Tuesday, July 11, 2023
The relationship between an employer and employee is one of reciprocation in that the employee performs work or services for the employer under certain conditions in exchange for remuneration.
In certain instances, the period of employment will be fixed. This is where, for example, a permanent employee has gone on maternity leave and another employee has been appointed in their place on a fixed-term contract.
In terms of our law, an employee may not be appointed on a fixed-term contract to perform the functions of a permanent employee unless certain conditions exist.
In other circumstances, the period of employment will be indefinite, and the employee will be expected to work indefinitely until the employment relationship is terminated by either party or the retirement age is reached.
The employment relationship may be terminated by either party with the employee usually terminating the relationship by resignation or the employer terminating the relationship due to misconduct or other reasons on the part of the employee.
However, it may also be so that the employee terminates the employment relationship due to the employer making the continued employment relationship intolerable. In these circumstances, the employee will have a claim against the employer for what constitutes constructive dismissal.
The first test which must be passed in order to claim constructive dismissal as laid out by our legislature is that there must have been no other motive for the resignation by the employee. In other words, had it not been for the unacceptable conduct on behalf of the employer, the employee would have continued their employment indefinitely.
The onus of proof rests on the employee in these instances to evidence that the employer was responsible for creating the intolerable conditions and that resignation from the position was the only available option.
In the Labour Appeal Court matter of Pretoria Society for the Care of the Retarded v Loots it was held that the Court would look at the employer’s conduct as a whole in determining whether its effect is such that it renders the continued working relationship intolerable.
The matter of Coetzer v The Citizen Newspaper, and Kruger v CCMA & Another, reiterated that constructive dismissal is to be determined objectively and that resignation must be the last resort.
Some instances of constructive dismissal of South Africa have been the following: - Suspension of an employee without pay after the employer experiences financial difficulties; - The employer’s unilateral reduction of an employee’s salary; - Demotion as a result of a restructuring exercise; - Unfair disciplinary action taken against the employee may amount to a constructive dismissal.
In the matter of Pretoria Society for the Care of the Retarded v Loots it was held that a constructive dismissal had taken place where the employer had rendered the working environment intolerable for the employee by, among other things, “throwing the book at her, finding her guilty of matters for which she could not be held responsible, humiliating her by publishing the news of her final written warning to the parents of inmates, and depriving her of keys.”
It appears as though in cases of constructive dismissal, the onus of proof rests on the employee, and as such it is important that the employee well documents all instances of unfair treatment which would amount to constructive dismissal.
If you are able to prove constructive dismissal from your employment, you will be able to claim damages from your employer.
If you are an employee and you find yourself in a situation where you feel that you are being constructively dismissed, we urge you to make contact with our offices today and speak with one of our dedicated legal professionals.
If you are an employer facing a situation where disciplinary action is necessitated against an employee, we ask that you contact our office for guidance as to how to take the appropriate steps.
author : Rebecca Stassen