Constructive Dismissal at the CCMA, Onus Impossible?

2014-06-24 22:01

The first instance of constructive dismissal, within the South African judicial context, occurred in the matter of Small & others v Noella Creations (Pty) Ltd[1].

In terms of Section 186(1)(e) of the Labour Relations Act[2], the concept of constructive dismissal is defined to include an instance where “an employee terminated a contract of employment with or without notice because the employer made continued employment for the employee intolerable”[3].

The concept of constructive dismissal, within the South African judicial context, is relatively new and moulded primarily by a distinct grouping of cases wherein constructive dismissal was successfully proved and the parameters of constructive dismissal elegantly embodied.

One such case was that of Pretoria Society for the Care of the Retarded v Loots[4], where the Court articulated the test for constructive dismissal as follows;

“Whether the employer, without reasonable and proper cause, conducted itself in a manner which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. It is not necessary to show that the employer intended any repudiation of a contract.”[5]

The hallmark of constructive dismissal, which distinguishes it from other forms of dismissal, lies in the burden of proof. Unlike other forms of dismissal, where the burden of proof in establishing the fairness of dismissal[6] lies with the employer, the burden of proof in establishing the alleged constructive dismissal of an employee must be discharged by the employee.

The burden of proof lies with the employee to prove three requirements, on a balance of probabilities, for constructive dismissal to be established namely;

(i)            whether the employee brought the contract to an end;

(ii)           whether the reason for the employee’s action was that the employer had rendered the prospect of                   continued employment “intolerable”; and

(iii)         whether the employee had no reasonable alternative other than to terminate the contract.[7]

Whilst the requirements for the establishment of constructive dismissal are neatly embodied in case law, the practical implications in respect of discharging the burden of proof are often less favourable toward the employee.

In the event of parties being unable to resolve the dispute at conciliation proceedings in the CCMA, the matter will be referred to arbitration. It is in the arena of arbitration, where the average employee suffers a marked disadvantage.

Firstly, the employee is required to call upon witnesses, in order to assist in establishing a sound factual basis for a claim of constructive dismissal. This often proves difficult, when the only available witnesses to unfair labour practise in the working environment, are individuals who remain in the employ of the employer in question. In such instances, witnesses are likely to err in favour of an employer in comparison to a previous employee, in order to protect their own interests.

Secondly, the ordinary applicant in CCMA proceedings is often either unemployed or fortunate to have recently secured alternate employment after termination of the previous contract of employment. This places the employee at a disadvantage, as the means for funding costly litigation and the leave days to be present at arbitration proceedings are scarce, in comparison to employers who have sufficient resources at their disposal to attend such proceedings, or appoint legal representation, without their income or job security being greatly diminished.

Thirdly, employers in an advantageous position are likely to utilize delay tactics and request countless postponements in lieu of reaching an amicable settlement, in order to deter employees from pursing further litigation.

The burden of discharging the onus of proof in a constructive dismissal matter is no easy task. Whilst the merits of each matter must be objectively considered, it is arguable that the successful establishment of constructive dismissal in CCMA proceedings favours the highly skilled individual in a position of financial security, in comparison to the average South African employee.

[1] (1986) 7 ILJ 614 (IC).

[2] Act 66 of 1995.

[3] Supra.

[4](1997) 18 ILJ 981 (LAC).

[5] Ibid.

[6] Section 192(2) of Act 66 of 1995

[7]Solid Doors (Pty) Ltd v Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) at paragraph 28.

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