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Constructive criticism or constructive dismissal?

By Samiksha Singh, Director, Rebecca Cameron, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr

 

It is trite that in terms of the Labour Relations Act, No 66 of 1995 (LRA), ‘dismissal’ includes a scenario where “an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee.” In the circumstances, the termination by the employee will be regarded as a constructive dismissal in terms of s186(1)(e) of the LRA. The onus is on the employee to establish the existence of a dismissal when the employee claims that he/she has been constructively dismissed. 

 

In such circumstances, the employee will need to show that:

  • the employment circumstances were so intolerable that the employee could not continue employment;

  • the unbearable circumstances were the cause of the resignation by the employee; There was no reasonable alternative at the time but for the employee to resign to escape the circumstances;

  • the unbearable situation must have been caused by the employer; and

  • the employer must have been in control of the unbearable circumstances.

 

In the case of Snyman/Solveco (Pty) Ltd [2017] 4 BALR 467 (CCMA), an employee, who held the position of an actuarial scientist, resigned after two meetings that had occurred some months prior. The employee alleged that the employment relationship had become intolerable because of the manner in which she had been treated by the managing director (MD) during these two meetings. The employee testified that the MD had made comments such as, “I cannot believe you said that you want a career since you act like a …. packer…”, “I can surely scratch out some filing work, since you cannot f..k that up”, and “I do not have money to pay you to sit and roll ‘boogers’!”

 

During the disciplinary enquiry, the MD denied making the statements towards the employee. He later changed his stance at the arbitration and attempted to claim that it should not be interpreted as an intention to insult and offend the employee. Despite the MD’s denial, the employee’s evidence on what the MD had said was not challenged under cross-examination. In the absence of contesting the evidence of the employee, her version, that the MD made such statements, was accepted.

 

The Commissioner took issue with the fact that the employee did not lodge a grievance against the MD in order to bring the issues to the attention of the employer prior to her resignation. During the evidence of the MD, she conceded that the situation could have been worse for the employee had she lodged a grievance.

 

In this particular case, the failure to lodge a grievance was not detrimental to the employee’s allegation of a constructive dismissal.

 

The Commissioner found that the treatment of the employee at these two meetings had gone beyond criticising the employee’s work performance. In this instance, the Commissioner found that the dismissal was unfair as the employer’s behaviour went so far as to intimidate, belittle, humiliate and threaten the employee. The employee was awarded two months’ compensation.

 

Employers are therefore advised to exercise caution in the manner and form that they provide their employees with guidance, mentoring and evaluation of performance. Constructive guidance and instruction should be provided to employees to enable them to perform well. It should never be calculated to victimise or demean the employee as this could be construed as grounds for a claim of constructive dismissal. 

 

For more information please contact Samiksha Singh at 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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