On Sunday, 16 June 2019, I was invited for an interview at Lesedi FM, the Sesotho radio station that's part of the SABC, to discuss the concept of constructive dismissal. The interview was scheduled for 6:10 am, although it only commenced at 6:40 am due to radio programming. The experience in the studio is always fascinating.
The discussion required us to speak in the Sesotho language and obviously required those who knew of the scheduling to rise early. Due to the barriers of language for some listeners, which embarrassingly also affected me during the interview - mainly due to legalese and the fact that it commenced early – I have also decided to share my views on this concept here. Considering the number of calls and social media messages from the listeners, it became apparent that most employees suffer at the hands of their employers and do not know whether the law provides a remedy for their pains.
Constructive dismissal has no common law antecedent. In terms of the Labour Relations Act 66 of 1995 (“LRA”), it falls under the umbrella of the forms of dismissal codified under section 186 of the LRA. Section 186(1)(e) describes it as "a dismissal whereby an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee".
In September and Others v CMI Business Enterprise CC  ZACC 4 Justice Theron held that the “concept of constructive dismissal is legalese and is generally foreign to non-lawyers. It would be expecting too much of a non-lawyer who has her- or himself left employment without a pronouncement by the employer that she or he was being dismissed, to know that she or he had, in fact, been dismissed”.
The problem with understanding the concept of constructive dismissal is largely due to the fact that the Courts have reasoned that the circumstances of constructive dismissal are infinitely various, and that there can be no rule of law saying what justifies a case for constructive dismissal and what does not.
The test for whether the employer has rendered the prospect of continuation of the employment relationship intolerable, is objective, meaning that the existence of a constructive dismissal cannot be determined from the state of mind of the employee alone, and this is often the hurdle. However, the central question is always focused on whether the conduct of the employer that prompted the employee to resign, was fair or unfair.
Actions which have been accepted by the Courts and CCMA Arbitrators which may justify founding claims of constructive dismissal include, but are not limited to:
1. an offer of inferior employment coupled with a threat of dismissal if the employee did not accept the offer;
2. continuous unlawful deductions from an employee’s salary without adhering to due process;
3. sexual harassment and other forms of harassment whether by your employer or colleagues; and
4. unjustified disciplinary action and general ill-treatment by an employer.
Employees need not have formally resigned to establish a case of constructive dismissal. In fact, constructive dismissal may be proved even when the employee has simply left his/her employment in circumstances that would otherwise have amounted to desertion.
Constructive dismissal is considered to be one of the most difficult cases to prove as at times, the employee would have a subjective view on the matter, or colleagues would refuse to testify on your behalf with the fear of losing their jobs - hence it is important to exhaust internal processes first. All that is required is to prove that an employee was left with no option but to resign.
Therefore, in order to proceed with such a claim, one must approach the CCMA within a period of 30 days from the date of the termination of employment. At the CCMA, the employee may seek compensation. A request to be reinstated is normally regarded as mutually destructive to the dispute. However, this may not be the case where the circumstances which rendered employment intolerable no longer exist at the workplace. Meaning, your employer may have taken steps to address the circumstances that made continued employment intolerable.
Lastly, the incidents of which the employee complains must clearly have occurred before the employee resigned or deserted his position, but this should have been for too long, otherwise the question will be raised why the employee was willing to put up with them.
Therefore, to those who could not rise early to listen to the interview and to those that could not understand the language, I have tried to illustrate that although difficult to place in a box, the concept of constructive dismissal simply means that your employment rights are protected as soon as you can no longer put up with the terrible working conditions with no resolution in sight. One must consult an attorney for the necessary advice and assistance.
Let us continue to learn!