A question that constantly occurs in the minds of many employees concerns the extent to which an employee would have to go in order to succeed on a claim of constructive dismissal.
Constructive dismissal is a concept that is statutorily defined in the Labour Relations Act 66 of 1995 ("the LRA"). Section 186(1) (e) states the following:
"Dismissal means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee".
The distinguishing characteristic of a constructive dismissal is that it is the employee who terminates the contract of employment, for instance by resigning, due to "intolerable" or harsh conduct on the part of the employer.
Section 186(1) (e) expressly stipulates that the employer must have made working conditions intolerable. A number of cases have come before both the labour court and the Labour Appeal Court and these courts have offered some clarity in respect of the circumstances that would amount to a constructive dismissal.
In the case of Mafomane v Rustenburg Platinum Mines Ltd  10 BLLR 999(LC), the labour court set out a test that an employee must satisfy in establishing constructive dismissal. The court stated that an employee who complains about a dismissal of a constructive kind bears the onus of proving the following elements:
lThe employee terminated the employment contract;
lContinued employment had become intolerable for the employee;
lThe circumstances that rendered the employee's continued employment intolerable were due to the conduct of the employer; and
lThe employee had no other alternative but to resign because of those circumstances.
In Mafomane, the court further stated that the test for intolerability is an objective test. This has two important implications. The first is that the circumstances in the workplace must have been such that even a reasonable person would have found them to be unbearable. The second implication is that there was no other reasonable alternative to escape the unbearable circumstances than to resign.
In this case, Mafomane resigned from his employment with Rustenburg Platinum Mines based on racial discrimination and claimed compensation alleging that he was constructively dismissed.
The court held that he was unable to establish that the alleged racial discrimination had made his continued employment at the mine intolerable. His application was dismissed.
Accordingly, employees should consider all the consequences before resigning and claiming constructive dismissal. An employee is faced with a number of risks when alleging constructive dismissal, especially given the strict approach adopted by the courts in respect of such a dismissal.
If an employee resigns and is unable to show that the employer made working conditions intolerable, the resignation is valid for all intents and purposes. In most instances, the labour court has dismissed applications by employees claiming constructive dismissal because they are unable to show objectively that the circumstances at work had become so unbearable that a reasonable employee could not be expected to bear it any longer.
Furthermore, resignation must be the final alternative available in order to constitute a constructive dismissal.
Thus if an employee's claim is based on unfounded perceptions or if there were other possible remedies which were available other than resignation, the employee would not succeed in proving that he or she was constructively dismissed.
Section 193(1) provides that if the labour court finds a dismissal is unfair, the court may order the employer to reinstate or pay compensation to the employee.
lThis article was prepared by Mpho Siaga of Werksmans Attorneys' labour department.