Constructive Dismissal

Constructive Dismissal

Constructive dismissal may be defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign.”  In lodging a dispute of constructive dismissal, it is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove that there was no other way of resolving the issue except for resignation. Usually, the employee would need to show steps he or she has taken to bring the intolerable conditions to the attention of the employer and show attempts he or she has made to resolve any issues which they feel are causing the intolerable conditions.

In the recent case of Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and others [2020] 11 BLLR 1123 (LC) the CCMA found in favour of the employees that they had been constructively dismissed, even though they did not lodge a grievance prior to resigning. The CCMA had found that the employer’s owner had bullied them to the point that rendered continuing employment intolerable. The Labour Court dismissed with costs the employer’s application to review and set aside the CCMA’s arbitration award. The employer then sought leave to appeal against the judgment, contending that the Court had erred by finding that the employees’ did not need to file a grievance before resigning and claiming constructive dismissal.

The Court held that although the general rule is that employees should lodge a grievance before resigning and claiming constructive dismissal, it is not an inflexible rule. In the circumstances of this case, no purpose would have been served by the employees doing so. The Court also confirmed its finding that the employees had been bullied beyond endurance, and added that the International Labour Organisation had recently adopted the Violence and Harassment Convention of 2019 and reminded member states that they should treat bullying and other forms of harassment with “zero tolerance”. The respondent’s conduct had stripped the employees of all vestiges of dignity. Their decision to resign without invoking the company’s grievance procedure was entirely justifiable, as was the Commissioner’s finding that they had been constructively dismissed.

Leave to appeal was therefore refused, and the Court ordered the employer to pay the employees’ legal costs, which is quite rare for labour disputes.

The moral of the story is that employers must treat their employees with respect and dignity, and ensure that workplace practices and cultures are, at the very least, tolerable.

This article is for general information should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact an attorney for specific and detailed advice. Errors and omissions excepted (E&OE)

For more information contact Mr. Matthew Kemp at matthew@pagdens.co.za or get in touch with us on website Contact | PAGDENS | Law Firm In Port Elizabeth