Introduction
A healthy working environment is a breeding ground for productive and efficient employees. However, this is not always the case. In our Constitutional dispensation, gender, culture, and orientation diversity have become the norm in all spheres of interaction, yet some employees are often harassed on these aspects to the extent that it is no longer feasible to pursue a working relationship with their employer. An employee’s resignation because of the treatment they endure in the workplace may constitute a constructive dismissal.
Constructive Dismissal
Constructive dismissal primarily means that an employee resigns and claims that the reason for their resignation was their employer’s intolerable conduct towards them and not necessarily that they wanted to leave. Some employees are often verbally abused and unfairly discriminated against in the workplace by other employees due to their sexual orientation, gender, or culture.
The 2016 report by the South African Human Rights Commission on Unfair Discrimination in the Workplace, notes that the right to equality is the central component in international, regional, and domestic laws advocating for an equitable workplace; as such, all employees ought to be treated equally.
The concept of constructive dismissal was brought into the spotlight in the case of Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and others [2020] 11 BLLR 1123 (LC). The case was brought before the labour court on review following the CCMA Commissioner’s finding that two employees had terminated their employment due to the intolerable working environment wreaked by the employer, in accordance with section 186(1)(e) of the Labour Relations Act 66 of 1995.
The Court noted that there are often insignificant degrees of anger, dissatisfaction, and stress in workplace interactions. In general, the learned Judge concluded that these factors are inadequate to show that continued employment is intolerable. There is a need for more.
The court further referred to the case of Experian Regent Insurance Co Ltd v Commission for Mediation & Arbitration and others (2013) 34 ILJ 410 (LC);
“The court’s function is to look at the employer’s conduct as a whole and to determine whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it. The conduct of the parties is to be looked at as a whole and its cumulative impact assessed . . .”
While it is true that employees who say their workplaces are intolerable should register a grievance before resigning, this is not a rule cast in stone; each case must be assessed on its own merits. The two employees in casu Centre for Autism Research and Education, in addition to being treated abusively, demeaningly, and insultingly by their employer, had also complained about being treated degradingly by that employer and evidence revealed that the employer has persistently been bullying employees, which constitutes harassment and has rendered the work environment intolerable.
Upon reviewing the evidence, the Court determined that the only element of the test in dispute was whether the employees could demonstrate, objectively, that continuing employment by the employer was so unbearable that they could not be reasonably expected to continue to remain employed by the employer.
In order to prove a case of constructive dismissal, the employee must clearly prove that employment circumstances were so intolerable that the employee could not reasonably remain employed by that employer, the unbearable circumstances were the cause of the resignation of the employee, there was no reasonable alternative at the time but for the employee to resign to avoid the intolerable working conditions, unbearable working conditions must have been caused by the employer and that employer must have been in control of the intolerable working conditions.
It was unanimously held that the Court had no hesitation in finding that the nature and extent of the workplace bullying suffered by the employees in casu Centre for Autism Research and Education made their continued employment intolerable in terms of Section 186(1)(e) of the Labour Relations Act. As punishment for the employer’s conduct, the Labour Court ordered punitive costs against the employer, and the review application was dismissed, with costs on the Attorney-client scale.
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