Employees do not always realise that when they resigned because his or her employer made it intolerable to continue the employment relationship, it may actually be a form of dismissal.
In terms of the Labour Law dismissal includes any of the following:
- An employer terminates a contract of employment with or without notice.
- A fixed-term contract is suddenly ended or renewed on less favourable terms, where the employee expected the contract to be renewed because it has often been renewed or because an expectation exists that the employment will be ongoing.
- A woman who is not taken back into her job after maternity leave.
- A number of employees were dismissed for the same reason and the employer offers to re-employ one or more but not all.
- An employee who was forced to walk out or resign because the employer made the working environment impossible to tolerate.
- The employee leaves his or her work (with notice or without notice) because a new employer has taken over the business and is not paying the employee the same wages and conditions of employment he/she enjoyed before.
- Employees have been retrenched.
Constructive dismissal was codified in the Labour Relations Act No 66 of 1995 (LRA). Section 186 (1) (e) 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”.
Because of the fact that the employee alleges that the resignation was involuntary and was intentionally or unintentionally coerced by the employer, the resignation becomes a constructive dismissal. It must be stressed that questionable acts of the employer will not always constitute unfair constructive dismissal.
The following test will be applied by the arbitrator or judge to determine whether an unfair constructive dismissal has taken place:
- 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 unbearable situation must have been caused by the employer.
- The employer must have been in control of the unbearable circumstances.
However, a resignation by the employee for purposes of avoiding the disciplinary hearing is unlikely to constitute unfair constructive dismissal. For example, in the case of Mvamelo vs AMG Engineering (2003,11 BALR 1294) the employee was informed he was to face a disciplinary hearing for theft and that criminal charges would also be laid. He resigned and claimed constructive dismissal but lost the case because it was found by the arbitrator that he had resigned to avoid the disciplinary steps of which he had been notified.
It may very well be the case that the employer has a hidden agenda (for example, to avoid the financial consequences of retrenchment) and informs the employee that disciplinary charges which may result in dismissal are brought against him or her. It is best to consult a lawyer to advise you in this regard to avoid misinterpretation of the law.
Employers need to be extremely careful that they do not discipline employees unfairly in which case the employer might have to pay compensation and legal costs.
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