An employer may be tempted, when an employee resigns, to breathe a sigh of relief and think “great, I got rid of a problem without having to jump through all the hoops of a disciplinary enquiry/retrenchment process”.
Not so fast! One of the protections our law provides to employees is the “constructive dismissal” concept, and every employer and employee should understand what that is, and how it works in practice.
The 3 requirements to establish a constructive dismissal
A recent Labour Court decision sets out the requirements thus –
Two special needs teachers resign after workplace bullying
Two other things to bear in mind in a constructive dismissal claim were addressed in this matter…
The need to “exhaust all internal remedies” first
“Generally speaking”, as the Court put it, “an employee is required to exhaust all possible internal remedies prior to resigning and claiming a constructive dismissal.” Only where the available channels for raising a grievance “are ineffective or where on the facts it would be futile for the employee to resort to a grievance procedure, an employee is not necessarily precluded from claiming constructive dismissal.”
In this particular case, although the two teachers did not follow the grievance procedures set out in their contracts of employment, the Court held that this channel had not been open to them as the “immediate manager/director” to whom they were supposed to direct their grievances was the very person they were complaining about.
As an employee however, the general rule is this – follow whatever internal grievance procedures apply in your workplace or you could lose your claim.
Is “working your notice” inconsistent with constructive dismissal?
The employer argued that the teachers’ willingness to work out their month’s notice periods was “incompatible with any notion of intolerability of future employment”. Not so, held the Court, the teachers were acting “out of their sense of duty towards the learners in their care, and the need for a smooth transition so as to minimise any harm that might be caused to them.”
Employees should however be careful here – without such special circumstances a willingness to work out a notice period could well be taken as proof that your working conditions are not as intolerable as you claim.
NOTE FOR ATTORNEYS: The judgment in Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others (JR 1619/2018)  ZALCJHB 109; (2020) 41 ILJ 2623 (LC);  11 BLLR 1123 (LC) (19 June 2020) is on SAFLII.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)