Understanding constructive dismissal from employment

ONE of the ways in which an employer may wrongfully dismiss an employee is constructive dismissal. Constructive dismissal is when an employer deliberately makes the continued existence of the employment contract intolerable.

The employer must commit a conduct which is a breach of the contract of employment in that it goes to the root of the contract of employment in such a way that such a breach amounts to repudiation and the employee leaves employment by reason of that conduct.

Constructive dismissal is when the employee leaves employment with or without notice on the ground that the employer, by its conduct, has made the employee’s continued employment untenable.

Constructive dismissal is provided for in Statutory Instrument 2B of the Labour Act (Chapter 28:01).

It reads: 12B Dismissal: “(1) Every employee has the right not to be unfairly dismissed.

(2) ….

(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.”

According to this section, an employee can terminate the employment contract due to constructive dismissal. He or she must at the time of termination show that he or she has left employment due to the conduct of the employer that has made employment intolerable. An employee can only premise a claim for constructive dismissal after the employment contract has been terminated. A definition of what constructive dismissal can be found in Workplace Law, by John Grogan 11 ed, p174, wherein he states: “The further form of statutory dismissal is the termination of the contract of employment by the employee with or without notice because the employer made continued employment intolerable for the employee.” (In other words, where employees resign or otherwise terminate their contracts because they are left with no option, but to do so by the employer’s conduct).

The first requirement of constructive dismissal is that an employment relationship must exist at the time the employee leaves the employer’s service. Where an employee refused to sign a new contract of employment and ‘resigned’ after the employer stopped his salary, the court held that the employee could not have been constructively dismissed because the employment relationship ended. The second requirement is that the employee must have brought the relationship to an end.

In Astra Holdings (Pvt) Ltd v Kahwa SC 97/04, Malaba JA (as he then was), stated: “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.

In Western Excavating v Sharp [1978]1 ALL ER 713 LORD DENNING MR at 717 d–f said: “If the employer is guilty of conduct which 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.

The employee is entitled in those circumstances to leave at the instant without giving any notice at all 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 of which he complains, 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.”

When leaving employment, the employee must make it clear that he or she is terminating the contract on the basis of constructive dismissal.

In the case of Astra Holdings cited above, the employee did not claim that because of the conduct of Astra Holdings, she had treated herself as having been discharged from employment and left.

By rejecting the offer by the employer to terminate the contract by mutual agreement, she affirmed the contract of employment.

In Mbatha v National Foods (Pvt) Ltd SC 149/20, the court stated that the employer must, with intent to cause termination of the contract, have intentionally done something which causes the employee to terminate the contract of employment.

The court must make a finding that the employee terminated his or her contract of employment due to the intolerable conditions at the workplace.

The employee must leave employment as soon as the event on which constructive dismissal is based has happened. Any further stay will have the employee regarded as having affirmed the contract. Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or maandat@yahoo.com