‘Constructive dismissal’ at the workplace
THERE is another form, called constructive dismissal, which many find confusing. What is constructive dismissal? How does it arise in terms of the Labour Act (Chapter 28:01)? What are the remedies in terms of the law?
Constructive dismissal arises by virtue of Section 12B (3), which says: “(3) An employee is deemed to have been unfairly dismissed — (a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”
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. (Astra Holdings (Private) Limited v Peggy Kahwa)
Where an employer commits a breach that goes to the root of the employment contract, the employee is entitled to treat himself or herself as discharged from further performance. He or she is constructively dismissed. However, he or she must act promptly.
In Rainbow Tourism Group v Richard Nkomo SC 47/2015, the employer submitted that the respondent did not immediately allege constructive dismissal and the consequent termination of the employer-employee relationship and that he was quite content, one-and-a-half months after the transfer letter, to seek particulars for purposes of defending himself in misconduct proceedings scheduled for January 15, 2013.
His conduct suggested he was an employee and not one who had been constructively dismissed. The court agreed with the employer’s submission that he did not leave instantly nor did he give notice and say he would be leaving at the end of the notice. He continued to report for work and perform duties as he was instructed in the letter of transfer.
He continued to receive his salary and benefits right up to the end of January 2013. As the appellant submitted, his was not the conduct of one constructively dismissed.
Promptness in action is, thus, key to meet the threshold for constructive dismissal.
If the employer is guilty of conduct that 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. In those circumstances, the employee is entitled to leave instantly, without giving any notice, 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 he complains about, 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. (Western Excavating v Sharp [1978] 1 ALL ER 713)
In assessing whether or not there was constructive dismissal, there is a two-pronged inquiry that has to be undertaken, whether the employer’s conduct was such that it deliberately made employment intolerable for the employee; and whether the employee terminated his or her employment with the employer because of such conduct.
What constitutes “intolerable” differs from the facts of each case. The onus is on the party claiming constructive dismissal to establish that the employer’s conduct was such that it made his or her employment intolerable. There are many people who usually rush to the labour officer, in terms of Section 93, or the National Employment Council, claiming “constructive dismissal” when they are still employed by their employers. There is no constructive dismissal when you are still employed. You have to terminate your contract of employment first, and this can be done with or without notice as per the provisions of the Labour Act. The cause of the termination has to be that the employer’s conduct was such that it made the worker’s employment intolerable. The point has been made earlier that you have the onus to prove that intolerability of continued employment.
Once the finding of unfair dismissal has been made, the remedies are available. In a future article, we shall explore these remedies and what each one of them entails.
The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
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the past, we have dealt with unfair dismissal in the context of termination without compliance with provisions of the applicable industrial code.