adminMatthias Ruziwa H R Issues
The singular feature of a dismissal . . . generally known as constructive dismissal, is that the employee, rather than the employer, ends the contract with or without notice.Employees who do so can claim to have been dismissed if they can prove that the employer made continued employment intolerable for them.
Section 12B (3) of the Labour Act, Cap 28:01 states that an employee is deemed to have been unfairly dismissed –
(a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.
I have come across several experiences where employees claim constructive dismissal from employment on the basis of the above mentioned provision of the Labour Act. In most cases, it has been very difficult for claimants to substantiate the claim of constructive dismissal hence in this article, I will make an attempt to explain what is constructive dismissal and how it can be proved.
What is constructive dismissal?
J Grogan in his book “Dismissal, Discrimination and Unfair Labour Practice”, enunciated constructive dismissal as follows, “The singular feature of a dismissal . . . generally known as constructive dismissal, is that the employee, rather than the employer, ends the contract with or without notice. Employees who do so can claim to have been dismissed if they can prove that the employer made continued employment intolerable for them.”
In simple terms, constructive dismissal is where an employer has committed a serious breach of contract, entitling the employee to resign in response to the employer’s conduct.
The employee is entitled to treat him or herself as having been “dismissed” and the employer’s conduct is often referred to as a “repudiatory breach”.
It is not enough to show merely that your employer has behaved unreasonably. There must be a fundamental breach of an express contractual term, or the implied term of “trust and confidence”. Furthermore, you must have left because of the breach, and you should make it clear when you resign that you regard yourself as having been “constructively dismissed”.
Examples of breaches of contract by an employer entitling an employee to claim constructive dismissal include:
A reduction in pay, or not being paid at all;
Forced transfers
Being demoted without good reason;
Abuse or sexual harassment;
A complete change in the nature of your job;
Harassing or bullying;
Failing to make reasonable adjustments where you have a disability;
Being forced to work in breach of health and safety laws.
To establish a claim of constructive dismissal, there is absolute requirement that you must state your reason for leaving at the time. However, where no reason is communicated to your employer at the time, a tribunal might more readily conclude that your employer’s conduct was not the real reason for your leaving. You do need to be careful not to be seen to have waived any breach by your employer.
This can happen where there is a long delay in lodging a grievance or resigning. For example, in the matter between Rainbow Tourism Group v Nkomo, SC Judgement No 118/14, the Supreme Court remarked that;
“Where an employer commits a breach which goes to the root of the employment contract the employee is entitled to treat himself as discharged from further performance. He is constructively dismissed. However, he must act promptly. If he continues for any length of time without leaving, he will lose his right to treat himself as discharged.
“He will be regarded as having elected to affirm the contract. The respondent did not leave at the instant nor did he give notice and say he would be leaving at the end of the notice. He continued to attend at work and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right up to the end of January 2013. His was not the conduct of one constructively dismissed. He was properly dismissed for absenteeism.”
In another matter between Western Excavating v Sharp [1978]1 ALL ER 713 LORD DENNING MR at 717 d f said;
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.
“The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”
What does an employee
have to prove in order to win
a constructive dismissal case?
Courts of law enumerate the critical issues for determination and these are: –
a) Whether the employee brought the contract to an end
b) Whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable
c) Whether the employee had no reasonable alternative other than terminating the contract.
The onus of proving these requirements rests on the employee.
Firstly, the employee must terminate the employment agreement. This is via a resignation. It is easier to prove this if the resignation is in writing rather than an oral resignation. The employer can, at a hearing tribunal deny that the employee resigned and contend that she absconded or was dismissed for another reason.
Secondly, the written resignation should set out the reasons for the resignation. In one case an employer told an employee to “f…off”. The employee did as he was told and later claimed that he had been constructively dismissed. However, a superior court held that he had not been constructively dismissed because it was the employer who had terminated the employment relationship and not the employee.
The employer must make continued employment intolerable. This is often difficult to prove. Not liking your boss or that he shouted at you during an argument is not enough.
Another good example is in the matter between Albert Juruvungwe and Packrite (Pvt) Ltd Judgement No, LC/H/618/13, where appellant does give non-payment of salaries and benefits as the reason he resigned in 2011.
The Labour Court`s learned Judge E. Kabasa remarked that; “An employer should pay the agreed salary and
where he withholds it for no valid reasons, it can be said his conduct is a significant breach going to the root of the contract.
However, I am of the view that a distinction must be made where the payments are being made in ‘bits and pieces’ due to the Company’s poor performance as opposed to the employer deliberately making such erratic payments so as to frustrate the employee.
The Appellant was a member of senior
management and obviously knew how the company was performing, as borne out by his assertion that it was “ . . . on the brink of collapse.”
In Murray v Minister of Defence cited with approval by the Constitutional Court of South Africa in Strategic Liquor Services, the Supreme Court of Appeal emphasised that;
“ . . . the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So, the critical circumstance must have been of the employer’s making. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do that make an employee’s position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must have lacked ‘reasonable and proper cause’”.
The courts may acknowledge that if you have been put in an outrageous and embarrassing position, that it is understandable that you would not want to confront your employer with your reason for leaving at that time. However, there must be some evidence that your employer’s breach was at least a factor. For this reason, it is always best to specify in your resignation letter why you are leaving.
Constructive dismissal is not easily proved in most circumstances. I therefore strongly advise employees not to resign without taking legal advice first. You may otherwise lose an important tactical advantage against your employer.
Disclaimer: Opinions expressed herein are solely those of the author.
Matthias Ruziwa is an experienced Arbitrator and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address: [email protected]/whatsapp 0773 470 368.
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