CLAIMS OF CONSTRUCTIVE DISMISSALS BEFORE DISCIPLINARY PROCEEDINGS:
Section 186(1)(e) of the Labour Relations Act 66 of 1995 defines a constructive dismissal as the termination of employment by the employee (resignation) in the situation where the employee alleges that continued employment was made intolerable by the employer.
It was therefore made clearly in reported cases that the onus of proof on the employee is as follows:
- That there was a dismissal- referring to the resignation.
- That the continued employment was made intolerable.
- And that the employer made the continued employment intolerable.
In the decision of Mafomane v. Rustenburg Platinum Mines (Pty) Ltd [2003] 10 BLLR 999 (LC) the Labour Court discussed the requirements of intolerability as follows:
- The test to ascertain intolerability is an objective test and the circumstances in each case would therefore be material to the facts.
- That the circumstances of this intolerable employment relationship must be of so unbearable that one cannot expect an employee to continue with the employment relationship.
- That the dismissal must be the last resort after all other reasonable alternatives, if any, was explored.
- The intolerable circumstances must have been circumstances under the control of the employer either by act or omission. However, the employer's actions need not have been intolerable.
- There must exist a causal link between the intolerable working environment and the resignation.
It is clear from the above that constructive dismissals can be dealt with, or prevented, effectively if legal principals are followed and implemented correctly.
However the situation can become more complex if an employee resigns before disciplinary steps have been taken, or ought to be taken.
The employer doesn't always deal with this situation and the question arises as to whether the resignation should be accepted or should the disciplinary process proceed regardless of the resignation in the notice period.
Dealing with the resignation before disciplinary action as follows:
As a general principal, it seems correct that arbitrators should be wary of the merits of a claim of constructive dismissal in the situation where the employee resigned when faced with the possibility of disciplinary enquiry.
A claim of constructive dismissal based on the fact that a bona fide decision was taken by the employer to institute disciplinary action would not make continued employment intolerable, as a matter of fact its fact that the employer can institute disciplinary action against its employees and the employee then has the right to defend itself- what could be more fair?
It was held as follows in the following cases:
De Bod v Grey Marine Bay (Pty) Ltd [2004] 7 BALR 878 (CCMA):
The employee resigned after a private investigator's services was
required to investigate an allege incident where the employee in
casu received unauthorised payment from a client of the employer.
At the time of the investigation it also happens that the employer was in a retrenchment process and in consultations with the employee. The employee, who claimed the constructive dismissal, therefore based his claim on a ulterior motive from the employer to get rid of a "troubled employee".
The arbitrator ruled that the employee had not been constructively dismissed and that the employer had the right to conduct such investigations in a separate manner than the retrenchment procedures. It was therefore held that the employee was not coerced to resign.
Nkonya v Weiner [2003] 11 BALR 1294 (CCMA):
The arbitrator stated the following: "Whether the resignation
of an employee who is summoned to a disciplinary enquiry or who is
threatened with a disciplinary enquiry amounts to a constructive
dismissal will depend on the motive of the employer. An employee
who resigns, merely to prevent a disciplinary enquiry from taking
its course, cannot claim duress, or unfair or unlawful conduct by
the employer. The mere threat of holding a disciplinary enquiry is
not ground either, because the employee can always challenge the
fairness of this case at a later stage"
Kuipers v Durattract Plastics (Pty) Ltd [2004] 5 BALR 567 (MEIBC):
In the process of counseling an employee for poor work performance,
the approach is similar as to the cases discussed supra.
It also appears that arbitrators have no objection when an employer grants the employee the option to resigning or to face disciplinary action.
We have to urge the employer that a different result will occur where an employee was unfairly constructively dismissed when faced with the situation where the employee was dismissed after a disciplinary enquiry took place, after the employee resigned, in the notice period of termination of services.
In SALSTAFF on behalf of BEZUIDENHOUT v METRORAIL (2) (2001) 22 ILJ 2531 (BCA), it was held as follows:
The applicant employee worked for the respondent for 16 years, finally being promoted to the position of regional chief: asset promotion. On 31 December 2000 he tendered his resignation with a month's notice. On 22 January 2001 the respondent convened a disciplinary enquiry and dismissed him. In arbitration proceedings the employee claimed that he had been unfairly constructively dismissed as defined in s 186(e) if the LRA 1995.
The arbitrator held that the onus rested on the employee to prove that he had been dismissed. He first considered whether the employer's termination of the employee's services amounted to a dismissal as defined in s 186(a) of the LRA. A 'dismissal' is deemed to have occurred on the earlier of the date on which the contract of employment terminated, or the date on which the employee left the employer's service. The giving of notice did not terminate the contract and the employee was therefore still in the service of the employer when it informed him on 22 January 2001 that he was dismissed. A 'dismissal' as contemplated in s 186(a) had occurred. Further, the fact that the employee was dismissed before the expiry of his notice period did not preclude him from alleging that his earlier resignation amounted to constructive dismissal in terms of s 186(e).
The employee alleging constructive dismissal proved that the disciplinary charges brought against him were at worst, trumped up or, at best, that they related to trivial incidents for which, in terms of the employer's disciplinary code, he should have been given no more than a warning. The arbitrator found, on a balance of probabilities, that at the time of the applicant's resignation the employee had reason to suspect that this dismissal was a foregone conclusion.
That the employee had discharged the onus of proving that he had been unfairly constructively dismissed.
Conclusion: It is therefore conveyed to all employers that any form of constructive dismissal and resignation prior to disciplinary procedures must be treated and handled in a professional manner to avoid any regrets after the fact.
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