Constructive Dismissal in Employment Relationships
Constructive Dismissal is a species of unfair dismissal which occurs in an employment relationship when an employee terminates the contract of employment because the employer deliberately made the continued employment of the employee intolerable.
The invariable starting point is Section 12B (3) of the Labour Act[1] which provides that:
“(3) An employee is deemed to have been unfairly dismissed—
If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;
This means that a two-pronged factual inquiry is usually undertaken by the Court to determine whether:
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- The Employer’s conduct was such that they deliberately made employment intolerable for the employee; and
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- Whether the employee terminated his employment with the Employee because of such conduct.
Inquiry 1: Whether the Employer’s conduct was such that they deliberately made employment intolerable for the employee
In Rainbow Tourism Group v Richard Nkomo[2] it was agreed that the onus to establish that the employer’s conduct was such that it made the employees employment with the employee intolerable, is on the employee. The question which then arises is “What type of conduct by an Employer meets the standard of making an employee’s employment intolerable?”
In Astra Holdings (Pvt) Ltd v Kahwa[3] it was stated that:
“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.”
In Western Excavating v Sharp[4]it was stated that
“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.”
To this end, the moment an Employer significantly breaches any essential terms of an employment contract or shows a disregard of the terms of the employment contract, the first part of the constructive dismissal of an employee would have been satisfied.
Inquiry 2: Whether the employee terminated his employment with the Employer because of such conduct.
When an employee has observed that the Employer has made the employment relationship with the employee intolerable, the Employee has to terminate the employment relationship with the employer. The question which then arises is when exactly can the employee terminate the relationship and how? This is decisively dealt with in the Western Excavating v Sharp case[5] as follows:
“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.”
It then follows that when an employer makes the employment relationship with the employee intolerable the employee must do the following to successfully complete the constructive dismissal claim:
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- Immediately leave employment; or
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- Give notice that he is leaving employment at the end of the notice.
Failure to terminate the employment relationship will make the claim for constructive dismissal incomplete as the employee will be taken to have accepted the changed circumstances of the employment relationship.
In conclusion, constructive dismissal is a remedy which can be exercised by an employee if an employer makes conditions of employment untenable for the employee. The employee has the duty to prove that the employer made the continued employment relationship untenable and that the employee immediately left employment or gave notice to leave employment. The remedy of constructive dismissal will not be available to an employee who continues working with an employer despite the employer making the conditions of employment untenable for the employee.
The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone.
Victor G. Madzikatire (LLB (Hons) Midlands State University)
[1] Chapter 28:01
[2] SC 47/2015
[3] SC97/2004
[4] [1978]1 ALL ER 713 at 717
[5] supra