Constructive dismissal is when an employee is forced to resign from their job due to unbearable or hostile working conditions created by the employer. In other words, the employer's actions or omissions make it impossible or unreasonable for the employee to continue working, leading them to resign involuntarily. Despite the employee formally resigning, the law treats it as a dismissal by the employer. This article provides an overview of constructive dismissal and outlines the key elements that need to be established at the CCMA when pursuing a constructive dismissal claim.

Definition of Constructive Dismissal 

Constructive dismissal refers to a situation where the employer's conduct, without expressly terminating the employment relationship, effectively makes continued employment intolerable for the employee. The employee is left with no option but to resign due to the unreasonable actions or omissions of the employer. Constructive dismissal is considered unfair under Section 186(1)(e) of the LRA.

Requirements for constructive dismissal  
Solid Doors (Pty) Ltd v Commissioner Theron & others states that there are three requirements for constructive dismissal to be established, i.e. 

• The employee must have terminated the contract of employment, 
• The reason for termination of the contract must be that continued employment has become intolerable for the employee. 
• The third is that it must have been the employer who made the continuous employment intolerable. 

All three requirements must be present for it to be said that a constructive dismissal has been established; if one is absent, there is not a constructive dismissal. 

Elements of Constructive Dismissal

Intolerable Working Conditions 

To establish constructive dismissal, the employee must demonstrate that the working conditions created by the employer were so intolerable that a reasonable person would find it impossible to continue working, this can include harassment, bullying, discriminatory treatment, or unsafe working conditions.

Employer's Breach of Contract 

The employee must prove that the employer breached a fundamental term of the employment contract. This breach can occur through various actions or omissions by the employer, such as unilaterally changing terms and conditions, failing to address grievances, implementing unfair disciplinary procedures, or demoting the employee without justification. 

Employee's Resignation as a Result 

The employee must show that their resignation was a direct result of the employer's breach of contract or the intolerable working conditions. Establishing a causal connection between the employer's actions and the decision to resign is essential. The resignation must be a reasonable response to the employer's conduct.

Connection Between Breach and Resignation 

There must be a clear link between the employer's breach of contract or the intolerable working conditions and the employee's decision to resign. The employee should be able to demonstrate that the employer's actions or omissions directly led to their resignation rather than any other unrelated factors.

Case Law

In Beets v University of Port Elizabeth, it was found that constructive dismissal takes place only if the employee resigns because of the employer's conduct. The employer's conduct must have been such that it made continued employment intolerable for the employee.

In Jooste v Transnet Ltd t/a South African Airways, it was held that the employee must prove that he or she had no option but to terminate the employment because of the employer's unacceptable and intolerable behaviour.

Examples of Constructive Dismissal

The following factors may constitute constructive dismissal: 

• Unilateral changes to the employee's terms and conditions of employment 
• Unfair disciplinary action 
• Spurious allegations of misconduct by the employer 
• Forced resignation in the face of unacceptable alternatives

It is important to note that these factors are not exhaustive, and each case of constructive dismissal will be assessed on its own merits.

CCMA Proceedings and Remedies 
To pursue a constructive dismissal claim, the employee needs to submit a formal complaint to the CCMA within 30 days of the date of the alleged constructive dismissal. The CCMA will then facilitate conciliation or mediation between the parties to explore a resolution. If the dispute remains unresolved, it may proceed to arbitration, where an independent commissioner will make a binding decision.

Burden of Proof

In constructive dismissal cases, the employee has the burden of proving, on a balance of probabilities, that they were constructively dismissed. This means that the employee must present sufficient evidence to establish that it is more likely than not that constructive dismissal occurred.

The employee must present evidence to support each element of constructive dismissal, including intolerable working conditions, the employer's breach of contract, resignation as a result, and the causal connection between the breach and resignation. It is crucial to provide corroborating evidence, where possible, to strengthen the claim.

If the CCMA finds constructive dismissal occurred, the employee may be entitled to various remedies, including compensation or reinstatement to their former position.

Conclusion

Constructive dismissal cases require careful consideration of the legal elements and a thorough understanding of the CCMA proceedings. To succeed in a constructive dismissal claim at the CCMA, employees must establish intolerable working conditions, the employer's breach of contract, the employee's resignation, and the causal connection between the breach and resignation. Understanding the legal aspects and burden of proof in constructive dismissal cases is essential for both employees and employers. Seeking legal advice specific to one's circumstances is highly recommended to successfully navigate the complexities of constructive dismissal claims.

Written by Annelise Petzer, Attorney, SchoemanLaw