Often times, employees not happy or aggrieved with the working environment or condition(s) find themselves having to tender their resignation and referring a dispute of constructive dismissal with either The Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council without obtaining proper legal advice. In cases of constructive dismissal, it is imperative to first get the understanding of what the term really entails before taking a decision of terminating the employment relationship with the company, based on an intolerable working environment or condition(s).
Section 186(1)(e) of Labour Relations Act 66 of 1995 on dismissal essentially states that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. This is important in cases of constructive dismissal but is not conclusive.
In Murray v Minister of Defence (2008) 6 BLLR 513 (SCA) the Supreme Court of Appeal confirmed the two-stage approach which applied to a constructive dismissal referral as follows: These cases have established that the onus rests on the employee to prove that the resignation constituted a constructive dismissal; in other words, the employee must prove that the resignation was not voluntary and that it was not intended to terminate the employment relationship. Once this is established, the inquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. Looking at the employer’s conduct as a whole and in its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.
In Armaments Corporation of South Africa Ltd v Nowosenetz N.O. and Others (JR1579/11) [2015] ZALCJHB 241 the Court interpreted the two-stage approach to mean that the employee must present evidence to the commissioner to establish that her or his employer made her or his employment intolerable (that is, she or he has not resigned). Should it be established that the employee resigned, the inquiry is at an end. However, once it is established that she or he has not resigned, then the Commission has jurisdiction to entertain her or his constructive dismissal referral. This is sometimes referred to as a jurisdictional issue. This does not mean that the matter is at an end once this first-stage of a constructive dismissal referral is established, the second-stage thereof is for the employer to show that the dismissal was not unfair.
In the same case, the Court stated that the aggrieved employee(s) should have lodged a grievance against whoever they believe to be at fault and it is imperative that this must be done within a reasonable time. The issue must be a valid one giving rise to a claim of constructive dismissal and not merely about the dissatisfaction with legitimate operational changes in the workplace.
ABOUT THE AUTHOR
Sekhobe Abe Mopedi is a Senior Legal Advisor at SEESA Labour, Bloemfontein.
He obtained his LLB (UFS)degree in 2007. Employed at SEESA (Pty) Ltd for the past 11 years.