Constructive Dismissals – a difficult case to prove
By Johanette Rheeder
Constructive dismissal has become a convenient escape for disgruntled employees and we find more
and more that employees resign with a special condition to their resignation, so as to keep open the
back door for a claim of constructive dismissal, alternatively the employee just refers a constructive
dismissal dispute to the CCMA after resignation.
Various cases went through the Labour Court and the CCMA this year and the principle still remains, if
you make the work life unbearable for an employee, resulting in a resignation, it will constitute a
dismissal. In such a case, the employee bears the burden of proof, which is not always an easy burden to
comply with. To succeed in the claim that the employee was constructively dismissed, the employee has
to show that objectively assessed, the conditions at the workplace were so intolerable that he or she
had no other option but to terminate the employment relationship.
The test for determining whether or not an employee was constructively dismissed was set out in
Pretoria Society for the Care of the Retarded v Loots1
: The LAC found that the test is whether the
employer, without reasonable and proper cause, conducted itself in a manner which is calculated or
likely to destroy or seriously damage the relationship of confidence and trust between the employer and
employee. It is not necessary to show that the employer intended any repudiation of a contract.
When referring it, it is the court's function is to look at the employer's conduct as a whole and
determine whether its effect, judged reasonable and sensibly is such that the employee cannot be
expected to put up with it.
Van Greunen v Johannesburg Fresh Produce Market (Pty) Ltd2
is one such example where the applicant
just could not satisfy the court as to the facts of constructive dismissal. The employer changed her terms
and conditions of employment, which can be a ground for constructive dismissal, however the conduct
of the employer must be unjustified and the working conditions intolerable. In this case it was not.
The applicant had served as manager of the office of the respondent’s CEO for about a year, a new CEO
was appointed. Soon after this, the applicant was informed that a post of personal assistant to the CEO
had been advertised, and she was offered a choice between two posts in the HR Department. The
applicant filed a grievance, the upshot of which was an undertaking by the respondent to supply the
applicant with details of the alternative positions. After the respondent insisted that she accept one of
the two alternative posts, the applicant resigned. She claimed that she had been constructively
dismissed, and that the dismissal was automatically unfair because it was based on her race.
The Court noted that the applicant was initially prepared to move from the office of the CEO, but had
insisted that she be transferred to the marketing department. The applicant had also been prepared to
accept a lateral transfer to the HR department on the same salary, but had merely insisted on details of
those posts before she resigned. The applicant’s evidence that she had been deprived of a telephone
was improbable. The application was dismissed, with no order as to costs.