BURDEN OF PROOF WITH EMPLOYEE

IN OUR labour law, we have a concept where an individual employee might be placed in a position where he or she is forced to resign because conditions made by the employer has rendered the job untenable for the employee.

If the employee resigns because of these circumstances, the employee might claim that the incredibly bad working environment caused the resignation and, in turn, was specifically constructed by the employer to render future employment almost impossible.

The concept of making it “hot in the kitchen” for the employee is an old-age concept.

Often you find employers don’t want to go through a proper process. They don’t have a good reason to dismiss the employee, and therefore, they make the conditions intolerable.

The employee may then approach the Commission for Conciliation Mediation and Arbitration or a bargaining council, if the employer belongs to a bargaining council, claim he or she has been unfairly constructively dismissed. If the employee can prove the situation was indeed untenable, then the employee can ask for damages for the loss of the position.

Invariably the employee would not ask for reinstatement because this goes against the very concept of a constructive dismissal.

It is important for employees to understand that claims of this nature are incredibly difficult to prove and, unlike other claims for unfair dismissal, it is now for the employee to prove the situation rendered future employment almost impossible.

If the employee can show that the employer had made continued employment intolerable, then the employee has to show that losses have been incurred and that it has been incredibly difficult to find alternative employment.

In a recent judgment given by acting Judge Harvey in the Labour Court (Case No C189-2021), the judge was faced with an interesting scenario where the employee resigned when her employer imposed a salary cut during the Covid-19 pandemic lockout.

The employee claimed that she was, therefore, constructively dismissed as it would be unreasonable for her to have continued working with that radical salary cut.

At the CCMA, the commissioner said the employer had made continued employment intolerable for the employee and the commissioner awarded the employee compensation of six months’ salary.

The employer went on review to the Labour Court, claiming the award given in the CCMA was unreasonable and the salary cut was reasonable in the circumstances.

In this particular case, all the employees stood together as a team to support the continued business and to save jobs. The only employee who challenged this exercise was the employee who resigned.

The employee explained she had financial difficulties and specifically said she “cannot agree under any circumstances to a drop in salary”. The employer implemented the salary shortfall of 25%.

An argument ensued, and the employee submitted her resignation advising she would refer a constructive dismissal dispute to the CCMA.

In cases such as these, it is the employee who bears the onus to prove she was dismissed firstly and only then would the employer have to prove the dismissal was fair. In certain circumstances, a constructive dismissal itself might not be inherently unfair.

The employee had to show she terminated her employment, and the reason was that continued employment had become intolerable, and it was the employer who had caused continued employment to become intolerable. It was eventually found that the six months award in favour of the employee was fair, but the Labour court ordered no costs to either party.

Upshot of this case is that it is a long and difficult road to prove a constructive dismissal, but it can be done.