Constructive dismissal: what does this mean?
The question of how far an employer can push an employee to resign often arises in companies. If you offer the employee a chance to resign, does this mean that you are – in effect – forcing them to resign? The case below is a good illustration of this and explains the principles of constructive dismissal. In South African Commercial, Catering and Allied Workers' Union obo Sithole / Shoprite Checkers (Pty) Ltd - (2018) 27 CCMA 6.13.3 also reported at [2018] 4 BALR 433 (CCMA):
• An employee, a stockroom assistant, resigned after he had been given a choice of either doing so or facing a disciplinary inquiry on a charge of not reporting theft and consumption of company products by his colleagues.
• He claimed that he had been forced to resign and that he had been constructively dismissed.
• The employer led evidence that CCTV cameras had been installed in the storeroom after high levels of shrinkage had been found in the store. In this footage, the employee could be seen talking to his colleagues while some ate company products and another put some in his pocket. All these employees had also chosen to resign.
• It is in the law that the onus rests on the employee to prove that he had been dismissed. The arbitrator found the employee had falsely created the impression that the process leading to his dismissal was hurried. However, the evidence showed that the interviews prior to the resignations had taken three hours and the employee was given a further hour to decide whether to resign or face a disciplinary hearing.
• The respondent's evidence showed that the employee was not forced to resign. The evidence presented showed the employee had been given the choice – out of sympathy – to resign or face an inquiry.
• An employee who resigns to avoid a disciplinary inquiry is not constructively dismissed. The employee had simply exercised his right to resign when confronted with evidence which conclusively proved his misconduct. The arbitrator concluded that even if he was forced to resign, his dismissal would not have been unfair. The employee had, accordingly, failed to prove that he had been dismissed.
• The application was dismissed. ● Jonathan Goldberg is CEO of Global Business Solutions