What is constructive dismissal?

Davies Ndumiso Sibanda
MANY workers after being dismissed from employment allege constructive dismissal and start litigation claiming unfair dismissal. At law, proof of constructive dismissal is not as easy as employees think. The test hinges on a number of things. Courts have defined constructive dismissal as conduct by the employer, which goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct, the employee leaves employment.

Many workers, when dismissed from employment bring up a lot of allegations of unfair treatment by the employer and argue that aggregated conduct of the employer constitutes constructive dismissal. This is wrong, constructive dismissal meaning is guided by the famous English case Western Excavating vs Sharp, which has been cited widely in our labour cases and was quoted in the matter of Astra Holdings Pvt Ltd vs Peggy Kahwa SC97/04 where the court said, for allegations of constructive dismissal to stick there must immediate reaction by employee otherwise if the employee does not leave immediately he will lose the right to have allegations of constructive dismissal confirmed.

The Judge quoted an English case Western Excavating vs Sharp (1978)1 ALL ER713 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.”

This provides guidelines for a constructive dismissal claim. This judgment clearly shows us that the conduct of the employer must go to the root of the relationship. This must be conduct by the employer which no reasonable employee can be expected to put up with, further, the employee must immediately resign otherwise he will be regarded as having affirmed the contract. Workers should be careful as resigning over matters that go to the root of the relationship will not qualify them for constructive dismissal.

In my reading of the law, the employee must immediately after the employer’s conduct leave employment and thereafter raise a case of unfair dismissal. If one is still at work he cannot claim constructive dismissal as there will be no dismissal. Further, employees must prove the conduct by the employer goes to the root of the relationship, a very difficult thing to prove.

In conclusion, those who want to raise cases of constructive dismissal must seek proper legal advice before deciding to leave employment as there is a chance of losing both their jobs and cases.

Davies Ndumiso Sibanda can be contacted on: Email: [email protected].