On occasion, employers are faced with circumstances in which an employee resigns to avoid disciplinary action. Many employees try to avoid their fate of dismissal by resigning with immediate effect. The question is often raised regarding the resignation of an employee – does the employee have the right to resign, and if so, can he still refer a dispute of unfair dismissal to the CCMA after such resignation?
The prerequisites to prove a case of constructive dismissal are well accepted and succinctly articulated in Solid Doors (Pty) Ltd v Commissioner Theron & others (2004) 25 ILJ 2337 (LAC), as follows:
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First, the employee must have terminated the contract of employment.
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Second, the reason for termination of the contract must be that continued employment has become intolerable for the employee.
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Third, the employer must have made continued employment intolerable.
If one of the above requirements is absent, a claim for constructive dismissal must fail.
In a recent labour court case Browns the Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2023) 44 ILJ 2528 (LC) the employee failed to prove that she was constructively dismissed. It is common cause the Airside store was temporarily closed due to the COVID-19 national shutdown that commenced in March 2020. The employee unsuccessfully applied for voluntary retrenchment as it was the employer’s policy not to retrench employees who were about to retire. Incensed by the response, the employee embarked on a bombardment of communication that was viewed by the employer as insolent, malicious, and hostile.
The employer charged the employee with insolent conduct. She refused to collect the charge sheet and instead submitted doctor’s notes that booked her off sick due to work-related stress. Thereafter she resigned claiming that she was subjected to intolerable conditions of employment. The labour court noted that, when it came to the employee’s health, she never afforded the employer an opportunity to respond to the allegations that it was the source of her stress. Instead, she decided to adopt an eccentric move of affronts and hostility. Moreover, the doctor’s notes submitted by the employee were not supported by any medical expert evidence and the admission thereof was not contextualised.
The court further referred to Gold One Limited v Madalani and Others [2020] ZALCJHB 180; (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198, where this Court sanctioned a well-established principle that: “…intolerability is a high threshold, 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. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point”. This principle was recently concretised by the Constitutional Court, albeit in a context of reinstatement, in Booi v Amathole District Municipality and others (2022) 43 ILJ 91 (CC).
By parity of reasoning the court found in Browns the Diamond Store case, intolerability should not be easily reached in a case of constructive dismissal. As such, it was incumbent upon the employee to provide a substantial explanation that is supported by cogent evidence to prove the intolerability that led to her resignation. She sadly failed to meet this threshold. It follows that the Commissioner’s finding that the third respondent was dismissed is untenable.
In summary, in constructive dismissal cases, the burden of proof rests with the employee. They must present sufficient evidence, on a balance of probabilities, to establish that constructive dismissal occurred. This evidence should support each element of constructive dismissal, including intolerable working conditions, the employer’s breach of contract, resignation, and the causal connection between the breach and resignation. Both employees and employers need to grasp the legal aspects and burden of proof involved in constructive dismissal cases.
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