I QUIT! The Construct of a Constructive Dismissal
Employment is not merely a contract between an Employer and Employee, it is a relationship that can because of its complexity and dynamics be granted a sui-generis classification perhaps up there with marriage (but not exactly). In this relationship one may for a plethora reasons decide to make conditions intolerable for the other to the extent that the other opts out of the relationship and resigns. In the realm of labour law this is known as constructive dismissal. Section 12B (3)(a) of the Labour Act (Chapter 28-01) provides that An employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee. This entails that the employee resigned not necessarily on his/her own accord but because the Employer has made the conditions of employment so unbearable that the Employee “opted out”. Employers that seek to dismiss an Employee without following prescribed dismissal processes or that have no substantive reason to dismiss an employee for whatever reason they may have normally employ this method of dismissal. The Employer constructs an environment that is designed to frustrate and distress the employee to the point that the Employee resigns. This form of dismissal has common law roots but has been adopted in various countries’ legislation. I shall focus on the Zimbabwean position though it is safe to say the principles of constructive dismissal are largely similar and are applied in almost the same way in countries that have adopted this as a legally acceptable form of unfair dismissal.
For an Employer acting in bad faith there are advantages of having an Employee resign; it is cheap and the employee normally forfeits any benefits that are legally due to them if the employment contract is terminated lawfully. However dismissing an Employee without just cause and without following the prescribed process can be costly and in certain instances it can damage the image of the company. The aggrieved employee can take legal action against the employer if the employer is brazen about how he/she dismisses an employee without following proper procedure and without substantive reasons.
Though clearly defined and quite easy to understand from the text as proved in the Labour Act, constructive dismissal is notoriously difficult to prove for an Employee. This is primarily because there is usually no paper trail or evidence that shows the Employer was being hostile. Its not like the Employer is going to say; “hey I want you gone and I am making conditions intolerable for you so you can resign”. Furthermore at the time or instance the Employee resigns it is often an emotional decision that is done without thought or consideration of any legal ramifications.
To prove Constructive Dismissal there are 3 essential elements that need to be present;“whether the employee brought the contract to an end.
Whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable.Whether the employee had no reasonable alternative other than terminating the contract. The onus of proving these requirements rests on the employee.”
In proving all the elements of constructive dismissal the “first order of business” is to prove that the employee resigned. The resignation can be with or without notice. The resignation can be verbal or in writing as well.
The reason for the said resignation must be as a result of the employer making continued employment intolerable. As mentioned above, employers may have many reasons why they would want an employee to resign most of these reasons being sinister in nature. An employer may use force, coercion or use more subtle but equally “effective” means which can frustrate the employee to the point of resignation.
When a resignation is as a result of force, coercion, duress or undue influence it will amount to constructive dismissal. For example if an employee is forced to resign by being threatened with criminal charges if he/she doesn’t constitutes constructive dismissal. It is quite clear that in this particular instance the employer has made continued employment quite problematic to say the least. To the employee it seems the best option would be to resign as continued employment would mean the prospect of facing criminal charges more so when the charges are frivolous or unfounded. This would constitute constructive dismissal as the employer is given “a no win” situation where regardless of what the actual situation would naturally opt to avoid criminal prosecution not withstanding that after such a threat or situation is presented the employment relationship will become “toxic”. In Fonda v Mutare Club HH/40/91 an employee who had incurred shortfalls was forced to resign as an alternative to having the matter handed over to the police and be prosecuted. The court did not hesitate to conclude that the resignation was tainted with duress, thus constituting constructive dismissal.
There are scenarios whereby the employee may resign under what he/she may subjectively believe to be intolerable conditions caused by the employer. For example where the employee faces disciplinary action or any other process the employer can employer can take concerning the employee. In Mudakureva v Grain Marketing Board, an employee was brought before a disciplinary hearing and was found guilty of committing acts of misconduct but before the penalty of dismissal was imposed he was given an option to resign. He elected to resign and thereafter claimed that he was forced to resign. The court’s position was that an employee absent duress or undue influence could not resign and claim constructive dismissal.
As mentioned above, constructive dismissal can be notoriously difficult to prove. The Labour Act provides for various forums which an employee can approach in the case unfair labour practices by the employer or any other such abuses and at the onset an Employer is meant to have internal grievance procedures that allow an aggrieved employee to lodge a grievance which can be (if the stars are aligned) addressed objectively. These are the steps an employee must take before resigning. These steps of lodging grievances and prescribed legal forums ensures a paper trail that then proves that intolerable conditions where created by the employer and the employer did not or failed for correct his/her conduct. Furthermore an aggrieved employee has to exhaust all the above stated remedies before resigned and lodging a constructive dismissal case. A resent case in South Africa puts all this in proper perspective.
In Centre For Autism Research and Education CC vs CCMA and Others 2020 11 BLLR 1123 LC the labour court had to decide on the issue regarding lodging grievances before resigning in a constructive dismissal matter. The court regarding the same held that whereas lodging grievances was an essential element in a constructive dismissal case it was not necessarily futile if no such grievances were lodged especially in circumstance that didn’t allow for fair resolution of the grievance.
In conclusion constructive dismissal is quite easy to understand but quite a nightmare to prove. It is always essential to follow internal grievance processes in order to keep a paper trail of the intolerable conditions propagated by the Employer. Employers must follow proper procedures where they are no longer happy with an Employee or risk being responsible for unfair dismissal (constructive dismissal) where an employee resigns due to intolerable working conditions. Employees must also do their best to exhaust internal grievance procedure or at least make an attempt in that regard.