Articles

Employers must guard against constructive dismissal claims

Sunday Times 5 April 2009
By Felicia van Rooi

It is generally accepted that, when an employee submits a letter of resignation, the letter brings the employment relationship to an end and the employee has no further claim against the employer.

But the Labour Relations Act has introduced into our law the concept of constructive dismissal.

Constructive dismissal means that an employee can claim that he or she was unfairly dismissed if it can be proved that the resignation was:

• Not voluntary; and
• Took place because the employer made it impossible for the employee to continue to work under the circumstances.

This type of resignation can be due to a one-off incident or because of a series of incidents.

An example of a single incident would be an assault of the employee by his or her employer.

When resignation occurs due to a series of events, the employee will have to prove that he or she exhausted all internal processes prior to submitting the letter of resignation. This includes lodging a formal grievance by using the company's grievance procedure, or lodging informal complaints.

It has been commonly accepted that constructive dismissal is extremely difficult to prove in the Labour Court and at the Commission for Conciliation, Mediation and Arbitration.

In the recent case of Murray vs Minister of Defence, the Supreme Court of Appeal found that the concept of constructive dismissal as developed by the act and the courts, also forms part of the common law contract of employment. Murray was employed by the SA National Defence Force and therefore excluded from the Labour Relations Act.

The facts of the matter were that Murray was employed as the head of the military police in Simon’s Town. After 1992, a conflict arose between him and his subordinates, which led to two court hearings being held against him. He was cleared by both.

During this time the SANDF embarked on a restructuring exercise which resulted in Murray's position as head of the military police station being downgraded. An officer of a junior rank to Murray’s was appointed into this position.

The SANDF offered Murray a senior position in Pretoria, which he rejected. He resigned seven months after this position was offered to him. The SANDF did not explain the details of this position to Murray, and he did not inquire about the details of it.

The court found that, taking into account Murray’s employment conditions since 1992, there was a duty on the SANDF to explain the details of the position to him. It therefore found that Murray's resignation amounted to a constructive dismissal.

The court seems to have shifted the onus of proof that all internal remedies have been exhausted by the employee from the employee.
It places a duty on the employer to prove that it has tried to persuade the employee that the employment relationship has not broken down.

It is therefore important for employers, in their dealings with employees, to respond to employees’ complaints in writing and, if they consider offering or transferring an employee, to explain the details of the position in writing to avoid being faced with a claim for constructive dismissal.

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