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1 May 2017
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The two applicants resigned after being given the option of resigning or being arrested for fraud.  They did not want to be taken to the police station and be arrested and they were afraid that if they were arrested they would be blacklisted and would not find employment again.

In the light of the definition of constructive dismissal, the applicants had to prove that they resigned under duress, as they alleged.  Duress is a form of intimidation which occurs when a reasonable person fears for the immediate safety of her/his own, property or close family members.

Commissioner Olota therefore had to decide whether the applicants had resigned out of their own free will or under duress.  Since resignation is a unilateral decision, employees should not be influenced or interfered with by their employer/s.  He considered three special circumstances in which an otherwise clear and unambiguous resignation should not be relied on: (i) an immature employee, (ii) a decision taken in the heat of the moment and (iii) an employee being jostled into a decision by the employer. In this case, the applicants had been given two options - either to resign or be arrested, in which they chose to resign.  The commissioner accordingly held that:

“It is unlikely that they planned to resign before they were called into the office. Whatever decision they took one could assume it was at the heat of the moment. No one is expected to agree if he/she told that you will go to prison and don’t go back home after work. Much may come to anyone’s mind:  your family responsibilities; your children; fear to be arrested and remain in jail; not having money for bail. All these combined may lead to a person involved to choose resignation rather than being arrested. I am therefore convinced that the applicants resigned under duress and the conduct of the employer amounted to constructive dismissal.”

SA Labour Guide Case Law, by Nicolene Erasmus

Edited by: Creamer Media Reporter
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