What is Constructive Dismissal in South Africa?

 

Forced to resign? Learn about constructive dismissal under South African law. Understand your rights, key court cases, and the steps to take if your employer has made your job intolerable.

Written by Roy Bregman, an admitted attorney with over 51 years of experience in Labour Law. 

Key Takeaways

• What is Constructive Dismissal? It's when an employee resigns because the employer's conduct has made the working relationship intolerable. Legally, it's treated as a dismissal, not a voluntary resignation.​
• High Burden of Proof: The employee must objectively prove that the employer was responsible for the intolerable conditions and that resignation was the only viable option. Simply being unhappy is not enough.​
• Exhaust Internal Remedies: Before resigning, an employee is generally expected to use all available internal processes, like grievance procedures, to try and resolve the issue.​
• Employer's Conduct is Key: The focus is on the employer's actions and their impact, not necessarily their intention. Conduct that destroys the trust and confidence in the employment relationship can lead to a successful claim.​

Introduction to the Legal Principles of Constructive Dismissal

Constructive dismissal is a crucial concept within South African labour law, outlined in section 186(1)(e) of the Labour Relations Act (LRA) 66 of 1995. It addresses situations where an employee feels compelled to resign due to the employer's behaviour, which has made continued employment unbearable. Although the employee formally resigns, the law re-frames this action as a dismissal, shifting the legal onus.​

To succeed in a constructive dismissal claim, the employee carries a significant burden of proof. They must establish several key elements:​

1. They terminated the contract of employment.
2. The reason for the termination was that the employer made continued employment intolerable.
3. The intolerable conditions were created by the employer.
4. Resignation was the last resort, with no other reasonable alternatives available.

The test applied by the courts and the Commission for Conciliation, Mediation and Arbitration (CCMA) is objective. This means the employee must prove that any reasonable person in their situation would have also found the conditions intolerable. The employee's personal feelings of unhappiness are not sufficient grounds for a claim.

Discussion of Key Cases

South African case law has been instrumental in shaping the interpretation and application of constructive dismissal principles.

Defining the Employer's Conduct

In Pretoria Society for the Care of the Retarded v Loots (1997), the Labour Appeal Court established a foundational principle: the employer's conduct needs only be likely to destroy or seriously damage the trust relationship. The court clarified that it is not necessary to prove the employer intended to end the employment relationship; the effect of their actions is what matters.​

This was reinforced in Strategic Liquor Services v Mvumbi NO and Others (2009), where the court noted that the employee does not need to prove they had no choice but to resign. It is enough to show that the employer's conduct made continued employment intolerable.​

Successful Claims of Constructive Dismissal

• In Le Monde Luggage CC t/a Packwells Petje v Commissioner Dunn (2007), an employee was physically assaulted by the employer. The Labour Appeal Court upheld the claim, highlighting that physical abuse is a strong indicator of an intolerable working environment.​
• The case of Solidarity obo Behr v Blue Key Consult (2011) demonstrated that failure to pay an employee's salary for three consecutive months constituted intolerable conduct, leading to a successful claim.​
• In DFUAWUSA obo Minnaar v DAG Exclusive Furniture (2009), an employee was repeatedly threatened with dismissal and humiliated in front of colleagues. The CCMA found this behaviour made the work environment intolerable.​
• Similarly, in Masina v Jiyane (2008), a taxi driver's employer failed to renew the vehicle's permit, causing the employee significant distress. The CCMA ruled this was constructive dismissal and awarded compensation.​

Unsuccessful Claims of Constructive Dismissal

• Not all claims succeed, as seen in Coetzee v A D Tyre Manufacturing & Tech (Pty) Ltd (2009). The employee alleged that a foreman's violent and abusive language created an intolerable situation. However, the claim failed because the employee could not meet the required burden of proof.​
• In Kgoale v Mapulana Maponya Inc. Attorneys (2009), an attorney resigned after not being paid for two months. The claim was dismissed because the employer's inability to pay was linked to the attorney's own failure to generate income for the firm.​

Conclusion

Constructive dismissal remains a complex and challenging area of labour law. The legal framework places a high evidentiary burden squarely on the employee to demonstrate that their resignation was not a choice, but a necessity forced by the employer's actions. The conduct of the employer must be illegitimate and severe enough to render the employment relationship unsustainable. While successful claims often involve clear breaches like non-payment of salary or abuse, employees must remember to exhaust all internal remedies before taking the final step of resignation.

Practical Steps

What should you do if you believe you are in an intolerable situation?

1. Document Everything: Keep detailed records of incidents that contribute to the intolerable situation. Include dates, times, locations, individuals involved, and any communications or evidence that support your claims. This documentation will be crucial in proving your case later
2. Review Your Contract: Examine your employment contract and any workplace policies, including grievance procedures, to understand your rights and obligations. This will help you determine whether the employer has breached any terms or acted unlawfully.

3. Lodge a Formal Grievance: Before resigning, utilise the grievance procedure provided by your employer. This step is often necessary to demonstrate that you attempted to resolve the issue internally. Failure to do so may weaken your claim of constructive dismissal.

4. Seek Legal Advice: Consult a legal expert or labour law practitioner to assess your situation and guide you on the best course of action. They can help you understand whether your circumstances meet the legal threshold for constructive dismissal and advise on the next steps.

5. Consider Alternatives: Evaluate whether there are any reasonable alternatives to resignation, such as transferring to another department or role, or negotiating changes to your working conditions. Resignation should be a last resort.

6.  Resign as a Last Resort: If all other options have been exhausted and the situation remains intolerable, you may choose to resign. Ensure your resignation letter clearly states that the resignation is due to the employer's conduct making continued employment untenable.

These steps are essential to establish a claim for constructive dismissal under South African labour law, as the burden of proof lies with the employee to demonstrate that the employer's conduct rendered the employment relationship intolerable.

Frequently Asked Questions (FAQ)

• What is the difference between resignation and constructive dismissal?
  A resignation is a voluntary termination of employment by the employee. A constructive dismissal is a resignation that is legally treated as a dismissal because the employer's actions made the job unbearable.​
• Do I have to file a grievance before I can claim constructive dismissal?
  It is highly recommended. Courts and the CCMA expect employees to use internal procedures to try and resolve the issue before resigning, unless the circumstances are extreme.​
• How long do I have to file a constructive dismissal case with the CCMA?
  You must refer the dispute to the CCMA within 30 days of your resignation date.
• What kind of evidence do I need to prove constructive dismissal?
  You need objective evidence that the employer's conduct was intolerable. This can include emails, letters, records of incidents, witness testimony, and proof that you attempted to resolve the situation through internal grievance procedures.​

If you believe you have been forced to resign due to intolerable working conditions, you don't have to face it alone. Understanding your rights is the first step toward justice. Contact Bregman Moodley Attorneys today for a confidential consultation to assess your case and guide you on the best course of action.