Constructive dismissal is when an employer makes the employee's working conditions so hostile to such an extent that continued employment becomes intolerable, ultimately compelling the employee to resign, to which constitutes unfair dismissal. This article seeks to outline what constitutes constructive dismissal and the legal recourses available to such employees.

The requirements for constructive dismissal are as follows:

  1. The employer breaches a term contained in the employment contract or an implied term of trust and confidence and
  2. The employee has to have sought redress on that conduct internally, failing which the employee resigns.

The employer can create a hostile environment by doing the following:

1. The employer changes core aspects of the contract or substantially downgrades the status of the employee;

2. The employer conducts himself or herself in such a way that impairs on the human dignity or status of the employee;

3. The employer creates an environment where the employee feels sexually harassed to such an extent the employee seeks to resign;

4. The employer allows for gender discrimination in the working environment or

5. The employer significantly cuts down allowances or salaries of the employee essentially breaching the core term of the employment agreement.

If the employer does any of the following and the employee feels pushed into a corner to resign and proceeds to resign, that would be constructive dismissal.

The Labour Act (Chapter 28:01) has provisions that protect employees from constructive dismissal. Section 12 B (4) of the Labour Act (Chapter 28:01) provides that an employee should never be dismissed unless the dismissal is done in terms of the employment code of conduct or the National Employment Code of Conduct. If dismissal is not done in terms of either of these codes, such dismissal will be deemed to be unfair.

If an employee is a victim of such unfair conduct by the employer, he or she has legal recourse seeking either damages or reinstatement.

To begin with, the employee must exhaust internal remedies within the company by following the procedure prescribed in the code of conduct that is being enforced in the institution.

When an employee has exhausted internal remedies, the employee can make a formal complaint of unfair dismissal against the employer with either the labour officer or designated agent in terms of section 93 Labour Act (Chapter 28:01).

Where an employee takes such a complaint depends on the procedures that the prescribed code of conduct provides for and on whether such a company or industry is under the National Employment Council. If it is under the National Employment Council such a complaint is lodged with a designated agent. If not, the complaint is taken to the labour officer who will give a draft ruling which will in turn need to undergo confirmatory proceedings by the Labour court.

An employee's rights within the working environment ought always to be protected. Employers have to abide by the respective codes of conduct and due processes before dismissing an employee. Moreover, employers cannot simply create a hostile working environment for their employees in hope that the employees will be compelled to resign. Employees faced with such have legal recourses available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.