[Thursday, August 28, 2003 12:13:10]



An employer who coerces an employee to resign may well find that the CCMA makes a sizeable financial award to the employee – as much as 12 month’s pay. To avoid this situation, employers should understand constructive dismissal.

Constructive Dismissal is defined in Section 186(e) of the Labour Relations Act, 66/1995, as:

“(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”

Although this is relatively a wide definition it means that employees resign or otherwise repudiate their contracts of employment because they are left with no option but to do so by the employer’s conduct. In these cases employees must prove that it would have been “intolerable” to remain in employment.

It is not possible to draw up a closed list of examples of employer conduct that renders the situation intolerable for employees, but a couple of recent cases in the CCMA/Labour Court are discussed in this newsletter to provide general guidelines.

In a recent case before the CCMA in Lichtenberg, Jonas Shimi Mokoka (represented by Kathrada, Norval, Rice & Patell Attorneys) v Landbank (represented by Johann van Zyl)

(5 August 2003), the Senior Commissioner, Sebatha, found that because the applicant failed to follow the proper procedures in lodging his grievance with regard to the extension of his probation, his resignation did not justify a claim of constructive dismissal.

It is important for employees to ensure that they afford the employer a fair opportunity to rectify the “intolerable” situation, before they turn in their resignation and then claim constructive dismissal. It is also very important that employers do not deal with grievance received by employees lightly, and that they actively put in an effort to follow the formal grievance procedure or policy when they receive formal grievances from employees.

The following statements in grievance documentation or resignation letters should sent out warning lights to employers:

¨      “If my situation cannot be resolved I will be left with no other alternative than to resign” or

¨      “My resignation is not out of my own free will, but I am forced to resign”

Examples where complaints of constructive dismissals were successful at the CCMA are:

  1. The employer failed to pay the employee as agreed in the contract of employment

  1. The employer set unreasonable work targets for the employee and disciplined the employee for failing to meet these targets. The employee was also excluded from training opportunities and some of the other public functions of the enterprise.

  1. The employer made deductions from wages without a valid reason, insulted an employee and said that he did not like the employee due to his political affiliation.

  1. The employer treated the employee in a threatening, insulting and aggressive manner and exerted prolonged pressure on the employee to resign.

  1. The employer did not stop sexual harassment committed against an employee.

  1. The employee was required to apply for his own position and his application was unsuccessful.

Examples where complaints of constructive dismissals were unsuccessful at the CCMA are:

  1. The absence of favourable working prospects and unhappiness with a supervisor’s management style.

  1. The employer offered voluntary retrenchment packages to some of its employees, but did not approve the package for one of its employees.

  1. The employee was reprimanded by the employer regarding his poor work performance.

Once a constructive dismissal is proved by the employee at the CCMA, the onus shifts to the employer to prove that the dismissal was fair.

The CCMA/Labour Court must then consider the circumstances with a view to establish whether the employer’s conduct as a whole was justified.

In the case of Pretoria Society for the Care of the Retarded v Loots (1997) the Labour Appeal Court framed a test as follows:

  1. To determine the effect of the employer’s conduct.

  1. Was the employer’s conduct judged reasonably and sensibly?

  1. Was the employer’s conduct such that the employee could not be expected to put up with it?

If you need any further advice or assistance on the above, you may contact our Legal Department in Pretoria at (012) 811 0201 or visit our webpage at www.labour.co.za for online advice and assistance.