Constructive Dismissal: What is it? How do you Prove it?
Both employers and employees in South Africa need to bear in mind the principle in our labour law that protects employees from being forced into resigning.
Such a forced resignation is regarded as being “constructive dismissal” – defined as taking place when an employee terminates his or her employment contract “because the employer made continued employment intolerable for the employee.”
As illustrated in a recent Labour Court case:
- The onus is on the employee to prove constructive dismissal
- His/her perception of the situation must have been objectively reasonable in the circumstances
- The resignation must be an act of “final resort when no alternatives remain”
- A change of terms and conditions of employment will amount to constructive dismissal only if “the employee could not reasonably be expected to endure the situation”, or if it goes “to the root of the employment relationship”.
The employee in question headed her resignation letter “Forced Resignation”, and asserted (with reasons) that: “The situation at work has become totally unbearable to the extent that I cannot tolerate continuing employment any longer”. In the end however she was unable to convince the Court that, objectively speaking, the employer “had created an environment which left the applicant with no option but to resign”. Her claim of constructive dismissal failed accordingly.
Note for Attorneys:
The judgment in Van Greunen v Johannesburg Fresh Produce Market (Pty) Ltd (JS 175/07) [2010] ZALC 27 is on the Saflii website.
Written by Mosdell Pama & Cox