2nd November 2009

Dear Reader

As promised last week, we will be dealing with some judgements relating to constructive dismissal delivered by the Labour Courts, in this week’s newsletter.
In the recent case of Executive Council for the Department of Health, Eastern Cape v Odendaal and Others (P504/07 ) [2009] ZALC 5 (13 January 2009) the Labour Court confirmed that law in respect  of constructive dismissal is as follows:

"In considering what conduct on the part of the employer constitutes constructive dismissal, it needs to be emphasized that a constructive dismissal' is merely one form of dismissal. Ina conventional dismissal, it is the employer who puts an end to the contract of employment by dismissing the employee. In a constructive dismissal it is the employee who terminates the employment relationship by resigning due to the conduct of the employer. As Lord Denning said in Woods v WM Car Services (Peterborough) Ltd (1982) IRLR 413 (CA) at 415: 'The circumstances [of constructive dismissal] are so infinitely various that there can be, and is, no rule of law saying that circumstances justify and what do not. It is a question of fact for the tribunal of fact...'

The Labour Appeal Court has also made it very clear that an aggrieved employee should always seek to resolve the issue between himself and his employer through the employer’s internal grievance procedures.  Thus resigning should be the last resort available to the employee.  This was confirmed in the following judgements:

Albany Bakeries Limited v Van Wyk (JA1/04 (LAC) “The decision of an employee to leave because of the intolerable work relationship has to be a last resort.” Also in the case of Old Mutual Group Schemes v Dreyer and Another (1999) 20 ILJ 2030 (LAC) the Labour Appeal Court had the following to say about resigning before attempting to resolve the issue through a grievance procedure:

“Billikheid sal normaalweg ook vereis dat ‘n werknemer wat met sy werkgewer se opdrag teen prosedures ontevrede is, aan die werkgewer ‘n geleentheid bied om sake waaroor daar onmin bestaan reg te stel. ‘n Werknemer kan, afgesien van ekstreme situasies, dus nie maar net uit die bloute
bedank en dan aanvoer dat die diensverhouding onuithoudbaar geword het nie.”

Thus the Labour Courts feel that fairness requires of the employee to afford his employer the opportunity to rectify his unacceptable and intolerable behaviour. It is acknowledged that in some circumstances it cannot be reasonable to expect of an employee to first explore his grievance through a grievance procedure.  There is no clear rule as to what would constitute such circumstances, and once again it will have to be determined on the facts before the court just as with the question of what behaviour constitutes a constructive dismissal.

This point of view was also reiterated in the Labour Appeal cases of Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 1 (LAC) and Jooste v Transnet t/a South African Airways.  In the Old Mutual case referred to supra Judge Conradie referred to the Loots case in which mention was made of a belief of the employee that the employer will never reform or abandon the pattern of creating an unbearable work environment and questioned how an employee will be able to prove that he brought his unhappiness with his employer’s conduct, under his employer’s attention:

“How will an employee ever prove that if he has not adopted other suitable remedies available to him? It is, firstly, also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire. Secondly, from the very concept of intolerability one must conclude that it does not exist
if there is a practical or legal solution to the allegedly oppressive conduct. Finally, it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem."

It has crystallized from various cases in the CCMA, Labour Court and Labour Appeal Court that examples of constructive dismissal can be:

• An employer failing to pay an employee his remuneration
• When an employer set unreasonable sales targets or change these targets to suit the employer;
• Unreasonable demotion, here it should be kept in mind that before resigning the aggrieved employee can refer demotion to the CCMA or relevant Bargaining Council as an unfair labour practice,

It is of extreme importance to remember that there is currently no written rule as to which actions or behaviour on the side of the employer will constitute constructive dismissal and what not.  So even in the examples mentioned above, depending on the facts, the court may still find that there was no constructive dismissal.  The court will examine the facts before it, to come to a conclusion.
Cases of constructive dismissal might be the most difficult cases to refer successfully.  It is very important to:

• First attempt to resolve the issue at hand through internal grievance procedures;
• If you are then sure that the employer is not going to reform or abandon the creating of intolerable circumstances, you can resign;
• Your resignation should be worded correctly and should not create any doubt in the mind of the reader that the reason for your resignation is the employer actions, which has not been remedied, and that due to his actions he  has repudiated the employment contract;
• Furthermore that it is impossible to do what you were appointed to do and you would have stayed on indefinitely if it was not for your employer’s actions.

Contact us before you hand in your resignation, we are here to help and assist you.

Next week we will discuss the Transfer of a business as a going concern to a new employer and how it can affect you.

Me. L Bouwer
General Manager: Legal Assistance

Please Contact Us:

E -Mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Please give us a brief account of your case as well as your contact numbers and we will contact you promptly.

 We Are Not The CCMA, Neither are affiliated to them. You may visit  the CCMA website on:
http://www.ccma.org.za/  Or contact their Call Centre 0861 16 16 16

For Further Information, Please See:

http://www.retrenchmentassist.co.za/index.php/unfair- dismissal/constructive-dismissal

http://www.retrenchmentassist.co.za/index.php/ccma-representation/arbitration

http://www.retrenchmentassist.co.za/index.php/ccma-representation/dispute- resolution-process

http://www.retrenchmentassist.co.za/index.php/ccma-representation/conarb-process

http://www.retrenchmentassist.co.za/index.php/ccma- representation/concilliation

http://www.retrenchmentassist.co.za/index.php/ccma-representation/condonation