Constructive Dismissals – a difficult case to prove
Johanette Rheeder

Constructive dismissal has become a convenient escape for disgruntled employees and we find more and more that employees resign with a special condition to their resignation, so as to keep open the back door for a claim of constructive dismissal, alternatively the employee just refers a constructive dismissal dispute to the CCMA after resignation.

Various cases went through the Labour Court and the CCMA this year and the principle still remains, if you make the work life unbearable for an employee, resulting in a resignation, it will constitute a dismissal. In such a case, the employee bears the burden of proof, which is not always an easy burden to comply with. To succeed in the claim that the employee was constructively dismissed, the employee has to show that objectively assessed, the conditions at the workplace were so intolerable that he or she had no other option but to terminate the employment relationship.

The test for determining whether or not an employee was constructively dismissed was set out in Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) [also reported at [1997] 6 BLLR 721 (LAC): The LAC found that the test is whether the employer, without reasonable and proper cause, conducted itself in a manner which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. It is not necessary to show that the employer intended any repudiation of a contract.

When referring it, it is the court's function is to look at the employer's conduct as a whole and determine whether its effect, judged reasonable and sensibly is such that the employee cannot be expected to put up with it.

Van Greunen v Johannesburg Fresh Produce Market (Pty) Ltd – (2010) 19 LC 6.13.1 is one such example where the applicant just could not satisfy the court as to the facts of constructive dismissal. The employer changed her terms and conditions of employment, which can be a ground for constructive dismissal, however the conduct of the employer must be unjustified and the working conditions intolerable. In this case it was not.

The applicant had served as manager of the office of the respondent’s CEO for about a year, a new CEO was appointed. Soon after this, the applicant was informed that a post of personal assistant to the CEO had been advertised, and she was offered a choice between two posts in the HR Department. The applicant filed a grievance, the upshot of which was an undertaking by the respondent to supply the applicant with details of the alternative positions. After the respondent insisted that she accept one of the two alternative posts, the applicant resigned. She claimed that she had been constructively dismissed, and that the dismissal was automatically unfair because it was based on her race.

The Court noted that the applicant was initially prepared to move from the office of the CEO, but had insisted that she be transferred to the marketing department. The applicant had also been prepared to accept a lateral transfer to the HR department on the same salary, but had merely insisted on details of those posts before she resigned. The applicant’s evidence that she had been deprived of a telephone was improbable. The application was dismissed, with no order as to costs.

In Chabeli v CCMA & others (2009) 18 LC 6.13.1 and [2010] 4 BLLR 389 (LC) the applicant, although he claimed to have been constructively dismissed, did not give any hint of a reason in his letter of resignation. Only in his founding affidavit in the review application had the applicant alleged that he had resigned because the respondent had made his employment intolerable by making unilateral decisions about his position. The application was dismissed.

In Lang v GJP Services (2010) 19 CCMA 6.13.1 the Commissioner noted that “Intolerability” is not unfair per se, but also depends on who created the situation and how long it endures. The incident took place only once and the employer tried to rectify it. The employee should attempt to rectify the situation by all available means before terminating the employment relationship. The applicant had merely handed his keys to a colleague and declared that he would not be returning to work. He had made no attempt to seek advice or reason with his employer. While the owner’s conduct was unacceptable, the single incident was insufficient to render the employment relationship intolerable.

In Graham / CIPSA (Pty) Ltd – (2010) 19 CCMA 6.13.5 the principle that the circumstances must be created by the employer, was confirmed. The applicant resigned from his position as managing director of the respondent property broker because he had not received his salary. The respondent said it had not paid the applicant’s salary because of cash flow problems caused by the economic downturn, and that it had been agreed that the applicant would cease being a salaried employee and become a broker instead.

On the merits, the commissioner noted that the test for whether a constructive dismissal has occurred is objective. The question is whether the employer conducted itself in a manner that left the employee with no reasonable option but to resign, even if the employer had not intended that result. The commissioner held that, since payment of remuneration is one of the essentialia of the contract of employment, failure to pay remuneration is generally accepted as a circumstance that renders employment intolerable. However, the employer must be to blame for the failure to pay. The commissioner accepted that the respondent was in financial difficulties brought about by circumstances beyond its control. The commissioner accordingly found that the respondent was not to blame for the circumstances that induced the applicant to resign.

Johanette Rheeder Attorneys