Constructive Dismissal

The Labour Relations Act (the LRA) has introduced into our law the concept of constructive dismissal. Constructive dismissal means that an employee can claim that he/she was unfairly dismissed if the employee can prove that (1) the resignation was not voluntary and (2) that the resignation was 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 once-off incident or because of a series of incidents. An example of a once-off incident could be an assault of the employee by his/her employer. When resignation occurs due to a series of events the employee will have to prove that he or she has exhausted all internal processes prior to submitting the letter of resignation. This will include 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 (CCMA).
In the recent case of Murray vs Minister of Defence, the Supreme Court of Appeal (the SCA) has found that the concept of constructive dismissal as developed by the LRA and the Labour Courts also forms part of the common law contract of employment. Mr Murray was employed by the SANDF and was therefore excluded from the LRA. The facts of the matter were that Mr Murray was employed as the head of the military police in Simonstown. After 1992 a conflict arose between himself and his subordinates which led to two court hearings being held against him. He was cleared by both court hearings.
During this time the SANDF embarked on a restructuring exercise which resulted in Mr Murray's position as head of the military police station being downgraded. An officer of a junior rank to Mr Murray was appointed into this position.
The SANDF offered Mr Murray a senior position in Pretoria which Mr Murray rejected. He resigned seven months after this position was offered to him. The SANDF did not explain the details of this position to Mr Murray nor did Mr Murray enquire about the details of the position. The SCA found that, taking into account the employment conditions of Mr Murray since 1992, there was a duty on the SANDF to explain the details of the position to Mr Murray. It therefore found that Mr Murray's resignation amounted to a constructive dismissal.
The SCA 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 persuaded 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 in order to avoid being faced with a claim for constructive dismissal.
ABOUT THE AUTHOR: Felicia van Rooi
Felicia van Rooi is a partner at Eversheds, South Africa. She specialises in employment law.