Case Law Review: Constructive Dismissal

Welcome to this edition of It’s Case Law Review and today we are studying a Labor Court case HC Heat Exchanges versus Victor J. Alderojo and this deals with a contentious issue on constructive dismissal. And why do I say contentious issue? I get to do a lot with these kind of disputes these days and employees just don’t understand or don’t want to accept the stringent requirements that they need to meet if they want to face or file a successful constructive dismissal claim.

What is Constructive Dismissal?

Just a couple of days ago, I think it was like two, three days ago, an employee sent me a whatsapp asking me you know does he have a case for a constructive dismissal case because you know the employer subjected him to a performance review process and it makes him feel unwelcome so i told the employee look maybe you should start performing you know he subsequently resigned and now he wants to know so contentious because a lot of employees feel that you know a stressful environment or my manager swearing at me you know or challenges at the workplace that justifies a resignation and then subsequently claiming a constructive dismissal so employees you know it’s not so easy so let’s study this case law from the labor court and let’s see some pointers as to what constitutes a constructive dismissal claim a Successful what that is. So first of all the legal basis the LRA don’t really elaborate a lot on the issue of constructive dismissal other than saying or providing for in section 186 subsection 1e A definition of what the constructive dismissal is, it’s an employee terminated a contract of employment with or without

notice because the employer made continued employment intolerable for the employee. In this case, He actually at some point put quite some emphasis on that part of the sentence continued employment. Let’s park that for a moment. OK, then they make reference to Eagleton and others versus you ask services, which basically laid down three elements.

Key Elements of Constructive Dismissal

That is important that an employee who claims a constructed dismissal case must be able to prove in order for him or her to be successful and for the CCMO or bargaining council to actually have jurisdiction to entertain this matter. The first one is the employee must have terminated the contract of employment. So if you did not terminate the contract of employment as an employee, there will be no constructed dismissal case. Secondly, and you need to listen carefully, okay?

The continued employment had become intolerable for the employee. And number three, the employer must have made continued employment intolerable, not your colleague. So in essence, if this issue relates to conduct between you and another employee, if the employer does not know about this, there is no constructive dismissal case here. It is the employer that must be the responsible party for making the continued employment intolerable.

The Case of HC Heat Exchangers

Okay so in HC Heat Exchangers this company they manufacture and maintain heat exchanger and they fall under the territory of the MEIBC bargaining council and this is also ultimately where The arbitration was heard. Just, you know, we’re jumping a bit ahead here now. The employee did resign and did file a constructive dismissal dispute to the bargaining council at the council, the commissioner or arbitrator.

found in favor of the employee, and therefore the employee was successful, which was thereafter overruled by the labor court.

But we’ll get to that. So first of all, this employee was employed as a health and safety manager at this company. And at this specific time of where this series of events that led to his resignation occurred, the employer wanted to move their workshop And wanted to build a bigger workshop and because it was no longer operationally possible to maintain services with limited space in their capacity in terms of the workshop.

The current one that is so. Part of the concerns were that considering that the employee, that this employee was then in charge of this project from a health and safety perspective, he was concerned that the employer did not engage or followed all his recommendations in terms of, you know, ensuring a more health and safe working environment. He weekly had to submit reports and as there was a looming deadline for this project to finish, I believe that was like the 15th of January the following year, this relationship between him and the factory manager also then becomes strained, especially from his side, you know, because they

are not actually following his recommendations or all of his recommendations. The employer stated that, look, every single recommendation that this employee made was duly considered, but they could not, for operational reasons necessary, adopt all Hafez’s recommendations. But they did at least consider it, and they also had constraints in terms of operational capacity, and also they were short staffed. But what they did then do is they listed all the health and safety recommendations in terms of severity and in that sequence they attended to all the health and safety recommendations made.

But ultimately not all of the recommendations were implemented. What also aggravated the matter is that even though we generally or typically had a good relationship with the factory manager, at this time the relationship between him and the manager soured because it seems like the employee was allowed to use the factory manager’s vehicle quite often, but the factory manager became frustrated with the employee because every single time allegedly when he returns the vehicle there’s always a mechanical fault and that he will not report the mechanical fault to the factory manager. He then denied access to the employee to use the vehicle and later then the company then allocated the employee with his own company vehicle in order to commit to his duties.

But unfortunately the employee was unhappy with the company vehicle and he raced that with the factory manager and at that point in time the factory manager actually snapped. He became quite verbally abusive with the employee. He started swearing at him and he actually threatened to harm him. So he actually threatened to harm.

The Aftermath and Employee’s Actions

So okay, the two separated. They continued with their work. No further incidents or issues. Then the very next day, the employee reported for duty as normal.

However, he did not feel well. He went to the HR and he wanted to report what happened the previous day, but told the HR, listen, he just wants to go to the doctor first before he reports what happened. And then the HR manager actually invited him and said, listen, come sit down and explain to me what happened, you know, so that he can deal with the matters. The employee refused and said, I first want to go to the doctor.

The only issue is the employee was in booked off for about two weeks and he never actually, for another week or two thereafter, he actually never returned back to work. What he actually did do is after the two weeks expired, he then filed for a protection order against the factory manager, submitted the grievance to the company.

And then shortly thereafter, he simply handed in his resignation. So that is basically the situation.

What the Labor Court Said

So he was aggrieved by the employer not following his health and safety recommendations, but then also this spat between him and the factory manager. So okay, so we do have the first element of the three elements that can help with a successful construct of this muscle claim in that the employee terminated the employment with the employer. So okay, let’s just some highlights quickly in terms of some labor court judgments. Most of them are actually from heat, AC heat exchanges and what was referred to inside this case study.

Some very important steps of or clauses from this case law that will actually assist us in maybe have a better understanding as to how the courts look at the subject of a constructive dismissal and thereafter we’re going to look at how did the labor court actually deal with this matter. Okay, so in heat exchangers and the court the learned labor court judge argued in clause 44 that the best point of departure in deciding a matter relating to constructive dismissal is to understand that this concept does not emanate from the LRA. So other than the definition, there’s no elaboration really or additional provisions in the LRA or in the Code of Good Practice really that focus on constructive dismissal.

But it is a concept that was adopted by English law by the former industrial court in the course of the development of the labor law jurisprudence under the former LRA. This concept entails the notion that there existed an implied term in the contract of employment of an employee that an employer would not conduct itself in a manner designed to bring about a destruction or material damage to the relationship of trust and confidence underlying the employment relationship. So I suppose that’s the foundation. It’s actually called fiduciary duty.

In other words, the foundation of the employment relationship from both the employer and the employee is one of good faith and goodwill between the parties. The new code of good practice actually mentions this mutual respect between the employer and employee. So an employer must not deliberately try to seek destruction of this relationship. OK, the court continues and then clarified what is meant.

What is Meant by “Intolerable”?

And this is the key word. What is meant by intolerability? You know, sometimes your employer don’t greet you and this is becoming intolerable or they didn’t pay you on time and this is intolerable. You know, I suppose we all have our own tolerability threshold, but you know what, there’s actually the intolerability threshold in terms of law.

It is a very high threshold, okay? So let’s see what the judge is saying. In my view, intolerability is far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter, an obnoxious, rude and uncompromising superior who may treat employees badly. Even a breach of the employment contract, deductions from salary, or unfair disciplinary action would not per se establish intolerability.

As you already can see, intolerability is a very high threshold. In Barker v. CCMA and others, the court said the following, intolerable is not actually defined in the LRA. But it’s a strong word which suggests a high threshold.

In this regard, Krogan in his workplace law states, the requirement that the prospect of continued employment be intolerable suggests that this form of dismissal should be confined to situations in which the employer behaved in a deliberately oppressive manner.

in a deliberately oppressive manner, okay? H. J.

Heath continues to say, the onus to prove the existence of intolerability rests squarely upon the shoulders of the employee party. The subjective views of the employee are of no consequence in discharging this onus, as the inquiry to establish where the intolerability exists is always an objective one. So first of all, your subjective feelings probably does not really play much role in this debate as to whether the continued employment relationship was indeed intolerable. It’s an objective test.

Importance of Following Proper Grievance Procedures

In Bandit vs. De Kock and other, the court considered the dicta in both Lourdes and Albany bakeries. An important component of establishing such a genuine belief, then, has to be the use of suitably available alternative remedies

Key Takeaways

• Constructive dismissal requires the employee to have terminated their employment contract due to the employer making continued employment intolerable
• Employees must prove three key elements: 1) termination of contract, 2) continued employment became intolerable, and 3) the employer, not a colleague, made employment intolerable
• “Intolerable” is a high threshold that goes beyond just a difficult or stressful work environment – the employee must objectively prove the situation was truly intolerable