More often than not, where an employee resigns because continued employment has become intolerable to such an extent that the employee has no other alternative but to resign, such employee will claim constructive dismissal. The reality is, constructive dismissals are notoriously difficult to prove as the onus of proving constructive dismissal rests squarely on the employee referring the dispute as opposed the employer when it comes to dismissal for incapacity and misconduct.
What the law says
The relevant section in the Labour Relations Act No 66 of 1995 (LRA) is Section 186 (1) (e) which includes in the definition of dismissal the situation where an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
For an employee to be successful with a claim for constructive dismissal at the CCMA or a Bargaining council, the employee must prove the following:
- The employment circumstances were so intolerable that the employee could truly not continue to stay on.
- The unbearable circumstances were the cause of the resignation of the employee.
- There was no reasonable alternative at the time but for the employee to resign to escape the circumstances.
- The employer must have caused the unbearable situation.
- The employer must have been in control of the unbearable circumstances.
Is the motive for resignation important?
The question of motive, whether the employee had any alterior motive for resigning, the test is set out in the below case:
"In Pretoria Society for the Care of the Retarded v Loots  6 BLLR 721 (LAC), the Court referred to Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC), stating that the first test was whether, when resigning, there was no other motive for the resignation - in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer's unacceptable conduct."
From this judgement it can be inferred that the first test is to establish whether there was a causal connection between the intolerable conduct of the employer and the resignation by the employee. If the employee is unable to prove a causal connection, the employee's claim for constructive dismissal will fail.
In the same case as above, the question of whether an employer's conduct was unbearable or not, the court found that the employer's conduct must be assessed holistically when determining whether the conduct was unbearable. Postulating that the test must not be applied in a vacuum.
Unilateral changing of employment terms
In the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd (2009, 4 BALR 406), the employee referred a dispute for constructive dismissal because of a unilateral change of employment terms. The employer found the employee to be performing poorly and replaced his salary with a commission structure. The CCMA later found in favour of the employee.
What is of paramount importance, an employee should exhaust all internal remedies available to the employee and even refer an unfair labour practice dispute before considering resignation. After this can the employee consider referring an unfair constructive dismissal dispute. These processes may include speaking to your superior within the workplace or the lodging of grievance. If all fails, and the continued working is impossible only then can an employee consider resignation and claim constructive dismissal.
Originally published Jan 18, 2021 .
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.