EMPLOYEE claims of constructive dismissal are of interest for a couple of reasons.
Firstly, the employee resigns because he or she believes that the employer has behaved in such an intolerable manner that they have no choice but to resign.

Secondly, constructive dismissal cases are the only dismissal cases where, at arbitration, the employee has the burden of proof. This means that the employee must be able to prove, on a balance of probabilities, that the employer acted in such an intolerable or unbearable way that they had no choice but to resign.

The Labour Relations Act (66 of 1995) confirms the essential requirements for constructive dismissal, stating that it means that: “An employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.”
In practice, the test for construction dismissal is an exacting one, in respect of which the burden of proof rests with the employee.

 In Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC); (1997) 18 ILJ 981 (LAC), Nicholson framed the test to be applied in the following terms (at 639A-B; 724E-G): “When an employee resigns or terminates the contract as a result of constructive dismissal, such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee’s most important function, namely work. The employee is in fact saying that he or she would have carried on working indefinitely had the unbearable situation not been created.

“She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded, then she has not been constructively dismissed and her conduct proves that she had in fact resigned.”
Discussing the concept of constructive dismissal in the context of the Loots decision (supra) Basson, Essential Labour Law, Vol 1 (1998) at 111 said the following: “The definition of a constructive dismissal in section 186(e) does not define the limits of what may be ‘intolerable behaviour on the part of the employer, and in the end this will probably be a value judgement made according to the facts of each case. What the case does seem to suggest, however, is that the inquiry by the court is twofold, firstly, the employee must establish that there was no voluntary intention by the employee to resign. (The employer must have caused the resignation.) Secondly, the court must ‘look at the employer’s conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.’”

In the case of Sappi Craft (Pty) Ltd t/a Tugela Mill v Majaka NO & Others (1998) 19 ILJ 1240 (LC) at 1250 E-I, Landman J remarked that: “They are two stages in the same journey and the facts which are relevant in regard to the first stage may also be relevant in regard to the second stage.
“Moreover, there may well be cases where the facts relating to the first stage are determinative of the outcome of the second stage … it is clear that the evaluation must be an objective one and that, if the employee is oversensitive or misinterprets the conduct of the employer in a subjective way, this does not constitute sufficient proof of dismissal.”

In yet another case, Commissioner F Brand, in Beets v University of Port Elizabeth CCMA case number EC12948 (2000) held that: “The employee must have resigned in consequence of the employer’s conduct. If he would have resigned in any event, he cannot claim that he was constructively dismissed. Certainly, an employee cannot resign and claim constructive dismissal whenever he is badly treated. The treatment must be sufficiently hostile, harsh or antagonistic to meet the standard the word intolerable sets.”

In Smithkline Beecham (Pty) Ltd v CCMA (2000)3 BLLR 344 (LC) Revelas held that: “The test for determining whether or not the termination of employment constituted a constructive dismissal is an objective one. The subjective apprehensions of an employee can therefore not be a final determinant of this issue. The conduct of the employer must therefore be judged objectively. It would be unfair to an employer to allow the subjective perceptions of an employee of its conduct, particularly when these perceptions turn out to be incorrect, to be the determining factor in penalising the employer with the penalties imposed by the Act.”

Importantly, in Jordaan v Commission for Conciliation, Mediation and Arbitration (CCMA) (2010) 12 BLLR 1235 (LAC), it was held that: “Irritation, frustration and tensions, even over a period of time, cannot found such a claim.”
In the recent CCMA arbitration hearing in Paul Williams v 5th Dimension Marketing (Pty) Ltd (Case number GAJB15610-18), it was held that the employee’s resignation did indeed amount to constructive dismissal as he had resigned due to the intolerable fact that the employer had, on occasion, either not paid or short paid the employee’s salary.

 is a labour law expert at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]

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