Constructive dismissal has become a convenient escape for disgruntled employees. Many employees realise too late that they are not eligible to claim from the UIF after they have resigned of their own free will, due to the fact that they resigned and were not dismissed. All sorts of stories are being told by the employee in an effort to prove that a constructive dismissal has taken place.
Definition of constructive dismissal
The Labour Relations Act 66 of 1995 (as amended) gave statutory status to constructive dismissal. Section 186(1)(e) determines that “dismissal” means, among other things, that “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”
In other words, the employee is compelled to resign due to unfair pressure, unreasonable instructions or unbearable behaviour caused or created by the employer.
Thus, constructive dismissal in general takes place when an employer makes the continued employment or working circumstances of an employee so intolerable that these circumstances are a form of dismissal.
Burden of proof and evidentiary aspects
Constructive dismissal is an extraordinary form of dismissal and is not easily accepted by the courts. Generally, the employer must prove that the dismissal was procedurally and substantively fair and justified. With constructive dismissal, however, the burden of proof rests on the employee, who must prove constructive dismissal on a balance of probabilities.
The employee will have to satisfy the court as to the existence of the following special circumstances and facts that he or she alleges:
1. Continued employment has become intolerable for him or her;
2. The employer must have made continued employment intolerable;
3. No reasonable alternative to resignation was available to him or her and it was done as a matter of last resort;
4. He or she must have lodged a grievance before resigning;
5. He or she must have terminated the contract of employment (resigned); and
6. He or she did not intend to terminate the employment contract, but resignation was his or her last resort.
This is an objective test of whether or not the situation can be tolerated and does not depend on the employer’s perception or personal opinion (subjective) of whether the situation was intolerable.
Additionally, the employee must prove that he/she would have continued working if it wasn’t for the employer’s conduct.
Once the employee has discharged the onus of proving that he/she was constructively dismissed, the onus shifts to the employer to prove that the employee’s action of resigning was unreasonable.
Test for constructive dismissal
The test for determining whether or not an employee was constructively dismissed was set out in Pretoria Society for the Care of the Retarded vs Loots (1997) 18 ILJ 981 (LAC) [also reported at  6 BLLR 721 (LAC). The court found that the test is whether the employer, without reasonable and proper cause, conducted itself in a manner that is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.
When referring it, it is the court’s function to look at the employer’s conduct as a whole and determine whether it’s correct when judged as unreasonable and unjust in such a manner that the employee cannot be expected to put up with it.
Disputes over a possible constructive dismissal must be referred immediately to the CCMA/ Bargaining Council.
An employee must be aware of the scope and degree of difficulty involved in proving constructive dismissal, especially in light of the fact that if an employee resigns and his/her claim for constructive dismissal is unsuccessful, the resignation remains in force.
This article is a general information sheet and 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 your legal adviser for specific and detailed advice.