no cost at all to the complainant, who will have to prove the employer had made continued employment intolerable.
How To Approach Constructive Dismissal For Employers
According to the Consolidated Employers Organisation (CEO), whether an employer agrees or not with the employee's decision, it is advisable for employers to enlist legal advice before acting on any matter to avoid future implications. In instances where an employer is brought before the CCMA or the relevant bargaining council , it is pivotal to establish if the date of the employee's resignation hasn't changed and when the case will be heard, especially for claims of reinstatement by employees
For claims regarding reinstatement, if the circumstances have not changed, the employer can dispute the employee's testimony in relation to their working conditions. Employers should note the determining factor for constructive dismissal is objective, meaning it is based on factual information. Hence the circumstances and facts will be scrutinised in detail.
Positive Outcomes Of Workplace Conflicts
Although conflict in any organisation may not be a pleasant experience between employees and employers, it does have the potential to encourage change. According to the Gitnux Marketdata Report 2024, the positive outcomes associated with workplace conflicts are linked to inspiring conflict management training.
The CPP Global Human Capital Report, reflects that countries with prevalent occurrences of training have proven results. A total of 76 percent of workers worldwide experienced a positive outcome after conflict resolution resulting in improved relationships between employees and employers and execution of tasks.
Source: Labourguide, CCMA, BUSA, SpringhouseLaw, Linkedin, Gitnux
