By Fawzia Khan, Fawzia Kahn and Associates
Conventional wisdom tells us that when an employee tenders his/her resignation to their employer, which resignation is then accepted, this terminates the employment contract between the parties, and the employee will normally not have any claims against the employer.
However, if the conduct of the employer is such that it causes the employee to find the workplace environment so intolerable, which leaves the employee with little or no option but to resign, this is termed “constructive dismissal” and the employee could then have a claim against the employer.
Section 186 (1) (e) of the Labour Relations Act says that in circumstances where “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”, this would constitute a dismissal. The resignation was therefore not a voluntary one and because of the employer’s conduct, the employee was forced or coerced leave his/her employment. Of course, if an employee resigns so as to avoid any disciplinary hearing or because of any misconduct on his path, that will not be considered as a constructive dismissal.
Constructive dismissal ultimately means that the employee was unfairly dismissed. To prove this, the employee must prove two vital facts.
Firstly, that the resignation was not voluntary. Secondly, that the resignation was due to the conduct of the employer who made it intolerable for the employee to continue working.
However, constructive dismissal claims are notoriously difficult to prove. In normal dismissal claims, the onus lies with the employer to prove that the dismissal was procedurally and substantively fair. However, in a constructive dismissal claim, the burden of proof shifts from the employer to the employee. Now the employee must prove the constructive dismissal, on a balance of probabilities. The employee must prove the intolerable work conditions.
The employer does not need to show that he did not introduce any intolerable condition. If the employee cannot prove the introduction of intolerable condition at work, he/she will not succeed with the claim of constructive dismissal.
Once the employee at the CCMA proves a constructive dismissal, the onus shifts to the employer to prove that the dismissal was fair.